R.B. Lal, J.@mdashThis appeal is directed aginst the judgment and order of the Additional Sessions Judge, Banda dated 31-3-77 convicting Naraina Appellant of an offence u/s 302/34 IPC and sentencing him to undergo imprisonment for life.
2. Lallu (deceased) son of Gangwa complainant was Karinda of Swami Rama Nand. He also used to look after the crops of Swami Rama Nand. 10 or 12 days before the occurrence the wife of Naraina Appellant cut fodder from the filed of Swami Rama Nand. Lallu happend to reach there and took a way that fodder from the woman. Naraina felt aggrieved by this conduct of Lallu.
3. Naiduniya is a hamlet of village Bhujauli which is within the jurisdiction of police station Tindwari, District Banda. On 29th October, 1975 in the evening, Lallu started back from the fields of Swami Rama Nand with bullocks and plough. At about sun set time, he came in front of the house of Naraina Appellant in the Abadi of Naiduniya. His father Gangwa was coming about ten lathis behind him. Bhaiyadeen was coming along with Gangwa. Ram Singh was standing near his house which was to the south of the house of Naraina. At that time, Naraina and one unknown person emerged from the house of Naraina carrying guns. Naraina asked Lallu to stop and said that he would not allow him to go alive. Saying so, Naraina fired a shot at Lallu causing injuries on his back. Lallu at once fell down. Gangwa raised an alarm. The incident of shooting was seen by Gangwa, Kara Singh, Bhaiyadeen and some others. After shooting, Naraina and his companion ran away towards Pipargaon.
4. Gangwa took his injured son Lallu in a bullock cart to police station Tindwari which was about four miles away and lodged an oral report of the occurrence at the police station at 8 p. m. From the police station Lallu was sent to Primary Health Centre, Tindwari for medical examination and treatment. Dr. B.P. Bhargava (PW-10) examined the injuries of Lallu, same night at 10 p. m.
5. S. I. Ram Dularay Pandey of police station Tindwari (PW-11) started investigation of the case. He interrogated Lallu and Gangwa in the hospital at Tindwari. He visited the scene of occurrence on 30-10-75 and interrogated Bhaiyadeen, Ram Singh and others. He prepared site-plan. He found blood at the scene of occurrence and took blood stained and simple earth in separate containers.
6. From Primary Health Centre, Tindwari, Lallu was sent to District Hospital, Banda for treatment. Banda is 24 kilometres from Tindwari. There he died on 4-11-75 at 5.30 a. m. The post-mortem examination of his dead body was performed by Dr. S.A. Zama (PW-9) at Banda on 4-11-75 at 4.30 p. m. It appears that a dying declaration of Lallu was recorded by Sri P.D. Srivastava, Executive Magistrate on 31-10-75 in the District Hospital, Banda. The blood stained earth and blood stained clothes of the deceased were sent to the Chemical Examiner and Serologist for analysis and report. After completing the investigation, the police submitted charge-sheet against Naraina on 26-12-75 till then Naraina could not be apprehended.
7. Naraina accused pleaded not guilty and alleged false implication on account of enmity. He examined two witnesses namely Hari Mohan Gupta, compounder and Sri P.D. Srivastava, Executive Magistrate in connection with the dying declaration. He also filed some documents.
8. The learned trial Judge accepted the prosecution case and evidence and convicted and sentenced Naraina Appellant as mentioned earlier. Hence this appeal.
9. We have heard the learned Counsel for the Appellant, the learned Assistant Government Advocate and have also carefully considered the material on the record.
10. First of all a reference may be made to the medical evidence.
11. The injury report of Lallu (deceased) is Ex. Ka. 12. 12 gun-shot-wounds of entry were found. 11 of these were on right side of back. One gun-shot wound of entry (injury No. 12) was on left side of back. Margins of all the injuries were inverted with abraded collars. All the injuries were kept under observation. X-ray of pelvis and lumbar region was advised. Injuries were caused by firearm and were about half a day old.
12. Dr. Bhargava stated that the injuries were bleeding. The injuries might have been caused at about sun-set time on 29-10-75. He added that the injuries might have been caused two hours after the close of day.
13. The post-mortem examination report of Lallu (deceased) is Ex. Ka. 7. Dr. Zama found that the deceased was about 30 years old and his body was thin built but muscular. He found those 12 antemortem-gunshot-wounds of entrance which were found by Dr. Bhargava. 11 of the gun-shot-wounds were in an area of 10 cm x 9 cm on the lower part of right side back and adjoining part of buttock. One gun-shot wound of entrance was on left side back 2 cm away from midline. There was fracture of right iliac bone at two places. Peritoneum and small intestine were injured at several places. In the opinion of Dr. Zama, death was due to shock and haemorrhage as a result of injuries and peritonitis.
14. Dr. Zama stated that the injuries sustained by Lallu were sufficient in the ordinary course of nature to cause death.
15. The reports of Chemical Examiner and Serologist are Exs. Ka. 20 and Ka. 21 respectively. These show that the blood stained earth and the clothes removed from the body of the injured Lallu were all stained with human blood of group ''A''.
16. The prosecution had examined three eye witnesses, namely Gangwa, complainant (PW-1), Ram Singh (PW-2) and Bhaiyadeen (PW-4) to prove its case against the Appellant. It could not produce the dying declaration recorded by Sri P.D. Srivastava, Executive Magistrate (DW-2) because the same was untraceable. M.R. Raza, Ahalmad in the court of Chief Judicial Magistrate, Banda was examined by the learned trial Judge as a court witness to ascertain the circumstances of the loss of the dying declaration. The defence produced Hari Mohan Gupta, compounder and Sri P.D. Srivastava, Executive Magistrate to prove that dying declaration of Lallu was in fact recorded on 31-10-75. Sri Srivastava added that the dying declaration was sent to the court of Chief Judicial Magistrate, Banda on 27-1-76.
17. Gangwa stated about the motive and the main occurrence. He added that after the occurrence he took his injured son to Police Station Tindwari in a bullock cart and lodged an oral report there. He admitted that the incident of snatching fodder from the wife of Naraina had not taken place in his presence. He admitted defence suggestion that there was no other previous enmity between him and Naraina except the incident of snatching the fodder. This witness was closely cross-examined at length but nothing desconcerting could be brought out. He denied that Ram Singh and Bhaiyadeen were his Khandanis but admitted that they were of the same caste. Some minor omissions were brought out by the defence but they are of no consequence. On account of those omissions it cannot be said that the witness was making improvements in the prosecution story at the time of trial. He was definite that daylight was still there when the occurrence had taken place. He denied that he was not present at the time of incident and some Badmashes had killed his son while it was dark. It is significant to note that the defence did not suggest to this witness that the motive set up was false. The reason given by this witness for returning from the jungle at the same time was quite cogent and convincing. He and his grand son had gone to the jungle to graze their cows. The deceased ploughed the fields of Swami Rama Nand till mid day and thereafter the bullocks were left for grazing. In the evening the deceased started back home with the bullocks and the plough while this witness (Gangwa) came a little behind with his cows. The Rasta to their house lay in front of the house of the Appellant. Gangwa had no reason to make a false report against Naraina Appellant. Learned Counsel for the Appellant has not been able to point out anything which may detract from the veracity of the value of the statement of this witness. Gangwa is no doubt an interested person but that can be no ground for viewing his statement with suspicion. As said earlier his statement does not suffer from any infirmity. We are clearly of the view that the statement of this witness is worthy of full reliance.
18. Ram Singh (PW-3) was standing outside his house at the relevant time. His house was near the house of Naraina accused. Bhaiyadeen (PW-4) was coming from the jungle and was with Gangwa. Both Ram Singh and Bhaiyadeen stated about the main occurrence and said that Naraina Appellant had fired a shot at Lallu deceased with his gun. The shot hit on the back of Lallu and he fell down. These witnesses also stated that Gangwa had lodged a protest with Naraina about the incident of cutting of fodder. They admitted that they were Ahirs like Gangwa but denied that they were his Khandanis. Bhaiyadeen admitted that Rasta for his house in village Bhujauli lay to the east of the houses of Ram Jiawan and Rameshwar but it appears that he took the rasta which lay to the west of the houses of these persons. He was not asked as to why he took the western route. It may be that he adopted this route because he was in the company of Gangwa. It is also likely that this rasta was not much longer than the eastern rasta. Both these witnesses were in jail in connection with the murder of Shiv Kumar brother of Naraina Appellant and had come from there to give their evidence. This murder had taken place some time after murder of Lallu. We think that it will not be proper to reject the statements of these witnesses only on the ground that at the time of their deposition, they were confined in jail in connection with the murder of Shiv Kumar. However, this circumstance calls for a close and careful scrutiny of their evidence. We have done so and have not found any reason to doubt or disbelive them. There are no important contradictions, omissions or discrepancies in their statements. They gave satisfactory explanations for presence near the scene of occurrence at the relevant time. These witnesses were examined by the Investigating Officer on morning of 30-10-75. No other enmity was suggested by the defence against these witnesses. There is nothing to indicate that these witnesses were partial to or interested in the complainant. In our view these witnesses are also worthy of reliance and were rightly believed by the trial Judge.
19. The first information report of the occurrence was lodged at the police station promptly. The defence suggestion that the first information report was lodged on 30-10-75 and was ante-timed was denied by Gangwa complainant, by the scribe of the check report, and by the Investigating Officer. There are no circumstances which may lead to the conclusion that the report was lodged with delay and was ante timed. The fact that the report was lodged at 8 p. m. on 29-10-75 goes to indicate that the occurrence had taken place a little before the day closed when still there was light.
20. The investigating officer had found blood in the rasta at point A to the north east of the house of Naraina Appellant. The earth was found stained with human blood of group ''A''. The blood stained clothes of the injured were also found to be stained with human blood of group ''A''. This material goes to prove in a very convincing manner that the blood stained earth collected by the Investigating Officer was stained with blood of the deceased.
21. The medical evidence goes to support the prosecution case that only one shot was fired from the back side by Naraina. There were in all 12 gunshot wounds of entry on the back. 11 of these wounds were in an area of 10 cm X 9 cm. Only one pellet had deflected to the left of the midline. The defence did not elicit from the doctor that the injuries were result of more than one shots. The shot was fired from some distance.
22. The above circumstances also go to support the prosecution story and the evidence of the eye witnesses.
23. The Investigating Officer had interrogated Lallu injured in Tindwari hospital on the night of 29-10-75. That statement can legally be treated as dying declaration of Lallu and has been proved as Ex. Ka. 13. It would suffice to say that this statement is consistent with the prosecution story as set out in the first information report and supported by the eye witnesses. It was put to Gangwa as to why the report was not lodged at the police station by the injured himself. Gangwa replied that Lallu was in a very restless condition-and asked him to lodge the report. The explanation is quite convincing.
24. The learned Counsel for the Appellant has laid great emphasis on non-production of the dying declaration recorded by Sri P.D. Srivastava, Executive Magistrate on 31-10-1975. He has urged that in the absence of the dying declaration it will not be safe to rely on the direct evidence of the commission of the crime. Non-production of the dying declaration has caused great prejudice to the Appellant.
25. We have given anxious consideration to the above submissions of the learned Counsel, but we do not find any merit in them.
26. It is not in dispute that Sri P.D. Srivastava, Executive Magistrate DW-2 recorded the dying declaration of Lallu deceased in the Sadar Hospital, Banda on 31-10-1975. That dying declaration was put in a sealed cover and was sent to the Cheif Judicial Magistrate, Banda on 27-1-1976. M. Raza, Ahalmad in the court of the Chief Judicial Magistrate, Banda CW-1 received the sealed cover containing the dying declaration on 27-1-1976. He was the official who was receiving dying declarations relating to all the police stations and keeping them with him in a pad till they were required by the concerned court. He placed the sealed cover containing this dying declaration in that pad. The demand for the dying declaration was received from the court of the Additional Sessions Judge, Banda on 10-3-1977 and then he (M. Raza) searched the dying declaration in his pad, but the sealed cover was not found there. He made a search at other places also but the sealed cover containing the dying declaration was not traceable. The statement of M. Raza CW-1 proves the loss of the dying declaration. It also proves that the loss was just by chance, and not deliberate with some ulterior motive or design. This official denied that the dying declaration was deliberately lost for some special reason. On a perusal of the statement of this official, we are satisfied that the loss of the dying declaration was accidental and not deliberate with any oblique motive.
27. Where the original dying declaration is lost and is not available, the prosecution can adduce secondary evidence of the dying declaration--See After
28. The question for consideration is as to what is the legal effect of loss of the dying declaration and whether this loss will cast any suspicion on the direct evidence of the commission of crime led by the prosecution.
29. A dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant u/s 32(1) of the Evidence Act in a case in which the cause of that person''s death comes into question. A dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. Once the court has come to the conclusion that the dying declaration is a truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. Such a dying declaration can be made the sole basis of conviction--See Khushal Rao v. The State of Bombay 1958 AWR 38.
30. Generally it is the prosecution which relies on a dying declaration in support of its case and the endeavour of the defence is to assail its value as a piece of evidence, by showing that it suffers from infirmities and is not reliable by itself without corroboration by reliable evidence. It is only in a case of difference between the dying declaration and the other evidence led by the prosecution that the defence may make use of the dying declaration to assail the prosecution case or to limit the number of assailants and the role assigned to them. For example, if a dying declaration names a lesser number of assailants or participants in the offence, the defence may use it to exclude those accused who are not named in it. In a case where there is a difference between the dying declaration and the prosecution case regarding the number of the participants or the manner and circumstances of the transaction which resulted in death, it becomes essential for the court to examine the entire material with extra care and caution and then arrive at a conclusion with regard to the number of assailants and the role that may be assigned to them.
31. There can be no presumption about the contents of a dying declaration. The same have to be proved either by production of the original dying declaration or by giving its secondary evidence. Merely because a dying declaration is lost and is untraceable, a presumption cannot be raised that its contents were to a particular effect or were contrary to the prosecution case. If it appears that the prosecution has deliberately withheld the production of dying declaration and the excuse for its loss is not correct, then alone an adverse inference may be drawn against the prosecution. However this will not justify rejection of other evidence of commission of the crime. This will only require that the other evidence should be subjected to a careful and close scrutiny before acceptance. Whether or not the non-production of dying declaration was deliberate or with an ulterior motive, is a question of fact which has to be decided on a consideration of the facts and circumstances of each case In the instant case, there is nothing to suggest that non-production of the dying declaration was deliberate or with any oblique purpose. As said earlier, it appears that the loss of the dying declaration was just a matter of chance. We are, therefore, clearly of the view that no adverse inference is to be drawn against the prosecution in the instant case on account of non-production of the dying declaration. The direct evidence cannot be suspected on account of non-availability of the dying declaration. No prejudice to the accused is to be presumed on account of the non-availability of the dying declaration. The learned Counsel has not pointed out how the accused was prejudiced on account of non-production of the dying declaration. Merely saying that the dying declaration might have contained something different and that would have been of help to the defence would not prove prejudice because such an argument is nothing but a surmise without any basis Here it will not be out of place to mention that the Appellant did not try to make use of the dying declaration at the stage of bail. It appears that the accused remained in jail during the trial.
32. Before parting with this point, we would like to observe that appropriate steps should be taken and necessary directions issued for safe custody of dying declarations and other valuable documents relating to courts of session, in offices of Chief Judicial Magistrates. Provision of separate locker or a locker in a steel almirah may be made for safe custody of such documents.
33. In this case there is very reliable direct evidence to prove that Naraina Appellant had fired the fatal shot at Lallu deceased which resulted in his death. The Appellant was, therefore, guilty of the offence of murder.
34. The learned Additional Sessions Judge convicted Naraina Appellant of an offence u/s 302/34 IPC. A charge u/s 302/34 IPC was framed against him though it was clearly said that he had himself done the shooting. The charge should have been u/s 302 simpliciter and the conviction too should have been recorded u/s 302 IPC. No prejudice has been caused to the Appellant in his defence because the prosecution case throughout was that it was Naraina (Appellant) who had fired the fatal shot at the deceased. In the circumstances, alteration of the conviction to an offence u/s 302 IPC would only be a matter of form and nothing more.
35. In the result, this appeal has no merit and fails.
36. The appael is dismissed. The conviction of Naraina Appellant is altered from an offence u/s 302/34 IPC to one u/s 302 IPC simpliciter and for this offence the sentence of imprisonment for life awarded to the Appellants upheld and maintained. The Appellant is on bail. He shall be taken into custody forthwith to serve out the sentence according to law. His bail bonds are cancelled.
