CRIMINAL APPEAL (DB) NO. 210 OF 2003 WITH CRIMINAL APPEAL (DB) NO. 143 OF 2003 Against the Judgment and order dated 06.03.2003 and sentence dated 11.03.2003 passed by Sessions Judge, Rohtas at Sasaram, in Sessions Trial No. 381 of 2001 (Arising out of Nasriganj P.S. Case No. 175 of 2000). * * * * * KUNJ BIHARI PANDEY, Son of Late Ram Awadhesh Pandey, Resident of Village Mangitpur, P.S. Nasriganj, District Rohtas. ----------(Appellant) (In Cr. Appeal (DB) No. 210/2003) LAL BABU @ LAL BABU PANDEY @ ASWINI KUMAR PANDEY, Son of Late Atal Bihari Pandey, Resident of Village Mongitpur, P.S. Nasriganj, Distirct Rohtas. ---------(Appellant) (In Cr. Appeal (DB) No. 143/2003) Versus THE STATE OF BIHAR ---------(Respondent) (In both the Appeals) For the Appellant : Mr. Ashutosh Ranjan Pandey, Adv. (Cr. Appeal (DB) No. 210/2003) For the Appellant : Mr. Kanhaiya Pd. Singh, Sr. Adv. Mr. Ajay Kr. Tiwari, Adv. Mr. Shailendra Kr. Singh, Adv. (Cr. Appeal (DB) No. 143/2003) For the State : Smt. Shashi Bala Verma, A.P.P. (In both the appeals) * * * * * P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * - 2 - As Per Akhilesh Chandra, J. The two appeals arising out of judgment delivered on 06th March, 2003 in Sessions Trial No. 381 of 2001 passed by learned Sessions Judge, Rohtas at Sasaram, wherein the appellants were charged under Section 302/34 of the Indian Penal Code and appellant Kunj Bihari Pandey was also specifically charged under Section 302 of the Indian Penal Code and 27 of the Arms Act and accordingly, they have been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each for the offences under Sections 302 and 302/34 of the Indian Penal Code and total amount are directed to be awarded as compensation to the wife of the deceased and in case of failure they are to suffer additional term of one year rigorous imprisonment besides appellant Kunj Bihari Pandey was further sentenced to undergo rigorous imprisonment for seven years under Section 27 of the Arms Act. 2. Prosecution case in brief as reveal from Exhibit-2 i.e. fardbeyan of P.W. 10 Sheo Kumar Singh recorded at 11.00 p.m. on - 3 - 12.12.2000 in presence of P.W. 2 Umesh Sah and P.W. 1 Awadh Ram at Refaral Hospital, Nasriganj by P.W. 11 Shabbir Ahmad, Officer- In-charge of police station, Nasriganj is that at about 7.30 p.m. the informant while taking his meal came out of the house on hearing sound of firing could learnt that Doman Singh has been injured. Immediately he arrived in the lane Popularly known as kirana shop lane of Babloo Pandey found his brother Doman Singh lying on earth. Sister-in-law of the informant i.e. widow of deceased Prabhawati Devi (P.W. 5) also arrived there besides villagers. The informant brought the injured brother near the house of Ram Lakhan Pandey in the lane where in presence of all he narrated that while he (injured Doman Singh) was coming after taking meal from the house of Deorajo Devi P.W. 8 and arrived in the lane opposite house of Babloo Pandey. Appellant Kunj Bihari Pandey by small fire arm with his brother Murari Pandey (absconding) and neighbour Lal Babu Pandey, appellant shot at Doman Singh in his left arm pit from close range and further his injured - 4 - brother requested to remove otherwise he may not survive. For better appreciation the alleged utterances made by Doman Singh as mentioned in Exhibit-2 in verbatim reads as such : ”Jab Musmat Deorajo Devi ke ghar se khana khakar ghar aa rahe the ki Babloo Pandey ke ghar ke samne gali main gaon ke Kunj Bihari Pandey, pita swargeye Awadhesh Pandey hath main liye chotki saman se apne bhai Murari Pandey yavm bagal ke Lal Babu Pandey pita swargeye Atal Bihari Pandey ke sath milkar baye kankh kay niche sata kar goli mar diya hai”. He further stated :- “jaldi le chalo ab bache ge nahi”, immediately, thereafter the informant arranged one vehicle from neighbouring village Hemradih and brought his injured brother to Nasriganj Hospital, where he succumbed to the injuries. The motive behind the occurrence as stated is that said Doman Singh was managing the affairs of P.W. 8 Deorajo Devi who had some litigation with - 5 - her agnates i.e. the accused persons and due to assistance provided by Doman Singh, the accused persons have developed grudge against him. On the relevant day also there was date fixed in the court at Sasaram from where Doman Singh had returned in the evening. 3. On basis of the above fardbeyan Nasriganj Police Station Case No. 175 of 2000 was registered on 13.12.2000. The police after investigation submitted charge-sheet in two phases against the appellants and brother of appellant Kunj Bihari Pandey, co-accused Murari Pandey who is as submitted still absconding. Consequently, trial proceeded against the two appellants and resulted into their conviction and sentence in the manner aforesaid giving rise to present two appeals. Former appeal i.e. Criminal Appeal No. 143 of 2003 has been preferred by Lal Babu Pandey, whereas Kunj Bihari Pandey is the appellant in latter appeal i.e. Criminal Appeal No. 210 of 2003. 4. Prosecution has examined altogether twelve witnesses out of whom P.W. 1 Awadh Ram, P.W. 2 Umesh Sah, P.W. 3 Vijay - 6 - Shankar Ram and P.W. 4 Yadunandan Singh have been declared hostile. The above four witnesses before being declared hostile. Even during cross-examination by defence has established that there was an incident at relevant time wherein Doman Singh sustained fire arm injuries and was crying P.W. 2 in cross-examination (at paragraph 8). Further, all these four witnesses have accompanied the informant and the injured up to hospital and prove their signatures on the inquest report marked as Exhibit-1 (P.W. 1) and Exhibit-1/1 (P.W. 2). They have further in their evidence has said that the injured succumbed to his injury in the way to hospital. 5. The prosecution case as appears from the fardbeyan and statement of the witnesses is based on oral dying declaration of the deceased. Of course P.W. 7 Shashikanti Devi and P.W. 8 Deorajo Devi, the employers of the deceased have also come out as eye-witnesses to the occurrence besides P.W. 7 on the point of oral dying declaration, but the learned trial court has disbelieved their testimony to the extent of - 7 - being eye-witness. In this way statement of P.W. 8 in its entirety and partial statement of P.W. 7 was disbelieved giving rise to submission by learned counsel for the appellant that the grounds on which statement of P.W. 7 Shashikanti Devi has been disbelieved by the court below are equally relevant to disbelieve her statement on the point of deceased making statement (oral dying declaration) also not acceptable. 6. P.W. 7 Shashikanti Devi in her statement has stated that she and first wife of her deceased husband (Deorajo Devi P.W. 8) both are residing in one house having one female child through herself Rubi and since no male member is in the family. Doman Singh used to take care of the affairs of cultivation including litigations running with appellant Kunj Bihari Pandey and his brother Murari Pandey (absconding) who are their agnates and on the relevant date also there was date fixed in the court at Sasaram from where deceased on return after taking meal it was moonlit night, suddenly she heard sound of firing and the deceased - 8 - instructing her to close the door and went out to see what happened and this witness alongwith her daughter P.W. 8 Deorajo Devi went on the roof and saw Doman Singh was caught hold by Murari Pandey (absconding) and appellant Kunj Bihari Pandey shot at him. Doman Singh in that course caught hold appellant Kunj Bihari Pandey, but in re- scuffling fell down and the miscreants fled away. She came out the house arrived at the place of occurrence which is nearby her house where said Doman Singh in presence of others stated “Kunj Bihari ne goli mari jab Murari unko pakar rakha tha”. The learned trial court has partially disbelieved this witness on the ground that in such winter season there was no occasion for her to go on the roof where there was no room in existence, but her testimony to the extent of utterances made by the injured has been accepted giving room to the submissions made by learned counsel for the appellant that if this witness cannot move to the roof due to running cold she shall also not go out of the house where Doman Singh was said lying - 9 - injured. But as it appears the learned trial court failed to appreciate the fact coming out of statement of this witness vide paragraph 3 & 4 that from inside she had heard sound of gun firing and just to inquire about the same Doman Singh had gone out of the house. So by natural conduct in order to just see by her own eyes the reason behind firing from safe side she went upon her own roof from where taking advantage of moonlit night she could be able to witness the occurrence which happened with her employee Doman Singh and the moment she could realize that her own care taker has sustained injury and miscreants have fled away. She arrived at the place of occurrence and heard what was according to her stated by the injured. Thus, the submissions made by learned counsel for the appellant to discard statement of this witness on this ground is not acceptable when she has also stated what she could be able to see and hear. 7. P.W. 6 Kamta Singh is father of injured Doman Singh also come out to say that on learning about the incident he arrived at - 10 - the place of occurrence and learnt from his son the injured-cum-deceased that “Lal Babu tatha Murari Pandey pakde huye the jab Kunj Bihari Pandey ne unko goli mari di“. The learned trial court has believed this witness on the ground that it was his natural conduct being father to arrive at the scene, but at the same time his earliest statement before Investigating Officer, P.W. 11 has not properly been appreciated. Attention of this witness was drawn toward his earlier statement in paragraph 17 where he has said that he could learnt from one Pramod Singh (not examined) about the incident while he was at the house of one Lala in the way he could meet Jagdam Lal Pandey who told that son of this witness has been injured then he arrived at his house and learnt that injured has already shifted to Nasriganj. His such statement stands certified by Investigating Officer P.W. 11 that apart there is variation between his statement as regard to utterances by deceased and what is narrated in the fardbeyan Exhibit-2, wherein there is nothing like Lal Babu Pandey and Murari Pandey had - 11 - caught hold Doman Singh and also contrary to statement of P.W. 7 who has seen the occurrence and stated that injured was caught hold by Murari Pandey alone at the time of sustaining fire arm injury triggered by appellant Kunj Bihari Pandey. Similar is the position of P.W. 9 Sushila Devi wife of the informant who too has stated what her father- in-law P.W. 6 has stated about utterances made by Doman Singh, but in her earliest statement she had stated that she could not move to place of occurrence as she had small kids in her lab vide paragraph 6 and this statement further stand certified by P.W. 11. So the statement of these two witnesses P.W. 6 and P.W. 9 also on the point of oral dying declaration made by deceased in their presence is not acceptable. 8. Apart from the variations in such utterances, their presence at the relevant time is also being ruled out. In view of statement of P.W. 10 the informant who in his fardbeyan Exhibit-2 has simply stated about presence of wife of the injured besides himself as family members had his own wife - 12 - and father being present there. It must have been stated in the fardbeyan and also in his deposition, but the same is missing. No doubt, fardbeyan is not encyclopedia of entire prosecution version, but the natural conduct of its maker cannot be ignored. The learned trial court has, on the ground of these two witnesses being family members considered their presence by way of natural conduct at the place of occurrence where deceased made his statement, but their earlier statements were ignored besides the natural conduct of P.W. 5 and P.W. 10, who said nothing about the presence of these two witnesses at the relevant time and place. Thus, submissions made by learned counsel for the appellant to disbelieve presence of these two witnesses finds substantial support. 9. Now remains two witnesses P.W. 5 wife of the deceased and P.W. 10 the informant on the point of oral dying declaration presence at the spot of P.W. 5 finds mentioned in the fardbeyan Exhibit-2. Also apart from statement of P.W. 10 the informant, this P.W. 5 Prabhawati Devi has - 13 - stated in her deposition that at the relevant time she was waiting for her husband who had gone to his employer P.W. 8 Deorajo Devi to narrate the happenings of the day. In course she heard sound of firing suddenly her Dewar (informant) arrived and intimated that her husband has sustained injuries, she came out and arrived at the scene. On query her husband stated “Deorajo Devi ke ghar se wapas aa rahe the to unko Murari Pandey pakar liye tatha Kunj Bihari Pandey unke deh me kankh ke niche sata kar goli mar di jab Lal Babu Pandey mudalah wahan khare the”. Further in paragraph 2 she has said that her husband said “mai bachugan nahi mujhe jaldi Aspatal le chalo“. She has further stated other part of prosecution case about employment and engagement of her husband by P.W. 7 and P.W. 8 and the grudge caused to their enemies. In cross-examination in paragraph 14 this witness again narrated that her husband said “bhojan kar Deorajo ke ghar se laut rahe the unko Murari mudalah ne pakra tatha Kunj Bihari ne goli mari“. In her this statement excluding Lal Babu Pandey coincides with the - 14 - statement made by P.W. 7 who has not only seen the occurrence, but also a person besides others in whose presence the deceased had stated about the happenings with him. 10. The informant P.W. 10 has narrated the prosecution story as stated in Exhibit-2 and further states about utterances of his brother Doman Singh on enquiry “Lal Babu tatha Murari Pandey unse latpata gayen tatha Kunj Bihari Pandey ne unko goli mar di“. This witness has further in cross- examination in paragraph 12 has said that Doman Singh stated the incident not only at the place of occurrence, but also near the house of Ram Lakhan Pandey where he was brought and in paragraph 14 he has said that in between police station to hospital he succumbed two injuries. In paragraph 16 he has said that injured was brought to hospital with the help of P.Ws. 1, 2, 3 & 4. Attention of this witness was drawn in paragraph 24 towards alleged utterances by Doman Singh regarding the portion varying from fardbeyan that is Lal Babu Pandey. In his earlier statement under Section 161 of - 15 - the Code of Criminal Procedure regarding “Lal Babu Pandey unse latpata gayen the” and this further stands certified by the Investigating Officer P.W. 22 in paragraph 29. 11. There are three relevant witnesses on the point of oral dying declaration, they are P.Ws. 5, 7 & 10 and if their statements are compared with the earliest statement of the informant in fardbeyan Exhibit-2. There appears some vital variation as regard to involvement of appellant Lal Babu Pandey, but they are consistent with the role played by the appellant Kunj Bihari Pandey. Now it is to be seen whether the injured Doman Singh was in a position to make statements or not as his very capacity to speak. In view of the injuries sustained has been questioned by learned counsel for the appellant on basis of Modi’s Medical Jurisprudence and Toxicology, Twenty-third Edition, 815 wherein towards end it has been stated:- “In the case of a wound of the larynx, speech is possible, if the wound is above the vocal cords, - 16 - even if it is gaping. However, in a wound of the larynx below the vocal cords, and in that of the trachea, no speech is possible. In such a case, one may be able to speak in a whisper, if the wound is not gaping sufficiently to allow air to pass into the mouth.” 12. In this context, it is relevant to consider the evidence of P.W. 12 Dr. Jaishankar Mishra who hold autopsy and proved post mortem report, Exhibit-5. The Doctor was posted on 13.12.2000 as medical officer in sadar hospital at Sasaram and found following anti mortem injuries on the person of deceased Doman Singh:- (i) One lacerated would ½ in diameter with margin inverted, tattooed 2” behind the posterior axilliary line on left side, at the level of inferior angle of left scapula. This was the wound of entry caused by fire arm in the opinion of P.W. 12. On dissection P.W. 12 found - 17 - the pleural cavity full of blood and one metallic bullet was recovered from the anterior surface of oesophagous at the level of second rib on the left side. The adjacent trachea was found fractured and adjacent vessels lacerated and the arch of aorta was lacerated. The left lung was found lacerated and chambers of heart were empty. In the opinion of the Doctor the injury could be caused by a fire arm like country made pistol fired from a close range.” During cross-examination the Doctor has in paragraph 11 opined that a man could speak even his trachea was fractured because speech is from the vocal cod and in the instant case that was intact. Further, in paragraph 15 he expressed his inability to say that a man could die of such injury. 13. In his statement the Doctor has said about time of post mortem examination 7.45 p.m., but in Exhibit-5 the post mortem report time of autopsy as appears is 12.45 - 18 - p.m. and time elapsed since death is twelve to twenty four hours. On basis whereof it was submitted by learned counsel for the appellants that time of death differs from the prosecution case, but on careful examination of post mortem report and statement of the witness, it appears that mentioning time 7.45 p.m. in third line of his examination-in-chief is nothing but a slip of pain. It was also argued that Doctor has found only four ounce semi digested food, whereas, as per prosecution just before occurrence deceased had taken dinner. No doubt, quantity of finding semi digested food is based on the quantity and quality of the food taken prior to death and the deceased had as per P.W. 7 vide paragraph 11 had taken simple roti and sabji of potato and brinjal. He died roughly three to four hours after occurrence. The time coincides with the opinion of the Doctor as mentioned in paragraph 12 that the semi digested food found from the deceased could have been taken just two to three hours before. It was also argued that Doctor has not found any charring - 19 - injury which could have been in case of firing from close range. But at the same time one may not ignore that it was a winter season and deceased had bearing vests, shirt, sweater and also covered his body by a chadar. These materials apart from statement of the witnesses also evident from inquest report, Exhibit-3 and sufficient to prevent charring caused at the time of injury inflicted. 14. Even from the opinion stated above as mentioned in Modi’s Medical Jurisprudence speaking by the person sustained such injuries has not been over- ruled. Possibility of whispering is there and as per consistent prosecution case the injured within short span of incident has narrated the happenings with him and normally at initial stage unless vocal cod is damaged or any serious obstruction is caused in his capability to speak the injured can do so even due to inertia at least till his condition is badly deteriorated and he looses all his capacity. In the instant case the deceased as stated above had narrated within - 20 - half an hour of the incident, the happenings with him and gradually he started loosing his senses and ultimately succumbed to the injuries roughly after three hours. 15. As stated above, the witnesses examined are quite consistent on the point that deceased after occurrence stated what happened with him and the voice was audioable. The Doctor holding autopsy is also of the opinion that it was not impossible for the deceased to narrate what he did. The medical opinion even incorporated in the medical jurisprudence stated above also does not completely rules out the capability of the deceased to speak. Moreover, it is nothing, but an opinion evidence and if the same is in conflict of consistent ocular evidence under law ocular evidence is to prevail, whereas in the instant case there is no conflicting upon the medical evidence. Thus, the submission regarding in capability to speak by the deceased is not acceptable. 16. In view of the above and narration by the deceased about the - 21 - occurrence with him soon after the occurrence, under apprehension of danger on life is turned under Section 32 of the Indian Evidence Act as dying declaration and this alone is sufficient for wrong doers to be held guilty for the offences. As stated earlier there are only three witnesses P.W. 5 widow of the deceased, P.W. 7 his employer and P.W. 10 the informant are the persons whose statement before the trial court may be considered to examine such oral dying declaration. They are quite consistent on the point that as assailant the deceased Kunj Bihari Pandey who as stated shot at him from close range at the left arm pit. There is not even slightest variation in the statement of the three witnesses above named. No doubt, as regard to the role attributed against appellant Lal Babu Pandey, they are in conflict with each other. P.W. 7 Shashikanti Devi completely rules him out. P.W. 5 Prabhawati Devi simply speaks about his presence there and in paragraph 14 cross- examination, she also rules out his presence and involvement in narration made by her - 22 - husband, the deceased. Whereas, the informant P.W. 10 Sheo Kumar Singh contrary to Exhibit-2 says that “Lal Babu Pandey latpata gaye”. 17. These variations creates a reasonable doubt about involvement of appellant Lal Babu Pandey in the entire episode, especially keeping in mind that his house was also near the place of occurrence vide P.W. 5 paragraph 19 wherein she has said near the groserry shop of Babloo Pandey there is door of house of Lal Babu Pandey. 18. Even accepting the submission of learned counsel for the appellant to discard evidence of P.W. 7 on the ground that she was partially disbelieved to the extent of her statement as eye-witness, so her statement to the extent of oral dying declaration also cannot be accepted. The consistent statement of widow of the deceased P.W. 5 Prabhawati Devi and the informant younger brother of the deceased P.W. 10 Sheo Kumar Singh, she immediately arrived at the scene which is within short distance from their house.