@JUDGMENTTAG-ORDER
Ranjana Pandya, J.@mdash1. The accused appellants have challenged the order dated 03.06.1997, passed by IInd Additional Sessions Judge, Bareilly, in Sessions Trial No. 302 of 1995 (State v. Prem Pal and another), arising out of Case Crime No. 229 of 1990, under Section 304 I.P.C. and Section 3(2)(vii) SC/ST Act, Police Station Kotwali, District Bareilly, whereby the appellants were acquitted for the charges under Section 3(2)(vii) SC/ST Act. Both the appellants were found guilty under Section 304 I.P.C. and sentenced for 10 years rigorous imprisonment along with a fine of Rs. 1000/- each with default stipulation.
2. The prosecution story in brief is that a first information report was lodged by Chhangey Lal stating that he and his son the deceased Harpal were sent to District Jail, Bareilly on 03.02.1990. They were not assaulted by the police personnel of Police Station, Faridpur but they were challaned from the Police Station Faridpur. When they were admitted to jail on 03.02.1990, the accused appellants Prem Pal and Narottam who were Constables in the jail demanded bribe, but due to fear the informant stated that when their family members would come to meet them, they would give the bribe. When the family members came to meet the appellants, even then the palms of the accused were not greased due to which both the appellants became enmical with the informant and his son Harpal and made both the father and the son do "bad work", used abusive language and caste relating words at which the son of the informant namely Harpal started abusing the appellants. On 09.02.1990, the son of the informant namely Harpal and the appellants had altercations due to which the appellants Prem Pal and Narottam assaulted Harpal in barrack No. 8 in which the informant and his son was detained in the presence of the other under trials. The appellant further said that Harpal was a lunatic and he could only be cured by beating. Harpal sustained injuries. Next day, the barrack of both the father and son were changed. The father was sent in barrack No. 7 and Harpal was sent in barrack No. 6 and appellants continued the demand of bribe. On 11.02.1990, groats was distributed in breakfast, but due to injuries, Harpal came late to take his breakfast due to which the jail Constables Prem Pal and Narottam assaulted Harpal with danda which was witnessed by other under trials and the informant. On that date the informant was compelled to work in a "Girdha". When the informant was working in the "Girdha", Harpal was brought there and assaulted by both the appellants and iron fetters were put on his feet. Both the appellants and the under trial Chuttiman pulled Harpal and detained him in isolation in jail. On 04:00 P.M., in the evening after finishing his work when the informant went to see his son who was kept in isolation, his son told him that all the three had assaulted him and he also showed his injuries to the informant. Who requested the jail doctor to treat his son and also requested that he be admitted in the jail hospital. The jail doctor admitted the informant in the hospital and gave medicines to Harpal in the isolation ward. The informant remained in the hospital and served his son. The appellants and Chuttiman assaulted Harpal now and again. When his condition deteriorated, on 18.02.1990, he was referred to District Hospital where he died on 24.02.1990, due to injuries received by assault in District Jail caused by Narottam, Prem Pal and Chuttiman. After the death of his son, the informed obtained parole. When he came out from jail, he lodged the first information report on 08.03.1990.
3. Investigation was entrusted to the Investigating Officer R.G. Gaur, PW-19. He recorded the statement of the informant Chhangey Lal on 19.10.1992. on 18.11.1992, he inspected the place of incident in the District Jail at the pointing out of the informant. He prepared the site plan which was proved as Exhibit Ka-29. He recorded the statement of the jail doctor and submitted charge sheet against the accused which was proved as Exhibit Ka-30. He sought for permission to prosecute the accused Narottam which was proved as Exhibit Ka-31. The permission for prosecution as regards the accused Prem Pal is concerned was proved Exhibit Ka-32. This witness proved the letters as Exhibits Ka-33 and Ka-34.
4. The post-mortem of the dead body of Harpal was conducted by Dr. N.K. Jhingaran, PW-9. On 25.09.1990, he proved the post-mortem report as Exhibit Ka-16. The doctor opined the cause of death to be shock and Septicemia due to gangrene. The doctor found the following ante-mortem injuries on the body of the deceased:--
"i. Contusion 6 cm. X 1 cm. on the route of right side of chest, 6 cm. below the nipple.
ii. Contusion 5 cm. X 4.5 cm. on the left elbow joint.
iii. Contusion 4.5 cm. X 4.5 cm. on back of right forearm on right hand elbow joint the gangrene hand skin peeled off.
iv. Contusion 5.5 cm. X 4 cm. on the back of left elbow.
v. Contusion 5.5 cm. X 4 cm. on the back of left elbow. Gangrene on left hand was peeled off.
vi. Contusion 2 cm. X 1 cm. on in front of right knee joint.
vii. Abraded contusion 2 cm. X 1 cm. on middle of right leg.
viii. Contusion 6 cm. X 5 cm. on inner side of right (sick). These were gangrene.
ix. Contusion 6 cm. X 5 cm. on the left knee inner side. Swelling and gangrene was also present on toes.
x. Contusion 6 cm. X 2 cm. on the upper side of left buttock."
5. The prosecution has examined as many as 22 witnesses. PW-1 is Chhangey Lal, the informant who has proved the written report as Exhibit Ka-1. PW-2 is Banwari Lal, who is said to be in jail at the time of incident. PW-3 is Dr. Kirpal Singh who examined the injuries on the body of Harpal on 21.02.1990 and found the following injuries:--
"i. Contusion 5 cm. X 4 cm. on left elbow joint. Bluish green in colour kept under observation. Advised X-ray.
ii. Contusion 5 cm. X 4 cm. on dorsum of right hand bluish green in colour kept under observation. Advised X-ray.
iii. Contusion 4 cm. X 4 cm. on right elbow joint kept under observation. Advised X-ray.
iv. Contusion 4 cm. X 3 cm. on left hand kept under observation. Advised X-ray.
v. Contusion 5 cm. X 2 cm. right and middle of chest kept under observation. Advised X-ray.
vi. Contusion 5 cm. X 4 cm. on left ankle joint kept under observation. Advised X-ray.
Vii. Contusion 4 cm. X 3 cm. on right ankle joint kept under observation. Advised X-ray."
This witness has proved the medical report as Exhibit Ka-2. This witness has further proved the bed head ticket as Exhibit Ka-3 and the medical certificates issued before and after recording of the dying declaration as Exhibits Ka-4 and Ka-5. He has also proved the dying declaration as Exhibit Ka-6. PW-4 is Dr. K.K. Mishra, who examined Harpal in the emergency ward and further proved the bed head ticket as Exhibit Ka-7. PW-5 is Dr. D.S. Gangwar who also examined the injured Harpal and proved his endorsement on the bed head ticket as Exhibit Ka-11. PW-6 is Dr. V.P. Agrawal who proved his endorsement on the bed head ticket as Exhibit Ka-12. Dr. A.K. Srivastava is PW-7 who proved his endorsement on the bed head ticket as Exhibit Ka-13. PW-8 is Dr. P.C. Vyas, who proved the injuries on the person of the injured. He found two contusions on the hands of the injured and proved the medical report as Exhibit Ka-14. The evidence of PW-9 has already been discussed. PW-10 is Ramji Singh, Deputy Jailer. PW-11 is Dr. S.P. Singh who proved the medical report as Exhibit Ka-17. PW-12 is Dr. Indrajit Pundani, who proved the medical report as Exhibit Ka-18. PW-13 is S.N. Lal, Superintendent, District Jail, Bareilly. PW-14 is Ravindra Kumar Sharma who had arrested the informant and his son. PW-15 is Ramesh Chandra Shukla, retired Superintendent, District Jail. PW-16 is Mubarak Ali Khan, Advocate. PW-17 is Nagendra Singh, Head Warden, District Jail. PW-18 is S.I. Bhola Nath who proved the inquest report as Exhibit Ka-22, copy of seal as Exhibit Ka-24, Photo of dead body as Exhibit Ka-25, letter of the C.M.O. as Exhibit Ka-26, Letter of R.I. as Exhibit Ka-27 and the death memo as Exhibit Ka-28. The evidence of PW-19 R.G. Gaur has already been discussed. PW-20 is Deepak Vohera who has identified the signatures of Hari Singh, D.I.G. Jails as Exhibit Ka-38. PW-21 is Hari Shankar Singh who has proved the prosecution sanction as Exhibit Ka-33. PW-22 is Constable Om Prakash who has proved the papers relating to the inquest report as Exhibit Ka-22.
6. After closure of the prosecution evidence, the statement of the accused were recorded under Section 313 Cr.P.C. who denied the incident and stated that they had been falsely implicated in this case.
7. The statement of CW-1 Fateh Singh was recorded. He also recorded the dying declaration of the deceased.
8. The defence examined DW-1 Atul Srivastava, Assistant District Jailer, Bareilly who brought the jail report back, order book and history ticket of the under trial Harpal, copies of which were proved as Exhibit Kha-1, Kha-2, Kha-3 and Kha-4.
9. After hearing counsel for both the parties, the learned lower court has passed the sentence and conviction as specified in para one of this judgment.
10. Feeling aggrieved, the accused persons have come into this appeal.
11. I have heard Dr. Akhilesh Kumar Sharma, learned counsel for the appellants, learned A.G.A. and perused the original record of the trial court.
12. Counsel for the appellants has submitted that the basis on which the prosecution has come forward is incorrect. As per the evidence of informant himself, inasmuch as, in the first information report Exhibit Ka-1, the informant has mentioned that both the father and the son were not beaten by Faridpur Police Personnel, although, both were challaned by the police of Police Station Faridpur.
13. Per contra learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence on record. He has further contended that there was nothing to show that the appellants have been falsely implicated, hence the appeal is liable to be dismissed.
14. The medical report of the deceased which was conducted on 04.02.1990, is Exhibit Ka-14. According to which the deceased was examined at the District Jail on 04.02.1990 at 08:40 A.M., he has contusion with abrasion on the right and left hands and the fingers on the whole of the hands. He was also having contusion on the right and left feet along with fingers. As regards, the evidence of PW-1 informant Chhangey Lal on this point is concerned, he has not stated anywhere that his son was assaulted on or prior to 04.02.1990, hence it appears that the injuries on the hands and feet of the deceased were already present when he was admitted in the District Jail. The father of the deceased PW-1 the informant namely Chhangey Lal could not explain how these injuries occurred when the injured was admitted in jail on 03.02.1990 or on 04.02.1990. PW-8 Dr. P.C. Vyas had conducted the medical examination on 04.02.1990 at 08:40 A.M. at District Jail and had proved the injuries on both the hands and the feet including fingers.
15. As per the prosecution case, the informant and his son were admitted to the jail on 03.02.1990 but prior to 09.02.1990, there are no allegations of beating the informant or his son because as per first information report, for the first time on 09.02.1990, the deceased was assaulted by the appellants. PW-1 Chhangey Lal has stated that As far as the medical reports are concerned, there is no report pertaining to 09.02.1990. The medical report available on record after 04.02.1990 is dated 18.02.1990. The medical report Exhibit Ka-14 belies this statement of the injured PW-1 Chhangey Lal. Exhibit Ka-3 is the bed head ticket of the hospital in which the deceased was admitted. He is said to have stayed in the hospital till the death of the deceased. As per the report of the Medical Superintendent, District Hospital Bareilly Exhibit Ka-19, the under trial Harpal expired on 24.02.1990 due to Cardiorespiratory arrest.
16. Chhangey Lal PW-1, father of the deceased has stated that on 12.02.1990, he requested the jail doctor who saw injuries on the body of the deceased. In cross-examination, he has admitted that his son was in jail since 3rd to 18th. Further he has admitted that since 11.02.1990 his son was sent to the isolation ward. PW-10 R. Singh has stated that the deceased was never assaulted in the jail. Dr. P.C. Vyas who examined the injured on 18.02.1990, found seven contusions on various parts of the body. He has further stated that these injuries could be self-inflected by the under trial. When the deceased was admitted in jail, he was not a lunatic but when this under trial namely Harpal was brought before him on 18.02.1990, his mental condition was not well and he was serious, hence he was referred to the District Hospital. The injuries mentioned therein were examined on 18.02.1990 which were one and a half hour prior to 11:20 A.M. This again is not corroborated by the evidence of PW-1. This witness has admitted that the injured was kept in isolation because his mental state was not stable since many days in the jail, hence, he has to be kept in jail and even in the medical report Exhibit Ka-18, the injuries were found to be self-inflected. Reverting to the Statement of PW-1 Chhangey Lal, he has stated that Thus, this witness has admitted that the deceased underwent fits all through. He has further stated in cross-examination that he did not know the accused by name. He could not state as to what was typed in the first information report, who typed it. The persons who dictated the first information report, they also dictated the names of the accused persons. He does not know what was written in the Exhibit Ka-1 because it was not read over to him. Thus, the evidence adduced by PW-1 Chhangey Lal is half hearted and not corroborated by the first information report and other evidence.
17. PW-2 Banwari Lal has denied of anything having been stated to him by the deceased. This witness was declared hostile but there is nothing significant in his cross-examination. The death of the deceased has not been disputed. Dr. N.K. Jhingaran, PW-9 has also stated that there was gangrene on both the hands and feet. The fingers were dried and with wrinkles black. The skin of the gangrene hand was pealed off. There was gangrene on the legs too. Lungs were congested. When the lungs were dissected fluid and pus oozed out and the cause of death was shock and septicemia, as a result of gangrene. In cross-examination the doctor has stated that all the injuries except injury No. 1 was on the non vital part of the body and there was possibility of gangrene due to old injuries which were infected due to septic.
18. PW-10 has admitted that it was brought to his notice that Harpal was behaving abnormally in the jail as has been referred above. No doubt the death of the under trial took place while he was under custody in the jail but the father of the victim could not say as to he was actually assaulted by the appellants. PW-7 Dr. A.K. Srivastava has stated that inspite of this fact that life saving drugs were administered to the patient, he died on 24.02.1990 at 10:00 A.M. In cross-examination, he has admitted that blood was needed for the injured which could not be made available due to which he died. Now, if the deceased died due to lack of transfusion of blood or medical negligence, the appellants cannot be punished for that. CW-1 is Fateh Singh, Deputy Collector, Bareilly who recorded the dying declaration of the deceased, a fitness certificate of the doctor is present prior to and after recording of the dying declaration which has been proved as Exhibit Ka-6. This dying declaration is part of the bed head ticket and the certificate granted by the doctor has been proved as Exhibits Ka-4 and Ka-5. The dying declaration reads as follows:
19. The aforesaid dying declaration was recorded on 21.02.1990 at 06:15 P.M. by the Deputy Collector, Bareilly. No doubt conviction can be based on the dying declaration which means a statement written or verbal of relevant facts made by a person, who is dead. It is the statement of a person who had died explaining the circumstances of his death. This is based on the maxim ''nemo mariturus presumuntur mentri'' i.e. a man will not meet his maker with lie on his mouth.
20. Relying on the dying declaration, nowhere, either of the appellants has been named by the deceased, hence, even on the basis of dying declaration, the accused appellants could not have been convicted as has been done by the trial court.
21. PW-14 Ravindra Kumar Sharma has stated that he arrested the deceased and the informant on 02.02.1990 from the house of informant with illegal country made pistols and implements for manufacture of illegal arms and minor injuries were caused to them during arrest. The evidence of PW-16 Mubarak Ali, Advocate also gives weightage to the defence version, inasmuch as this witness has stated that when he meet the informant in the jail, the informant told him about the death of his son but the informant did not name the assailant or say anything about the demand of illegal gratification.
22. In the statement under Section 313 Cr.P.C., the accused have denied the occurrence. The statement of the accused finds support from the prosecution case too. Thus, the prosecution has miserably failed to prove its case against the appellants and the appeal is liable to be allowed.
23. Accordingly the appeal is allowed.
24. The order of conviction and sentence dated 03.06.1997, passed by IInd Additional Sessions Judge, Bareilly, in Sessions Trial No. 302 of 1995 (State v. Prem Pal and another), arising out of Case Crime No. 229 of 1990, under Section 304 I.P.C. and Section 3(2)(vii) SC/ST Act, Police Station Kotwali, District Bareilly is hereby set aside.
25. The appellants namely Prem Pal and Narottam are on bail. their bail bonds are cancelled and the sureties are discharged. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C..
26. Let copy of this judgment be sent to trial court.
