Patna High Court
State Of Bihar And Etc. vs Satya Narayan Mishra And Ors., Etc. on 1 October, 1999
Equivalent citations: 2000CRILJ714
Author: M.L. Visa
Bench: B.P. Sharma, M.L. Visa
JUDGMENT M.L. Visa, J.
1. This common judgment shall govern the disposal of all these three appeals which have been heard together as they arise out of the same judgment dated 4-2-1998 and order dated 5-2-1998 passed in Sessions Trial No. 178 of 1995 by 2nd Additional Sessions Judge, Darbhanga.
2. The State, the appellant in Govt. Appeal No. 22 of 1998, Satya Narain Mishra, Umesh Mishra, Pappu Mishra and Dipu Mishra, appellants in Cr. Appeal No. 107 of 1998, and Jaishankar Mishra, Nageshwar Mishra and Kuseshwar Mishra, appellants in Cr. Appeal No. 125 of 1998, are aggrieved by the aforesaid judgment and order of 2nd Additional Sessions Judge, Darbhanga. The State, for the reason that the appellants have been acquitted of the charge under Section 396 of the Indian Penal Code and the appellants, for the reason that they all have been wrongly convicted under Sections 395 and 397 of the Indian Penal Code and each one of them has been sentenced to undergo R. I. for 10 years under Section 395 of the Indian Penal Code although no separate sentence under Section 397 of the Indian Penal Code has been passed against them.
3. The brief facts giving rise to these appeals are that on the night of 16-2-95 the informant Thakur Chandeshwar Singh (PW 1) was sleeping in the southern room of the house and his daughter Mamta Kumari aged about 17 years was sleeping alone in the northern room. At that time his wife Ram Kumari Devi (PW 4) along with her son Vivek Kumar (not examined) was at her 'Naihar' at village Ratwara. At about 3 O'clock the informant went to latrine situate about 20-25 yards from his house. While he was easing out he saw 7-8 persons entering his 'Angan' from south. Two out of them were carrying guns and remaining were armed with 'pharsa' and 'bhala'. They all entered the southern room. Informant out of fear remained sitting in the latrine. Thereafter the informant saw that the door of northern room in which his daughter Mamta Kumari was sleeping was opened because both the rooms are interconnected. 2-3 persons came out from the room and remaining remained inside the room. One of the miscreants asked Mamta Kumari to tell where the money was kept and demanded keys from her. Thereafter a big wooden box was got opened from which the miscreants took out a cash amount of Rs. 51,000/- and ornaments worth Rs. 80,000/-. The informant came out of the latrine and raised hulla. Villagers assembled. Some of the miscreants had muffled their faces while faces of remaining miscreants were not covered. The informant identified six appellants namely, Satya Narain Mishra, Umesh Mishra, Kuseshwar Mishra, Nageshwar Mishra, Jaishankar Mishra and Dipu Mishra, who all are his neighbours. The appellants fled away towards south. After taking out the money and ornaments the appellants had assaulted Mamta Kumari because she had identified them but informant could not see with which weapon she was assaulted, but he found bleeding injuries on her face, chest and abdomen. Neighbours of informant went to local hospital where they were advised to go police station for lodging information but two compound errs from hospital came and they advised for taking Mamta Kumari to DMCH (Darbhanga Medical College & Hospital). In the meantime, police patrolling party came to the house of the informant where his Fardbeyan (Ext. 4) was recorded by SI Shri Niwas Prasad (PW 10). The injury report of Mamta Kumari was prepared and she was sent to DMCH for treatment. About the genesis of occurrence informant in his fardbeyan has stated that he was having litigation from before with the appellants. On the basis of fardbeyan (Ext. 4) a case under Sections 395 and 397 of the Indian Penal Code was registered against the appellants except appellant Pappu Mishra and 1-2 unknown. During the course of investigation Mamta Kumari daughter of informant died and Section 396 of the Indian Penal Code was added in the FIR. Before death of Mamta Kumari her dying declaration (Ext. 2) was recorded by Awani Ranjan Kumar Sinha (PW 5), the then Judicial Magistrate, 1st Class, Darbhanga. After completing investigation the police submitted chargesheet in two phases under Sections 452 and 302/34 of the Indian Penal Code against the appellants. Cognizance of the case was taken and the case was committed to the Court of Session where charge under Section 396 of the Indian Penal Code against all the appellants was framed and the appellants were put on trial.
4. The case of the appellants before the Court below as it appears from the suggestion given to the informant was that the informant himself after administering some intoxicant medicine to his daughter Mamta Kumari made her unconscious and thereafter assaulted her resulting into her death because she had handed over ornaments of the house to one of her close relations who was a criminal, with whom she wanted to elope and on account of the enmity of appellants with the informant they have been falsely implicated in this case.
5. Before discussing the points raised by learned counsel for the State in Govt. Appeal No. 22 of 1998 we would like to examine what evidence on behalf of the prosecution has been led against the appellants for their participation in the dacoity and assault to Mamta Kumari subsequently resulting in her death.
6. Altogether 13 witnesses on behalf of the prosecution have been examined. Besides this, two Court witnesses have also been examined. Thakur Chandeshwar Singh (PW1), the informant, Prasana Thakur (PW 2) and Awadhesh Thakur (PW 3), both brothers of informant, are said to be eye witnesses. Ram Kumari Devi (PW 4), the wife of informant, at the time of occurrence was in her 'Naihar' at village Ratwara where she had gone 10-15 days prior to occurrence and on 17-2-95 she was informed by Sunil Kumar (not examined), nephew of her husband, at village Ratwara that a dacoity had taken place in her house in which her daughter received injuries and thereafter she along with her son Vivek and Sunil went to Darbhanga Hospital where she found Mamta in unconscious condition and there she met her husband also who told her about the dacoity. Awani Ranjan Kumar Sinha (PW 5) is the Judicial Magistrate, 1st Class, who on 22-2-95 had recorded the dying declaration of Mamta Kumari in the hospital. Ganga Ram (PW 6), and Jitu Paswan (8) on hearing hulla of dacoity had seen the appellants running away from the house of informant. Pashupati Nath Singh (PW 7), a Police Officer, had taken the charge of investigation from Laxmi Narain Gupta (PW 11), the then Officer-in-charge of Kamtaul Police Station and he simply first submitted chargesheet against appellants Jaishankar Mishra and Satya Narayan Mishra and after surrender of remaining appellants submitted chargesheet against them also. Dr. Praful Kumar Das (PW 9) had conducted autopsy on the dead body of Mamta Kumari. Sri Niwas Prasad (PW 10) had recorded the fardbeyan of informant and had taken up investigation of the case and after completing investigation in part he handed over the charge of investigation on 28-2-95 to Laxmi Narain Gupta (PW 11), the then Officer-in-charge of Kamtaul Police Station, who also after conducting remaining investigation handed over the charge to PW 7 who simply submitted chargesheet. Sheo Shankar Mishra (PW 12) is a formal witness who had typed the protest petition (Ext. 8) filed by informant. Binay Kumar Jha (PW 13) is also a formal witness who has proved a petition (Ext. 9) in the pen and signature of SI Vidya Rai of Beta O. P. addressed to CJM, Darbhanga for deputing a Magistrate for recording the dying declaration of Mamta Kumari. He has also proved the signature of CJM, Darbhanga (Ext. 9/1) and signature of Shri A. R. K. Sinha (Ext. 9/2), Judicial Magistrate, Darbhanga, on this petition. He has further proved the carbon copy of inquest report (Ext. 10) in the pen of SI Surendra Singh. Dr. Vijay Shankar Prasad (CW 1) was surgeon on duty on 17-2-95 at DMCH, who has proved entry (Court Ext. 1) about the admission of deceased Mamta Kumari in the Emergency Ward and had examined Mamta Kumari, Dr. Prem Ranjan Thakur (CW 2) on 22-2-95 sent a requisition in his writing (Court Ext. 5) to Officer-in-charge of Beta O. P. for recording the dying declaration of Mamta Kumari.
7. Thakur Chandeshwar Singh (PW 1), the informant, in his evidence has stated that on the night of 16-2-95 at about 3 O'clock he was in the latrine when he saw 7-8 dacoits armed with weapons entering his 'angan' and out of them he identified all the seven appellants. Appellant Satya Narayan Mishra was carrying a gun, appellants Kuseshwar Mishra, Nageshwar Mishra and Umesh Mishra were carrying pharsa and appellants Dipu Mishra and Jaishankar Mishra were armed with bhala and one unknown who was with them was armed with a gun. The dacoits saw here and there and thereafter they entered a room and from that room they went in another connected room and opened the door of that room. Two dacoits who were armed with guns came out in the angan. One dacoit who was in the room itself woke up his daughter Mamta Kumari and asked her to tell where the keys, cash and ornaments were kept. Mamta Kumari said something which he could not hear. Thereafter he heard some sound and the two dacoits, who were armed with guns also entered the room. He then came out from latrine, ran and woke up his brothers by raising hulla. His neighbours came there. They all wanted to surround the dacoits but because of fear of guns they simply raised hulla. The dacoits came out of the house and started running towards west. The villagers chased them to some distance but the dacoits managed to escape. Thereafter he and witnesses went in the room. He found his daughter Mamta Kumari unconscious having injuries on her face, neck, chest and abdomen and bathed with blood. He sent his brother Prasana Kumar Thakur (PW 2) to a doctor and Madan Mohan Thakur and Ganesh Thakur (not examined) to police station. Prasana Kumar Thakur (PW 2) returned and told that doctor was not willing to come unless the matter was reported with the police. Madan Mohan Thakur and Ganesh Thakur also returned from police station and told that on hearing the name of appellant Satya Narain Mishra the Officer-in-charge abused them and said that it was not probable that a dacoity would take place in the moonlit night and asked them to leave the police station. He then sent Narendra Thakur (not examined) to inform the S. P., Darbhanga by telephone. In the meantime, SI Shri Niwas (PW 10) came with police patrolling party and told that on hearing hulla he had come there. Mamta was sent to DMCH where she died on 6-3-95 and his fardbeyan was recorded. The dacoits while fleeing away had thrown two steel boxes in the way.
8. Prasana Kumar Thakur (PW 2), the brother of the informant, has stated that in the night between 16-2-95 and 17-2-95 he was sleeping in the room of his house and at about 3 O'clock he woke up on hearing voice of his elder brother, the informant, who told him that dacoits after entering his house were committing dacoity. He then peeped through the window of his room and saw that one unknown man armed with a gun was moving between the angan of informant and his window. He then woke up his neighbours and thereafter he and his neighbours thought of surrounding the dacoits in the 'angan' but because of fear of guns, they raised hulla. In the meantime two persons carrying two boxes ran and he also found appellants Satya Narain Mishra, Jaishankar Mishra, Nageshwar Mishra and Kuseshwar Mishra running. He identified the aforesaid appellants because of moonlit night and in the light of torch. The appellant Satya Narain Mishra and one unknown were carrying guns and remaining were armed with bhala and pharsa. After the dacoits fled away he went in the room of Mamta where he found her unconscious and lying injured in the pool of blood. All the articles of the room were scattered and a box was opened from which articles were taken away. Informant was telling that cash amount of Rupees 51,000/- and ornaments worth Rupees 80,000/- had been looted by the dacoits. He, on the order of informant, went to call a doctor but the doctor refused to come saying that unless the matter was reported to the police station he would not go. In the meantime, Madan Mohan Thakur and Ganesh Thakur returned from the police station and they told that Officer-in-charge was saying that it was not probable that a dacoity would take place in the moonlit night and in the meantime on hearing hulla the police patrolling party came there which recorded his statements as well as statements of informant and sent Mamta to DMCH. He came to know the names of two more dacoits from the informant who were appellants Umesh Mishra and Dipu Mishra.
9. Awadhesh Thakur (PW 3), another brother of the informant, has stated that the occurrence took place at about 3 O'clock in the night between 16-2-95 and 17-2-95 when he was sleeping at his darwaja and his elder brother woke up and told that the dacoits had entered his house and were committing dacoity and he then by taking a lathi and torch went in the 'Bari' of informant through his angan. He flashed his torch here and there and in the meantime he heard hulla of "dacoits dacoits" from outside and saw that appellants Dipu Mishra and Jaishankar Mishra after throwing boxes were fleeing away. He identified them because on hearing hulla he flashed torch. He also saw appellants Nageshwar Mishra and Kuseshwar Mishra armed with bhala fleeing away followed by appellant Pappu Mishra carrying a torch and a bag and appellant Umesh Mishra carrying a brief-case and a pharsa and appellant Satyanarayan Mishra and one unknown carrying guns. He chased the appellants but they fled away towards south west. The persons who had assembled there raised hulla that Mamta had been assaulted and he then came back to the house and went where Mamta was sleeping and found her unconscious lying in a pool of blood.
10. Ganga Ram (PW 5) has said that at the time of occurrence when he woke up for urinating he heard hulla of "dacoits-dacoits" and he then hid near the wall of Prasana Babu and from there he saw the dacoits fleeing away. Amongst those dacoits he identified appellant Satya Narayan Mishra carrying a gun, appellant Pappu Mishra carrying a bag, appellant Dipu Mishra carrying a bhala and box, appellant Jaishankar Mishra also carrying a bhala and box, appellant Umesh Mishra carrying a pharsa and one 'Ataichi', appellant Kuseshwar Mishra carrying a pharsa and appellant Nageshwar Mishra carrying a pharsa. All the aforesaid appellants were coming out from the house of the informant. Villagers chased them but the appellants after throwing boxes ran away. He also found Mamta Kumari lying unconscious in the pool of blood.
11. Jittu Paswan (PW 8) has said that on the day of occurrence at about 4 O'clock in the morning when he was easing out at a place 10 'lagga' west from his house, he heard hulla of dacoits and he saw four persons crossing the way out of which he identified appellants Satya Narayan Mishra and Pappu Mishra.
12. PW 6 and PW 8 both have stated that they were examined by the police on the same day when the occurrence had taken place. But Laxmi Narayan Gupta (PW 11) who had taken the charge of investigation on 28-2-95 from PW 10 in para-35 of his evidence has stated that on 23-4-95 the informant had produced these two witnesses at police station for recording their statements. In paras-47 and 50 of his evidence he has clearly stated that he recorded statements of these two witnesses on 23-4-95. So it is clear that their evidence that their statements were recorded by the police on the day when occurrence took place is not true. The occurrence is said to have taken place on 17-2-95 whereas as stated above the statements of these witnesses were recorded on 23-4-95 i.e. after more than two months. Not only this, these two witnesses were produced by the informant himself at the police station for recording their statement. Under this circumstance, the possibility of their being tutored by the informant and thereafter making statements as desired by the informant cannot be ruled out. Notwithstanding this aspect thel.O. (PW 11) who had recorded the statements of PW 6 in para-47 of his evidence has stated that this witness had not stated before him that when he woke up for urinating he heard hulla of "dacoits-dacoits" and thereafter he hid near the wall of one Prasana Babu and from there he saw the dacoits running away and he identified the appellants in the manner as given in his evidence and this witness had not further stated that he found the dacoits coming out from the house of informant and villagers had chased them when they leaving the boxes fled away. PW 8, as mentioned above, has simply stated that he found four persons passing through the road out of whom he identified only appellants Satya Narayan Mishra and Pappu Mishra. He has not stated anything about the remaining appellants but then the I.O. (PW 11) who had recorded his statement in para-50 of his evidence has said that this witness had not stated before him that when he was easing out he found four persons crossing the way out of whom he identified appellants Satya Narayan Mishra and Pappu Mishra. The complete omission of the names of appellants in the earlier statements of PW 6 and PW 8 recorded during the course of investigation which was admittedly recorded after more than two months from the date of occurrence makes their evidence for the first time in Court that they saw the appellants at the time of occurrence wholly unreliable. No reliance can be placed on such type of evidence.
13. Now coming to the evidence of informant (PW 1) and his two brothers PW 2 and PW 3. PW 1 in his cross-examination has admitted that the latrine in which he was sitting when the appellants entered his angan is surrounded by 'tati having height of 5 feet. Admittedly, he did not rise when he saw the appellants entering and he remained in sitting position. Occurrence had taken place on the night at about 3 O'clock. He does not say that at that time he was having a torch or any other source of light. Not only he saw the appellants entering his angan but also saw them entering first his room and thereafter entering the another room in which his daughter Mamta Kumari was sleeping and one dacoit asking his daughter to handover the keys and tell about the cash and ornaments. Now the question arises can he see all these happenings by sitting in the latrine which is surrounded from all sides by 'tati'?. His further statement does not give the answer to this question in affirmative. According to him, the entrance of latrine is facing towards east and in the fardbeyan he has stated that he found the appellants entering his angan from south. A man sitting in a latrine surrounded by tati of 5' height from all sides having entrance towards east cannot see anyone entering his angan from south. The informant has stated that 7-8 dacoits entered his angan out of them he identified 7 appellants. About one unknown he has said that he was armed with a gun. This is the statement which has been given in the Fardbeyan also. So he does not leave any scope for any other person except that unknown with the appellants. Now in the fardbeyan he has not stated the name of appellant Papu Mishra. In his further statements recorded during the course of investigation he again did not state the name of appellant Pappu Mishra. The I.O. in para-76 of his evidence has said that the informant neither in the Fardbeyan nor in his further statements named appellant Pappu Mishra. The informant in his evidence has stated that two dacoits had muffled their faces while faces of remaining appellants were open. He identified only those dacoits whose faces were visible. If there were only 8 dacoits out of which two had muffled their faces and the informant identified only the remaining appellants whose faces were visible, the question of identifying all the 7 appellants by the informant at the time of occurrence does not arise because in that case he can at best identify only six persons. About the boxes which the appellants took out from the house of informant but after throwing it while they were being chased they fled away, the informant has said nothing in his fardbeyan. In his evidence the informant has stated that the dacoits while fleeing away threw two steel boxes of black colour in the way and fled away. In para 8 of his evidence he has said that the dacoit after coming out from the house fled away towards south. The I.O. in his evidence has stated that he found two iron boxes kept at a place 20-25 yards south east corner from the house of informant and in para 80 of his evidence he has stated that those two boxes were covered with towels. If the appellant while fleeing away had thrown the boxes in the way, it does not come to reason that how towels were found spread on those two boxes. The case of the prosecution on the number of these boxes is also not consistent. The informant has said that appellants were carrying two boxes which they threw while fleeing away whereas Awadhesh Thakur (PW 3) has added one brief case also and has said that the appellants Dipu Mishra and Jaishankar Mishra who were carrying boxes threw it and appellant Umesh Mishra was carrying a brief case. The case of the prosecution is that appellants entered the room in which Mamta Kumari was sleeping and they took out the ornaments and cash from a wooden box. Prasana Thakur (PW 2) in his evidence has stated that the box in the room of Mamta Kumari was found open and all the articles of the house were found scattered but the I.O. in para-39 of his evidence has stated that in para-4 of the case diary it is clearly mentioned that no article in the house was found scattered and in para-37 he has stated that the articles of wooden box from which the ornaments and cash amount was said to have been taken out were not scattered and in para-4 of the case diary it is also mentioned that on that box powder, combs, spectles were found kept. It seems very unusual that a dacoity had taken place in the house of informant and the dacoits took away ornaments and cash from a box but the I.O. did not find any article either in the box or in the house scattered. The evidence of Prasana Thakur (PW 2) that at the time of occurrence he was awakened by informant and thereafter he woke up his neighbours and he identified the appellants in the moonlit night as well as in the torch light and appellant Satya Narayan Mishra and one unknown person armed with gun and others carrying bhala and pharsa and after the dacoits fled away he went to the room of Mamta Kumari and found her in unconscious position and all the articles of the room were scattered, a box was found opened from which articles were taken out becomes quite untrustworthy in view of the evidence of the I.O. (PW 10) that this witness had not stated before him that he woke up his neighbours, he saw appellant Satya Narayan Mishra fleeing away, he identified the appellants in the moonlit night as well as in the light of torch, saw appellant Satya Narayan Thakur and one unknown carrying guns and he went in the room of Mamta Kumari where he found her unconscious and injured and all the articles of the room were scattered and a box was opened from which articles were taken out. Similarly the evidence of Awadhesh Thakur (PW 3) that at the time of occurrence he was sleeping at his darwaja when the informant woke him up and told him that dacoity was being committed in his house and he then went to the bari of the informant with a lathi and torch and he identified the appellants has become unreliable in view of the evidence of I.O. (PW 10) that this witness had not said all these facts in his statements made before him.
14. The evidence of informant is that at the time of occurrence, on his hulla, members from the families of his uncles, Ganesh Thakur, Rajeshwar Sharma, Wakil Sharma, Mahendra Mishra, Niranjan Mishra, Kanhaiya Thakur, Narendra Thakur, Birendra Thakur, Hari Mohan Thakur, Ram Swarup Thakur, Ashwini Kumar Thakur and Arun Kumar Thakur had come there. But none of them has come forward to support the case of the prosecution. The informant has admitted that the house of appellants is situate at a distance of 15 'lagga' towards west south of his house. All the appellants belong to one family and he has a number of litigations civil as well as criminal with them. Prasana Thakur (PW 2) has admitted a number of cases between his family and the appellants. Ext. 'C which is FIR by informant against appellants Umesh Mishra, Jaishankar Mishra, Kuseshwar Mishra and others under Sections 147, 148, 323 and 324, IPC for an occurrence dated 27-11-93 and Ext. 'D' which is judgment of aforesaid case showing acquittal of accused persons further supports litigation between the parties. So considering the aforesaid facts the picture which finally emerges is that all the appellants belong to one family having their house near the house of informant, there is long standing enmity between the informant party and the appellants, eye witnesses are only the informant and his two brothers, besides PW 6 and PW 8 whose statements were recorded after delay of about 2 months but even then there are major contradictions in their evidence and statements recorded earlier making their evidence wholly untrustworthy, informant (PW 1) not naming appellant Pappu Mishra either in his fardbeyan or in his further statements before the police, PW2 in his evidence giving the names of only 4 appellants which he did not name in his statements before the police and PW 3 naming all appellants in his evidence but in his earlier statements before the police not stating like such. Under such circumstances the very factum of commission of dacoity in the house of informant at the alleged time becomes quite doubtful and we do not consider it safe to rely upon such type of evidence.
15. According to the prosecution, the dying declaration of Mamta Kumari (Ext. 2) fully supports the case of the prosecution. Now coming to this dying declaration we find that Awani Ranjan Kumar Sinha (PW 5), a Judicial Magistrate, in his evidence has stated that on 22-2-95 under the orders of CJM, Darbhanga he recorded the dying declaration of Mamta Kumari at 5.50 p.m. in the unit of Dr. S. M. Mishra in presence of two student nurses Ritam and Sanju Kumari because at that time no medical officer was available. He has proved the dying declaration which is marked Ext. 4. In this dying declaration Mamta Kumari has stated that five appellants, namely, Satya Narayan Mishra, Umesh Mishra, Dipu Mishra, Pappu Mishra and Jaishankar Mishra and two unknown persons assaulted her with butt of gun on her face and hand and she was also assaulted by chhura and a sum of Rs. 51,000/- and ornaments were taken away by them. She has not stated names of appellants Kuseshwar Mishra and Nageshwar Mishra. It is very surprising that she has named Pappu Mishra whose name is absent in the fardbeyan of the informant. She has not stated that the aforesaid persons had assaulted her in course of dacoity and had taken away cash and ornaments. Assuming that she meant to say so but then this dying declaration can only be taken into consideration when the prosecution satisfies that it was in fact recorded on the statements of Mamta Kumari and she at the time of recording this dying declaration was in proper mental condition. PW 5 who recorded the dying declaration has said that he does not remember who had identified Mamta Kumari. The dying declaration (Ext. 4) no doubt contains the certificate of PW 5 that no medical officer was available at the time of recording dying declaration but then it does not contain any certificate that at the time when dying declaration of Mamta Kumari Was recorded she was fit in mental condition. PW 5 in his evidence also is silent on this point. The dying declaration is not in the form of questions and answers and it contains bare statements which according to PW 5 were given by Mamta Kumari. The evidence of I.O. (PW 10) who was in charge of investigation till 28-2-95 is that on 17-2-96, 20-2-96, 28-2-96 he had gone to DMCH to record statement of Mamta Kumari but he could not do that because she was found unconscious. It is true that the informant had filed a protest petition (Ext. 8) that investigation was not being done properly but then this protest petition was filed on 3-4-1995 against officer-in-charge of Kamtaul police station (PW 11) and not against PW 10 who was in charge of investigation till 28-2- 95. In the Fardbeyan as well as In the evidence of informant, PW 2 and PW 3 it has come to the light that after occurrence Mamta Kumari was found lying unconscious and she was then taken to DMCH. The informant has stated that his wife remained throughout in the hospital but his wife Ram Kumari Devi (PW 4) in her evidence has not said that Mamta ever regained consciousness after her admission in the hospital. PW 3 has also stated that he had gone to see Mamta in hospital on one or two occasions but he could not have a talk with her because whenever he went there he found her unconscious. In para 62 of his evidence he has said that till her death Mamta Kumari remained in the same condition in which she was admitted in the hospital. The evidence of prosecution witnesses is that Mamta was unconscious when she was admitted in the hospital. So accorfding to this witness who is none else but own uncle of Mamta she (Mamta) right from her admission in hospital till her death remained unconscious. In these circumstances the evidence of CW 2 that Mamta Kumari was in conscious state on 22-2-95 and even thereafter cannot be believed. He has further stated that a doctor remains on duty twenty four hours in the ward which is also against the certificate granted by PW 5 on dying declaration that no doctor was available at the time of recording dying declaration. All these facts create strong doubt whether at the time of recording statements of Mamta Kumari she was in fit mental condition. The Apex Court in the case of Kanchy Komuramma v. State of A. P., 1995 Supp (4) SCO 118 has held that :
As a matter of fact, the failure of the prosecution to establish that the deceased, before she made the dying declaration, was in proper mental condition to make the dying declaration detracts materialy from the reliability of the dying declaration and it would not be safe to rely upon it. That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the Court. There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law.
16. It is true that in the present case as per the evidence of PW 5, Judicial Magistrate, who recorded the dying declaration, no doctor was available but then his evidence does not show that at least he tried to ascertain the position that Mamta Kumari at that time was in a fit mental condition to give the statements. The two student nurses in whose presence the dying declaration was recorded and who put their signatures on it have not been examined. CW 2 has simply proved their signatures on dying declaration (Exts. 6 and 6/1). Apart from the absence of proof of fitness of the mental condition of Mamta Kumari at the time of recording her dying declaration there is a serious doubt, as stated above, whether this dying declaration in fact, is of Mamta Kumari because it has not come on record that who identified Mamta Kumari to PW 5 who recorded her dying declaration. This doubt becomes more serious when we find LTI of Mamta Kumari on the dying declaration. The informant (PW 1} who is none-else but father of Mamta Kumari in his evidence has clearly stated that Mamta Kumari was Matriculate and she was a college student. The evidence of the doctor Vijay Shankar Prasad (CW1) who has first examined Mamta Kumari on 17-2-95 when she was admitted in the hospital shows that she had no injury on her right hand or right arm and on the contrary there was swelling on her left fore arm and the X-ray plates (Court Ext. 3) show that injury on her left forearm was grievous in nature caused by hard and blunt substance. In spite of all these facts her putting LTI on dying declaration creates a reasonable doubt in holding that this LTI on dying declaration is of Mamta Kumari. Besides this, a petition before the CJM, Darbhanga for deputing a Magistrate for recording the dying declaration of Mamta Kumari was filed by SI, Beta OP, probably because DMCH lies within Beta OP on the basis of requisition sent by Dr. P. R. Thakur (CW 2). The I.O. (PW 10) till 23-2-95 had no information that the dying declaration of Mamta Kumari was recorded on 22-2-95 because he has said that on 23-2-95 the informant handed over to him the photo copy of dying declaration of Mamta Kumari. It means that the informant was very much interested in bringing into existence a dying declaration of Mamta Kumari and he procured the photo copy of the same and handed over to the I.O.. In his evidence the informant has said that during the course of treatment of Mamta Kumari he had gone to Darbhanga on 17-2-95. but on the same day he returned back and again on 25-2-95 or on 26-2-95 he had gone to Darbhanga. PW 2 has said that informant had gone to Darbhanga only once to see Mamta in hospital. PW 3 has stated that informant remained in hospital throughout with Mamta and he returned from the hospital with the dead body of Mamta. If it is so, then the question arises why the informant tried to conceal the fact that throughout the treatment of Mamta he remained in hospital. If no inference is drawn from this fact even then we find that the prosecution has not proved beyond doubts that dying declaration (Ext. 2) was in fact recorded on the statements of Mamta Kumari and it was recorded when Mamta Kumari was mentally fit to give the statements. We find it quite unsafe to rely on such dying declaration.
17. About the Govt. Appeal No. 22 of 1998 the learned counsel for the State argued that when the Court below had found the case of prosecution on the point of commission of dacoity by the appellants and their assaulting Mamta Kumari in course of dacoity true it should have convicted the appellants under Section 396, IPC in view of the evidence of Dr. Praful Kumar Das (PW 9) who had conducted autopsy on the dead body of Mamta Kumari that Mamta Kumari died of injuries sustained by her but in taking into consideration the evidence of PW 9 that death was caused by toxemias, septicemia and shock, the Court below accepted defence version that toximia and septicimia are caused by infection to injuries and cause of infection is either result of poor sanitation on the part of patient or attendant or on the part of doctor's who sterilized the instruments. He on relying upon a Division Bench decision of this Court in the case of Aziz Khan v. The State of Bihar AIR 1964 Patna 158 : 1964 (1) Cri LJ 426 has submitted that because toximia and septicimia which resulted into the death of Mamta Kumari were the result of injuries caused to her by the appellants. So they must be deemed to be responsible for the death of Mamta Kumari. When we have found that the prosecution has not been able to prove its case that the appellants took part in the dacoity and assaulted Mamta Kumari we do not find it necessary to discuss the aforesaid points raised by the learned counsel for the State because it will now serve no purpose. On re-appraisal of evidence led on behalf of the prosecution we find that the prosecution has not been able to prove that the appellants took part in the commission of dacoity and they assaulted Mamta Kumari during the course of dacoity.
18. In the result, Govt. Appeal No. 22 of 1998 is dismissed. Cr. Appeal No. 107 of 1998 and Cr. Appeal No. 125 of 1998 are allowed and the judgment and order of the Court below convicting and sentencing the appellants is hereby set aside. Satya Narain Mishra, Umesh Mishra, Pappu Mishra and Dipu Mishra (appellants in Cr. Appeal No. 107/98) and Jaishankar Mishra, Nageshwar Mishra and Kuseshwar Mishra (appellants in Cr. Appeal No. 125/98), who are in jail custody, are ordered to be released forthwith if not wanted in any other case.
B.P. Sharma, J.
19. I agree.