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2012 DIGILAW 1280 (PAT)

Balister Singh v. State of Bihar

2012-09-11

ADITYA KUMAR TRIVEDI, MIHIR KUMAR JHA

body2012
JUDGMENT MIHIR KUMAR JHA The sole appellant Balister Singh, having been convicted under Section 302 I.PC. and sentenced to undergo rigorous imprisonment for life by the impugned judgment dated 6.9.1990 passed by the 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 39 of 1989, has preferred this appeal. 2. The prosecution case as set out by the informant Rashidan Khatoon (P.W.5), wife of the deceased Rasul Mian, in her Fardbeyan (Exbt.-2) at 10 PM on 3.5.1988 in village Manika Manohar was to the extent that her husband working as a Mazdoor was called by one Mukul Razak as also his brother-in-law at about 5 PM on 3.5.1988 for doing the work of engraving the stone meant for kitchen purposes (flykSV) and her husband Rasul Mian (deceased) had accompanied them. It is the case of the informant that later on, she came to know that in the evening, the aforesaid Mukul Razak as also his brother-in-law and this appellant Balister Singh had consumed toddy in the shop of Ram Chandra Paswan and when the dawn had set in , there was some scuffle and in such scuffle with her husband, she came to know from Naga Singh that her husband had sustained stab injury and on hearing this, she had gone to the place of occurrence along with male members of the village and had found her husband over the road near the Bathan of Nazir Mian having stab injury in his chest and blood was coming out of such injury. 3. She has also claimed that in the Fardbeyan itself that her husband, after being asked as with regard to the injury sustained by him, had said to informant that it was the appellant Balister Singh who had caused the Chhura injury as also had assaulted him. The informant has also reported to the police that having found her husband in a serious injured condition, she had taken him on a cot to her house as also had informed Dr. Bajrangi Singh for examining and treating her husband but in the meantime, her husband had succumbed to the injury sustained by him. In the Fardbeyan, she had named Husaini Mian (P.W.1), Md. Muslim (not examined) Hakim Mian (not examined) as the persons who had also the knowledge of the said occurrence. 4. Bajrangi Singh for examining and treating her husband but in the meantime, her husband had succumbed to the injury sustained by him. In the Fardbeyan, she had named Husaini Mian (P.W.1), Md. Muslim (not examined) Hakim Mian (not examined) as the persons who had also the knowledge of the said occurrence. 4. According to the Fardbeyan of the informant P.W.5, her husband, at the time of his death, had kept on repeating as with regard to the Chhura injury caused on his person by the appellant. The motive for this occurrence, according to the informant, was an earlier family dispute wherein her married sister-in-law, the sister of the deceased, had an illicit relationship with the appellant and the deceased had sent her back to her Sasural the appellant, having initially developed friendship with the deceased, had ultimately taken the revenge by causing his death. 5. On the basis of the aforesaid Fardbeyan, Mushari P.S. Case No. 31 of 1988 was recorded by the police and after the investigation, the police had submitted charge-sheet only against the appellant while leaving Mukul Razak and the brother-in-law of Mukul Razak, the two other named persons in the First Information Report. The case being exclusively triable by sessions, after its commitment, the trial was conducted leading to the impugned judgment. 6. Mr. Chitranjan Sinha, learned senior counsel for the appellant, has submitted that there being no eyewitness to the occurrence, the case is virtually based on oral dying declaration of the deceased and the same would also not inspire confidence both on account of the absence of exact words stated by the deceased as also the inherent contradiction in the evidence of P.W.1 to P.W.5 who had stated about such dying declaration of the deceased. He has further submitted that in view of the medical evidence, there does not remain any iota of doubt that the deceased whose lungs was ruptured was not in a position to utter even a single word much less giving oral dying statement in presence of the P.W.1 to P.W.5. He has further submitted that in view of the medical evidence, there does not remain any iota of doubt that the deceased whose lungs was ruptured was not in a position to utter even a single word much less giving oral dying statement in presence of the P.W.1 to P.W.5. He has further proceeded to assail the conduct of the prosecution in suppressing the material independent witnesses including the all important Naga Singh from whom the informant had came to know about the injury on her husband as also Ram Chandra Paswan, the toddy shop owner where the appellant and two others were in company of the deceased after his being taken away from his house by two others, namely, Mukul Razak and his brother-in-law. 7. He has also highlighted the aspect that even when the informant had claimed that her husband had sustained bleeding injury on account of which his entire apparel had been stained with blood as also copious blood had spread over at the place of occurrence and yet the Investigating Officer did not find any blood at that place, inasmuch as, the entire place of occurrence was washed with water which in his view would go to show that the prosecution had tried to suppress the real version of the manner of occurrence as also the place of occurrence. He has, accordingly, summed up his submission by stating that the conviction of the sole appellant on the basis of such inconsistent and improbable case of the prosecution cannot be sustained. 8. Per contra, Ms. Sashi Bala Verma, learned APP appearing on behalf of the State, while supporting the impugned judgment of conviction of the sole appellant, has submitted that while it is true that there is no eyewitness to the occurrence but then five of the prosecution witnesses including the informant had consistently stated in their evidence with regard to the oral dying declaration given by the deceased and naming the appellant in particular as the person to have caused the fatal Chhura injury on his person, nothing more was required to prove on this crucial aspect. She has also submitted that in view of the consistent ocular evidence and the dying declaration, the conflicting opinion of the doctor as with regard to the nature of injury being wholly subjective cannot be given precedence. 9. She has also submitted that in view of the consistent ocular evidence and the dying declaration, the conflicting opinion of the doctor as with regard to the nature of injury being wholly subjective cannot be given precedence. 9. As with regard to place of occurrence, she has submitted that initially the informant is a rustic lady and when she had found her husband in the great pain on account of the injury suffered by him, she had made her valiant effort to save his life by taking him to her house and also calling doctor but when her husband had succumbed to his injury in her house she, under the advice of the villagers, had taken back the dead body again to the place of occurrence awaiting the arrival of the police and, therefore if the place where the occurrence had actually been committed was washed by someone, that would not in any way materially affect the prosecution version as with regard to the actual occurrence. She has, accordingly, submitted that there would be no need to interfere with the findings recorded by the court below while convicting the appellant. 10. Before we analyze the aforementioned submissions of both the parties, we must record here that there is no eyewitness to the occurrence. The prosecution infact has examined in all seven witnesses, namely, Hussain Mian (P.W.1), Nazir Mian (P.W.2), Md. Mozim (P.W.3), Md. Dayim (P.W.4), Rashidan Khatoon (P.W.5), Dr. B.N. Mehta (P.W.6) and Pawan Ram (P.W.7). The prosecution has also exhibited four exhibits, namely, Exbt.-1 (Postmortem Report), Exbt.-2 (Fardbeyan), Exbt.-3 (Forwarding Report) & Exbt.-4 (F.I.R.). 11. The defence, however, has not examined any witness or exhibited any document. The defence case from the trend of the cross-examination as also statement under Section 313 Cr.P.C., appears false implication of the sole appellant on account of old standing grudge and enmity of the family of the deceased towards him. 12. 11. The defence, however, has not examined any witness or exhibited any document. The defence case from the trend of the cross-examination as also statement under Section 313 Cr.P.C., appears false implication of the sole appellant on account of old standing grudge and enmity of the family of the deceased towards him. 12. As has been noted above, the prosecution has very fairly come out with the case that there was no eyewitness to the occurrence and to that extent, the version of the informant (P.W.5) in the Fardbeyan itself makes it abundantly clear that she had only come to know of the appellant being in company of the deceased while taking toddy in the shop of Ram Chandra Paswan from Naga Singh who had also informed as with regard to sustaining of Chhura injury by her husband on the road near the Bathan of Nazir Mian. It is very significant to note here that the informant, who has revealed the identity of Naga Singh to be the person informing to her of the incident relating to the Chhura injury on her husband, had however not named any person to be the assailant of the deceased Naga Singh, therefore, was definitely required to be produced by the prosecution to give the actual version as with regard to the information that he had carried to the P.W.5 (Informant). Non-examination of Naga Singh has therefore vitally affected the credibility of the prosecution case to the extent that even his status as an eyewitness to the occurrence could not be deciphered. Such conduct of prosecution of withholding the crucial evidence of Naga Singh, therefore, has to be viewed seriously. 13. Nonetheless though there are parrot like statement of all the five prosecution witnesses who are to have arrived at the place of occurrence at a stage the injured husband of the informant P.W.5 was lying over the road but their version as with regard to disclosure of name of appellant as an assailant of the deceased leaves a lot desired. True it is that all of them have tried to support the informant to the extent that the deceased, while being in pain, had disclosed the name of the appellant as the assailant to have caused Chhura injury on his person but none of them have stated as to what were his actual words uttered by him. True it is that all of them have tried to support the informant to the extent that the deceased, while being in pain, had disclosed the name of the appellant as the assailant to have caused Chhura injury on his person but none of them have stated as to what were his actual words uttered by him. The fact that the first person Naga Singh was withheld who could have given, the real words uttered by the deceased has not been examined and same has not been brought in evidence by any of the witnesses which in turn would pose a big question mark on the admissibility of the alleged dying declaration. 14. It is at this stage that one has to examine as to what was said by all the five witnesses as with regard to the so called dying declaration of the deceased. In the Fardbeyan, P.W.5 (the Informant) had stated that on enquiry from her husband, he had said that ^^cfyLVj NqM+k ls Hkksad fn;k gS vkSj ekj ihV fd;k gS**- She had gone to add in the Fardbeyan itself that ^^gekjs ifr ¼lkSgj½ ejrs oDr cksyrs jgs fd cfyLVj flag firk ;ksxhUnz flag efudk euksgj okyk Nqjk ls ekjk gS**- In the court during her evidence in the examination-in-chief, she had stated ^^geus lkSgj ls iwNk rks og cksyk fd ckfyLrj flag us ekjihV fd;k gS vkSj Nqjk Hkksad fn;k**- She had again in her examination-in-chief had also stated that ^^gekjk lkSgj ;g dgrs gq, ej x;k fd cfyLrj flag us Nqjk ekj fn;k gesa**- 15. On the other hand, P.W.1 in his evidence in court had stated that ^^jlqy dg jgk Fkk fd cfyLrj flag Nqjk ekjdj Hkkx x;k gS**- P.W.2 in his examination-in-chief in this regard had stated that ^^jlwy us Hkh dgk fd cfyLrj flag mls Nqjk ekj fn;k gS**- P.W.3 on the other hand had stated that ^^jlqy fe;kW fpYyk jgs Fks vkSj dg jgs Fks fd ckfyLrj flag mUgsa Nqjk ekjdj Hkkxk tk jgk gS**- P.W.4 in his evidence in the court on this point of oral dying declaration had stated that ^^jlqy fe;k cksy jgk Fkk fd ckfyLrj flag >xM+k fd;k rFkk Nqjk ekjdj Hkkx x;k gS**- 16. It thus becomes clear that the exact words stated by the deceased Rasul Mian has not been stated by any one of them as all of them had given their own version of such oral dying declaration. By now, it is well settled that dying declaration by itself is a weak evidence and, therefore, even though in a given case an oral dying declaration can form basis of conviction, but such a dying declaration has to be trustworthy and free from every blemish and must inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact words of the alleged oral dying declaration in such case detract materially from the evidentiary value of the oral dying declaration. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Darshana Devi Vs. State of Punjab reported in 1996 SCC (Cri) 38. 17. The oral dying declaration of the deceased apart from being not reproduced by the prosecution in exact words, his capacity of making such statement is also under serious doubt, inasmuch as, the doctor (P.W.6), who had conducted postmortem, had found the following ante mortem injuries:- "Penetrating injury with clear cut margin 3/4" X 1/4" X chest cavity deep on left side of chest 1" lateral to mid line. On dissection of Chest, collection of blood & blood clots was found in chest cavity. Left lung was found to be ruptured. The deceased died due to shock & hemorrhage as a result of above mentioned ante mortem injury caused by some sharp cutting pointed weapon. Time since death within twenty hour (24) hours." 18. As would be evident from the aforementioned observations of the doctor conducting postmortem, the deceased had sustained injury on the chest one inch lateral to the midline and his lung was found ruptured. The doctor P.W.6, who had thus conducted the postmortem, was subjected to the cross-examination and he had accepted that a person, having ruptured lung injury, would either slip into deep coma or succumb to the shock of such injury immediately. The following portion of the cross-examination of the doctor, therefore, would assume importance in this case and is quoted hereinbelow:- "The victim will receive immediate shock after such an injury. Shock will be intense. The following portion of the cross-examination of the doctor, therefore, would assume importance in this case and is quoted hereinbelow:- "The victim will receive immediate shock after such an injury. Shock will be intense. With that shock the patient may die instantaneously or may go in heavy coma. With the deepening of shock death will occur. In case of deep coma the man can't speak." 19. It has to be noted that even according to the prosecution case and the version of the informant, the husband could not survive even for an hour, inasmuch as, in the Fardbeyan itself, it has been stated that as soon as he was removed from the place of occurrence and taken to the house, he had breathed his last even before arrival of the doctor. In such a situation, it will be wholly unsafe to accept the prosecution case as with regard to oral dying declaration given by the deceased. 20. There are also other connected circumstances which would equally affect the veracity of the prosecution case. The withholding of the independent witness who had come to the place of occurrence on Hulla as also the non-examination of the first information attesting witness which included the Chaukidar, is another grave infirmity in the prosecution case. It has to be also kept in mind that it was the Chaukidar who had informed the police about the occurrence as has also been admitted by the P.W.5, the informant. The Chaukidar was in fact shown to be at the house of P.W.5 when PW5 had taken her injured husband from place of occurrence to her house along with other villagers including PW1 to PW4 and by that time, as per the informant, the name of the appellant as an assailant of the deceased had already been known. Thus if after the death of the deceased, the Chaukidar was said to have gone to the police station, a fact which has also been admitted by the P.W.7 (Investigating Officer), in such a situation withholding the evidence of Chaukidar would amount to suppressing a material witness who could have unfolded the true version with regard the name of the assailant of the deceased. 21. 21. The prosecution case has yet a major chink, inasmuch as, if there was already a reprochma between the deceased and the appellant despite there being illicit relationship of the appellant with the sister of the deceased, there was no reason for the prosecution to leave this story in the midway as has been done by P.W. 3, P.W. 4 and also partly P.W.5 . Thus, the reason which has been subscribed by the prosecution for committing the murder of the deceased by the appellant also does not stand to our scrutiny. On the other hand, the illicit relationship of the appellant with the sister of the deceased belonging to a different community and religion could itself be a good ground for false implication of the appellant. 22. The prosecution in fact has again not been fair in its approach, inasmuch as, even if the P.W.5, the informant, was a rustic lady as has been suggested by the learned APP, there was no need for her to suppress the fact as with regard to taking away her injured husband in an injured condition to her house and bringing the dead body at the place of occurrence after his death. As a matter of fact when the place of occurrence was completely washed by water before arrival of police on account which the I.O. could not find any trace of occurrence at the alleged place despite the dead body kept over there the same would amount to removing and destroying the material evidence by PW5 inasmuch as she had suppressed this face in ferdbayan that she had brought back the dead body from her house after the death of her husband. Nothing in fact has been stated by any of the witness on this score as to how the deceased who was earlier taken in the injured condition from the place of occurrence to his house by the informant and other male members of the village could again reach at the place of occurrence after his death and why did they wash the place of occurrence with water? 23. 23. The withholding of the inquest report by the prosecution in the aforementioned background infact would again only dent the veracity of the prosecution case, inasmuch as, when the Investigating Officer has admitted that he had conducted the inquest over the dead body at the place of occurrence, the gap of bringing of the dead body from the house of the informant to the place of occurrence was required to be filled up and well explained in order to bring the prosecution case home as against the appellant. Unfortunately, no explanation has been given also on this crucial aspect and we, therefore, are satisfied that the prosecution has miserably failed to prove its case much less beyond reasonable doubt. 24. That being so, we would allow this appeal and set aside the impugned judgment of his conviction and sentence. The appellant, who is on bail, shall accordingly stand discharged of the liability of his bail bonds.