Somra Kachhap v. State Of Bihar — 1995 DIGILAW 358 (PAT)

Judgment R.N.Sahay, J. 1. The sole appellant in this appeal is Somra Kachhap who was charged and convicted in Sessions Trial No, 606/92 in the file of 6th Additional Judicial Commissioner, Ranchi. The appellant has been convicted under Section 302, I. P. C. and sentenced to imprisonment for life for the murder of Junus Tirkey, son of the informant, Philip Tirkey. 2. The occurrence leading to the trial and conviction of the appellant has been narrated by the informent as follows : On 1-1-1992 at about 6 p.m. the informant, Philip Tirkey was at his home in village Badam within the jurisdiction of Tatisilway P. S. The deceased came running to his house in seriously injured condition. He told his father that while he was going home the appellant fired at him in Badam School causing injury in his abdomen. The informant with his nephew Joseph and one Jaidhan, took his injured son to Arrah Mission Hospital on a rickshaw where he was refused to treatment. They came to Namkum P. S. from where they were sent to Block hospital but as there was no facility for proper treatment therefore, they were sent to Seva Sadan, Ranchi, Namkum P. S. As no proper treatment had been given to the injured they took him to R M.C.H. In course of treatment Junus died at 1.45 p.m. on 2-1-1992. It is alleged that the appellant was active criminal and he wanted informants son to join his group. The deceased having refused to do so was shot by a fire-arm. 3. It is clear from the above narration of the fact that no body has witnessed the occurrence and only evidence against the appellant is the dying declaration to have made by the deceased. The trial court has found the evidence regarding dying declaration to be free from any blemish and accordingly, the Additional Judicial Commissioner being satisfied that the evidence was sufficient against the appellant convicted and sentenced him. 4. Mr. P. S. Dayal, learned Sr. Counsel appearing in support of the appellant referred to the evidence in detail and assailed the finding of the trial court. He has submitted that the evidence is totally unworthy of reliance and so the trial court committed grave error in convicting the appellant by ignoring the salient part of the evidence which bristles the improbability. 5. Counsel appearing in support of the appellant referred to the evidence in detail and assailed the finding of the trial court. He has submitted that the evidence is totally unworthy of reliance and so the trial court committed grave error in convicting the appellant by ignoring the salient part of the evidence which bristles the improbability. 5. Before I addressing myself to the submission of the learned counsel briefly refer to the recorded evidence. Philips Tirkey (PW 1) who is the father of the deceased and informant in this case. He has submitted by and large the version in the F I.R. This witness has supported that at Namkum P. S. his son (deceased) was interrogated and then he was taken to Khijri Block Hospital. The injured was taken to Seva Sadan on police jeep. Mr.Dayal has led stress on this part of the evidence to demonstrate that the story of dying declaration was a myth. The deceased did not make any statement in the police station. 6. The next witness Joshef Tirkey (PW 2) who is the nephew of the informant who had also accompanied the injured to the hospital He has stated that the injured was taken to Namkum P. S. and from there to Khijri Block Hospital. When no proper treatment was given there they returned to Namkum P. S. and from there came to Seva Sadan on a police van and then to R. M. C. H. This witness has stated that on being taken to rickshaw Junnus has stated about the firing by Somra. Anjula Orain (PW 3) is sister-in-law of the deceased. She is the hearsay witness. John Tirkey (PW 4) and Francis Tirkey (PW 5) arc tendered witnesses. 7. PW 7 is another important witness who is also named in the F. I. R. He had accompanied the injured to the hospital and police station. He had also corroborated the fact that injured was taken to hospital on a police jeep. This witness has stated in cross-examination that the injured was brought to hospital by his brother and he was unconscious. 8. Dr. Sandeep Prasad Lal (PW 6) who was the doctor held post-mortem examination on the deceased. The deceased had injured on the right side of the chest. There is fire arm injury. This witness has stated in cross-examination that the injured was brought to hospital by his brother and he was unconscious. 8. Dr. Sandeep Prasad Lal (PW 6) who was the doctor held post-mortem examination on the deceased. The deceased had injured on the right side of the chest. There is fire arm injury. The factum is not in dispute, and hence it is not necessary to refer in detail the medical evidence 9. Jugal Kishore Gupta (PW 9) who was posted as hfficer-in-charge, Tatisilway on 2-1-1992. He has registered the case and given the charge of investigation to Sub-Inspector, Mustak Ali. Mustak Ali who was Investigating Officer of the case. He has stated that the house of Etwa Sanga was at a distance of about ten steps and the house of Raffal Kujur about 100 yards from the place of occurrence. He had not recorded the statement of £twa and Raffal. He had not recorded the evidence of witnesses at the place of occurrence. 10. The accused entered defence and examined two witnesses, namely, Etwa Munda and Etwa Sanga. Etwa Munda is a rickshaw puller on whose rickshaw the injured was taken to hospital. He has stated that the injured was unconscious. This statement was not recorded by the police. Etwa Sanga has stated that the house of this witness is at a distance of ten steps from the place of occurrence. It is stated that on the alleged date and time of occurrence no incident of assault as alleged to have taken place near his house. He has further stated that there are three or four boys named Somra in the village. 11. Mr. Dayal, submitted that from the nature of injury given in the post mortem report it will appear that the deceased could not have been in a position to talk after sustaining injury and running to this house from the place where he was shot. Mr. Dayal has referred the evidence of PW 6, the autopsy surgeon and submitted that the post-mortem was held on 3-1-1992 at about 11.30. a.m. and according to the evidence time elapsed since death was 6 to 24 hours and as such the deceased would have been alive before 11.30 a.m. on 2-1-1992, when the Fardbeyan was recorded the deceased was alive. a.m. and according to the evidence time elapsed since death was 6 to 24 hours and as such the deceased would have been alive before 11.30 a.m. on 2-1-1992, when the Fardbeyan was recorded the deceased was alive. There is force in the contention of learned counsel that if the deceased was interrogated at Namkum P. S. the fardbeyan should have been recorded on the statement given by the injured. It is surprising that no report was registered at Namkum P. S. It is significant to note that the F. I. R. which was lodged on 2-1-1992 was received in the court of C.J.M. after two days i.e on 4-1-1992. There is no reasonable explanation by the Investigating Officer to explain the inordinate delay. Mr. Dayal has strongly relied on the evidence of PW 7 who has stated that the injured was unconscious. Mr. Dayal has summed up his submission by submitting that the trial court was wrong in accepting the dying declaration which is not supported by any cogent evidence. It was impossible for the deceased to have made dying declaration considering the serious nature of his injuries. The deceased could not be capable of giving any statement. Mr. Dayal submitted that the appellant is entitled to be acquitted since the evidence on record is wholly insufficient to sustain the charge. 12. The medical evidence regarding the autopsy examination of the deadbody of deceased, Junas Tirkey reveals following injuries : "1. Fire-arm injury wound of entrance 1 x 1 cm. on the right side of chest front situated 3 oclock lateral to mid line in 7th inter costal space. There was blackening around the entrance of the wound measuring the area 3.4 cm. The projectile passed through front chest wall, diaphragm, liver perforating the stomach, small intestine, made its exist from back side of abdomen. There was fracture of 9th rib posterially the projectile. The track of the wound was contused and lacerated. Exit woundThere is exit wound measuring 3x3 cm. in area on the back abdomen 8 cm. lateral to mid line at the level of 2nd vertebra. There was presence of blood and blood clots in the abdominal cavity". 13. It is the contention of Mr. The track of the wound was contused and lacerated. Exit woundThere is exit wound measuring 3x3 cm. in area on the back abdomen 8 cm. lateral to mid line at the level of 2nd vertebra. There was presence of blood and blood clots in the abdominal cavity". 13. It is the contention of Mr. Dayal that with such fire-arm injury, having both entries and exit of the bullet damaging the vital organs of the body makes a person definitely unconscious immediately and it would not be possible of the part of the injured to make a dying declaration revealing the name of the assailants. His further contention is that the evidence of PW 1 disclosed injury on the abdomen while according to the medical report the entry injury is on the chest and as such there is variation of the injury as described by the oral evidence and the autopsy report. We do not find much force in this submission, as it appears from the medical report that there were oozing of blood near the abdomen and the blood clots were found in the abdominal cavity. In such position with a bare eye a person may make mistake as to the actual side of the injury but the fact remains that the injured was said to be interrogated at Namkum Police Station. He was carried to the police station just after the occurrence. If such interrogation was there then definitely some papers must have been there in the police station as to the statement of the injured and normally such statement should have been registered as First Information Report, but there is no such evidence from the side of the Investigating Officer. When an injured has been taken to the police station and by the police help the injured was sent for medical examination the natural course would be that the person accompanying must have given an information to the police as to how and by whom the injury was caused, but that is not the case in the present prosecution story. 14. In the impugnea judgment, the learned court below has discarded the submission of the defence regarding uaconsciousness of the injured as deposed by PW 7 as the injured was brought before this PW 7 after about two hours of occurrence. 14. In the impugnea judgment, the learned court below has discarded the submission of the defence regarding uaconsciousness of the injured as deposed by PW 7 as the injured was brought before this PW 7 after about two hours of occurrence. But, this was never the case of the prosecution that after some time of the sustaining of the injury, the injured became unconscious, According to them, the injured was conscious upto the stage when he was admitted to R.M.C.H. The bed tickets of R.M.C.H. hospital has not been produced nor any one from different health units where the injured was carried for treatment have been examined in this case. If they would have been examined then the correct picture from the independent witnesses would have been brought to light. Dying declaration has been supported only by the most interested and partisan witnesses namely, the father and cousin of the injured. About the rickshaw puller, it has not been denied that he had not pulled the rickshaw while the injured was taken to hospital. If the injured was in a position to speak then by natural inquisittyeness and curiosity the rickshaw puller must have known as to who had caused injury on the person of the deceased. 15. From all these above circumstances, we are of the firm view that the story of dying declaration has been concocted afterwards to implicate the accused-appellant. The submission of the learned defence counsel has got much force that the evidence adduced from the side of the prosecution is scanty and insufficient for the purpose of arriving at a conviction against the accused-appellant. 16. The only evidence in this case is the oral dying declaration stated to be made by the deceased before only two partisan witnesses. Definitely, dying declaration has got much implication and force, but some circumstances must be brought to support such oral dying declaration. If the deceased was in a condition to speak then his submission ought to have been recorded by the Police Officer at Namkum Police Station where he was brought just after the occurrence and he must have made statement before the Medical Officer of different Health Units where the injured was brought for treatment to get the history of the case. 17. 17. From the discussions above, I come to the conclusion that the conviction arrived at by the impugned judgment and order is bad and accused-appellant is entitled to be acquitted atleast on benefit of doubt. 18. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is hereby set aside and the accused-appellant acquitted on benefit of doubt and he should be immediately set free, if he is not wanted in any other case.