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2000 DIGILAW 720 (PAT)

Abul Hassan v. State Of Bihar

2000-05-15

M.L.VISA

body2000
Judgment M.L.Visa, J. 1. Abdul Hassan, the sole appellant, is aggrieved by the judgment and order dated 31.7.1989 passed by the Sessions Judge, Muzaffarpur in Sessions Trial No. 148/1985 convicting and sentencing him to undergo R.I. for a period of six years under Section 304, Part I of the Indian Penal Code (in short, IPC). 2. The facts, as narrated in the fardbeyan (Ext. 3) in short, are that on 12.6.1983 the deceased Ramzan Mian returned along with his villager Md. Ibrahim (not examined) from Rupauli Bazar to his house situate at village Rupauli, P.S. Saraiya, District Muzaffarpur. At that time a kid of his she-goat strayed into the field of appellant and the appellant assaulted the kid with fists and kicks and went to his house. Most. Rasoolman, the daughter-in-law of deceased, told the deceased that the appellant had assaulted the kid. The deceased then uttered abuses in the name of appellant and also said that he would also not spare the she-goat or hen of the appellant if they would destroy his crop. His abuses were heard by the wife and daughter of appellant, who informed the appellant about it. The appellant thereafter carrying a barchhi in one hand and bhala in the other came to the house of deceased and started abusing him. Hanif Mian (PW 2), a neighbour of deceased, tried to stop the appellant and in the meantime deceased hearing the talks of appellant and Hanif Mian came out from his verandah when the appellant gave a barchhi blow on the left side of chest of deceased. The deceased caught hold of the appellant when the appellant carrying his bhala fled away towards his house. The occurrence was seen by Kusum Khatoon (PW 1) wife of deceased, Amana Khatoon (PW 4) and Md. Ibrahim (not examined). The deceased after receiving injuries became unconscious and fell down. He was taken to Saraiya State Dispensary where he regained consciousness and his fardbeyan (Ext. 3) was recorded by A.S.I. Murli Singh (PW 8). About the motive of occurrence the deceased in fardbeyan has stated that there was some enmity between his wife and the wife of appellant. On the basis of fardbeyan, a formal FIR (Ext. 4) under Section 324, IPC was drawn against the appellant and the case was registered. Subsequently, the deceased succumbed to injury and Section 302, IPC was added to the FIR. On the basis of fardbeyan, a formal FIR (Ext. 4) under Section 324, IPC was drawn against the appellant and the case was registered. Subsequently, the deceased succumbed to injury and Section 302, IPC was added to the FIR. After the investigation charge-sheet under Section 302, IPC was submitted against the appellant. Cognizance of the case was taken and the case was committed to the Court of Sessions where charge under Section 302, IPC was framed against the appellant. The appellant denied the charge. 3. The case of appellant as it appears from the trend of cross-examination of prosecution witnesses and from the evidence of witnesses examined on his behalf is that he has been falsely implicated in this case at the instance of one Dr. Mannan, who happens to be mama of the wife of deceased and with whom the appellant had enmity. After trial the Court below held the appellant guilty under Section 304 Part I, IPC and, accordingly, convicted and sentenced him as indicated above. 4. In order to prove its case, the prosecution has examined nine witnesses. Kusum Khatoon (PW 1), the wife of deceased, Hanif Mian (PW 2), Rajendra Pandey (PW 3), Amana Khatoon (PW 4), Jugal Bhagat (PW 5) have not supported the case of prosecution and they have been declared hostile. Dr. Manoranjan Kumar Srivastava (PW 6) had held post-mortem examination on the dead body of the deceased. Dr. Ram Ekbal Singh (PW 7) had first examined the deceased when he was alive. Murli Singh (PW 8) is the I.O. Abdul Salam (PW 9) is the S.I. of Police who on 12.6.1983 had recorded the dying declaration (Ext. 3/1) of the deceased at Sadar Hospital, Muzaffarpur. 5. Dr. Manoranjan Kumar Srivastava (PW 6), in his evidence, has stated that on 15.6.1983 at about 10.00 a.m., he held post-mortem examination of deceased and found a surgical stitched wound on the abdomen which was about 8" long. The cause of death was due to peritonitis but the cause of injury could not be given due to surgical interference. He has further stated that peritonitis means infection or some sort of disease due to the wound and chances of such phenomena are due to dirty weapon used or due to surgical defect. Dr. The cause of death was due to peritonitis but the cause of injury could not be given due to surgical interference. He has further stated that peritonitis means infection or some sort of disease due to the wound and chances of such phenomena are due to dirty weapon used or due to surgical defect. Dr. Ram Ekbal Singh (PW 7), in his evidence, has stated that on 12.6.1983 at 6.00 p.m. he examined the deceased and found one lacerated and penetrating wound 3/4" x 1/4" x 3-1/2" deep on the left side of the chest. According to him, injury was caused by sharp-penetrating weapon such as barchhi and the injury was grievous and it was dangerous to life. Murli Singh (PW 8), in his evidence, has stated that on 12.6.1983 he was posted at Saraiya Police Station and on that day at about 5.45 p.m. he received on O.D. slip from Saraiya Hospital and when he went there he found the deceased lying injured in the Jeep and he then recorded the fardbeyan of the deceased. He has proved the fardbeyan which is marked as Ext. 3. He has also proved the formal FIR (Ext. 4). He has also proved the further statements of deceased recorded during investigation. This statement is marked Ext. 5. Abdul Salam (PW 9), in his evidence, has stated that on 13.6.1983 he was posted as A.S.I., Town Police Station, Muzaffarpur and on that day he recorded the dying declaration of the deceased. According to him at the time of giving statements the deceased was mentally fit. He has proved half portion of dying declaration which is marked Ext. 3/1. The remaining portion was torn and he has proved this remaining portion by the copy from case diary. This copy is marked Ext. 3/2. 6. In this case there is no eye witness to the occurrence. The witnesses who, according to the prosecution, were eye-witnesses to the occurrence including the wife of deceased have not supported the case of prosecution and as stated above they have been declared hostile. The Court below has found the appellant guilty merely on the basis of dying declaration of the deceased. The witnesses who, according to the prosecution, were eye-witnesses to the occurrence including the wife of deceased have not supported the case of prosecution and as stated above they have been declared hostile. The Court below has found the appellant guilty merely on the basis of dying declaration of the deceased. According to the Court below, the deceased on three different occasions gave his statements disclosing the manner of occurrence and statements given on all these three occasions by the deceased have been considered as dying declarations by the Court below. Among such declarations, first is the fardbeyan (Ext. 3), second is further statements (Ext. 5) of deceased recorded during investigation under Section 161 of the Code of Criminal Procedure (in short, Cr PC) and the third is statement recorded by PW 9 on 13.6.1983. As stated earlier, this statement was torn, therefore, PW 9 has proved this statement in two parts. First part is Ext. 3/1 which is the portion which remained on record and second part is Ext. 3/2 which is copy of torn portion as recorded in the case diary. So far as Exts. 3/1 and 3/2 are concerned, the Court below after taking both together has considered it as the complete statement of deceased recorded by PW 9 on 13.6.1983 in Sadar Hospital, Muzaffarpur. In my opinion, it cannot be considered to be complete because Ext. 3/2 is the part of the statement which has been proved by the copy from case diary by PW 9. This witness has no where stated that after recording the statement of deceased he or anybody else made a copy of the same which was recorded in the case diary. In absence of the proof that any copy of this statement was entered in the case diary from the original one part of this statement by the so-called copy of statement in the case diary cannot be considered to be a part of original statement. About fardbeyan (Ext. 3) and further statement of deceased (Ext. 5). I find that in the fardbeyan Md. Ibrahim and Vishwanath Choudhary have put their signatures as witnesses but none of them has been examined by the prosecution. Besides this, Kusum Khatoon (PW 1), in her cross-examination, has stated that after receiving injury her husband became unconscious and he remained unconscious till his death. 5). I find that in the fardbeyan Md. Ibrahim and Vishwanath Choudhary have put their signatures as witnesses but none of them has been examined by the prosecution. Besides this, Kusum Khatoon (PW 1), in her cross-examination, has stated that after receiving injury her husband became unconscious and he remained unconscious till his death. This statement creates a strong doubt about the genuineness of fardbeyan (Ext. 3) and further statement (Ext. 5) of the deceased. The Court below has taken into consideration this admission made by the wife of deceased but it had not given any importance to it by observing that she is a hostile witness and she cannot be considered reliable witness because in her evidence she has not claimed to have seen the offence of assault. I am unable to agree with this finding of the Court below. The wife of deceased may not be an eye-witness to the occurrence but only on that ground it cannot be said that she could not give the details of physical condition of her husband after receiving injuries. I further find that wife of deceased in her cross-examination has admitted that one Dr. Mannan had gone with the deceased to hospital and he remained with the deceased till the death of deceased. About this, Dr. Mannan the case of appellant is that he had enmity with him and Abdul Gaffar (DW 2), in his evidence, has stated that the appellant had on 13.1.1978 filed informatory petitions against Dr. Mannan. Rajendra Prasad Sinha (DW 1), a record keeper of Judicial Record Room of Collectoriate, in his evidence has said that original informatory petitions filed by appellant has been destructed and he has proved the destruction reports (Ext. A and Ext. A/1). The certified copies of informatory petitions have been marked as Exts. B and B/1. The Court below has not considered these informatory petitions by observing that these petitions were of considerable long past and it would be difficult to derive any influence out of these for the situation or the state of relationship existing at the time of occurrence and wife of deceased, who happens to be cousin sister of Dr. Mannan, has turned hostile. In my opinion, when the informatory petitions showing enmity with the appellant and Dr. Mannan were filed much before the occurrence and the evidence of the wife of deceased that Dr. Mannan, has turned hostile. In my opinion, when the informatory petitions showing enmity with the appellant and Dr. Mannan were filed much before the occurrence and the evidence of the wife of deceased that Dr. Mannan remained with the deceased throughout the period after he had received injury till his death, the statements in fardbeyan and further statements under Section 161, Cr PC become quite doubtful particularly considering the fact that the witnesses who had put their signatures in the fardbeyan have not been examined. In the present case, the appellant has been found guilty only on the basis of so-called dying declaration of the deceased. No doubt a dying declaration can form the basis of conviction of accused provided the dying declaration is considered to be free from any doubt and there is convicting proof that when dying declaration was given the deceased was mentally fit to give statement. In the present case, the evidence of wife of deceased that after receiving injury the deceased became unconscious and he remained in that stage till his death makes the genuineness of the so-called dying declarations quite doubtful. Besides this, the presence of Dr. Mannan with the deceased at Saraiya State Dispensary and thereafter at the Sadar Hospital, Muzaffarpur is another factor which makes the so-called dying declaration quite doubtful. In such circumstances without any corroborative evidence, the dying declarations cannot be made the only basis for sustaining the conviction of the appellant. 7. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellant is hereby set aside. The appellant, who is on bail, is discharged from the liability of his bail-bonds.