Allahabad High Court
State Of U.P. vs Dambar And Anr. on 3 July, 2000
Equivalent citations: 2000CRILJ4690
Author: U.S. Tripathi
Bench: U.S. Tripathi
JUDGMENT U.S. Tripathi, J.
1. The State of Uttar Pradesh has preferred this appeal against the judgment and order dated 31-3-1980 passed by Sri R. S. Agarwal, 1st Additional Sessions Judge, Aligarh in Sessions Trial No. 75 of 1979 acquitting the respondents Nos. 1 and 2 of the offences punishable under Section 302 read with Section 34, I.P.C. and Section 394, I.P.C.
2. The prosecution story, briefly narrated, was that Nanak Chand (21) deceased, son of Shambhu Dayal and nephew of Kalyan (P.W. 2) was tenant in a shop owned by Bihari, uncle of respondents Damber and Vinod. Bihari wanted his shop vacated and for it he was pressurising Nanak Chand deceased. Kishan, S./O. Bihari was apprehended by police prior to occurrence of this case and respondents were suspecting that he was arrested due to Nanak Chand deceased.
3. On the evening of 11-12-1978 at about 5.45 p.m. Nanak Chand deceased came to betel shop of Nemi Chand Gupta situate at Sarai Jawa. After taking betel he was proceeding to his house through Shroti Lal Ki Gali. When he reached inside the 'gali', the respondents surrounded him and started causing knives injuries on him. The deceased raised alarm and on his alarm his uncle Kalyan (P.W. 2), Jawahar (P.W. 3), Ramji Lal (P.W. 4) and Bhagwan Das (P.W. 6), who were standing on the road towards south of said gali rushed to the spot and observed the respondents causing knives injuries on the deceased. On their challenge the respondents ran away removing money from the pocket of the deceased. The respondents were recognised in the light of electricity.
4. Kalyan (P.W. 2) got prepared report (Ext. Ka-2) from one Prakash Chand and taking Nanak Chand reached police Station Sasni Gate, Aligarh at 6.30 p.m. where he lodged the report. Chik F.I.R. (Ext. Ka-5) was prepared by Head Constable Shiv Ratan Singh (P.W. 7) who made an endorsement at the G.D. report (Ext. Ka-6) and registered a case against the respondents under Section 394/307, I.P.C.
5. Nanak Chand deceased who was then injured was sent to District Hospital, Aligarh where he was medically examined by Dr. R. A. Singh (P.W. 5), who found following injuries on his person.
1. Stabbed wound 2 cm x 1 cm x abdomen deep on epigastric of abdomen.
2. Stabbed wound 2 cm x 1 cm x depth not proved on left side front of chest 4 cm medial to left nipple.
3. Incised wound 21/2 cm x 1/2 cm x muscle deep on right side of front of chest lower part.
4. Stabbed wound 2 cm x 1 cm x 3'/2 cm deep on left outer side upper part.
5. Incised wound 5 cm x 2 cm x bone deep 6 cm behind left ear.
6. Injury No. 1 was grievous, injury No. 2 kept under observation and rest were simple. All caused by sharp weapon and were fresh in duration.
7. Dr. Singh prepared injury report (Ext. Ka-3). The condition of Nank Chand was serious, therefore, he was admitted in the hospital.
8. The investigation of the case was taken up by Sri Sahi Ram Sehra (P.W. 8). After interrogating Head Constable he came to the spot inspected place of occurrence on the pointing out of complainant Kalyan (P.W. 2) and prepared site plan (Ext. Ka-8). He also collected blood stained and simple concrete from the spot and prepared recovery memo (Ext. Ka-9). He searched the house of respondents, but they were not available. Therefore, he came to the house of complainant where he interrogated Kalyan (P.W. 2), Jawahar Lal (P.W. 3), Ramji Lal (P.W. 4) Bhagwan Das (P.W. 6) and others.
9. The condition of Nank Chand deceased was serious. He was operated and treated by Dr. Khalid Mirza (C.W. 2) in Jawahar Lal Nehru Medical College, Aligarh as well as Dr. M. N. Ansari (C.W. 3) and Dr. Suresh Chand Mittal (C.W. 4). Dying declaration of Nank Chand deceased was also recorded on 11-12-1978 at 7.15 p.m. by Sri Kashi Ram, Executive Magistrate (C.W. 1) in the presence of Dr. Suresh Chand Mittal (C.W. 4).
10. Ultimately, Nank Chand died in Jawahar Lal Nehru Medical College on 16-12-1978 at 00.40 a.m. Autopsy on the dead body of Nank Chand deceased was conducted on 16-12-1978 at 9 a.m. by Dr. R. A. Singh (P.W. 5), who found following ante mortem injuries on his person:-
1. Stitched wound 3/4" oblique on epigastrium inner and continuous to injury No. 2.
2. Stitched surgical wound 4 3/4" vertical extending from epigastrium to 1" above imbilicus.
3. Surgical stabbed wound 1 V4", 2" from and right side of injury No. 2, through this end catheter and end of corrogated sheet corning out.
4. Stitched wound 1" horizontal left front of chest 1 1/4" medical to left nipple.
5. Stitched wound 1" right front of chest lower part, oblique.
6. Stitched wound 2'/a" on back of head 3 1/2" behind left ear.
7. Incised wound (not stitched) 3/4" x Vi" x muscle deep on back of chest, upper part over spine.
8. Incised wound 2" x 1/4" x bone deep, 3 1/2 above and behind right ear.
9. Incised wound W x 1/4" x bone deep, 1 1/4" below injury No. 8 (not stitched).
10. Stitched wound 2 1/4" on outer side left hip upper part.
11. Stitched wound (surgical) 1/2" on inner side of right ankle.
12. Stitched wound (surgical) 1/2 on inner side of left ankle joint.
11. On internal examination fifth left rib was found cut under injury No. 4. Superior mediastrinum contained 2 1/2 ounces of clotted blood. Peritoneum congested and stained with blood. Cavity contained 5 1/2 ounce of partly clotted blood. Liver was congested, wt 2 Ib 11 oz. Superior surface stained with blood in the liver present through and through from middle lobe. Superior surface stitched. Gall bladder empty, common hepatic duct was cut a tube pressed in upper section.
12. In the opinion of Doctor the death of deceased resulted from shock associated with haemorrhage and due to toxaemia, as a result of peritornitis due to ante mortem injuries described above.
13. On receipt of information of death of deceased, the case was altered under Section 302, I.P.C. on 16-12-1978, vide G. D. report (Ext. Ka-7).
14. The respondents surrendered in the Court on 6-1-1979, on completion of investigation, respondents were challaned through charge-sheet (Ext. Ka-9), by I.O. Ram Vir Singh (P.W. 1).
15. The respondents pleaded not guilty of the charges under Section 302 read with Sections 34, I.P.C. and 394, I.P.C. and contended that they were falsely implicated on account of enmity. They further contended that at the time of occurrence communal riots were going on in Aligarh City, the deceased was murdered by some one of other community and police falsely implicated them.
16. The prosecution in support of its case examined Ram Vir Singh, I.O. (P.W. 1) Kalyan (P.W. 2), Jawahar (P.W. 3), Ram Ji Lal (P.W. 4), Dr. R. A. Singh (P.W. 5), Bahgwan Das (P.W. 6), Head Constable, Shiv Ratan Singh (P.W. 7) and Sahi Ram Sehra (P.W. 8). Sri Kashi Ram, Executive Magistrate (C.W. 1), Dr. Khalid Mirza (C.W. 2), Dr. M. N. Ansari (C.W. 3) and Dr. Suresh Chand Mittal (C.W. 4) were examined as Court witnesses.
17. Considering the evidence of the prosecution, the learned Additional Sessions Judge held that there was no proper motive for the accused respondents to commit the murder of the deceased. There was no evidence to prove that there was electricity light on the spot and ocular witnesses had very little opportunity of seeing the faces of the assailants. The testimony of ocular witnesses Kalyan (P.W. 2), Jawahar (P.W. 3), Ram Ji Lal and Bhagwan Das (P.W. 6) was not worth relying to prove that really they had seen and had proper opportunity of seeing the assailants and that the dying declaration was also not reliable. With these findings he acquitted respondents Damber and Vinod of the charges levelled against them.
18. We have heard the learned A.G.A. on behalf of the appellant and Sri P. N. Misra, Senior Advocate appearing on behalf of respondents and have thoroughly gone through the evidence on record.
19. It is not disputed that Nank Chand deceased sustained knives injuries on the evening of 11-12-1978 at about 5.45 p.m. in Shroti Lal KI Gall, Mohalla Sarai Jawa, P. S. Sasni Gate, District Aligarh and died on account of above injuries in the hospital on 16-12-1978 at 00.40 a.m. The allegation of the prosecution in this regard is supported by evidence of Dr. R. A. Singh (P.W. 5), the injury report (Ext. Ka-2) and post-mortem report (Ka-4) as well as from the evidence of Dr. Khalid Mirza (C.W. 2), Dr. M. N. Ansari (C.W. 3) and Dr. Suresh Chand Mittal (C.W. 4).
20. The motive for the offence alleged by the prosecution was that Nank Chand deceased was tenant in the shop owned by Bihari, uncle of respondents. That the uncle of respondents wanted to get his shop vacated and had pressurised the deceased several times to vacate the shop. It was, further, alleged that Kishan, S/o. Bihari was a criminal and prior to the occurrence of this case, he was apprehended by the police and respondents were suspecting that Kishan was arrested on account of deceased. This motive is no doubt mentioned in the F.I.R. (Ext. Ka-2) and stated by Kalyan (P.W. 2). The respondents have no doubt admitted that Nank Chand deceased was tenant in the shop owned by their uncle, but their contention was that there was no attempt on the part of landlord to get the shop vacated. They also admitted that Kishan was their cousin brother and he was arrested by police, but they never suspected hands of deceased in his arrest. Kalyan (P.W. 2) admitted in his cross-examination that no litigation has taken place between the deceased and Bihari regarding vacation of shop, nor any quarrel had taken place between them in this regard. There is no other evidence to corroborate the above motive alleged by the prosecution. No report about the alleged threat to vacate shop was lodged by Nank Chand deceased or any other person of his family. Therefore, the motive suggested by the prosecution was not sufficiently proved. Since, the prosecution has relied on testimony of ocular witnesses, the absence of motive will not affect the case of the prosecution.
21. Admittedly, the occurrence had taken place inside Shroti Lal Ki Gali. This gali passes from south to north. On the southern end of the said gali there is main road east to west passing towards Sastri Gate Police Station and Jaiganj grain Mandi. According to evidence of ocular witnesses, the occurrence took place inside the gali about 20 paces from main road. The site plan shows that there are houses on both the sides of said lane. The occurrence had taken place at about 6.45 p.m. in the month of December. By that time, it was dark. Ram Ji Lal (P.W. 4) had also admitted that when he reached grain Mandi it was dark. In these circumstances, the assailants could not be easily recognised without sufficient light. In the F.I.R. (Ext. Ka-2) it was mentioned that the assailants were seen and recognised in the light of electricity. But Kalyan (P.W. 2), Jawahar (P.W. 3), Ram Ji Lal (P.W. 4) and Bhagwan Das (P.W. 6), all the ocular witnesses, have not stated in their evidence that there was electricity light inside the lane in which occurrence took place. The I.O. had also not shown any electric pole, electric rod or bulb inside the lane. He has also not mentioned to have observed that light was coining on the spot from the houses existing on both sides of the lane. No doubt, occurrence took place in a Mohalla of Aligarh City and it could be said that there was electricity light, but there is nothing in the evidence of ocular witnesses that there was light inside the lane either from street pole or from the houses. The prosecution has not led any evidence about the presence of light for the reasons best known to it.
22. The prosecution had relied on ocular testimony of Kalyan (P.W. 2), Jawahar (P.W. 3), Ram Ji Lal (P.W. 4) and Bhagwan Das (P.W. 6). These witnesses claimed that at the time of occurrence they were on the southern end of the lane and heard shrieks of the deceased. That on hearing shrieks of (he deceased they rushed inside the lane and observed the respondents causing knives injuries on the deceased and on their challenge the respondents ran away. It is admitted case of the parties that on the date of occurrence, Aligarh City was under the grip of communal not and night curfew was imposed. It is also admitted that night curlew started from 6 p.m. and remained fill 6 a.m. Head Constable Shiv Ratan Singh (P.W. 7) had also admitted that on the date of occurrence i.e. on 11-12-1978 there was endorsement in the G. D. report that curfew was imposed from 6 p.m. to 6 a.m. The occurrence took place just before 15 minutes of the imposition of curfew. Kalyan (P.W. 2), Jawahar (P.W. 3) and Ram Ji Lal (P.W. 4) admitted that shops in the Mohalla were closed prior to the occurrence. It is also evident from the evidence on record that on account of imposition of curfew the shop keepers and other persons did not come out from their houses. The evidence of ocular witnesses may be scrutinised in the light of above situation.
23. According to prosecution at the time of occurrence Nanak Chand deceased after taking betel from the shop of Nemi Chand Gupta was proceeding towards his house through Shroti Lal Ki Gali. Kalyan (P.W. 2) admitted that betel shop of Nemi Chand Gupta is in grain Mandi. The above shop was situate on the southern patari of the road passing towards Sastri Gate towards south of lane. The house of Nank Charid was in another gali which was towards south of road passing towards Sastri Gate and betel shop of Nemi Chand Gupta. He also admitted that if Nanak Chand had to come to his house from the shop of Nemi Chand Gupta, Shroti Lal Ki Gali would not had fallen in the way. But according to ocular witnesses, the deceased was proceeding through Shroti Lal KI Gali. How and for what purpose the deceased was going through Shroti Ki Gali just before imposition of curfew has not been explained by the prosecution. Moreover, in his dying declaration the deceased had not disclosed the name of lane through which he was passing at the time of occurrence as on own admission of Kalyan (P.W. 2) there are two lanes, one towards north of Sastri Gate road and other towards south of said ,road in which the house of deceased was situated.
24. All the witnesses of the prosecution named above were belonging to different Mohalla. No doubt in the F.I.R. it was mentioned that several persons of the locality including the above witnesses came on the spot, but Kalyan (P.W. 2) stated in his cross-examination that no other person came on the spot except the ocular witnesses, who belonged to his biradari. Kalyan (P.W. 2) stated that he was coming from station after performing his duty as sweeper, Jawahar (P.W. 3) stated that he was coming from Nagar Palika along with Bhagwan Das and Ram Ji Lal. Ram Ji Lal (P.W. 4) stated that his duty hours on the date of occurrence were from 6 a.m. to 3 p.m. Bhagwan Das (P.W. 6) stated that his duty on the date of occurrence was from 7 a.m. to 10 a.m., but on the evening of occurrence he had gone to Nagar Palika to enquire about a suspended employee. The presence of above ocular witnesses, who had different hours of their duty, on the spot simultaneously is thus doubtful.
25. On the own showing of above ocular witnesses they heard shrieks of the deceased when they were on the road at the southern end of the lane and according to them they observed occurrence from a distance of 20 paces. It is also clear from their evidence that on the challenge the assailants started running. It is evident from the evidence of the above witnesses that they entered into the lane from southern side and observed occurrence from a distance of 20 paces. Ram Ji Lal (P.W. 4) admitted that they did not get occasion to chase the assailants. Ram Ji Lal, further admitted that on the challenge given by the witnesses the assailants ran towards other side of the lane. Thus, the manner and circumstances in which the above ocular witnesses assembled near the spot and observed the occurrence which look place inside the gali, where it was dark and there being no evidence regarding light on the spot, the observation of the occurrence by the ocular witnesses appears highly doubtful.
26. The prosecution had placed much reliance on the dying declaration of Nank Chand deceased, who had named the respondents as assailants. The learned counsel for the respondents contended that there is no certificate of the Doctor on the, dying declaration that at the time of dying declaration, the patient was in a fit state of mind to make the statement, and therefore, above dying declaration cannot be relied upon. In support of his above contention he placed reliance on Supreme Court case Paparambaka Rosamma v. State of Andhra Pradesh 1999 Cri LJ 4321 : AIR 1999 SC 3455.
27. In order to appreciate the dying declaration recorded by Sri Kashi Ram, Executive Magistrate (C.W. 1) we reproduce it as below :-
Dying declaration of Nanak Chand, S/ o. Shambu Dayal, R/o. Jaiganj recorded at 7.15 p.m. at Malkhan Singh, Hospital Emergency Ward Bed No. 1. "I had gone to take payment. There I took (ate) betel and after taking betel the moment came out of lane, Damber and Vinod caused knife blows on me and robbed Rs. 300-400/-. Thereafter, I fell down and became unconscious. L.T.I. of Nanak Chand S/o Sri Shambhu Dayal Sd/-
11-12-1978 (Kashi Ram) Executive Magistrate, Aligarh Patient remained conscious at the time of dying declaration Sd/-
(J.C. Mittal) 11-12-1978 Medical Officer, Emergency Duty M. S. Hospital, Aligarh
28. In the case of Paparambaka Rosamma and others (supra) similar certificate was appended by the Doctor that "patient is conscious while recording statement". It was held in paragraph 9 of the said case as below :-
It is true that Medical Officer Dr. K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified "patient is conscious while recording the statement". It has come on the record that injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P. Koteswara Rao (P.W. 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injuried was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K. Vishnupriya Devi (P.W. 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind, at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement." In view of these material omissions, it would not be safe to accept the dying declaration as true and genuine and was made when injured was in a fit state of mind. . . . ...In medical science two stages namely conscious and fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Courts below.
29. In the above noted case besides the certificate of Doctors the Executive Magistrate, recording the dying declaration, had also put certain questions to the injured and observed that on the basis of answers elicited from declarant to the above questions he was satisfied that she was in a fit disposing state of mind to make a declaration. But the Hon'ble Supreme Court held that in the absence of medical certificate that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making declaration. In this instant case there was no such satisfaction recorded by the Magistrate recording the dying declaration. Therefore, in the absence of required certificate of Doctor that the patient was in a "fit state of mind while making declaration" as required above, dying declaration cannot be relied upon.
30. Moreover, it is also not clear from the dying declaration in which particular lane the occurrence took place and at which place the deceased took betel.
31. In this way, neither the ocular witneses nor the dying declaration was reliable and the learned Additional Sessions Judge rightly acquitted the respondents. The Government Appeal has no force and it is accordingly dismissed.
32. The respondents are on bail granted by this Court. Their bail bonds are cancelled and sureties are discharged. They need not surrender.