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2012 DIGILAW 231 (PAT)

Lal Bihari Kamkar v. State of Bihar

2012-02-07

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT SHYAM KISHORE SHARMA, J. This appeal has been filed by the above r named appellants against the judgment of conviction and order of sentence dated 31.08.1989 passed by 3rd Additional Sessions Judge, Gopalganj in Sessions Trial No. 495 of 1984 convicting the appellants under Section 396 of the Indian Penal Code and sentencing them under the said section to undergo rigorous imprisonment for life. 2. Amarjit Ram (P.W.2) has given his fardbeyan (Ext.3) alleging therein that in the night intervening between 13/14th August, 1982 he was sleeping in Sahan whereas his father Bauku Ram was sleeping on another cot at some distance from him. At about 11.00 P.M. 10 to 12 dacoits armed with lathi, bhala and farsa surrounded them and assaulted informant’s father Bauku Ram. His father received injury on his head and blood came out. The informant volunteered himself before the dacoits with a prayer to spare his father. Thereafter the informant was also assaulted. The informant claimed identification of the dacoits in the light of their torches. The dacoits entered inside the hut of the informant and took away utensils from there. Subsequently, the informant knew that the dacoits have also looted articles from the house of Ram Swaroop Chaudhary after assaulting him and his family members. The fardbeyan of P.W.2 resulted into formal F.I.R. (Ext.1) vide Mirganj P.S.Case No. 99 (8) 1982 under Section 395 of the Indian Penal Code against unknown. The investigation was taken up and in course of investigation dying declaration (Ext.2) of Ram Swaroop Chaudhary was recorded by Ram Sagar Mandal, Circle Officer, Hathua Block (P.W.3). The post mortem reports of deceased Ram Swaroop Chaudhary and Bauku Ram (Exts. 4 and 4/1 respectively) were obtained and after completion of investigation, chargesheet under Section 396 of the Indian Penal Code was submitted. Cognizance was taken and case was committed to the court of sessions where charge was framed and explained to the accused persons. The accused persons pleaded innocence and they preferred to face trial. 3. The defence of the accused persons was of false implication and that the dying declaration was incorrect. 4. The prosecution in order to prove its case has examined seven witnesses. They are : P.W.1 Rameshwar Singh, P.W.2 Amarjeet Ram, P.W.3 Ram Sagar Mandal, P.W.4 Ram Kishun Choudhary, P.W.5 Kailash Prasad, P.W.6 Dr. Indranand Jha and P.W.7 Amarchandra Srivastava. 5. 3. The defence of the accused persons was of false implication and that the dying declaration was incorrect. 4. The prosecution in order to prove its case has examined seven witnesses. They are : P.W.1 Rameshwar Singh, P.W.2 Amarjeet Ram, P.W.3 Ram Sagar Mandal, P.W.4 Ram Kishun Choudhary, P.W.5 Kailash Prasad, P.W.6 Dr. Indranand Jha and P.W.7 Amarchandra Srivastava. 5. Defence has also examined two witnesses who are Advocate’s clerks. They are: D.W.1 Balister Singh and D.W.2 Gorakh Prasad. They have proved some documents. 6. The trial court after analyzing the evidences on record came to the conclusion that the prosecution has been able to prove the charge against the accused persons who are appellants here beyond the shadow of all reasonable doubts. Accordingly, judgment of conviction and order of sentence was passed. 7. This Court is required to see as to whether the judgment of conviction and order of sentence is correct or not. 8. P.W.1 Rameshwar Singh is an Advocate’s clerk and has merely proved the writing of formal F.I.R. P.Ws. 5 and 7 who are also Advocate’s clerks have proved the writing of Gorakh Nath Singh, the Investigating Officer which has been marked as Ext.3. P.W.3 has recorded the dying declaration of Ram Swaroop Chuadhary. P.W.6 is the doctor who had conducted autopsy over the dead body of deceased Ram Swaroop Chaudhary. The material witnesses of the occurrence are P.Ws.2 and 4. 9. P.W.2 Amerjeet Ram is the informant of the case and in his evidence he has stated that at about 11/12 in the night he was sleeping in Palani of his house and at that time his father was sleeping at Darwaza. At that very moment, 10 to 12 criminals armed with traditional weapons came and indiscriminately assaulted his father. The informant could not see the agony of his father and he volunteered himself before the dacoits and he was also assaulted. The informant could not identify any of the dacoits. His father succumbed to the injuries which he has received at the hands of the docoits. On the same day, the house of Ram Swaroop Chaudhary was also looted. This witness has stated in paragraph 5 of his evidence that he and accused persons are residents of nearby villages and all the accused persons are known to him from before. His father succumbed to the injuries which he has received at the hands of the docoits. On the same day, the house of Ram Swaroop Chaudhary was also looted. This witness has stated in paragraph 5 of his evidence that he and accused persons are residents of nearby villages and all the accused persons are known to him from before. The evidence of the informant is only to the extent in which his father was mercilessly beaten which led to his death but informant could not identify any of the accused persons. Therefore, the evidence of this witness is of no help to the prosecution. 10. P.W.4 Ram Kishun Choudhary is another material witness. He has stated in his evidence that the dacoits entered into his house and committed dacoity and looted various articles. They assaulted the family members including his brother Ram Swaroop Choudhary which led to his death but he has given emphasis that he could not identify any of the dacoits. Though, these two witnesses have been examined to support the prosecution case but they have confined their evidence only to the extent that a dacoity was committed in their houses but for identification of the accused they have pleaded their ignorance. Therefore, both the material witnesses are of no help to the prosecution so far fastening the guilt to the accused persons is concerned. 11. P.W.3 has recorded the dying declaration of Ram Swaroop Chuadhary. and according to him, Ram Swarroop Chaudhary has named all the four accused persons as culprits. 12. Argument of the learned counsel for the appellants is that the dying declaration has not been supported at all because the inmates of the houses who were present at the time of occurrence have given complete go by to any role attributed to any of the appellants. There is no evidence that the deceased at the time of death was impending apprehension of death and if that evidence has not been brought on the record, then it can be said that the prosecution has failed to prove the charge leveled against the appellants. On the other hand, learned counsel appearing for the State has stated that the dying declaration is enough to prove the charge against the appellants. 13. On the other hand, learned counsel appearing for the State has stated that the dying declaration is enough to prove the charge against the appellants. 13. According to section 32 of the Indian Evidence Act some statements become relevant when it is before the death and according to Section 32(1) of the Act when it relates as to cause of death, then the statement made by such persons regarding cause of death or as to any of the circumstances leading to death becomes relevant but the rider is that the persons making such disclosure must be under expectation of death. The dying declaration is a statement by a person as to cause of death or as to any of the circumstances resulted in his death. It becomes relevant under Section 32(1) of the Evidence Act. This section is an exception to the General Rule of hearsay and makes admissible the statement of the deceased to ascertain as to whether the death is a homicide or a suicide. In the case of Sharad Birchand Sharda .Vrs. State of Maharashtra reported in 1984 S.C. 1622 and in the case of Tapinder Singh .Vrs. State of Punjab reported in 1970 S.C. 1566 this was considered and it has been settled that Section 32 of the Act is an exception to general rule of hearsay. Here general rule is not an admissible evidence unless the evidence is attested by cross-examination or there is strong evidence to show that the statement was not secured either by prompting or tutoring. The dying declaration of a person on the verge of his death has special sanctity of oath for the simple reason that he was on the verge of death. It can be said that no person in such circumstance would resort to implicate falsely to any innocent person. The only rigor which has been put is that the person must be under impending threat of his life. Unfortunately, that circumstance has not been brought on record. The doctor P.W.3 in his cross-examination has stated that he could not say as to whether the person giving his statement was conscious or not but later on he has explained that such statement might have been given only when the person was conscious. Unfortunately, that circumstance has not been brought on record. The doctor P.W.3 in his cross-examination has stated that he could not say as to whether the person giving his statement was conscious or not but later on he has explained that such statement might have been given only when the person was conscious. Specific question was put to P.W.3 as to whether the condition of the injured was attested or not but P.W.3 has stated that he has not attested the condition. The dying declaration has to be accepted in the circumstances but the dying declaration under the facts and circumstances of the case cannot be said to have been recorded when the accused/deceased was impending serious threat upon his life or he was expected immediate death. At the time of alleged declaration in the hospital, the doctor would have been present there. The presence of the doctor could have assisted the prosecution to know about the status of the injured as to whether he was in a position to narrate the correct version or not. This dying declaration becomes more suspicious when the statements of P.W.2 and P.W.4 are considered. P.Ws. 2 and 4 are inmates of the same houses which have been brunt of dacoits but P.Ws 2 and 4 are emphatic that they could not identify any of the accused though they were known to them from before. Therefore, the dying declaration, in the facts and circumstances of the case, cannot be relied upon considering the various inconsistencies in its version. Once the dying declaration becomes suspicious then there is nothing on the record from which any inference can be drawn that these appellants were responsible for causing dacoity. In view of the fact that the prosecution witnesses have not been able to prove the case, there is no need to discuss the evidence of other witnesses. In view of the discussion made above it is apparent that the prosecution has not been able to prove the charge against the appellants beyond the shadow of all reasonable doubts. 14. In the result, this appeal is allowed. The judgment of conviction and order of sentence is set aside. The appellants are acquitted of the charge. They are discharged from the liabilities of their respective bail bonds.