CRIMINAL APPEAL No.222 OF 1988 ******* Against the judgment of Shri Bhukhal Prasad, 4th Additional Sessions Judge, east Champaran Motihari in Sessions Trial no.71 of 1982 / 11 of 1987. ******* 1. KHURSID ALAM, SON OF ABDUL GHAFOOR, RESIDENT OF MOHALLA BALBANWA, P.S. MOTIHARI TOWN, DISTRICT-EAST CHAMPARAN 2. JAUAD HUSSAIN SON OF MD.HADISH, RESIDENT OF VILLAGE-BELAHI RAM, P.S. PATAHI, DISTRICT-EAST CHAMPARAN. ------Appellants Versus THE STATE OF BIHAR -----Respondent ******* For the Appellants : Serva Sri. N.A. Shamsi & Rashid Rais For the State : Sushri Shashi Bala Verma, APP ******* P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra, JJ. The two appellants, Khursid Alam and Jauad Hussain, were tried along with acquitted accused Jamil Ahmad by the learned 4th Additional Sessions Judge, Motihari, in Sessions Trial no. 71 of 1982 / 11 of 1987. 2 Whereas two appellants were charged for committing the offence under Section 302 of the Indian Penal Code, the acquitted accused, Jamil Ahmad, was charged under Section 302 read with section 109 of the Penal Code. The two appellants were held guilty by the learned Trial Judge by judgment dated 23rd March, 1988 of committing offence under Section 302 of the Penal Code and each of the two appellants was directed to suffer rigorous imprisonment for life. That judgment and order of sentence is being assailed by the two appellants before us. 2. One of the two deceased, namely, Sharful Khan, is the informant of the case. He stated before P.W.7, S.I. Devendra Prasad, in his Fardbayan that a Panchayati had been convened at the residence of Dr. Sunil Kumar (P.W.4) for resolving the dispute which had arisen on account of taking away the wrist watch of informant, Sharful Khan, by one Ramesh Chandra Asthana. 3 The two deceased Sharful Khan and Imamul Hoda alias Bijali had gone to the house of Dr. Sunil Kumar (P.W.4) so as to participate in the Panchayati in which the said Dr. Sunil Kumar and some other acquitted accused Jamil Ahmad and others like Badu Khan, Bhairo Singh, not accused, participated. Appellant Khurshid Alam and appellant Jauad Hussain were also present. It was decided by the Panches that the informant, Sharful Khan, would get Rs.400/- in lieu of the Seiko wrist Watch which was valued at Rs.700/- and that decision was accepted by the informant Sharful Khan. 3. The informant stated that when the Panchayati had dispersed, he along with the other deceased, Imamul Hoda Khan alias Bijali came out of the house of Dr. Sunil. When they were near the house of Radhika Raman the two appellants dealt Chhura blows to the two deceased persons, as a result of which Imamul Hoda alias Bijali died at the 4 spot. Sharful Khan was shifted to Motihari hospital and he gave his fardbayan (Exhibit- 2) at Sadar hospital,Motihari. 4. As may appear from the evidence of P.W.7, S.I. Devendra Prasad, P.W.8 C.I.D Inspector Madan Mohan Prasad Verma, and lastly P.W.12, Circle Inspector Jagdish Choudhary, the first information report (Exhibit-3) was drawn up on the basis of Exhibit-2. P.W.7, S.I. Devendra Prasad, did not do any investigation work except that he prepared the inquest reports on the two dead bodies which have been marked Exhibits-5 and 5/1. He handed over the charge of investigation to P.W.8 who was then Sub- Inspector of Police and the Officer-in- charge of Motihari Police Station and he recorded the statements of different witnesses, inspected the place of occurrence also and investigated the story of holding of Panchayati for resolution of the dispute arising out of taking away of the Seiko 5 wrist watch. P.W.8 handed over the charge of investigation to P.W.12, Circle Inspector Jagdish Choudhary, who submitted the charge sheet sending up the three accused for trial. 5. The defence of the appellants was that no occurrence in the manner as alleged had taken place and, in fact, the two deceased persons were stabbed at some other place and for reasons unknown to the appellants they had falsely been implicated. 6. In support of the charges the prosecution examined a total number of twelve witnesses. Out of whom P.W.1, Ramautar Prasad Gupta, P.W.2, Anil Kumar Shrivastava, P.W.4, Dr. Sunil Kumar, at whose residence the Panchayati had been convened, P.W.9, Shams Tabrez, P.W.10 Md. Hasnain, and P.W.11 Motaullah Khan, were declared hostile on account of having not supported any part of the prosecution story. P.W.3, Jamuna Prasad Singh, was tendered for 6 corss-examination. P.W.6, Imteyaz Ahmad, was a witness of formal character but proved the writings and signatures on fardbayan and first information report and, accordingly, the two documents were marked Exhibits-2 and 3 respectively. Dr. Kapildeo Singh, P.W.5, held the post mortem examination on the dead body of Imamul Hoda Khan alias Bijali and Sharful Khan and prepared the reports which have been marked Exhibits 1 and 1/1. 7. The defense examined a solitary witness Dr. Krishna Narayan Jha, who was posted as a Civil Assistant Surgeon on the relevant date in Sadar Hospital, Motihari and who had admitted the informant, Sharful Khan, in his Ward as an indoor patient and had performed surgery for repairing the injuries which were inflicted upon him with Chhura. The defence, while examining D.W.1, brought on record two documents, O.D. slip (Exhibit-C) and the bed head ticket (Exhibit-D) showing the treatment chart of 7 deceased Sharful Khan. The purpose of examining the D.W and bringing on record the O.D. slip (Exhibit-C) and Bed Head ticket (Exhibit-D) appears to show improbabilities about the genuineness of Exhibit-2, the fardbayan, which was used by the learned trial Judge as a dying declaration for recording the order of conviction. 8. We have heard Sri N.A. Shamsi, learned counsel appearing on behalf of the appellants, in the present appeal. Sri N.A. Shamsi has mainly contended that in absence of any eye-witness coming on to depose on any part of the prosecution story, the charge could not be said to be established even by the remotest probabilities. However, the learned Judge passing the judgment, based his findings purely on Exhibit-2, the fardbayan of the deceased, treating it to be dying declaration and, on that basis, convicted the two appellants under Section 302 of the Penal Code. Sri 8 Shamsi was making scathing attack on the trustworthiness of the documents and while so attacking it was contended by him that the very document, Exhibit-D, the Bed Head ticket, which records the treatment given to the deceased, would indicate that the deceased had never been in a state of health as to making such a lengthy and descriptive narration as to how he and his companion, Imamul Hoda alias Bijali, were brutally stabbed by the two appellants. We were taken through the evidence of P.W.7, S.I. Devendra Prasad, and it was contended that the very evidence of S.I. Devendra Prasad may indicate that the document was spurious which was brought into existence without adhering to the normal practice of recording such statement or even taking due care and caution in such a case as to avoiding controversy about the genuineness of the document. We were referred also to a decision of the Supreme Court in the case of 9 SK. Rafiq V. State of Maharashtra, (2008) 2 S.C.C. 720, in which it has been held in paragraphs 4 and 5 of the report that inspite of knowing fully well that a Magistrate could be available for recording the dying declaration, no effort was made by P.W.7 inspite of a requisition through the O.D. slip (Exhibit-C), to get a Magistrate deputed for recording the dying declaration. It was, further, contended that whether the patient was in a position to give statement or not, that endorsement from the treating doctor was also not obtained by P.W.7 before he proceeded to record Exhibit-2. Sri Shamsi was criticizing P.W.7 by submitting that the evidence in cross-examination may make it doubtful that he had visited the Hospital because he has stated that he did not mention as to in which Ward the deceased, Sharful Khan, was admitted and what was the Bed number. Besides, our attention was drawn to his evidence in 10 examination-in-chief indicating that when P.W.7 reached the hospital he found Sharful Khan was dead, but he again said in the next line that the said Sharful Khan was alive as such he recorded the statement. Next decision, which was cited before us, is the case of Ongole Ravi Kanth V. State of Andhra Pradesh, (2009) 13 S.C.C. 647. It was pointed out that before acting upon the evidence of dying declaration for passing an order of conviction due care and caution must be exercised by the Courts in considering as to what weight was to be given to the dying declaration inasmuch as there could be any mumber of circumstances which may affect the truth. It was further held that the Courts must always be on care to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination and further that it was the duty of the Courts to find that the deceased was in a fit state of mind to make the dying declaration and in order to satisfy itself, the Courts have to look for the medical opinion. It was contended by Sri Shamsi that in the present case there is no evidence on record 11 that the deceased Sharful Khan, who had serious injuires, as described by P.W.5, Dr. Kapildeo Singh, was in a fit state of health so as to give such a lengthy statement. Last judgment, upon which Sri Shamsi was placing reliance, is in the case of Panchdeo Singh V. State of Bihar, 2002 (1) PLJR 110 SC in which it was held that dying declaration could be the basis of an order of conviction and sentence provided there is corroboration to the same bringing forth a sense of confidence and trustworthiness in the mind of the Court and also that the confidence of the Court is a summum bonum and corroboration is needed in case of any infirmity in the declaration. 9. Sushri Shashibala Verma, appearing for the State, initially attempted to impress upon us that the case of two deaths and the circumstances in respect of deaths coming from the dying declaration were so telling that it is a fit case in which the conviction recorded against the appellants be upheld. It was further contended by Sushri Shashibala Verma that the dying declaration could possibly be made by the deceased as the injuries were not that serious as could be making it impossible for Sharful Khan not to make such a 12 statement. It was finally contended by Shushri Verma that it might be true that no eye witness have come forward to support the charges but the findings of the learned trial Judge are meticulously made and that require no interference. Being confronted with the delayed despatch of the fardbayan and copy of first information report to the Magistrate and there being no record as to when the same were placed before the Magistrate and as to when the two were received by him, Sushri Verma fairly conceded that that aspect of the case gave some impression of fabrication. 10. As we have pointed out there is no witness giving evidence on any part of the prosecution story. Panchayati was convened at the residence of P.W.4, Dr. Sunil Kumar, which many persons had participated. P.W.4 has turned hostile and as such it remains uncorroborated that indeed there was a Panchayati for settling the dispdute in respect of taking away of a Seiko watch by one Ramesh Chandra Asthana. The said Ramesh Chandra Asthana could have been the witness to depose on this fact, but he was even not cited as a witness of the prosecution in the charge sheet. Some other witness like Mataullah Khan (P.W.11), Md. 13 Hasnain (P.W.10), and others who were named in the first information report who had seen the real part of the occurrence of the two deceased being stabbed by the two appellants were either not examined or were declare hostile as appears from the evidence of P.Ws. 9, 10 and 11. Thus, there is a complete lack of evidence as regards of the proof of the whole prosecution story and its corroboration by evidence. 11. The learned trial Judge accepted Exhibit-2 as dying declaration as may appear from the discussions made by him in paragraphs 11 and 12 of his judgment and accepting the same as a qualitative evidence recorded the conviction of the two appellants. We have been referred to three decisions by the learned counsel appearing on behalf of the appellants. On a careful consideration of the decisions and taking a bird`s eye view of the law on acceptance of dyeing declaration as sufficient evidence to base conviction of an accused, one could say that there are certain features which have to be searched out of the evidence of dying declaration so as to satisfied about them, then only the evidence of dying declaration could be enough to base conviction upon it. The first circumstance is that the deceased must have the opportunity of seeing the 14 assailants and identifying them correctly. In other words, what we want to point out is that there should be sufficient means of identification when the occurrence took place so that there could not be any confusion in the mind of the victim as to who were or was his real assailant. The second circumstance which is necessary to be established by direct evidence or by circumstantial evidence is that he may be in a fit state of mental health so as to re-produce the whole scene before the authority who had recorded his statement. It may not be essential that the dying declaration should be a narration, full of details, but it must convey the necessary facts constituting the offence so as to leaving no room for doubt that there can be any suspicision about the participation of a particular accused. The dying man must not have been tutored so as to making a false statement. This could be necessary for the Courts to be satisfied about that when the dying declaration was made there was no family member or friend present near or around the dying person so that there could be a chance of tutoring or maneuvering a particular statement. For seeking the proof of the circumstances, necessary evidence could be led by the prosecution and if the 15 Court is satisfied about the trustworthiness of that evidence the Court would then act upon a dying declaration to base conviction of the accused. 12. Coming to the facts of the present case, the solitary witness P.W.7, S.I Devendra Prasad, has given evidence as to how the dying declaration was recorded by him. He has admitted in his evidence that he had received the O.D. slip on 12.4.1981 when he was posted in town P.S., Motihari, and, accordingly, he reached Sadar Hospital, Motihari, at about 10.30 P.M.. He recorded the fardbayan of injured Sharful Khan and after having recorded it, read the contents thereof over to Sharful Khan who, after having found it correctly recorded, put his left thumb impression. In cross- examination, P.W.7 has stated in paragraph 8 of his evidence, that the O.D. slip requested for deputation of a Magistrate for getting the statement of the deceased recorded by him. We have before us the original copy of the O.D slip (Exhibit-C). We have the opportunity of perusing it and this document is admitted by P.W.7 being received by him. P.W.7 has stated that after having received the document, he put his signature in token of its receipt and that signature of P.W.7 has been 16 marked as Exhibit-A, as may appear from paragraph 8 of his evidence. On going through Exhibit-C what we find is that D.W.1 , the treating doctor of injured Sharful Khan, had specifically intimated to the Police that the above noted Sharful Khan had come to the Hospital in seriously injured condition and as such the Police was requested to arrange to record his dying declaration by a first class Magistrate. D.W.1 had, at the same time, intimated to the Police that the dead body of Imamul Hoda alias Bijali had also reached the hospital and, as such, the Police should do the needful. What we find from the evidence of P.W.7 is that when he reached there at the Hospital, he straightway went to the injured Sharful Khan and recorded his statement. Whether he had really recorded his statement, pales into some grave doubt when he was stating to the Court in paragraph 3 that he saw the dead body of Imamul Hoda alias Bijali, but did not held the inquest upon that dead body simply for the reasons that the light was completely unavailable. If indeed the light was completely unavailable then how could it be possible for the P.W.7 to record the dying declaration of injured Sharful Khan in the form of Exhibit-2. 17 13. The other circumstance which we have read in the statement of P.W.7 in paragraph 8 at page 29 of the paper book is that when he reached the hospital he found that the said Sharful Khan was dead, but in the next line he has stated that he was alive and as such he recorded the statement of the injured. If there are two conflicting statements of a witness then we may point out that one favourable to the accused has to be appreciated. Besides, P.W.7, in cross-examination, has stated that the injured Sharful Khan was very much admitted into the Hospital, but he cannot say as to in which Ward and at what Bed number he had been placed. He also did not take care to look to the Bed Head ticket of the injured Sharful Khan. But, he found that he was injured and his injuries were bandaged. This line of evidence about the bandaging of injuries of injured Sharful Khan, we are not going to accept simply for the reasons that it was not denied that Sharful Khan was operated upon by D.W.1 and he was shifted to the operation theatre some times in between 9.50 or 10.00 P.M. A certificate was also obtained from relative of Sharful Khan on the Bed Head ticket as he was having the risk of surgery. Such endorsement we find in Bed Head ticket Exhibit-D. If 18 Sharful Khan was yet to be operated upon then how he (P.W.7) found any bandage. D.W.1, the doctor, who operated upon Sharful Khan, stated that he was in deep trouble and his condition was very serious so much so that he was operated upon. This was the reason that surgery was undertaken about 10.00 P.M. which lasted for about two hours and, lastly, the injured died at 1.15 A.M. We find the truth emerging from the evidence of P.W.7 as also from the evidence of D.W.1 that the time at which P.W.7 claims having recorded the fardbayan, the injured may not have been available to him. The doctor and the attending staff of the Hospita must be attending upon him so as to readying him for the surgery which was to be carried out on him. 14. The above could be the reason that the witness P.W.7 was stating in his evidence that he did not know as to in which Ward he was admitted and what was the bed number over which the patient had been put in. Not only that, the above could be the reason that there was no signature upon the fardbayan. We are of the opinion that the possibility will not be there that the document was prepared some times after so as to putting up a case of stabbing the two deceased to 19 death against the two appellants. This gets further strengthened from the fact that the first information report did not contain the recital that the stabbing was done by the two appellants at the instigation of third accused. Only two appellants were named in the first information report, but when the case was sent up for trial, there were three accused, one was assigned the accusation of abetting the commission of the offence. These are the circumstances, which makes the fardbayan of Sharful Khan unacceptable and an admissible and reliable evidence under Section 32(1) of the Evidence Act. Basing a conviction upon such a document to us appears completely out of question. 15. We as such allow the appeal, set aside the conviction of the two appellants. The two appellants are on bail they shall stand discharged from the liabilities of their bail bonds. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 29th March, 2010 AAhmad/(NAFR) 20