CRIMINAL APPEAL No.546 OF 1988 ***** Against the judgment of conviction and order of sentence dated 12th of December, 1988 passed by Shri Raj Kishore Sharma, 3rd Additional Sessions Judge, Madhubani in Sessions Trial No. 27 of 1981/36 of 1986. 1. KESI LAL CHITTAN, S/O LATE THITHAR CHITTAN 2. RAJ KUMAR CHITTAN, S/O SRI KESI LAL CHITTAN 3. MAHESH CHITTAN, SO SRI KESI LAL CHITTAN ALL RESIDENTS OF VILLAGE- BALUA, POLICE STATION-PHULPARAS, DISTRICT-MADHUBANI. …..(Appellants) Versus THE STATE OF BIHAR …..(Respondent) For the Appellants : Mr. Madhu Sudan Kr. Sinha, Advocate Mr. Surendra Kumar, Advocate Mr. Arun Kumar, Advocate Mr. M.M. Singh, Advocate Mr. Yogendra Kumar, Advocate For the Respondent : Ms. Shashi Bala Verma, APP. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S.K. Sharma & D.K. Singh, JJ. The aforesaid three appellants have challenged their conviction under Section 302/34 of the Indian Penal Code in Sessions Trial No. 27 of 1981/36 of 1986 passed by learned 3rd Additional Sessions Judge, Madhubani on 12th of December, 1988 whereby the three appellants were sentenced to undergo imprisonment for life. 2. We feel inclined to trace the brief background of the prosecution case in order to examine the grounds taken in the appeal. 3. The prosecution case was initiated on the 2 basis of the fardbeyan of Pandav Chittan (P.W.5) recorded by S.I. Bharat Singh (P.W.12) of Phulparas police station on 04.04.1980 at 10 p.m. in Siswar Hospital. It is alleged by the informant that at 4 p.m. on 04.04.1980 P.W.5 was thrashing wheat in Khalihan of Biran Chittan (not examined), in the meantime he heard some noise coming from the direction of his house, on which he went towards his house and saw that his father Lakshmi Chittan was lying injured in a bleeding condition near the „Bel‟ Tree, having injury on stomach and neck and on enquiry, his father conveyed that while he was plucking the Bel fruit, accused Keshi Lal Chittan and his sons Raj Kumar Chittan and Mahesh Chittan came and restrained him from plucking the Bel fruits. Some hot exchange took place and then Raj Kumar Chittan gave dagger blow in the stomach and Mahesh Chittan assaulted with Garasa, whereas Keshi Lal Chittan assaulted with brick. It is alleged by the informant that villager Sonelal Bhindwar (not examined), Deb Kishun Paswan (P.W.4) and the female members of the family have witnessed the occurrence. The Bel fruit tree has been claimed by the informant and on the question of plucking of the fruits from the tree, the occurrence took place. It is also claimed by the informant that since his father was unconscious, hence his statement was recorded by 3 the police. The fardbeyan was recorded in presence of two witnesses Kameshwar Thakur and Dorik Lal (both not examined), which resulted in registration of Phulparas P.S. Case No. 3 dated 04.04.1980 under Sections 324, 307, 323/34 of the Indian Penal Code on 05.04.1980 at 1 a.m. Though, the date of dispatch mentions the formal part of the First Information Report which reflects the date of dispatch as 06.04.1980, but the records of the learned Trial Court suggests that it was received in the Court on 08.04.1980. 4. The police, after investigation, submitted charge sheet, after which cognizance was taken and the case was committed to the Court of Sessions, where charges were framed on 12th of November, 1986 under Section 302/34 of the Indian Penal Code, against all the three accused persons. 5. The prosecution in order to substantiate its case examined 14 witnesses of which P.Ws.1, 2, 3, 8, 10 and 13 are formal witnesses, who have proved the fardbeyan of P.W.5 (Ext.1), Charge sheet (Ext.2), Formal First Information Report (Ext.3), letter dated 05.07.1980 (Ext.5) written by Sub-Inspector Bharat Singh of Phulparas police station to the Circle Officer Ghoghardiha for the deputation of Amin for measurement of the disputed land, a letter written by Dr. Arjun Prasad Modi (Ext.5/1) and the endorsement of 4 Ravindra Prasad (Ext.9). P.W.4 Deb Kishun Paswan and P.W.6 Chadi Devi (wife of the informant), have claimed themselves to be eye witnesses to the occurrence. P.W.5, Pandav Chittan, though a hearsay witness, is the son of the deceased but has got his fardbeyan recorded on the basis of the statement made by the deceased. P.W. 11, Awadh Chittan and P.W.5, Pandav Chittan have claimed to know about the occurrence through the deceased. Both are the sons of the deceased. P.W.7, Bilti Devi, is the wife of the deceased and has supported the prosecution case as a hearsay witness and has not alleged anything and has been tendered. P.W.12, Bharat Singh, is the S.I. of Police who investigated the case. P.W.14 is Dr. V.C.S. Verma, who conducted post-mortem on the dead body of the deceased. 6. The defence has also examined four witnesses of which D.W.1 is the medical officer who examined the injuries of the accused Keshi Lal Chittan. D.W.2 has proved the fardbeyan of accused Keshi Lal Chittan (Ext.B) on the basis of which the case was registered. D.W.3 is the Amin who measured the disputed land. D.W.4 is also a formal witness who has tried to prove the genealogy of the accused persons. 7. The learned Trial Court relied on the evidence of P.Ws.5 and 11, who claimed themselves to 5 have heard the statement of the deceased and on the basis of which, the fardbeyan was recorded. The learned Trial Court treated the evidence of P.Ws.5 and 11, as witness to the oral dying declaration and have also relied upon the evidence of P.Ws.4 and 6, as eye witness to the occurrence and has accordingly passed the judgment of conviction. 8. Now, this Court has to see whether the evidence of P.Ws.5 and 11 can be relied to the extent of their being witness to the oral dying declaration or whether the evidence of the prosecution, particularly P.Ws. 4 and 6, is reliable to the extent of proving the prosecution case beyond shadow of any reasonable doubt. 9. The prosecution has tried to prove its case by two sets of witnesses. Firstly, on the basis of the evidence of P.Ws.5 and 11, that the oral dying declaration was made by the deceased to them and subsequently on the basis of the evidence of P.Ws.4 and 6 claiming to be eye witness. 10. Prima facie, it appears that the two modes adopted by the prosecution in proving their case have virtually enlarged the inconsistencies in the prosecution case. 11. The fardbeyan was recorded on 04.04.1980 at 10 p.m., whereas the First Information Report was 6 registered on 05.04.1980 at 1 a.m. Though, formal part of the First Information Report reflects that the First Information Report was transmitted to the Court on 06.04.1980, but the learned Trial Court record suggests that the First Information Report was received in the Court on 08.04.1980, whereas the distance of the police station from the place of occurrence was only 6 kms. Section 157 of the Code of Criminal Procedure mandates the transmission of the First Information Report to the Magistrate forthwith i.e. within 24 hours. Though, in a given situation, this stipulated time can be extended, but when the delay is inordinate than the stipulated time prescribed in the Code of Criminal Procedure, then definitely it creates doubt about the prosecution version. 12. In the present case the post-mortem was done on 07.04.1980 at 11.30 a.m. The stipulated time elapsed since death was estimated by the doctor, to be within 36 to 48 hours meaning thereby that the victim died on 05.04.1980. In such situation, it appears that the First Information Report was transmitted to the Court after four days of the recording of the fardbeyan, which suggests only one injury to the victim, due to which the case was registered under Section 307 of the IPC, which not only creates doubt 7 about the prosecution case but also makes apparent casual approach of the I.O. concerned. 13. It is surprising that the post-mortem was conducted on 07.04.1980 at 11.30 A.M., but P.W.12, the I.O., has admitted in his evidence that he came to know about the death on 08.04.1980 but the lower Court records suggest that the application for adding Section 302 of the Indian Penal Code was filed before the learned Court below on 12.04.1980. Such a serious lapse on the part of the prosecution compels us to make our finger crossed on the prosecution version. 14. P.Ws.5 and 11 claim that their father conveyed to them about the manner of occurrence. Though, both the witnesses‟ claim to have been acknowledged about the manner of occurrence from the deceased, separately, but none of them talk about the oral dying declaration made to each of them by the deceased. 15. Section 32 of the Evidence Act which is based on “Nemo moriturus praesumitur mentire – no one at the point of death is presumed to lie. A man will not meet his Maker with a lie in his mouth” – is the philosophy in law underlying admittance in evidence of dying declaration. “A dying declaration made by a person on the verge of his death has a special sanctity as at that 8 solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.” 16. If the present case is to be tested in view of the aforesaid principle of law concerning dying declaration, the question which would arise is whether the evidence of P.W.5 and 11 is reliable to the extent that the conviction of the appellants can be recorded on the basis of their evidence. The court has to satisfy itself whether the victim was in a fit state of mind, so as to make a dying declaration, as has been held in the case of Paparambaka Rosamma and Others V. State of Andhra Pradesh reported in (1999) 7 9 SCC 695, wherein the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had opined that he was satisfied that the deceased is in a fit state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and free from all doubts and that it was recorded when the injured was in a fit state of mind, since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement and the doctor had failed to certify that the injured was in a fit state of mind. Apart from the aforesaid conclusion in law, the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In a later decision of this Court in Koli Chunilal Savji V. State of Gujarat, (1999) 9 SCC 562, it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in Ravi Chander V. 10 State of Punjab, (1998) 9 SCC 303, wherein it had been observed that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise. 17. The aforesaid conflicting suggestions of the Court led to referring of the matter to a Constitution Bench in case of Laxman V. State of Maharashtra reported in (2002) 6 SCC 710 and the issue was resolved in paragraph-3, in following words: “The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their 11 truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaraion can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice 12 provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established 13 otherwise.” 18. In the present case, the so called dying declaration was neither made before the police nor to the Magistrate and nor before the doctor. It was claimed to have been listened by P.Ws.5 and 11 who are none else than the sons of the deceased. Hence, the court has to be more cautious in relying on the claim of P.Ws.5 and 11 with regard to the oral dying declaraion. So far as the evidence of P.Ws. 5 and 11 is concerned, their claim of having talk to the victim about the manner of assault, appears doubtful, from the fact that the occurrence took place at 4 p.m., whereas the fardbeyan was recorded at 10 p.m. and the two eyewitnesses P.Ws.4 and 6, who claim to have seen the actual occurrence and further claim in their deposition of having talked to the informant, are none else than the neighbour and the wife of the informant, then in such a situation there was no occasion for P.W.5, the informant, to get his fardbeyan recorded on the basis of the statement given by the deceased and the same is very unreasonable. 19. P.W.5, in his fardbeyan, has given the name of the persons who came at the place of occurrence, but the same does not include the name of P.W.11. Learned APP after verifying from the case diary has submitted that statement of P.W.11 under Section 161 14 of the Code of Criminal Procedure, was recorded on 22.05.1980. P.W.11 was present when the occurrence took place and the victim stated the manner of occurrence to him, then in such case, this was an important thing which P.W.5 should have incorporated in the fardbeyan and more so in the light of the fact that it was this witness whose statement was recorded under Section 161 of the Code of Criminal Procedure after registration of the First Information Report. But such a detailed statement of P.W.11 under Section 161 of the Code of Criminal Procedure, compels us not to rely on this witness. P.W.11 in his evidence has clearly stated that he was cutting crop in the nearby field and after going to his house for keeping bundles of crop, this witness reached the place of occurrence much after the occurrence. 20. Though, the prosecution has not brought on record any injury report of the victim, as to who examined the injuries, though in paragraph-2 of evidence of P.W.12 the Investigating Officer, it has been stated that the doctor in Siswar hospital stated to him he did not examine the victim but referred the victim to D.M.C.H., but no injury report of D.M.C.H. has been brought on record. The evidence of P.W.14 reflects that he found Injury No. II in a stitched condition which suggests that the victim was offered 15 medical assistance, but surprisingly the prosecution has tried to conceal this fact, perhaps with this intention that the victim was found in an unconscious stage which further gets reflected from the evidence of Investigating Officer P.W.12, in paragraph-1, that he found the victim Laxmi Chittan in an unconscious state and that was the reason for recording the fardbeyan of P.W.5. The injury found by the doctor P.W.14, particularly Injury No.4, reflects incised punctured wound 3”x1” leading to chest cavity situated on left side of back, the weapon after cutting the skin and intercostal muscles had entered the chest cavity after cutting 4th and 5th ribs on left side in the posterior aspect and had entered the lung which caused an incised punctured wound with huge collection of blood in the chest cavity. As per the medical jurisprudence, puncture of the chest cavity or the lungs do not absolutely disable the victim from speaking but the gravity of the injury suggests that the victim was definitely not in a state of mind to make the dying declaration and had the victim been in a conscious state, there was no occasion for getting the fardbeyan recorded through P.W.5. P.Ws.5 and 11 have not given the same version with regard to the manner of assault, as P.W.5 has suggested that Kesilal Chittan assaulted with Rora (small piece of the 16 brick), whereas P.W.11 has stated that the victim conveyed that he was assaulted by Kesilal Chittan by stone. While P.W.5 has stated that Rajkumar Chittan has given blow on the stomach, P.W.11 has not stated in his evidence about the specific part of the body where the assault was made but P.Ws.5 and 11 have stated that there was an assault by Garasa. 21. The doctor P.W.14 has found four injuries which are as follows:- Injury No. I- One incised wound 4”x1”x 1/2” on right upper part of abdomen. The peritoneum underneath was found stitched. On opening of abdomen, the wound was found only up to peritoneum. Blood and blood clots were found infiltrating the muscles and the surrounding tissues. Injury No. II- One curved incised wound 5”x1½”x1” on left elbow extending upwards to the outerside of left arm. The weapon after cutting the skin muscles and vessels had also cut the lower end of humerus and radius and ulna (upper ends). Blood and blood clots were found all over the wound. Injury No. III- One incised wound 1½”x½”x ½” on back of left arm. Injury No. IV- One incised punctured wound 17 3”x1” leading to chest cavity situated on left side of the back, the weapon after cutting the skin and intercostal muscles had entered the chest cavity after cutting 4th and 5th ribs on left side in the posterior aspect and had entered the lung which was having an incised punctured wound with huge collection of blood in the chest cavity. 22. Injury No. IV was caused by sharp and pointed weapon but with regard to the said injury, no witness is suggesting anything, including the eyewitness, who have claimed to have seen the specific assault made on particular part of the body. The evidence of P.Ws.4, 5, 6 and 11 also gets jeopardized in view of the evidence of I.O., P.W.12, who reported about the back injury of the victim (as contained in Ext.8 - injury noticed by I.O.) while referring the matter to the medical officer. This was such a vital thing which the informant or any witness would not have left unnoticed. Hence, on this score also the prosecution witnesses are not trust-worthy. 23. Moreover, the inter se contradiction and the glaring inconsistencies in the evidences of P.W.5, P.W.6 and P.W.11, also does not help the prosecution to prove its case and creates serious doubts on the veracity of the prosecution case. P.W.5, in para-4 of 18 his evidence says that P.W.6 and P.W.7 were present at the place of occurrence, before he reached the place of occurrence and that P.W.6 and P.W.7 had witnessed the assault made upon the victim, whereas on the contrary P.W.6, in paragraph no.-2 of her evidence, has stated that P.W.5 was also present when the assault took place and that he even forbade the accused persons from making the assault. Taking into consideration this version, as stated by P.W.6, it can be inferred that P.W.5 had witnessed the assault. P.W.11 on the other hand, in his evidence in paragraph no.-2, has said that his brother Bhulla Yadav, first went near the victim and then he followed, but nowhere, this witness has stated as to whether P.W.5 was present or not or whether both P.W.5 and P.W.11, together heard the dying declaration from their father. 24. In such a situation, P.W.5 must have definitely witnessed the occurrence but P.W.5 claims that he heard about the incident from the other witnesses and from the victim, meaning thereby that he did not see the