CRIMINAL APPEAL No.782 OF 2004 Appeal against the judgment and order dated 29.10.2004 & 30.10.2004 respectively passed in Sessions Case No. 139 of 2002 by Additional Sessions Judge, Fast Track Court No. II, Khagaria. 1. UPENDRA SINGH S/O BAUKU SINGH 2. BHUMI SINGH S/O ASHIK SINGH 3. MATARU SINGH S/O DHANIRAM SINGH 4. MAHAVIR SINGH S/O RAGHUNATH SINGH 5. LADDULAL SINGH S/O BAUKU SINGH 6. NARESH SINGH S/O MAHAVIR SINGH ALL RESIDENT OF VILLAGE – AGRAHAN, P.S. – CHAUTHAM, DISTRICT – KHAGARIA. ……….. APPELLANTS. Versus THE STATE OF BIHAR ………. RESPONDENT. With CR. APP (DB) No.853 of 2004 MAHENDRA SINGH, SON OF LATE BAUKU SINGH, RESIDENT OF VILLAGE AGRAHAN, POLICE STATION – CHAUTHAM, DISTRICT – KHAGARIA. ………… APPELLANT. Versus THE STATE OF BIHAR …………RESPONDENT. With CR. APP (DB) No.886 of 2004 BABALU SINGH, SON OF MAHENDRA SINGH, RESIDENT OF VILLAGE – AGRAHAN, POLICE STATION – CHAUTHAM, DISTRICT – KHAGARIA. ………….. APPELLANT. Versus THE STATE OF BIHAR ………….. RESPONDENT. For the Appellants : - Smt. Indu Bala Jha, Amicus Curiae For the Respondent : - Sri. Ashwini Kumar Sinha, APP --------------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA ******************** Mridula Mishra & Dharnidhar Jha, JJ. The present batch of three appeals has been preferred by the appellants of the three appeals for challenging the order of conviction and sentence passed by the learned - 2 - Additional Sessions Judge –cum- P.O., F.T.C. II, Khagaria on 29th of October, 2004 in Sessions Case No. 139 of 2002. By the impugned judgment the appellants were found guilty of committing offences under Section 302/149 of the IPC and 27 of the Arms Act except appellant Babalu Singh, who was distinctly held guilty for committing the offence under Section 302 of the IPC and 27 of the Arms Act and was awarded sentence of rigorous imprisonment for life for causing the death of Srilal Sah and was further directed to pay a fine of Rs.5,000/- and in default of payment of fine to suffer simple imprisonment for one year. Besides, the above named Babalu Singh was held guilty for committing offence under Section 27 of the Arms Act also and was directed to suffer rigorous imprisonment for three years and to pay a fine of Rs.3,000/- and in case of default to undergo simple imprisonment for six months. As regards the remaining appellants they were to suffer rigorous imprisonment for life for their individual conviction under Section 302/149 of the IPC and were also to pay a fine of Rs.5,000/- each and in default of payment of fine to undergo simple imprisonment of one year. The above appellants were also directed to suffer - 3 - rigorous imprisonment for three years under Section 27 of the Arms Act and in default of payment of fine of Rs.3,000/- to undergo simple imprisonment for six months. 2. It appears that Srilal Sah was repairing his boat on the bank of river Bagmati situated at village Agrahan within police station – Chautham of district Khagaria, while the appellants are said to have come armed with weapons and to have surrounded him. It is alleged that appellant Babalu Singh was armed with pistol and the accused persons remonstrated each other to shoot and kill the informant upon which appellant Babalu Singh is said to have fired a shot which hit the said Srilal Sah in his back. He fell down. On hearing the sound of firing Jay Kishore Chaudhary (PW 3), Chandrashekhar Sah (PW 2), Ramchandra Chaudhary (not examined) and several others came running there and saw the accused persons making good their escape towards east of the place of occurrence. 3. The cause for the occurrence was that while the deceased was roaming by his bicycle for selling ice-cream and when he had boarded the boat for crossing the river, an altercation had occurred between the informant on the one - 4 - side and the appellants Babalu and Mahendra on the other, as a result of which the two appellants had thrown the box of ice-cream into river and had abused him and as such the informant was shot and injured. 4. It appears that on the basis of fard-beyan of the deceased (Ext. 1), the FIR of the case (Ext.2) was registered and investigation was taken up. The I.O. of the case has not been examined but we could infer from the records presented before us that he held inquest upon the dead body sent it for post mortem examination, recorded the statements of witnesses and after closing the investigation, sent up the appellants for trial, which ultimately resulted in their conviction. 5. Seven witnesses were examined by the prosecution for proving the charges, out of whom PWs 1 to 5 turned hostile. PW 6 Bhawesh Kumar Nirala gave evidence of formal character and proved the writings of the fard-beyan as that of a particular police officer. Likewise, PW 7 Ram Sagar Milan also proved the writings of the FIR which was marked Ext. 2. 6. While rendering the judgment of conviction the - 5 - learned trial Judge himself noted in different paragraphs of the judgment that none of the witnesses, who could be eye witnesses, had supported the commission of the offence by any of the appellants as they were declared hostile. But after considering Ext. 1, fard-beyan of the deceased, the learned Judge admitted the document under Section 32 (i) of the Evidence Act and by referring to a decision of the Supreme Court reported in 2003 (2) East Cr. Cases 61 (S.C.) Laxmi & Ors. Vs. State of Uttar Pradesh deduced the law that even if the writer of the document has not been examined, statement being that of a person, who was dead and the facts indicating the cause of his death, was an issue for him to decide. It was relevant fact and as such the conviction could be recorded as it was not unknown to the realm of judicial pronouncement that it could be done on the basis of a dying declaration. 7. We are constraint to point out that cause of death was not established either by the oral evidence of the witnesses or by any medical evidence because the doctor had also not been examined. The I.O. of the case specially the officer, namely, S.I. Ajay Kumar, who had recorded Ext. 1 the fard-beyan in the Primary Health Centre, Chautham was - 6 - also not produced to state to the fact that the deceased Srilal Sah had made a statement to him and had stated the facts to him, which find recorded in Ext.1. The learned Judge was not reiterating an incorrect law that dying declaration can be the basis for recording the conviction of accused but we feel that it could not be a universally applicable rule of law. It is too well known to be pointed out that when there is a of a dead person statement reduced into writing by an officer or any person, the person or authority who had recorded the statement ought to be produced into the witness box, so that the evidence could come on record that the dead person had made the statement to him and the writer of such a statement of a dead person, should reproduce such a statement verbation during the course of his evidence. If the officer, who recorded the statement has not come to depose in the manner as we have just pointed out then the document could not be said to be properly brought on record and as such could not be made admissible under Section 32(i) of the Evidence Act. The learned Judge has himself recorded that the officer who recorded Ext. 1 had not come to depose in court in spite of many efforts made by him in that behalf and further that - 7 - considering the urgency of the matter the document was admitted in evidence through a formal witness. This find has been recorded by the learned trial Judge in paragraph 13 of his judgment. Thus, what we find is that there is a complete non-compliance of the procedure as to how a document of the nature of Ext.1 should be brought on record of the case as evidence, which could be admissible by virtue of Section 32(i) of the Evidence Act and on that basis a conviction could be recorded. 8. After having gone through the evidence and the discussion thereof made by the learned trial Judge, we are constrained to hold that the judgment was bases virtually on no evidence. It was a judgment, which was simply out of moral conviction of the learned Judge than out of any judicial requirement. 9. In the result, we find the judgment suffering from such errors as vitiated its propriety, requiring our rference. We set aside the judgment. We also set aside conviction and the sentences passed on each of the appellants. We acquit the appellants by allowing the three appeals. Appellant Babalu Singh is in custody. He shall be released forthwith, if not - 8 - wanted in any other case. Other appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. 10. We could dispose of the three appeals with the able assistance of Smt. Indu Bala Jha, who we requested to assist us that we could hear the appeals. We record our appreciation of her assistance and in our opinion she is entitled to a hearing fee in each of the three appeals, which should be paid by the Patna High Court Legal Services Committee. 11. Let copy of first and last pages of this judgment be handed over to Smt. Indu Bala Jha for the needful. Patna High Court, Dated 13th August, 2010, N.A.F.R./DKS (Mridula Mishra, J.) (Dharnidhar Jha, J.)