Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1667 (RAJ)

Bariyam Singh v. State of Rajasthan

2013-09-19

MOHAMMAD RAFIQ, NISHA GUPTA

body2013
JUDGMENT : - Hon'ble RAFIQ, J.—This appeal has been preferred by accused-appellant Bariyam Singh challenging the judgment dated 21.7.2004 passed by learned Additional District and Sessions Judge No.2, Kishangarhbas camp Tijara Alwar in Sessions Case No.62/2003 whereby, he has been convicted for offence under Section 302 IPC and has been sentenced to life imprisonment with fine of Rs.1,000/- and in default, he was to further undergo simple imprisonment of two moths. 2. Brief facts of the case are that injured-Pooran Singh gave a 'parcha bayan' to the SHO, Police Station Tapukada, Alwar on 1.3.2003 regarding an incident took place on 28.2.2003 at about 10.00 p.m. He alleged in the 'parcha bayan' that when he was going on the motorcycle to the house of his uncle Jogendra Singh on the fateful day at about 10.00 p.m. and reached in front of his house, his father Bariyam Singh inflicted a 'ballam' blow near his right armpit; resultantly, the flash came out from his body and he fell down. Upon hearing his hue and cry, his brother-Mukhtyar Singh, mother-Taro Bai and sister-Jangiro Bai came rushing there and took him to the Hospital at Tapukada in a serious condition. He alleged that his father inflicted blows with the intention to kill him. On the basis of the 'parcha bayan', the police chalked out a first information report (FIR No.39/2003) against the accused-appellant initially for offence u/S.307 IPC and commenced investigation. Incident had taken place on 28/02/2003 and the 'parcha bayan' of the injured was recorded following day on 01/03/2003. Pooran Singh died seventeen days after the alleged incident on 17/03/2003 and thereafter offence u/S.302 IPC was added in the investigation. After completion of investigation, the police filed challan against the accused-appellant for the offence aforesaid. After committal of the case, the trial court framed the charge against the accused-appellant for offence u/S.302 IPC, which he denied and claimed to be tried. The prosecution produced twelve witnesses and exhibited twenty two documents, whereas the defence did not produce any witness nor exhibit any document. 3. We have heard Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellant and Shri Javed Choudhary, learned Public Prosecutor for the State. 4. Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellant argued that the appellant has been convicted merely on 'parcha bayan' of the deceased, which is not the reliable document. 3. We have heard Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellant and Shri Javed Choudhary, learned Public Prosecutor for the State. 4. Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellant argued that the appellant has been convicted merely on 'parcha bayan' of the deceased, which is not the reliable document. The trial court has failed to take into consideration that dying declaration is not truthful and does not inspire confidence. Safeguards provided under the law for recording of the dying declaration have not been followed. There is no endorsement in the dying declaration as to the mental fitness of its maker that he was in a fit condition to make such statement. It is argued that all the independent prosecution witnesses have turned hostile and did not support the prosecution case. Learned senior counsel argued that the accused-appellant is father of the deceased and there is no evidence on record as to what was reason that a father would take an extreme step of stabbing the 'ballam' into the chest of his son. Genesis of the incident has been suppressed from the court. No motive has been proved and therefore dying declaration alone cannot form the basis for sustaining conviction. Learned senior counsel submitted that prosecution produced brother of the deceased Mukhtyar Singh as PW2, mother of the deceased Taro Bai as PW3, sister of deceased Ms.Jagir Kaur as PW7 and another sister of the deceased Smt.Surjeeto Kaur as PW8, all of whom have turned hostile and did not support the prosecution case. Besides, Jogendra Singh (PW4), motbir witness of preparation of the site plan (Exb.P/4) and recovery of Vest and Shirt of the deceased (Exb.P/5) has also turned hostile and did not support the prosecution case. Surjan Singh (PW9), motbir witness of recovery of 'ballam' and preparation of site plan denied having witness of any such recovery and another motbir witness-Dharampal Singh (PW10), also denied having certified the original rojnamcha (Exb.P/13). It is a case of no evidence therefore conviction of the accused-appellant cannot at all be justified. 5. Shri Biri Singh Sinsinwar, learned senior counsel for the accused-appellant referring to the statement of Dr.Phool Singh Choudhary (PW5) argued that this medical officer has prepared the medico-legal report/injury report of the deceased initially when he was hospitalized on 01/03/2003. He has stated that patient was quite depressed and imbalanced. 5. Shri Biri Singh Sinsinwar, learned senior counsel for the accused-appellant referring to the statement of Dr.Phool Singh Choudhary (PW5) argued that this medical officer has prepared the medico-legal report/injury report of the deceased initially when he was hospitalized on 01/03/2003. He has stated that patient was quite depressed and imbalanced. His peritoneum came out and he was sinking. He has denied that the injuries sustained by the deceased could have been caused by 'ballam'. He has also stated that such injuries could not be caused even by a knife or 'bhala'. In fact, he has stated that no weapon was shown to him so as to elicit the opinion whether this injury was caused thereby. Learned senior counsel therefore submitted that once the doctor has opined that such injury could not be caused by 'ballam' and there is no corroboration of the alleged injuries even by the medical officer, the conviction of the accused-appellant for the alleged offence is bad in law. Learned senior counsel submitted that dying declaration was attested by Dr.Rajendra Agrawal (PW1) but he has not given any categorical certificate proving that deceased was in a fit condition to give statement. In view of the surrounding circumstances therefore his dying declaration becomes highly doubtful. When Dr.Rajendra Agrawal appeared in court as PW1, has also not given any specific statement that he certified the deceased to be in a fit condition to give statement. Dr.P.C. Vyas (PW12), who has proved the post-mortem report of the deceased vide Exb.P/15, has categorically opined that cause of death is septicemic shock due to ante mortem injuries to chest & abdominal visceras with secondary infections. Additionally, he has stated that Injury No.1 in the chest was sufficient in the ordinary course of nature to cause the death. But this opinion was insignificant because he has definitely opined that the deceased died due to septicemic shock due to ante mortem injuries to chest & abdominal visceras with secondary infections coupled with the fact that deceased died seventeen days after the incident, which clearly shows that he has died due to lack of proper treatment. If the deceased would have been given the proper treatment, his life could have been saved. The offence of the accused-appellant would therefore fall within the definition of culpable homicide not amounting to murder falling in Part-I of Section 304 IPC. If the deceased would have been given the proper treatment, his life could have been saved. The offence of the accused-appellant would therefore fall within the definition of culpable homicide not amounting to murder falling in Part-I of Section 304 IPC. Learned senior counsel therefore submitted that if this Court is not persuaded to set-aside the conviction, conviction u/S.302 IPC atleast be altered to Section 304 Part-I IPC and considering that accused-appellant is in jail for last 10 years & 6 months, he be sentenced to the period already undergone by him. Learned senior counsel for the accused-appellant has placed reliance upon the judgments of Supreme Court in Tukaram and others vs. State of Maharashtra : (2011) 14 SCC 250 , Ganga Dass alias Godha vs. State of Haryana : 1994 Supp (1) SCC 534 and Chirra Shivraj vs. State of Andhra Pradesh : (2010) 14 SCC 444 . The appeal be therefore allowed. 6. Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and submitted that fact that absence of proof with regard to motive cannot be a serious lacuna so as to justify rejection of the entire prosecution case. The accused-appellant has rightly been held liable for the death of Pooran Singh on the basis of his dying declaration. The fact that Pooran Singh happened to be his son, would not accord him any immunity in law. Dr.Rajendra Agrawal (PW1) has proved that deceased was in a fit condition to give statement when his dying declaration was recorded at 1.00 p.m. in the intervening night 28.2.2003/1.3.2003. Dr.Phool Singh Choudhary (PW5), who examined the deceased at 10.30 a.m. on the following day, has also proved so. The post-mortem report has categorically proved that Injury No.1 in the chest of Pooran Singh was sufficient in the ordinary course of nature to cause his death. Therefore, clause thirdly of Section 300 IPC would be attracted. Accused-appellant was therefore liable to be convicted for offence u/S.302 IPC. Learned Public Prosecutor submitted that recovery of 'ballam' has been made at the instance of accused-appellant vide Exb.P/10. Even if Surjan Singh (PW9), motbir witness of recovery of 'ballam', has turned hostile, Lakhan Singh (PW13), the investigation officer has proved the recovery of 'ballam' at the instance of the accused-appellant vide Exb.P/10. This 'ballam' was recovered at the instance of accused-appellant from his own house. Even if Surjan Singh (PW9), motbir witness of recovery of 'ballam', has turned hostile, Lakhan Singh (PW13), the investigation officer has proved the recovery of 'ballam' at the instance of the accused-appellant vide Exb.P/10. This 'ballam' was recovered at the instance of accused-appellant from his own house. The 'parcha bayan' of the deceased was recorded at 1.00 p.m. by Dharampal Singh (PW10), ASI posted in Police Station Kotkasim. He has proved the 'parcha bayan' (Exb.P/1) recorded by him in the presence of Dr.Rajendra Agrawal (PW1) and has obtained the thumb impression of the deceased marked at place 'x'. Dr.Rajendra Agrawal (PW1) has recorded the 'parcha bayan' in his presence and that he certified the statement. This witness (PW10) has stated that injured Pooran Singh stated that his father had pierced the 'ballam' on left side of his chest between the ribs. In cross-examination, he has stated that he had seen the condition of the deceased. He has denied the suggestion that injured was not in a position to speak. He has also stated that the persons, who accompanied the deceased, were saying loudly that his father has hit him. Even if that line in his statement is not accepted in evidence, nonetheless his statement as to denial of suggestion that the injured was not in a fit condition to give statement, the specific submission of injured Pooran Singh that his father pierced 'ballam' into his chest, has to be accepted as correct. This is further corroborated from the statement of Dr.Phool Singh Choudhary (PW5), who in his cross-examination has stated that injured was conscious, though he was speaking very meekly. Further statement of this witness that injured was depressed and was sinking, would not have any adverse bearing on the acceptability of the dying declaration, particularly when this witness has stated that he examined the injured at 10.30 in the morning and the 'parcha bayan' as per the evidence of Dharampal Singh (PW10) and Dr.Rajendra Agrawal (PW1), was recorded at 1.00 p.m. i.e. nine hours ago. It can be deduced from the fact that if the injured was well oriented at 10.30 a.m. in the morning; his condition would have been much better when he was brought to the hospital and when his ‘parcha bayan’ was recorded at 1.00 p.m. The appeal be therefore dismissed. 7. It can be deduced from the fact that if the injured was well oriented at 10.30 a.m. in the morning; his condition would have been much better when he was brought to the hospital and when his ‘parcha bayan’ was recorded at 1.00 p.m. The appeal be therefore dismissed. 7. We have given our anxious consideration to the rival submissions and perused the material available on record. 8. It is trite law that while considering the dying declaration in a case, the Court has to weigh all the attending circumstances and come to the independent finding whether the dying declaration is properly recorded and whether it is voluntary and truthful and if on careful scrutiny, the Court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there should be no legal impediment to make it a basis of conviction, even if there is no corroboration. In the present case, however, there is substantial corroborating evidence to support and even independently prove what has been stated by the deceased in his dying declaration. 9. The Supreme Court in Atbir vs. Government of NCT of Delhi : (2010) 9 SCC 1 , while revisiting its previous judgments in Munnu Raja vs. State of M.P. : (1976) 3 SCC 104 , Paras Yadav vs. State of Bihar : (1999) 2 SCC 126 , Balbir Singh vs. State of Punjab : (2006) 12 SCC 283 , State of Rajasthan vs. Wakteng : (2007) 14 SCC 550 , Bijoy Das vs. State of W.B. : (2008) 4 SCC 511 , Muthu Kutty vs. State : (2005) 9 SCC 113 , Panneerselvam vs. State of T.N. : (2008) 17 SCC 190, culled out the following principles to be kept in view while dealing with a case of dying declaration:- “(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.“ 10. The Constitution Bench of the Supreme Court in Laxman vs. State of Maharashtra : AIR 2002 SC 2973 has gone to the extent of observing thus:- “absence of certification of doctor as to fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that person who records it must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be, therefore, taken.” 11. Present case however, stands on much better footing, where not only one doctor but two doctors have appeared and proved in their statements that deceased was conscious and well oriented and was in a fit condition to give statement. 12. The hyper technical view should not be, therefore, taken.” 11. Present case however, stands on much better footing, where not only one doctor but two doctors have appeared and proved in their statements that deceased was conscious and well oriented and was in a fit condition to give statement. 12. Having held so, we are now left to consider the argument whether offence of the accused would be culpable homicide not amounting to murder or culpable homicide amounting to murder. 13. In the present case, there are few facts that are crucial for deciding this aspect viz. : (i) that the incident took place on 28/02/2003 and Pooran Singh, who died on 17/03/2003, survived for seventeen days, (ii) that septicemia as well as infection had set in the injury and (iii) that there was pus formation in the cavity of his chest due to infection and also fungal formation. All these factors thus prove that eventual death of Pooran Singh on 17/03/2003 was not direct result of the injuries sustained by him, though that injury has been opined to be sufficient to cause his death in the ordinary course of nature. Dr. P.C. Vyas (PW12) in the post-mortem report has opined that cause of death is “septicemic shock due to ante mortem injuries to chest & abdominal visceras with secondary infections” and that “injury No.1 in the chest was sufficient in the ordinary course of nature to cause the death.” But Dr. P.C. Vyas (PW12) in his court statement has also stated that upon dissection of Injury No.1, he found that track of the wound was downward and was towards the internal costal muscle deep and there was incised wound on left 8th rib. There was dark brown liquid of 350cc in the cavity of the chest and there was fungus around the incised wound of the chest. But when we see the injury report (Exb.P/6) of deceased-Pooran Singh, it would be seen that there was only one incised injury on left side of the chest in lower part in the size of 4½cmx2½cmxcavity deep. The peritoneum was coming out from the wound near Ant. Axillary line, the site of injury, which was transversely placed. The wound was placed at 7th Inter costal space. However, when deceased was subjected to surgery, it gave rise to number of stitched wounds, which were additionally indicated in the post-mortem report. The peritoneum was coming out from the wound near Ant. Axillary line, the site of injury, which was transversely placed. The wound was placed at 7th Inter costal space. However, when deceased was subjected to surgery, it gave rise to number of stitched wounds, which were additionally indicated in the post-mortem report. These additional stiched wounds were result of that single injury but there is no gainsaying the fact that only one injury was caused to the deceased by reason of single 'ballam' blow delivered by the accused on his armpit. 14. Indisputably, thus, when the deceased was brought to the hospital in injured condition, there was only one injury. It is this single injury, which was ultimately led to his death. Evidence therefore categorically proves that primary cause of death was septicemic shock due to ante mortem injuries to chest & abdominal visceras with secondary infections. Analogous statement of Dr. P.C. Vyas (PW12) also proves that there was pus formation in the cavity of his chest due to infection and also fungal formation. Obviously, therefore if the onset of septicemia and infection could have been checked, probably the life of Pooran Singh could have been saved. 15. The Supreme Court in Tukaram supra was dealing with the case in which according to the medical evidence, injured developed a septicaemia and pneumonia and died after 20 days after the incident. The said conditions arose due to single 8.5cm deep buttock injury caused by accused. The Supreme Court did not accept the opinion of the doctor. It observed that the doctors tried to cover up their indifference and negligence by deposing that death could be attributed to internal injury caused to abdominal organs. It was held that had the doctors been a little more vigilant, possibility that victim could have been saved cannot be ruled out. Conviction under Section 304 Part-I read with Section 149 IPC was altered to Section 326 read with Section 149 IPC and the accused were sentenced to the period already undergone. In that case, the Supreme Court was persuaded to that view keeping in particular a fact of location of injury, which was caused on buttock and stitched the same day. In the present case, however there was only one stab wound on left side of the chest in lower part in the size of 4½cmx2½cmxcavity deep. 16. In that case, the Supreme Court was persuaded to that view keeping in particular a fact of location of injury, which was caused on buttock and stitched the same day. In the present case, however there was only one stab wound on left side of the chest in lower part in the size of 4½cmx2½cmxcavity deep. 16. In Ganga Dass alias Godha supra, the deceased died due to single head injury caused by iron pipe and he died 18 days later due to septicaemia and other complications. In those facts, it was held by the Supreme Court that the accused cannot be said to have caused the death and is liable to be convicted u/S.304 Part-II IPC instead of Section 302 IPC. In that case, however, a distinction that was drawn by the Supreme Court was that it was a case of single injury but that was caused on the head by the accused by an iron pipe and not by any sharp edged or pointed weapon like in the present case. 17. In Chirra Shivraj supra, the allegations were that accused abused the deceased to such an extent that the deceased was fed up and she poured the kerosene on herself. The accused while abusing her, lit a cigarrete and threw the lighted matchstick on the deceased, as a result thereof, the deceased caught flames and accused left the place by further abusing her saying that she should die. Deceased developed septicaemia and as a result thereof, she died. The said fact was brought to the notice of the higher authorities by her husband. Accused was charged for offence under Section 302 IPC and was eventually convicted for that offence on the basis of dying declaration of the deceased. In those facts, the conviction of the accused was altered from offence u/S.302 IPC to offence u/S.304 Part II IPC, which was affirmed by the Supreme Court. The facts of that case are entirely different, where deceased herself poured kerosene over her and accused lit the cigarrete and threw the lighted matchstick on the deceased owing to which, she caught fire. 18. The facts of that case are entirely different, where deceased herself poured kerosene over her and accused lit the cigarrete and threw the lighted matchstick on the deceased owing to which, she caught fire. 18. Whether there is definite intention with reference to clause thirdly of Section 300 IPC or not i.e. "if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death", is a question of fact. The Supreme Court in Jai Prakash vs. State (Delhi Administration) : (1991) 2 SCC 32 while considering the celebrated judgment of the Supreme Court in Virsa Singh vs. The State Of Punjab : AIR 1958 SC 465 has observed that `Knowledge' as contrasted with `intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, `intention' is a conscious state in which mental faculties are aroused into actively and summoned into action. Their lordships further observed that although the injury caused may be sufficient in the ordinary course of nature to cause the death, but it does not necessarily follow therefrom that offender intended to cause injury of that nature. However, presumption certainly arises that he intended to cause that particular injury. These and the other factors arising in a case have to be considered to determine that question and if on a totality of the circumstances, a doubt arises as to the nature of the offence, the benefit has to go to the accused. Their lordships further observed that in such a situation, the Court has to ascertain whether the facts and circumstances of the case are such, which rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. Though, in this case, the prosecution has utterly failed to prove the motive of the accused but it is nonetheless the fact that accused is father of the deceased. Allegation against him is of inflicting single injury. The prosection has not been able to bring the evidence as to the manner in which the incident had taken place. Though, in this case, the prosecution has utterly failed to prove the motive of the accused but it is nonetheless the fact that accused is father of the deceased. Allegation against him is of inflicting single injury. The prosection has not been able to bring the evidence as to the manner in which the incident had taken place. But the evidence proves that injury was not primary cause of the death and Pooran Singh died on account of septicemic shock due to ante mortem injuries to chest & abdominal visceras with secondary infections and that he survived for seventeen days and that had the deceased would have been given the proper treatment, his life could have been saved, are those factors, which can be accepted as circumstances rebutting the said presumption. 19. In our considered view, therefore, the offence of the accused-appellant would fall within the definition of culpable homicide not amounting to murder attracting provisions of Section 304 Part-I IPC. The accused-appellant has already remained behind the bars for 10 years and 6 months. Therefore, conviction of the accused-appellant is converted from offence u/S.302 IPC to that of Part-I of Section 304 IPC. 20. In the result, the appeal is allowed in part. The conviction of accused-appellant Bariyam Singh S/o Atma Singh for offence under Section 302 IPC is converted into one for offence u/S.304 Part-I IPC. He is behind the bars for last 10 years and 6 months. He is sentenced to the period already undergone by him. He be released forthwith, if not required in any other case. 21. Keeping in view, however, the provisions of Section 437A Cr.P.C., 1973, accused-appellant Bariyam Singh is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.