B.K. Jha, J.@mdashThis appeal has been filed against the Judgment and Order passed by the then learned Additional Sessions Judge-I, Munger on 9th/16th of March, 1999 in Sessions Case No. 359 of 1996. He convicted the appellant, Ashok Singh, u/s 302 of the Indian Penal Code and the appellants, Bijay Singh and Sunil Singh under Sections 302 / 34 of the Indian Penal Code and sentenced each of them to life imprisonment. No separate sentence was awarded to the appellant, Ashok Singh, for his further conviction under Sections 302 / 34 of the Indian Penal Code. The incident which led to the prosecution of the appellants took place in the evening of 3.10.1995 in Village-Tarhari, P.S. Halsi, District-Lakhisarai, where Bachhu Singh, was killed by the accused-appellants. The case of the prosecution is that the informant, Bachhu Singh, after taking meal was going to school to pay obeisance to goddess Durga. When he reached near Plot No. 727, all of a sudden all the three accused-appellants appeared near him and asked him about the fighting cases against them. In the meantime, the accused, Bijay Singh and Sunil Singh, caught hold of him and the accused, Ashok Singh, pierced Chhura in his abdomen and he fell down injured on the ground and blood started oozing out from the injured portion of his abdomen. The witnesses, Ram Uday Singh, P.W. 4 and Narayan Singh, witnessed the occurrence. It further appears that on the hulla raised by the informant, his family members, Janardan Singh, Bhagwan Singh, Pramod Kumar and many others arrived there and removed him to State Dispensary, Sikandara and from there to Nawada for treatment.
2. On the same day, i.e., 3.10.1995 at about 21.50 hours, Sri B.M. Prasad Gupta, S.I. of Sikandara Police Station recorded the fardbeyan (Ext. No. 1) of the informant, Bachhu Singh. He forwarded his fardbeyan to the Officer Incharge of Halsi Police Station for institution of the case. On the basis of which Halsi P.S. Case No. 101/95 dated 4.10.1995 was registered against all the three appellants under Sections 341, 324 and 307 / 34 of the Indian Penal Code. Later on consequent upon the death of Bachhu Singh Section 302 of the Indian Penal Code was added in this case vide order dated 9.10.1995. Police switched over to the investigation of this case and on submission of the chargesheet, the accused-appellant, Ashok Singh, was tried for the charge u/s 302 of the Indian Penal Code and all the three appellants, were tried for the charge under Sections 302 / 34 of the Indian Penal Code. On conclusion of the trial all of them sufferred conviction and sentence in the manner above.
3. The defence of the appellants is a plea of innocence and false implication because of land dispute existing in between the parties from before the date of occurrence. Their further defence is that the deceased, Bachhu Singh, himself was a litigant and his killing by unknown persons was not seen by anybody but P.W. 4, Ram Uday Singh, falsely projected himself as an eye witness to the occurrence. Their further defence is that P.W. 4, Ram Uday Singh, is himself a veteran criminal and has given the evidence in so many cases for the informant. At the same time a truck looted case and many others are pending against this witness which he has admitted in his evidence. On behalf of the defence two witnesses were also examined.
4. In support of its case, the prosecution examined altogether 12 witnesses. Out of them P.W. 1, Janardan Prasad Singh, P.W. 2, Bhagwan Prasad Singh, P.W. 3, Pramod Kumar. P.W. 4, Ram Uday Singh and P.W. 5, Uday Narayan Singh, are the material witnesses in this case. P.W. 6 is Dr. Rajendra Kumar and P.W. 7 is Dr. Narendra Prasad who examined the deceased-informant, Bachhu Singh. P.W. 8 is Braj Mohan Prasad Gupta. His evidence is that on 3.10.1995 he was posted as A.S.I. at Sikandara Police Station. On the same day he obtained O.D. slip from Sikandara Hospital in connection with Bachhu Singh. He went to Sikandara Hospital and recorded the fardbeyan of the injured, Bachhu Singh which was also signed by him (Ext. No. 1). He also examined his injury and issued injury report. Thereafter he forwarded the fardbeyan of the informant to Halsi Police Station for registration of a case because the place of occurrence was within the jurisdiction of the said police station. In cross examination he has stated that on the identification of the injured, Bachhu Singh by the Doctor he took down his statement. He has denied the suggestion that the deceased-informant was not in a position to make any statement. P.W. 10 is Ram Kant Sharma. His evidence is that on 4.10.1995, he obtained the fardbeyan of Hilsa P.S. Case No. 101/1995, on the basis of which he drew up the formal F.I.R. He proved the formal F.I.R, which is in his pen and signature (Ext. No. 5). He took up the investigation of this case on 6.10.1995 and because of the death of the injured-informant, Bachhu Singh, he got the Section 302 of the Indian Penal Code added in this case. He has further stated that on 12.10.1995 he obtained the fardbeyan of Janardan Prasad Singh from the Pirbahore Police Station, inquest report and post mortem report of Bachhu Singh. On the same day he handed over the charge of the Investigation of this case to the Officer Incharge, Md. Sahjhat Khan. The evidence of P.W. 11, Md. Sahjhat Khan, is that on 12.10.1995 while he was posted as Officer Incharge of Halsi Police Station he took up the charge of the investigation of the Halsi P.S. Case No. 101/95. On 15.12.1995 he visited the P.O., recorded the statements of the witnesses and submitted the chargesheet. P.W. 9, Arvind Kumar Sharma is the Investigating Officer of this Case. P.W. 12 is Dr. Arun Kumar Singh, who conducted autopsy on the dead body of the deceased, Bachhu Singh.
5. Out of 5 material witnesses examined by the prosecution, P.W. 1, Janardan Prasad Singh, P.W. 2, Bhagwan Prasad Singh, PW. 3, Pramod Kumar and PW. 5, Uday Narayan Singh, are the sons of the deceased-informant, Bachhu Singh and are not the eye witnesses to the occurrence. P.W. 4, Ram Uday Singh, is co-villager of the deceased and he is the sole independent witness in this case.
The evidence of P.W. 4, Ram Uday Singh, is that the occurrence had taken place at about 7/8 P.M. on 3.10.1995. At that time he was going to pay homage to the idol of Durga. The informant was also with him. When he reached in the lane near the house of Arun Singh, all of a sudden the accused, Ashok Singh, Bijay Singh and Sunil Singh came out from a temple armed with chhura. The accused, Bijay Singh and Sunil Singh caught hold of Bachhu Singh and the accused, Ashok Singh pierced Chhura in his abdomen and they made good escape in the west. Bachhu Singh fell down on the ground and raised hulla. He has further stated that he rushed at the dalan of one Charitra Singh where Udai Narayan Singh, P.W. 5 was sitting. He narrated him about the incidence whereupon he came at the place of occurrence and wrapped the injured portion with his towel. In the meantime Janardan Prasad Singh, P.W. 1, Pramod Kumar, P.W. 3 and Bhagwan Prasad Singh, P.W. 2, also arrived there. He has further stated that the injured Bachhu Singh was removed to Sikandara Hospital where Darogaji came and recorded the statement of Bachhu Singh and was signed by him. The Doctor advised to remove the injured-informant, Bachhu Singh to Nawadah and from there to Patna for treatment. In cross examination he has deposed that at the alleged time he was 5/6 steps behind the accused persons. There had been no exchange of hot words in between Bachhu Singh and the accused persons. The witness, Narayan Singh, was also behind them. He has further stated at para 14 of his cross examination that Bachhu Singh was conscious and was narrating about the incidence to all his family members arrived there. On the court''s question as to what he was stating his reply was that Bachhu Singh was telling that Bijay Singh hit him with churra and Sunil Singh and Bijay Singh caught hold of his hands. At para-18 he has stated that in Sikandara Hospital Bachhu Singh remained for an hour and at that time he was fully conscious and was narrating about the incidence to all. His family members were also present in Sikandara Hospital but Darogaji had recorded the statement of only Bachhu Singh. Thereafter, Doctor referred Bachhu Singh to Patna for treatment. He has further stated that two days after the occurrence his statement was recorded by the police. He has admitted at para-21 that he had given evidence for the informant in the proceeding u/s 107 Cr. P.C. He denied the suggestion that the injured Bachhu Singh was never conscious and fit to make any statement.
P.W. 1, Janardan Prasad Singh, has stated that on hulla when he reached in the. lane bearing Plot No. 727 adjacent to the house of Arun Singh, he found his father lying on the ground with abdominal injury and blood was oozing out. His father disclosed that the accused, Sunil Singh and Bijay Singh, caught hold of his hands and the accused, Ashok Singh, pierced Chhura in his abdomen. At that time Ram Uday Singh, P.W. 4, Narayan Singh, Bhagwan Prasad Singh, P.W. 2 and Pramod Kumar, P.W. 3, were present there. He has further stated that the accused-appellants committed this offence because of land dispute. In cross examination at para 25 his evidence is that his father was conscious in the village and remained so till the arrival in the Sikandara Hospital. When his statement was being recorded by the police, besides him, Bhagwan Singh, Pramod Singh, his mother and others were present there. The Doctor and Compounder were also present. He has denied the suggestion that his father was never conscious and was not in a position to make statement at anytime. He has further stated that his father was taken from Nawadah to Patna and was admitted in P.M.C.H. for treatment. His condition became serious and so from there he was admitted in the Alok Nursing Home on 4.10.1995 where he died in the morning of 6.10.1995. He has further stated that his father was not suffering from any sort of ailment from before the occurrence.
It appears from the evidence of P.W. 2, Bhagwan Prasad Singh, P.W. 3, Pramod Kumar and P.W. 5, Uday Narayan Singh that on hulla they also arrived at the place of occurrence and learnt from their father, Bachhu Singh, about the occurrence. They have fully corroborated the evidence of P.W. 1, Janardan Prasad Singh and the alleged eye witness, Ram Uday Singh, P.W. 4.
6. P.W. 9, Arbind Kumar Sharma is the Investigating Officer in this case. His evidence is that on 5.10.1995 he was posted as A.S.I, at Gunsagar Police Camp under Halsi Police Station. On the same day at about 6.30 A.M. Chowkidar 1/5 Borhan Mahto, handed over the fardbeyan along with the formal F.I.R, to him. At about 8.15 A.M. he proceeded for the P.O. Village Tarhari. He visited the P.O. According to him the P.O. was the lane running east-west adjacent to the house of Arun Singh and there was a temple in the north of the lane. He has further stated that on the following day he again visited the P.O. and learnt about the death of Bachhu Singh. He handed over the charge of the investigation of this case to the Officer Incharge. In cross examination he has stated that he had not recorded the statement of Arun Singh. The alleged lane was dry and he had not found any blood.
It is clear from the evidence of the Investigating Officer, P.W. 9, Arvind Kumar Singh, that there was a lane running from east west adjacent to the house of Arun Singh where the occurrence was alleged to have been taken place. This finding of the I.O. finds corroboration from the ocular evidence of P.W. 4, Ram Uday Singh that when Bachhu Singh, the deceased-informant, arrived in the lane, he was murdered by the accused-appellants. His evidence reflects the actual manner in which the occurrence took place. The evidence of P.W. 1, Janardan Prasad Singh, P.W. 2, Bhagwan Pd. Singh, P.W. 3, Pramod Kumar Singh and P.W. 5, Uday Narayan Singh, also indicates that after their arrival on hulla they found their father, Bachhu Singh, lying injured in the aforesaid lane.
7. Now, I turn to the medical evidence available on the record. The evidence of P.W. 6, Dr. Rajendra Kumar is that on 3.10.1995 he was posted at Primary Health Centre, Sikandara. On the same day at 9.30 P.M. he examined Bachhu Singh and found the following injuries on his person:
(i) A penetrating wound on epigastric region size 2"x 1/2" x abdominal cavity. On wound semidigested rice was found.
According to him the injury was caused by sharp cutting weapon such as dagger within 24 hours. He proved the injury report which is in his pen and signature (Ext. No. 3). In cross examination his evidence is that at the time of examination his condition was serious, so after primary treatment he was referred to P.M.C.H. or any other suitable place for further treatment.
8. P.W. 7 is Dr. Narendra Prasad. He has stated that on 4.10.1995 while he was Doctor in Alok Nursing Home he had examined Bachhu Singh and found the following injuries on his person:-
(1) Incised wound 5 Cm. in length on the left side of upper abdomen about 5 Cm. below the costal margin. Peritoneal cavity was full of blood and food matter including rice grain. There was a rent in the anterior surface of stomach which was 3X2 Cm. and through which the food particles were coming out. There was a bleeding vessel in the muscle of abdominal wall through which blood was passing inside the peritoneal cavity. The injury was caused by sharp cutting penetrating weapon. It was grievous and was life threatening. He further contended that the report was written by Dr. Samrendra Prasad Singh under his guidance. He proved the report (Ext. No. 4). In cross examination he has admitted that the patient was earlier treated at some other place and the paper of his earlier treatment or interference was not given to him at the time when he attended him. His further evidence is that had the patient been given better treatment 10 to 12 hours before then the result would have been different.
9. P.W. 12 is Dr. Arun Kumar Singh. His evidence is that on 6.10.1995 he was posted as Tutor in P.M.C.H. on the same day at 12.55 P.M. he held post-mortem examination on the dead body of Bachhu Singh and found the following ante-mortem injuries on his person:-
(i) One stitched wound of 8" length running laterally 1/2" right from the umbilicus 4 1/2" below the left nipple.
(ii) One stitched wound 1/2" long and cavity deep 3" right to umbilicus and 5 1/2" above the right anterior superior iliac spine.
(iii) One stitched wound of 1/2" into cavity deep 6" right to the umbilicus and 5" above anterior superior iliac spine.
(iv) One stitched wound of 1/2" length cavity deep 4 1/2" below and right to umbilicus 2 1/2" above right anterior superior iliac spine.
2. On dissection stomach was found stitched on it''s greater curvature 2 1/2" in length and contained about 250-300 ml. chocolate colour fluid. Lung was found congested. Heart was enlarged and both chambers were filled with the blood and blood clots. Guts contained gas. Liver, spleen and kidney were found congested. Urinal bladder was found empty.
3. Rigor mortis was present all over.
In his opinion the time elapsed between the death and post mortem examination held was 6 to 24 hours. He did not give his opinion regarding the cause of the death and suggested to obtain the same from the Surgeon concerned. He has proved the post-mortem report (Ext. No. 6). In cross examination he has admitted that because of surgical interference he could not give the cause of the death and in such cases infection may be caused death.
10. Admittedly, P.W. 12, Dr. Arun Kumar Singh, who conducted autopsy on the dead body of the deceased-informant, Bachhu Singh, failed to give definite opinion regarding the cause of the death but the evidence of P.W. 6, Dr. Rajendra Kumar, who first treated his injury found penetrating wound in his abdomen caused by sharp cutting weapon. His evidence also finds corroboration from the evidence of Dr. Narendra Prasad, P.W. 7. He found stitched wound on the left side of the abdomen of the deceased-informant. He also found injury in his abdomen grievous and life threatening. Thus, the medical evidence is in consonance with the case of the prosecution that Bachhu Singh, received Churra injury in his abdomen at the relevant hour of occurrence in the manner alleged by the prosecution.
11. On the other hand, the defence has also examined two witnesses in this case. D.W. 1, Parashuram Singh, has proved the written report which is in the pen and signature of Bhagwan Singh, P.W. 2 (Ext. A). This petition was made by Bhagwan Singh, P.W. 2 to the Officer Incharge of Sikandara Police Station at 9 P.M. on 3.10.1995 in which he named 5/6 accused persons involved in the commission of murder of Bachhu Singh. The court below rightly rejected to consider it because the defence failed to produce any cogent evidence as to how this petition in original came in the hands of the accused persons. D.W. 2 Mahendra Ram, proved the petition dated 22.7.1998 (Ext. B) filed in Sessions Case No. 354/96 in which Bhagwan Singh, figured as one of the accused. In addition the defence also produced the Vakalatnama (Ext. C) executed by Bachhu Singh in Case No. 218N/95 before the S.D.J.M., Lakhisarai. The defence brought this Vakalatnama to show that the alleged fardbeyan of the deceased-informant, Bachhu Singh, is fabricated one because the signature of the deceased-informant, Bachhu Singh on it does not tally with his signature on Vakalatnama (Ext. C). The court below examined both the signatures and found both of the same person. Further, the defence never attempted to get the alleged signature of Bachhu Singh examined by hand writing experts. Admittedly, there is also material to show that there was a proceeding under Sections 145 and 107 Cr. PC. in between the prosecution party and the accused side but that does not cut much ice for the defence because the enmity has already been admitted by the prosecution side.
12. The learned counsel for the appellants urged that P.W. 4, Ram Uday Singh, the sole alleged eye witness of the occurrence is not at all reliable. He was merely a chance witness and his presence at the P.O. is doubtful. His evidence is full of contradictions on all material points, so the court below wrongly relied upon his evidence for the sake of the conviction of the appellants. He again contended that the learned trial court committed an error of law by treating the fardbeyan as dying declaration because it does not bear certificate of a Doctor or attestation of any of the witnesses, present there.
13. On the other hand, learned A.P.P. submitted that the learned trial court properly considered the evidence on record and rightly passed the order of conviction against the appellants. He further contended that the statement of the deceased-informant, Bachhu Singh, was recorded as fardbeyan and not as dying declaration, so the absence of certificate of any Doctor or attestation of the any witness will not affect the core of the prosecution case in any manner. In this context he referred the case of State of Punjab....Appellant vs. Amarjeet...Respondent, Reported in AIR 1988 SC 2013 wherein it has been held that" the practice of Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged and it would be better to have dying declaration recorded by the Magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of each case.
14. The admitted position in this case is that the statement of the deceased-informant, Bachhu Singh, was recorded as a fardbeyan and not as a dying declaration in which he clearly stated that the accused, Bijay Singh and Sunil Singh, caught hold of him and Ashok Singh pierced churra in his abdomen. P.W. 4, Ram Uday Singh, witnessed the entire occurrence and corroborated the statement of the deceased-informant which was later on treated as dying declaration. It has also been established from the prosecution evidence of P.W. 1, Janardan Prasad Singh, P.W. 2, Bhagwan Prasad Singh, P.W. 3, Pramod Kumar Singh and P.W. 5, Uday Narayan Singh that Bachhu Singh was conscious till he gave statement before the police. The medical evidence of P.W. 6, Dr. Rajendra Kumar and P.W. 7 Dr. Narendra Prasad, sufficiently indicates that the deceased-informant had sustained penetrating injury in his abdomen caused by sharp cutting weapon which was dangerous and threatening to his life.
In the circumstances, I find no infirmity in dying declaration of the deceased-informant, Bachhu Singh, so the reliance can safely be placed upon it. This also finds corroboration from the direct evidence of P.W. 4, Ram Uday Singh.
In this context I would like to refer the case of Laxman vs. State of Maharashtra, Reported in 2004 (Volume-I) B.B.C.J. Page IV-129 wherein it has been held that" dying declaration cannot be ignored merely because the Doctor had not made the endorsement that the deceased was in a fit state of mind to make statement."
15. Lastly, it was contended on behalf of the appellants that there was no intention on the part of the appellants to commit the murder of the deceased, Bachhu Singh because there was no repetition of churra blow, so the present case falls within the exception of Section 300 of the Indian Penal Code, and the appellants can at best be convicted for the offence u/s 304 (II) of the Indian Penal Code.
On active consideration of the entire facts of the case, I find no force in the submission raised on behalf of the appellants. The intention can be gathered from the facts and circumstances of each case specially the nature of the weapon used, the manner in which it was used and the injury inflicted. The factual position in the present case shows that out of the three appellants, two appellants caught hold of the deceased-informant, Bachhu Singh and the appellant, Ashok Singh, deliberately used churra for causing fatal injury on his abdomen. Thus, I am of the opinion that the present case is not covered by any of the exceptions enumerated u/s 300 of the Indian Penal Code to make the appellants entitled for the alteration of conviction u/s 304 Part II of the I.P.C. Thus, on consideration of above facts and circumstances and evidence, I find that the prosecution has fully proved its case against the appellants beyond all reasonable doubts. I find no wrong in the order of conviction recorded by the court below against the appellants.
16. In the result, there is no merit in this appeal and it is dismissed. The order of conviction and sentence passed by the court below against the appellants are hereby affirmed. The appellant, Ashok Singh, is in custody. The appellants, Sunil Singh and Bijay Singh, are on bail, so their bail bonds are cancelled with a direction to surrender in the court below within one month failing which the lower court will take steps for their arrest to serve out the sentences imposed upon them.
Sri Arun Kumar Tripathi, Advocate, appointed as Amicus Curiae, deserves appreciation for his valuable assistance to the court in the hearing of this appeal. He will get the fee from the Patna High Court Council of Legal Aid and Advice.
Aftab Alam, J.
I agree.
