Pairu Mian, Mohd. Seraj Mian v. State Of Bihar — 1999 DIGILAW 5 (PAT)

Judgment N.Rai and M.L.Visa JJ. 1. These two appellants along with Md. Hamid Mian were put on trial before the Additional Sessions Judge, Gaya, in Sessions trial No. 68 of 1985/13 of 1985 and both of them have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo RI for life. The other accused Md. Hamid Mian was acquitted of the charges levelled against him. 2. The prosecution case in brief is that on 27.7.1984 at about 4.30 p.m. the deceased Kamruddin was standing near Chhata Mosque in the town of Gaya. At that point of time, the appellant Md. Seraj Mian came and asked him to settle the matter with Md. Hamid, who at that time was sitting in Mohalla Murarpur. Thereafter, the deceased left in the company of Md. Seraj for Murarpur, and when he reached near the shop of one Raso Mian (PW 3), the deceased noticed the appellant Pairu Mian and acquitted accused Md.Hamid sitting there. Appellant Pairu Mian caught hold of him and appellant Md. Seraj and acquitted accused Hamid assaulted him with knife and razor causing injuries into his stomach, hand and chest, as a result of which he fell down. PW 1 Pheku Mian, PW 3 Md. Rashid @ Raso Mian and PW 4 Teju were present there and have witnessed the occurrence. 3. PW 6 Chaturbhuj Narayan Singh was posted as SI of police at Kotwali Police Station, Gaya, at the relevant time. On the basis of OD slip, he proceeded to the Pilgrim Hospital where the injured was taken. He recorded the fardbeyan of the deceased Kamurddin at 6 p.m. in presence of Md. Saleem (PW 2) and Fakruddin Mian, who is not examined. The fardbeyan has been marked as Ext. 3 on the basis of such fardbeyan a formal FIR (Ext. 4) was drawn up and PW 6 Chaturbhuj Narayan Singh proceeded with the investigation. He took the further statement of the deceased which has been marked as Ext. 5. Thereafter, the deceased succumbed to injuries and his dead body was sent for post mortem examination. After receipt of the post-mortem report and on completion of the investigation, PW 6 submitted the charge-sheet. 4. After cognizance and usual commitment order these two appellants and the other acquitted accused were put on trial which has ended in conviction and sentence of the appellants as stated above. 5. After receipt of the post-mortem report and on completion of the investigation, PW 6 submitted the charge-sheet. 4. After cognizance and usual commitment order these two appellants and the other acquitted accused were put on trial which has ended in conviction and sentence of the appellants as stated above. 5. The defence of the appellants in brief is that the occurrence did not take place in the manner as alleged by the prosecution. The deceased was a man of bad antecedent. He used to tease the girls of the mohalla as a result of which the mohalla people were annoyed and he received injuries because of his bad character. The appellants have been falsely implicated in this case. 6. The prosecution examined 7 witnesses, out of whom PW 1. Pheku Mian, PW 3 Md. Rashid @ Raso Mian and PW 4 Teju are the alleged eye-witnesses. PW 2 Md. Salim is a witness of the recording of fardbeyan which has been treated as dying declaration. PW 5 is Arjun Prasad Verma, SI of Police, who held inquest over the dead body of the deceased, on 28.7.1984. PW 6 Chaturbhuj Narayan Singh, as stated above, is the Investigating Officer. PW 7 Dr. Vijay Kumar at the relevant time was posted as Associate Professor, Department of Medicines, Gaya, and held autopsy on the dead body of the deceased on 28.7.1984. 7. The factum of death of the deceased in not in dispute. PW 7 the Doctor examined the injuries on the person of the deceased and found the following injuries : (i) Penetrating wound 1/2" x 1/4" x Peritoneal deep over chest (lower part and right sterunum) On dissection of thorax, the lever was found pierced. The thoracic cavity was found filled with blood and clot. (ii) Piercing wound 1/2" x 1/2" x peritoneal with expulsion of coils of intestine over right lilac portion. The intestine were found perforated and abdominal cavity was found filled with blood and clot. (iii) Piercing wound 1/2" x 1/4" x bone deep over upper part of the left forearm below elbow. The upper end of radius bone was found fractured. (iv) Penetrating wound 1/2" x 1/4" x bone deep over lower portion of left arm. According to his evidence, the deceased had received four injuries. Injury Nos. (iii) Piercing wound 1/2" x 1/4" x bone deep over upper part of the left forearm below elbow. The upper end of radius bone was found fractured. (iv) Penetrating wound 1/2" x 1/4" x bone deep over lower portion of left arm. According to his evidence, the deceased had received four injuries. Injury Nos. 1, 2 and 3 were caused by dagger and injury No. 4 was caused by razor and all the injuries were sufficient to cause death in ordinary course of nature. The death was caused due to injury Nos. 1 and 2. Thus, the deceased got homicidal death due to the injuries inflicted on his person. 8. Firstly, we would consider the two dying declarations to find out as to whether those dying declarations are the statement of the deceased. The dying declaration is admissible under Section 32 of the Evidence Act. The statement made by the dying man has to be given great sanctity for the reason that the deceased would be the last person to implicate the persons who have not participated in the crime. However, as the dying declaration/statement is made by the deceased behind the back of the accused and the accused has no opportunity to cross-examine, the dying declaration has to undergo closest scrutiny before it is accepted and relied upon as an evidence. Whether the dying declaration in a particular case is to be accepted or not, it depends upon the facts and circumstances of the case. However, there are certain well known tests to find out as to whether the statement was made by the dying man and the same could be relied upon or not. The Court has to satisfy as to whether the deceased was in a position to observe the participation of the accused or not. Whether his memory was impaired by the circumstances beyond his control after receiving injuries. Whether the deceased made statement at the earliest or the statement was made later on because of prompting. In case he has made more than one statement, whether the statements were consistent. 9. In the light of the aforesaid observations, the statement made in the dying declaration by the deceased has to be considered in this case. According to the prosecution case, the occurrence took place at 4.30 p.m. and thereafter, the injured was taken to the hospital on rickshaw by PW 1 Pheku Mian. 9. In the light of the aforesaid observations, the statement made in the dying declaration by the deceased has to be considered in this case. According to the prosecution case, the occurrence took place at 4.30 p.m. and thereafter, the injured was taken to the hospital on rickshaw by PW 1 Pheku Mian. Immediately, information was sent to the police and Police Officer, Chaturbhuj Narayan Singh (PW 6) reached the hospital at 6 p.m. Thereafter, he recoded the fardbeyan of the deceased. PW 6 has stated that at the time of making statement the deceased was in a fit state of mind. He has further stated that the deceased made statement in presence of PW 2 Md. Salim and Fakruddin who has not been examined. The deceased has put his LTI on the fardbeyan. Thus, the statement was made by the deceased at the earliest. According to the evidence of the witnesses, the deceased was in a fit state of mind. Thus, there is no ground to disbelieve the statement made in the fardbeyan which has been treated as dying declaration. Immediately after recording the fardbeyan the Investigating Officer recorded the statement of the deceased. Both the statements made by the deceased are consistent. However, the subsequent statement was recorded by the Investigating Officer during the course of investigation. He should have requisitioned the Magistrate before recording the aforesaid statement. Though there is no infirmity in the further statement. The same was made by the deceased but as the Investigating Officer did not record the same in presence of the Magistrate, we are keeping the same out of consideration and are not relying upon the same in this case. 10. The prosecution has also relied upon the evidence of the eye-witnesses apart from the aforesaid two dying declarations. PW 1 Pheku Mian is the brother of the deceased. He has stated that at the relevant time he was in Mohalla Murarpur. On hearing holla, he went and saw appellant Pairu Mian catching hold of the deceased and appellant Md. Seraj and acquitted accused Hamid were assaulting with chhura. He has stated that he took the deceased to the hospital. Thereafter, the police officer came and recorded the fardbeyan. Learned Counsel appearing for the appellants submitted that PW 1 is not eye-witness in this case. Seraj and acquitted accused Hamid were assaulting with chhura. He has stated that he took the deceased to the hospital. Thereafter, the police officer came and recorded the fardbeyan. Learned Counsel appearing for the appellants submitted that PW 1 is not eye-witness in this case. He drew our attention to paragraph-7 of his deposition wherein he has stated that at the time of occurrence he was near the shop of Hafiz and on hearing halla he came to know that appellant Pairu Mian has caught hold of Kamruddin and appellant Seraj and Hamid had assaulted with chhura. He went there and noticed injuries on the different parts of the body of the deceased Kamruddin. The statement made in paragraph-7 has to be read along with other statements of this witness. No doubt, this witness being the brother of the deceased can be an interested witness but on that ground the testimony can not be rejected. In such situation, the statement of the interested witness has to be weighed with care and caution. This witness claimed that he was present near the place of occurrence and after hearing hulla, he went there and witnessed the occurrence. His presence at the place of occurrence finds support from the statements made by. the deceased. He has stated that this witness was present at the time of occurrence. From the statement made by this witness in paragraph-7, it cannot be said that he has not seen the occurrence. It appears that on hearing hulla, he reached there and saw the role played by these two appellants. Learned Counsel further submitted that the presence of this witness is doubtful in view of the statement made by PW 2 who has stated that he was the first man who reached the hospital and thereafter PW 1 and others came. Admittedly, PW 2 was not present on the place of occurrence and he went to hospital on getting information about the occurrence, from his brother. As such he is not a competent person to say as to from where PW 1 reached at the place of occurrence. Accordingly, after having considered the statement of PW 1, we are of the view that his deposition inspires confidence and there is no ground to discredit his evidence. 11. PW 3 is Raso Mian. The occurrence is alleged to have taken place near his shop. Accordingly, after having considered the statement of PW 1, we are of the view that his deposition inspires confidence and there is no ground to discredit his evidence. 11. PW 3 is Raso Mian. The occurrence is alleged to have taken place near his shop. He has stated that at that time, he was at his betel shop and it was raining at that time. Appellant Seraj brought Kamruddin at that place and appellant Pairu Mian caught hold of him and appellant Seraj assaulted with chhura on chest, stomach and left arm. It appears that before the police, this witness has not stated that, at the time of occurrence, it was raining. Learned Counsel submitted that the evidence of this witness is not reliable as he has made contradictory statements at different stages. In this connection, he drew our attention to the fact that this witness has stated in Court that appellant Seraj brought the deceased at the place of occurrence by catching him. He has also stated that it was raining at the time of occurrence. These statements were not made before the police. These facts are not contradictions but omissions and on that ground the evidence of this witness regarding manner of occurrence cannot be doubted. His evidence thus inspires confidence and is reliable so far as participation of these two appellants is concerned. 12. PW 4 Teju was also present at the place of occurrence and he has stated that the appellant Seraj brought Kamruddin there and then appellant Pairu Mian caught hold of him and appellant Seraj assaulted him with chhura. It is submitted that in view of the statement made in paragraph 7 of his deposition that he was plying rickshaw from 4.00 p.m. to 10.00 p.m. His presence at the place of occurrence at 4.30 p.m. is doubtful. This witness has stated in clear words that at the relevant time he was near the place of occurrence and has witnessed the same. There is no reason for this witness to falsely implicate the appellants. The timing given by him is by estimate. He has admitted that he is illiterate and as such some variation in timing would not be a ground to reject his testimony. His statement regarding the matter of occurrence is also consistent with the evidence of other witnesses and there is no ground to reject his testimony. 13. The timing given by him is by estimate. He has admitted that he is illiterate and as such some variation in timing would not be a ground to reject his testimony. His statement regarding the matter of occurrence is also consistent with the evidence of other witnesses and there is no ground to reject his testimony. 13. Learned Counsel for the appellants vehemently submitted that as blood was not found at the place of occurrence by the IO, the prosecution case becomes doubtful. The prosecution witnesses have stated that at the time of occurrence, it was raining. Initially, these witnesses have not made such statement during investigation but that is only an omission. This apart, the IO has himself stated in his evidence that when he visited the place of occurrence, it was raining. In such a situation, the absence of blood cannot be a ground to disbelieve the prosecution case. 14. Thus, on consideration of the evidence on the record we are of the view that the prosecution has proved beyond all reasonable doubts that appellant No. 1 Pairu Mian caught hold of the deceased and appellant No. 2 Seraj assaulted with chhura. 15. According to the fardbeyan which has been treated as dying declaration, apart from the two appellants, Md. Hamid also participated and assaulted the deceased with razor. However, PWs 3 and 4 did not name him as an assailant as a result of which the trial Court has given the benefit of doubt to Md. Hamid. Learned Counsel for the appellants submitted that as participations of Hamid is doubtful and he has been given benefit of doubt, these appellants are also entitled to benefit of doubt as their participation is also doubtful in the occurrence. 16. The maxim falsus in uno, falsus in omnibus is not applicable in this country. The Court has to scrutinise the evidence to find out the truth and disengage the falsehood from the evidence. The Court cannot adopt easy course to reject the evidence on the ground that evidence of the witnesses has not been accepted with regard to some accused. In this case the evidence about participation of these two appellants is consistent and convincing. So far as acquitted accused Md. The Court cannot adopt easy course to reject the evidence on the ground that evidence of the witnesses has not been accepted with regard to some accused. In this case the evidence about participation of these two appellants is consistent and convincing. So far as acquitted accused Md. Hamid is concerned, he was given benefit of doubt because of the statement of the PWs 3 and 4 who did not name him as assailant in the Court though they have named him before the police. The trial Court has acquitted Md. Hamid by giving benefit of doubt in view of the contradictory evidence with regard to the participation. Thus, the appellant cannot be acquitted only on the ground as urged on behalf of the appellants. 17. After giving thoughtful consideration to the evidence from different angles, we are of the view that the prosecution has proved the participation of the appellants beyond doubt in the occurrence. 18. In the result, we find no merit in this appeal. It is accordingly dismissed. Since the appellants are on bail, their bail bonds are cancelled and they are directed to surrender to serve out the remainder of their sentence.