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2014 DIGILAW 834 (PAT)

Umesh Singh v. Ashok Singh

2014-08-04

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2014
ORAL JUDGMENT Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA The two appeals arise out of judgment dated 30.09.1991 passed by learned 5th Additional Sessions Judge, Saran at Chapra in Sessions Trial No.136 of 1986 by which the learned trial Judge convicted the four appellants of Cr.Appeal No.410 of 1991 under Sections 147 and 323 IPC and directed each of them to suffer rigorous imprisonment for six months each on each of the two counts with further direction that the sentences imposed upon them shall run concurrently. As regards the two appellants, namely, Ashok Singh and Shilanath Singh of the other appeal bearing no.411 of 1991, they were convicted under Sections 147 and 302/34 IPC and they were directed to suffer rigorous imprisonment for six months as also for life on the two respective counts. The sentences were directed again to run concurrently as regards appellants Ashok Singh and Shilanath Singh of Cr. Appeal No.411 of 1991. The appellants filed the two separate appeals to challenge the judgment of conviction and order of sentence passed upon them. 2. The deceased Jang Bahadur Kurmi was the informant of the case. His fardbeyan was recorded by P.W.10 Gopal Prasad in Sadar Hospital, Chapra in which he stated that while he was coming from Tajpur Market to his house, the accused persons surrounded him and appellant Umesh Singh asked him as to why he had not paid up the money which he had borrowed from him. The deceased admitted that he had really borrowed money from appellant Umesh Singh and that he replied to him that he was short on money and as soon as he had arranged for it, he would pay up the dues. No sooner the deceased had stated these words, than it was alleged that the accused persons opened up assault upon him. It was alleged specifically that appellant Ashok Singh and Shilanath Singh started giving blows by the butt part of danda in his belly. Appellant Umesh Singh wielded bent (stick) to assault the deceased whereas appellants Upendra Singh used danda for beating up the deceased. Appellant Raj Narayan Singh kicked the deceased by his legs and clenched fists so much so that the deceased became unconscious. Appellant Umesh Singh wielded bent (stick) to assault the deceased whereas appellants Upendra Singh used danda for beating up the deceased. Appellant Raj Narayan Singh kicked the deceased by his legs and clenched fists so much so that the deceased became unconscious. However on account of the cries and alarm raised by the deceased, Lalan Turha (not examined) and Bachcha Turha (P.W.8), reached there to see the occurrence and they brought the deceased to his house on a cot from where he was brought to the hospital where he was admitted for his treatment. The deceased stated that he had immense pain in his belly and he was not passing urine or stools. 3. It appears that his fardbeyan, which was recorded on 17.05.1984 at 10.45 P.M., indicated as if the occurrence could have taken place on 15.05.1984 and accordingly on its basis the FIR of the case was drawn up on 19.05.1984. The investigating officer has not been examined, as such, we do not have any evidence as to how it proceeded but what appears is that the deceased after being admitted into Sadar Hospital, Chapra was examined first by Dr. Bir Bijay Singh (P.W.11) and he had issued the injury certificate in respect of the injuries found on his person. It appears that the deceased died in the hospital and the inquest proceedings were held on his dead body and the inquest report (Ext-3) was prepared on 19.05.1984 at 7.30 A.M. We do not have any evidence also as to when the deceased had died but what we find from the oral evidence of P.W. 2, the father of the deceased, is that the death of deceased Jang Bahadur Kurmi had occurred on 18.05.1984 in the night. We assume it to be a true evidence as regards the death of Jang Bahadur Kurmi in the hospital. P.W.11 Dr. Bir Bijay Singh had held postmortem examination on the dead body and what appears from his evidence is that he had found a solitary wound somewhere below the umbilicus which was in the form of an abrasion measuring 1½ x ¾” and on dissection of the dead body the doctor had found that the mesentery had ruptured and the abdominal cavity was full of seropurucent, i.e., pus and that death of the deceased had occurred on account of septicemia leading to pymya and shock. Thus, what appears from the evidence of P.W.11 is that there could not be any doubt that the deceased had died of an injury which might have been caused by assault and as per the opinion of P.W.11 (Dr. Bir Bijay Singh) by some hard and blunt object, like, a danda or lathi or even by the heels of human legs. But what this Court is required to find out as to whether the appellants had indeed participated in the commission of the offence. 4. While we were perusing the papers during hearing of the present appeal, we were dismayed to find that the charges had not appropriately been framed. What appeared from the heads of charges which appear from pages 4 to 6 of the paper book is that though there was a charge under Section 147 IPC, no charge under Sections 302/149 IPC had been framed nor any charge under Section 302/34 IPC had been framed. Similarly, appellant Ashok Singh had been charged under Section 323 IPC but he was not convicted of that offence. The learned trial Judge, who had delivered the judgment after concluding the trial, also missed to take into account the fact that in spite of having framed charge against the appellants of being members of unlawful assembly which had a common object in prosecution of which murder of deceased Jang Bahadur Kurmi was perpetrated, it was necessary to amend or add up the charge before had proceeded to deliver the judgment. This was the reason that in spite of having been found guilty of offence under Section 147 IPC, the four appellants of Cr. Appeal No.410 of 1991, i.e., Umesh Singh, Ganesh Singh, Raj Narayan Singh and Upendra Singh were not convicted under Section 302/149 IPC. 5. At any rate, out of eleven witnesses, P.W.1 Krishna Sharma was a formal witness who had proved the writings of the FIR in the hands of a particular officer and, as such, the FIR was marked as Ext-1. 5. At any rate, out of eleven witnesses, P.W.1 Krishna Sharma was a formal witness who had proved the writings of the FIR in the hands of a particular officer and, as such, the FIR was marked as Ext-1. P.W.2 Shankar Kurmi was the father of the deceased and he appears not being an eye witness to the real part of the occurrence and claimed having reached the place of occurrence after picking up some hulla or rumor as the case may be who found his son lying injured who stated to him that the six appellants had assaulted him with lathi, danda, legs and fists to cause injuries to him and further that he was feeling immense pain in his belly and all over his body. P.W.3 Bir Bahadur Prasad though was not named in the FIR as a witness, had claimed himself to be an eye witness to the occurrence and had also claimed having been assaulted by the accused persons brutally after the deceased had been assaulted by them and had given full description of the occurrence as an eye witness. P.W.4 Sawalia Prasad, P.W.5 Ram Nath Lal, P.W.6 Sonapati Prasad, P.W.7 Kanhaiya Prasad and P.W.8 Bachcha Turha (who was named in the FIR) were all declared hostile. They stated about their arrival at the scene of occurrence. They had found the deceased Jang Bahadur Kurmi lying injured but they had not seen his assailants. These witnesses, i.e., P.Ws.4 to 8 did not support the prosecution case to the extent as regards the participation of the accused persons and as such they were declared hostile and were cross-examined by the prosecution. P.W.9 Krishna Sharma had again given an evidence on the writings of the FIR as also the production-cum-seizure memo, while P.W.10 Gopal Prasad was the officer-in-charge on 17.05.1984 in Bhagwan Bazar police station when he had recorded the fardbeyan (Ext-7) of the deceased and had forwarded the same for institution of the case to Manjhi police station as a result of which the first information report was drawn up for investigating the allegations. We have already noted that P.W.11 was the doctor who had initially examined the injured and had also held autopsy on the dead body. 6. We have already noted that P.W.11 was the doctor who had initially examined the injured and had also held autopsy on the dead body. 6. The learned trial Judge framed certain issues to be decided by him and one of the issues which was framed by him was as to whether the statements of the deceased, i.e., fardbeyan (Ext-7) could be treated as dying declaration and whether conviction could be passed upon it. In addition to that he had framed four more questions to be answered by him and after perusing the evidence has held that Ext-7, the fardbeyan of the deceased, was a dying declaration which merited consideration and was sufficient in itself to convict the appellants. It was further held that the other part of the dying declaration was coming from the father of the deceased, i.e., when he was sitting with his son, he had stated to him as to who had assaulted him. 7. We do not have any doubt that the statement of a dead person written or verbal as regards the cause of his death or the circumstances of the transaction, which resulted in death, could be very well covered by Section 32(1) of the Indian Evidence Act and such statement is fully admissible in evidence and the facts stated therein are relevant facts. We have also no doubt that if the statement of a dead person as regards cause of his death or the circumstances of the transaction which had resulted in his death is reproduced before a court by any person on account of having been told those facts by the deceased then as well it forms a dying declaration on account of the statement of the dead person being delivered to the court verbally. But what is required in such a case of oral dying declaration is that there should be consistency if the statement is being reproduced by many witnesses. There must not be any variance if there are multiple statements which are given to the court by different witnesses as oral dying declaration. But what is required in such a case of oral dying declaration is that there should be consistency if the statement is being reproduced by many witnesses. There must not be any variance if there are multiple statements which are given to the court by different witnesses as oral dying declaration. In some cases, the Supreme Court had considered the other circumstances attending upon the case and has laid down that if the dying declaration appears doubtful then in that case even after it is recorded by a Judicial Magistrate or any such authority which inspire confidence, the court should be very cautious in placing reliance upon any such statement and should avoid basing conviction on such evidence. It is true that the deceased had given his statement before a police officer and as per his own statement the incident had taken place 2 days prior to the day he gave his first statement. But what appears from the evidence of the witnesses is that they all stuck to one date, i.e., the 16th of May 1984, when as per their evidence the occurrence had taken place. The learned trial Judge who had framed charges had scored off the words ‘or about’ from the heading of the charges to make it very specifical that the occurrence had occurred only on 16th of May, 1984 and thus, the prosecution was prosecuting the accused persons by letting them to believe as if they were facing the charge of committing the offence on 16th May, 1984. A finding has also been recorded by the learned trial Judge that indeed the occurrence had taken place on the 16th May, 1984. If we go by the words of the deceased, then there is a conflict of evidence on the date of occurrence. The deceased had stated that it was the 15th May, 1984 and thus it becomes very difficult for the Court to say as to on which date the deceased had died. The doctor P.W.11 while giving evidence was of the opinion that the death had occurred within 48 hours of holding of the autopsy by him. There does not appear any dispute that the deceased had died on the 18th May, 1984, sometime in the night. The doctor P.W.11 while giving evidence was of the opinion that the death had occurred within 48 hours of holding of the autopsy by him. There does not appear any dispute that the deceased had died on the 18th May, 1984, sometime in the night. The inquest was held on 19th May, 1984 at 7.30 A.M. The postmortem examination was conducted by P.W.11 on 19th May, 1984 at 12.30 P.M. Counting 24 hours by putting the clock back, we find that the occurrence had occurred sometimes on 16th May, 1984. Thus, the very words of a dying man, i.e., the deceased leaves us in a situation of doubt as to which date could be the real date on which the occurrence had taken place. 8. In addition to above finding, we find that P.W.2, the other witness, who was giving out the names of the assailants of the deceased on account of having been told by his son, was bearing serious enmity with the accused persons, which was admitted by him in paragraph-12 of his deposition. P.W.2 stated that he had pending litigations both criminal and civil as also a proceeding under Section 107 Cr.P.C. besides other various cases against Shivpujan Singh in respect of some fishery interests and that series of litigation was coming on since last ten years. P.W.2 has stated in para-8 that Shivpujan Singh was the elder brother of appellant Umesh Singh and that the deceased had borrowed Rs. One hundred only from him. He further stated that both Shivpujan Singh and appellant Umesh Singh had come together at 4 P.M. on the day of occurrence to his house to realize the said amount of Rs.100/- and the deceased had not paid and stated to pay up after arranging for the amount which had infuriated the two, that appellant Umesh Singh had uttered filthiest abuses to the deceased. This statement in para-8 of P.W.2 does not get mention in the statement of the deceased though it had its own importance. He stated that he took his son to two doctors on a cot but they refused to treat him on account of the case being of assault. He also stated that the Govt. This statement in para-8 of P.W.2 does not get mention in the statement of the deceased though it had its own importance. He stated that he took his son to two doctors on a cot but they refused to treat him on account of the case being of assault. He also stated that the Govt. Hospital was there but he did not take his son to that hospital and rather brought him back to his house, who remained there for the whole night and thereafter he took him to Govt. Hospital, Chapra for getting him admitted and treated. In his statement, he had admitted that he took his son by a bus and in paragraph-17, he had stated that he stopped the bus in front of Manjhi police station and went to lodge the case. There is no report or evidence that the deceased was unconscious while he was taken to the hospital. As to why the father of the deceased, i.e., P.W.2 did not take his son to the police for lodging the report at the earliest, when he had himself gone there and why he did not lodge the report disturbs us though P.W.2 had given an explanation that the accused persons were seen sitting there and, as such, he came back. He had not stated that he went to lodge a report and the officer-in-charge or any police officer was requested to accept his report which was refused and, as such, he came back to his house. We do not find any reason that there was sufficient explanation on the delayed report or for lodging no report by P.W.2 who was very well acquainted with the facts of the case as also the names of the accused persons who had assaulted his son. 9. Besides the above what we find is that only six appellants before us were named in the FIR by the deceased. The deceased had not named Parmatma Singh as amongst one of his assailants. The explanation given by P.W.2, his father is that his son did not know Parmatma Singh but when we looked to the evidence of P.W.3 we found that he stated that Parmatma Singh was a regular visitor of his village and, as such, he was knowing him fully well. The explanation given by P.W.2, his father is that his son did not know Parmatma Singh but when we looked to the evidence of P.W.3 we found that he stated that Parmatma Singh was a regular visitor of his village and, as such, he was knowing him fully well. If P.W.2 was knowing Parmatma Singh and if Parmatma Singh was known to P.W.3 also on account of being a regular visitor to their village, we do not find any reason as to why the deceased should not be acquainted with Parmatma Singh and if Parmatma Singh had really assaulted him with other accused persons, there was no reason for the deceased not to name him as one of his assailants. We find that P.Ws.2 and 3 were inclined very seriously to implicate an innocent person, like, Parmatma Singh as one of the assailants of the deceased. If this tendency to falsely implicate an innocent person is found in the witnesses, then on this score alone it could never be safe to place reliance on such a witness. 10. Coming to the evidence of P.W.3, what we find is that he claimed moving behind the deceased while coming from Tajpur market and found that 5-6 persons had surrounded the deceased. It was stated by P.W.3 that he was knowing the names of the assailants of the deceased. It was specifically stated by P.W.3 that appellants Ashok Singh and Shilanath Singh had given blows with butt part of the lathi to the deceased in his belly while other appellants had given blows with fists and slaps. So far as further assault on the deceased is concerned, as appears from the evidence of P.W.3 in paragraph-8, we refer to paragraph-13 of P.W-3 where further details of the assault on the deceased was described. He stated that the accused persons had surrounded the deceased and had given him blows for 15-20 minutes as a result of which deceased Jang Bahadur Singh had fallen down. The blows and assault continued further after the deceased had fallen down for further five minutes. But, what we find is that the account of assault which was given by P.W.3 is not being supported from the evidence of P.W.11, the doctor. The blows and assault continued further after the deceased had fallen down for further five minutes. But, what we find is that the account of assault which was given by P.W.3 is not being supported from the evidence of P.W.11, the doctor. The manner of assault which was narrated by P.W.3 could have resulted into multiple injuries on the person of the deceased but none of the blows given by his assailants was inflicted on his head or even on the legs of the deceased. The injury which was found by P.W.11 in the form of a solitary abrasion measuring 1-1/2”x ¾” was attributed to Parmatma Singh when P.W.3 was stating that he mounted over the fallen deceased and swirled around on his heel so as to causing the injury. Thus, the manner of occurrence appearing from the ocular evidence of P.W.2 is not supported by medical evidence of P.W.11. We want to note that in case oral testimony is consistent with the medical evidence, one inference which may be drawn up could be that the witnesses were not present at the scene of occurrence and they had given evidence out of their imagination for any particular reason. We have very strong reason to know that P.W.3 might not have been present at the scene of occurrence. This is the way in which P.W.3 himself stated that ten minutes after the deceased had been assaulted and when he intervened to save him he was also given blows with lathi etc by appellant Umesh Singh on his left neck, left rib and right elbow and right leg. This evidence appears in paragraph-4 of the evidence of P.W.2. In his further cross-examination P.W.2 had stated that in spite of having been so badly assaulted and in spite of being in pain and bearing injury, he did not go for getting himself examined though in his evidence P.W.3 had initially stated, as may appear from paragraph-11 of his evidence, that the investigating officer had recorded his statement and had also issued the injury report after finding the injuries on his person and that he had gone to Manjhi Hospital for getting himself treated by the doctor. This evidence in paragraph-11 is seriously contradicted in paragraph-14 when he stated that after the incident was over and deceased Jang Bahadur Singh was shifted to his house, he did not go anywhere for his treatment and only informed the father of the deceased. Not only that he also did not move out of his house for two consecutive days either for getting himself treated or for lodging the report or making any statement. If this could be the conduct of the injured witness that he was not moving out of his house even after three days of the incident even for being treated or giving statement then no Court could believe that he had given statement to the I.O. and further that he had been handed out the injury certificate for getting himself treated and that he got himself treated by the doctor in Manjhi hospital. These are all the circumstances appearing from the evidence of P.W.3 which rendered him not a reliable witness. 11. We have already discussed the evidence of P.W.2, the father of the deceased, and we have in that course pointed out that he also does not appear inspiring our confidence that he had really been told by his son the names of his assailants. For that one particular reason besides the other that there was a tendency in him to rope in innocent persons like Parmatma Singh, whose name could never have been introduced in the case because the fardbeyan of the deceased did not state that any other persons except the six appellants could have been there to assault him. 12. These are some of the reason upon which we find that the judgment of conviction passed by the learned trial Judge could not be sustainable in law. The prosecution failed to bring home the charges fully and appropriately. It was a case in which there was a serious doubt about all aspects of the case in which the accused persons should have been acquitted by being extended the benefit of doubt. 13. In the result, we allow the two appeals by setting aside the judgment of conviction and order of sentence passed against six appellants. The appellants of two appeals are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Appeals allowed.