IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.208 of 1989 ========================================================== Khublal Thakur @ Khuba Thakur, Son of Narayan Thakur, resident of Vill.- Jaithar, P.S.-Taraiya, District-Saran. ... .... Appellant. VERSUS The State of Bihar .... .... Respondent. ========================================================== Appearance : For the Appellant : Mr. Mahesh Narayan Parvat, Adv. For the Respondent :Ms. Shashi Bala Verma, A.P.P. ========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) The present appeal by the sole appellant is directed against the judgment and order dated 31.03.1989 passed by the learned Sessions Judge, Saran, Chapra in Sessions Trial No.61 of 1988 (G.R. Case No.2154 of 1987) by which the appellant has been found guilty and convicted for offence under Section- 302 and Section-27 of the Arms Act. He has been sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for three years respectively. It may be noted that by the said judgment two other co-accused, namely, Grishdeo Singh and Lakhan Mahto, who were also similarly charged, have been acquitted. We have heard learned counsel for the appellant at length as also learned A.P.P. for the State. The prosecution case starts on basis of a fardbeyan recorded at about 7:15 pm on 10.08.1987 by A.S.I., Md. Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 2 - Hasnain Khan (P.W.11) of Mashrakh P.S. at the State Dispensary, Mashrak . The fardbeyan is of Deonath Singh, the injured who later died. The fardbeyan is witnessed by Chandrika Singh, P.W.5, who is the brother of the deceased and one Ram Sundar Singh. In the fardbeyan as recorded, Deonath Singh, the deceased states that that in the afternoon when he was returning along with his son, Baleshwar Singh, P.W.6 after attending to his paddy fields at about 5 pm when he came near his maize field he found that goat of the appellant was grazing his maize crops. The appellant’s house was adjacent to the informant’s maize field. Accordingly, he questioned the appellant in this regard. Upon which Khublal Thakur, the appellant along with the other two accused started abusing the deceased. Khublal Thakur went in his house and came out with three country made pistols and gave one each to the other two retaining one himself. They then fired injuring the informant. Baleshwar Singh, P.W.6 the son of the informant, on seeing this ran to the village and several people arrived. He was then carried to his house and thereafter to the State Dispensary, Masrakh where the statement was made and recorded. The fardbeyan was then forwarded to Taraiya P.S. because the incident was of Taraiya P.S. The case is then registered under Section-304/34 of the Indian Penal Code and Section-25(a) of the Arms Act by the Officer-in-Charge of Taraiya P.S. but when formal F.I.R. is drawn up at about 1 pm on 11.08.1987 it is registered under Section-302/34 of the Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 3 - Indian Penal Code and Section-25(a)/26 of the Arms Act, later Section-27 of the Arms Act is also added. It may be noticed here that Deonath Singh, while being treated at the State Dispensary, Mashrakh, was referred to Chapra Sadar Hospital but before he could be taken, at about 9 pm, he died at the State Dispensary, Mashrakh itself. Investigation was taken up and chargesheet was filed against three persons as aforesaid who pleaded not guilty and were tried. As noted above, only appellant was convicted as aforesaid where as the other two were acquitted. In order to establish the charge the prosecution has in all examined 13 witnesses. P.W.1, Zahir Hasan is a formal witness, being a constable, who was brought to prove the fardbeyan, which in course is later proved by Md. Hasnain Khan, the A.S.I. who recorded it and was examined as P.W.11. P.W.2, Ram Naresh Singh is the nephew of the deceased, being son of P.W.5, Chandrika Singh. Chandrika Singh is the brother of the deceased who is the witness to the fardbeyan as well. P.W.3 is Chandeshwar Singh, the elder son of the deceased. P.W.4, Surendra Singh is also a nephew of the deceased and is an eye witness. P.W.6, Baleshwar Singh younger sons of the deceased who was with the deceased when the occurrence took place and is an eye witness. P.W.7 Uma Nath Singh is a chance witness, being an agriculturist, who was attending to his field near by. P.W.8, Shyamdeo Singh is the Investigating Officer of Taraiya Police Station. P.W.9, Dr. Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 4 - Ramesh Kumar Sinha is the doctor who conducted the postmortem and P.W.10 is Dr. A.N. Pandey who initially attended to the deceased, made first injury report and then reported his death. P.W.11, Md. Hasnain Khan is the A.S.I. who recorded the fardbeyan being attached to Mashrakh Police Station. P.W.12, Md. Amanullah Khan and P.W.13, Ram Jatan Mishra are formal witnesses. The first thing we would like to notice is that so far as prosecution witnesses are concerned they are consistent with the statement as recorded in the fardbeyan to the extent that upon an altercation having started pursuant to grazing of the maize crop by the goat of the appellant, the appellant went into his hut came out with three pistols handed over one each and shot but when it comes to injury it is to be found that there was virtually only one fire arm injury even though firing is said to have been at close range. This apparently inures to the benefit of the other two co-accused for their acquittal. Now, coming to the evidence as against the appellant. P.W.2 is the nephew of the deceased, being son of P.W.5, Chandrika Singh. P.W.5 is the witness to the fardbeyan. The prosecution case is based on the fardbeyan, which is the statement of the deceased himself, made shortly before he died. The statement is recorded by A.S.I., P.W.11, Md. Hasnain Khan. The witnesses are consistent in their statement that having received the bullet injury the deceased was first carried to his house and then to the State Dispensary, Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 5 - Mashrakh when the police was informed. Till that time deceased was conscious and was able to give statement. The deceased had earlier also disclosed to different witnesses about the entire incident. The treating doctor has also been examined but to none of the witnesses or the A.S.I. who recorded the fardbeyan or the doctor any suggestion has been given that the injured who later died was not in a position to make a detailed statement as is said to have been recorded. The only suggestion that has been given is that the statement was drawn up after the death of the deceased. We have seen the injury report from which it does not appear that they were so grave that the deceased could not have been conscious or unable to make any statement. He died soon after the statement was recorded because of excessive bleeding. Therefore, we have to see whether this statement can be relied or not. Firstly, it cannot be disputed that Baleshwar Singh, P.W.6 the son of the deceased was with him when the occurrence took place. He has fully corroborated the facts as stated in the fardbeyan. We then have P.W.2, who is again nephew of the deceased, was available in his agricultural field near by. He has clearly stated that when he came to the spot he found his uncle lying in the injured condition and his uncle named the three persons as having shot at him. We then have Chandeshwar Singh the elder son of the deceased who is more or less a hearsay witness. We then have Surendra Singh, P.W.4 who is again nephew of the deceased but a chance eye Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 6 - witness because he was attending to his agricultural field which is adjacent. His statement is also consistent with the fardbeyan. Then we have Chandrika Singh, the brother of the deceased, who is also witness to the fardbeyan though he is not an eye witness. He reaches there soon after the firing and corroborates the fardbeyan which is recorded in his presence by the police and witnessed by him. As noted above, the next witness is P.W.6, Baleshwar Singh, the son of the deceased, who was undisputedly with the deceased when the occurrence took place. He is eye witness to the entire occurrence. He has fully corroborated the prosecution story. We then have P.W.7, Uma Nath Singh, who is a chance witness and not an eye witness. P.W.8, Shyamdeo Singh is the Investigating Officer. He has arrested the accused persons on the next day of the occurrence. Learned counsel for the defence/appellant has pointed out that in his cross-examination this Investigating Officer has stated that none of the prosecution witnesses had stated to him in course of investigation that they had heard from the deceased himself the name of the three accused persons and that the deceased was conscious. But, this looses significance when we find that the fardbeyan cannot be doubted. Once the fardbeyan as recorded is not doubted then the fardbeyan gives out the whole genesis which finds corroboration by all concerned prosecution witnesses and the two eye witnesses who had stood to the test of the cross- Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 7 - examination and whose testimony are unshaken. Learned counsel for the defence/appellant submits that it would be seen that all the witnesses are close relations and hence interested witnesses. In our view, merely because they are close relations they cannot be said to be interested witnesses. Interested witnesses are those witnesses who tender to gain if the accused is convicted. Here nothing has been shown which would show that these witnesses tender to gain anything from the conviction of the appellant. They happened to were had in their agricultural fields in the immediate vicinity. We may reemphasize that the authenticity and the reliability of the fardbeyan have not been shaken. That itself is a substantive piece of evidence as the persons whose statement was recorded dies within hours of it being recorded. It has been witnessed by P.W.5 who has fully supported it. It would have been another matter if the defence had suggested to the witnesses or to the doctor that the deceased was not conscious and not in a state to make his statement but no suggestion was even made to these persons. The only suggestion that has come from the defence is that the statement which is the fardbeyan was recorded allegedly after the death. In our view, this is not sufficient to discredit the fardbeyan. It is fully corroborated by witnesses and that being so it leaves no manner of doubt as to the manner of occurrence or the implication of the appellant in respect of the offence charged. Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 8 - We may note that a statement written or verbal, of facts leading to injury sustained by a person made by him in proximity to the time of his death is what is called a dying declaration. In cases in which the cause of that person’s death comes into question, such statement becomes admissible as evidence being relevant fact under Section-32 (1) of the Evidence Act. There is no requirement of law that such statement must necessarily be made to or before or in presence of a Magistrate. Merely because the statement was recorded by police (as a fardbeyan), the statement would not become inadmissible or unreliable, though what would be its evidentiary value or weigh that has to be attached to such a statement would necessarily depend on the facts and circumstance of each particular case. In a given case it may be permissible to convict a person only on the basis of a dying declaration. On the facts of the present case, we find that the dying declaration (the fardbeyan) was witnessed and properly proved in course of trial. No question was put during cross examination of witnesses, proving it, as to the mental or physical status of the informant at that time nor in the medical report or the evidence of the treating doctor is there any indication that the deceased was incapable of making any such statement. The statement stood fully corroborated. Hence, conviction based on such a dying declaration cannot be held to be improper. Patna High Court CR. APP (DB) No.208 of 1989 dt.03-11-2011 - 9 - We may here take note of the fact that the postmortem report corroborates the fact that death was due to close range gun shot wound. The doctor conducting postmortem has opined that the injury was in fact only from one shot as we have noted above. It is this which inured to the benefit of the other two co-accused persons for their acquittal against which neither the Sate nor the prosecution has appealed. In view of the aforesaid facts, we are of the considered view that the appellant has been rightly convicted by the trial Court and there are no sufficient grounds for interfering with the judgment and order of conviction. The appeal is, therefore, dismissed and the bail bond of the appellant is cancelled. The appellant is directed to surrender before the Court below and serve out the sentence as awarded by the Trial Court. The Patna High Court Dated 3rd November, 2011 Trivedi/AFR (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)