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2003 DIGILAW 245 (PAT)

Bharat Chamar alias Bharat Ram v. State of Bihar

2003-02-28

P.N.YADAV, S.N.JHA

body2003
JUDGEMENT S.N.JHA & P.N. YADAV, JJ.:- The sole appellant of this appeal has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life, also fine of Rs. 1500/-; in default, rigorous imprisonment for one year. 2. The prosecution of the appellant was set in motion on the fardbeyan of the deceased himself, namely Ram Prasad Sah of Mohalla Ketra, Chapra Town, recorded by SI Mahtha Birendra Prasad of Chapra Town PS at the Sadar Hospital on 25/26.7.86 at mid –night As per the fardbeyan, Ram Prasad Sah had a Cycle Shop near Gumti No. 39 at Sahebganj, a locality of Chapra Town. On 25.7.86 he closed his shop about 9-9.15 PM and proceeded for home on bicycle. When he reached in front of the tea shop of Langer the appellant along with his associates accosted and asked for a treat. He named one Satyanarain among the associates. Ram Prasad Sah declined saying that he had no money. On this the associates of the appellant caught hold of him and the bicycle and the appellant gave him knife blows on the chest and panjra (back of chest scapular region). As a result of injuries he fell down. The appellant and his associates thereafter fled away. Raj Kumar Sah, a resident of Dahiyawa (another locality of Chapra Town) who was going home after closing his shop at Mauna Chowk reached there. He took him to Sadar Hospital on a rickshaw for treatment. Ram Prasad Sah disclosed that the reason behind the occurrence was an altercation with the appellant three years ago and another altercation between his son and the appellant. 3. It may be mentioned here itself that after recording the fardbeyan a request appears to have been made to the CJM Chapra to depute a Magistrate for recording the dying declaration of Ram Prasad Sah considering his condition, and accordingly Shri Om Prakash, a Judicial Magistrate posted at Chapra, recorded the dying declaration of Ram Prasad Sah at the Sadar Hospital on 26.7.86 at 8.45 AM. Ram Prasad Sah succumbed to his injuries on 28.6.86 at 7.30 PM. Meanwhile SI Mahtha Sirendra Prasad who had taken up investigation. After examining the witnesses and completing the required formalities he submitted charge-sheet against the appellant and Satya Narain Manjhi, since acquitted. That is how the appellant was put on trial. 4. Ram Prasad Sah succumbed to his injuries on 28.6.86 at 7.30 PM. Meanwhile SI Mahtha Sirendra Prasad who had taken up investigation. After examining the witnesses and completing the required formalities he submitted charge-sheet against the appellant and Satya Narain Manjhi, since acquitted. That is how the appellant was put on trial. 4. At the trial the prosecution examined seven witnesses to prove its case, out of whom PW 3 Baban Prasad was declared hostile and PW 4 Dular Chand Rai was tendeted. Out of the rest three were official witnesses, namely, SI Mahtha Sirendra Prasad the Investigation Officer of the case as PW 5, Dr. Shidheshwar Prasad who had held autopsy on the dead body as PW 6 and Om Prakash, the Judicial Magistrate who had recorded the dying declaration of Ram Prasad Sah as PW-7. Raj Kumar Prasad who took Ram Prasad Sah to the Hospital on rickshaw was examined as PW1. One Lall was produced for examination as PW2 but since he did not figure as charge-sheet witness he was not examined. 5. It would thus appear that Raj Kumar Prasad having reached the place of occurrence after commission of the crime, the fate of the case hinges on the dying declaration of the deceased. Shri Birendra Nath Mishra, learned counsel for the appellant, submitted that though it is permissible in law to base conviction on the dying declaration without seeking corroboration. In the facts and circumstances, the Court should reject the dying declaration and as there is no corroborating evidence to prove the case against the appellant, he should be acquitted. Counsel submitted that from the evidence of PW 1 Raj Kumar Prasad coupled with the attending circumstances it would appear that the deceased was not in a position to make any dying declaration and though the said dying declaration is said to have been recorded by a Magistrate, since the Magistrate did not satisfy himself about the capacity of the deceased to make statement, the so called dying declaration cannot be treated as conclusive of the appellant's guilt. He referred to certain earlier decisions on the point, which we do not consider necessary to mention in view of the recent decision of the Constitution Bench of the Apex Court in Laxman Vs State of Maharashtra, (2002) 6 SCC 710 , which we shall presently notice. He referred to certain earlier decisions on the point, which we do not consider necessary to mention in view of the recent decision of the Constitution Bench of the Apex Court in Laxman Vs State of Maharashtra, (2002) 6 SCC 710 , which we shall presently notice. Before we do so we would like to notice the salient features of the evidence on record. 6. PW 1, the only witness on facts, stated in his evidence that when he was returning home after closing his shop at about 9.30 -10 PM he saw Ram Prasad Sah lying on the main road in an injured condition with his face upside down. His cycle was also lying besides. He was not making movements nor speaking any thing. He did not see any body around there. He noticed two passers by but they spoke nothing. They looked like officers. He thereafter took Ram Prasad Sah on a rickshaw to Sadar Hospital. He went to his house to inform his family members. The Sub Inspector of Police came to the Hospital. He recorded his statement at the end. On Court question, he stated that the Sub Inspector might have recorded the statement of Ram Prasad Sah during the period when he had gone to inform his family members. 7. Relying on the evidence of PW 1 it was submitted on behalf of the appellant that if the deceased was not in a position to speak it is not understandable as to how he could have made statement much less dying declaration in the next morning. This submission is totally misconceived. If an injured in unconscious or not in a position to make statement it does not mean that he will remain in the same condition or that the condition will never improve. That apart, we have no reason to doubt the veracity of the evidence of the Magistrate, Sri Om Prakash, who recorded the dying declaration on being deputed by the CJM for the purpose and pledged his oath to say so in Court as PW 7. It is true, as submitted by the Counsel for the appellant, that the dying declaration was not recorded in the question - answer form but it is well settled by recent decisions of the Apex Court that there is no prescribed form for recording the dying declaration. It is true, as submitted by the Counsel for the appellant, that the dying declaration was not recorded in the question - answer form but it is well settled by recent decisions of the Apex Court that there is no prescribed form for recording the dying declaration. It is also true, as submitted on behalf of the appellant, that in the body of dying declaration there is no such satisfaction recorded by the Magistrate to the effect that Ram Prasad Sah was in a fit condition to make statement. However in his evidence Shri Om Prakash stated in no uncertain terms that before recording the statement he had asked the duty doctor to examine Ram Prasad as to whether he was in a fit condition to make statement and only after the doctor gave such opinion that he became satisfied that the deceased was in a condition to make statement and thereafter he recorded the statement. As a matter of fact the Magistrate took the precaution of getting endorsement by the doctor at the foot of the dying declaration to the effect "At the time of deposition the pt.(patient) was in conscious position". 8. Attempt was made to find loopholes in the certification by the doctor and it was submitted that a person may be conscious but that does not necessarily mean that his mental condition is such as to enable him to make such statement muchless dying declaration. Such a view indeed appears to have been taken in Paparambaka Rosamma Vrs State of A.P. (1999) 7 SCC 695 . This however was not approved by the Constitution Bench in the case of Laxman Vrs. State of Maharastra (supra). Describing it as hypertechnical, the Court observed:- "It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answer elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration." 9. The only distinction in the instant case is that instead of putting questions to the deceased himself the Magistrate asked the doctor on duty to examine his condition, but as indicated above, the Magistrate proceeded to record the dying declaration only on being himself satisfied that the deceased was in the fit state to make declaration. Apparently the doctor had examined the deceased in his presence. In our view in the absence of any evidence to the contrary where a dying declaration is recorded by a Magistrate it should be presumed; considering his professional background, that he would not have recorded the statement unless he was satisfied about the fitness of the person. In this instant case there being positive evidence of 1e Magistrate regarding his satisfaction about the fitness of the deceased, this aspect of the case is not open to doubt. In the recent case of Rambai Vs State of Chhattisgarh, 2003 SCC (Cri) 219, the Supreme Court observed:- "If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW 19 Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration." 10. A salient feature of the case is that the dying declaration is at a tandem with the fardbeyan version of the deceased recorded within 2-3 hours of the occurrence. That version finds due corroboration from the medical evidence of the doctor who found the following injuries on the deceased:- 1. Sharp punctured wound 1/2" X 1/2" X muscle deep on the right side of the chest. mid axillary line. 2. Incised wound 1.1/2" X 1/2" X muscle deep on the back of the chest right side on the scapular region in the middle. 3. Sharp punctured wound 1/2" X 1/2" X muscle deep on the right side of the chest. mid axillary line. 2. Incised wound 1.1/2" X 1/2" X muscle deep on the back of the chest right side on the scapular region in the middle. 3. Sharp penetrating wound 1.1/4" X 1/2" X chest cavity deep on the front of the chest right side with sharp punctured wound 3/4" of an Inch X 1/2" X 1/2" on the front surface of his right lung with collection of about 1.1/2 pint of dark red fluid blood in the chest cavity right side. 4. Sharp penetrating wound 1" X 1/4" X chest cavity deep, on front of the chest left side- left side just logical to sternum. 5.Incised wound 1.1/4" X 1/2" X muscle deep on the front of the chest left side above the left nipple about 2.1/2" outer to injury no. 4. 6. Abrasion 1.1/2" X 1" on the left side of the chest at mid axillary line. 7. Abrasion 1"X 1/4" on the back of the chest on the right scapular region at it upper portion." In the opinion of the doctor Injury no. 1, 3 and 4 were caused by sharp pointed weapon which could be a knife if point thereof is used for inflicting the injury while Inquiry nos. 2 and 5 were caused by sharp cutting weapon which could again be knife. Injury nos. 6 and 7 were by hard blunt substance. 11. Not only Fardbeyan was recorded within 2-3 hours of occurrence, the case (FIR) too as formally instituted within, two hours thereafter at 2 AM. The IO immediately took the follow up steps - of sending requisition to the CJM to depute a Magistrate for recording of dying declaration, and recording the statements of the witnesses immediately thereafter. The trial began within seven months of the occurrence and was over within ten months. 12. The law is well settled that conviction can be based on dying declaration without corroboration. The law was settled as back as in 1958 in the case of Khishal Rao Vrs State of Bomaby, AIR 1958 SC 22 . The following passage may usefully be quoted. 12. The law is well settled that conviction can be based on dying declaration without corroboration. The law was settled as back as in 1958 in the case of Khishal Rao Vrs State of Bomaby, AIR 1958 SC 22 . The following passage may usefully be quoted. "Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But it is not right in principle to do so. Though under S. 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice, illustration (b) to Section 114 of the Act lays down as a rule of prudence based on experience, that an accomplice is unworthy (If credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. Generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver...In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the varacity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that the particular dying declaration was not free from the infirmities." The Supreme Court proceeded to observe that it cannot be laid down as an absolute rule of law that a dying declaration cannot form sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers. and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upen oral testimony which may, suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. In para 17 of the judgment the Court laid down the test of reliability and concluded:- "But once the Court, has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration." 13. On the above touchstone, having gone through the dying declaration along with the evidence of the Magistrate and the doctor and keeping in view the attending circumstances, we find no reason to doubt the truthfulness of the dying declaration. The deceased may not have been in a position to speak, as stated by PW 1, when he was picked up from the road in the night of the occurrence but there is no reason to think that his condition would remain same after necessary treatment at the hospital, especially when the doctor certified his condition as fit and the magistrate was also satisfied in that regard. It should be kept in mind that the deceased died after about 60 hours of the dying declaration. In the facts and circumstances we find no ground to interfere with the conviction of the appellant. 14. At one stage we considered the possibility of altering the conviction to Section 304 of the Penal Code for the purpose of reducing the sentence - considering that the occurrence had taken place 17 years ago and in the meantime after six years of incarceration the appellant was granted bail during pendency of this appeal. But as the case cannot be brought within the ambit of any of the exceptions under Section 300 of the Penal Code it is not possible to alter the conviction and thereby reduce the sentence. 15. In the result, the appeal is dismissed. The appellant as stated above, is on bail. He is directed to surrender in the court below and serve remainder of the sentence. If he does not surrender within six weeks the trial court will take necessary steps to effect his arrest.