Madhya Pradesh High Court
Radheshyam S/O Banshilal And Anr. vs State Of M.P. on 15 May, 1997
Equivalent citations: 1999(2)MPLJ103
Author: R.P. Gupta
Bench: R.P. Gupta
JUDGMENT R.P. Gupta, J.
1. This appeal is directed against the judgment dated 2nd March, 1985, passed by the Sessions Judge, Hoshangabad, convicting the appellants for having committed an offence under Section 325 read with Section 34 of the Indian Penal Code and sentencing them to R.I. for 4 years each. The appellants were tried for an offence under Section 302, Indian Penal Code but were found guilty of offence under Section 325 read with Section 34, Indian Penal Code only. They were found to have caused grievous injuries to Bonder-deceased on 18-12-1985 some time in the afternoon in a field in village Mohari. Bonder died that very evening as a result of his injuries. But the trial Court observed that since there was no intention to kill and none of the injury was individually fatal on vital part of the body, the offence was found only under Section 325 read with Section 34, Indian Penal Code.
2. The trial Court has based its finding on the guilt of the accused on the basis of oral dying declarations made by the deceased before his wife Phulia Bai, daughter Resham Bai, Jhagdu Kotwar, Imrat Kotwar and then to Suresh, his son. These dying declarations are in the form of oral information, as to who had hit him (Bonder), made by Bonder at the same moment one after the other. Bonder succumbed to his injuries within 11/2 hours thereafter. The trial Court found that there was some civil litigation about land between the deceased and the accused persons. Postmortem examination of the deceased on 19-12-1985 at 8 P.M. by Dr. Akbar Ali had revealed the following injuries :-
(i) Lacerated wound 6" x 4" x 2", situated at its middle on the left hand. Ulna and radius fractured at its middle and both the bones seen through the wound.
(ii) Fracture of lower end of humerous. Fracture line is absent between two condyles. Fracture of olecranon process and ulner knotch. These fractures caused the dislocation of elbow joint.
(iii) Fracture of 7th and 8th ribs left side at mid auxiliary line.
(iv) Lacerated wound l1/2" x I" x 1/2" situated just above tibial tuberosity of right leg.
(v) Lacerated wound 1" x 1/2" x 1/2" situated close to Injury No. 4.
(vi) Lacerated wound 3/5" x 1/2 x '/2" situated over right thigh at its middle.
The doctor opined that the cause of death was irreversible shock due to injuries and fractures.
3. Argument of the learned counsel for the appellants is that there is no corroboration to the dying declaration, nor corroboration to the fact that Bonder made such a dying declaration, that the important witness like Jhagdu, to whom the dying declaration was made initially has not been examined as a witness, that narration of the dying declaration by Phulia Bai, Resham Bai and Suresh is only by the close relatives of the deceased who are interested in the deceased and against accused due to civil litigation between the parties, that even Suresh while giving the first report to the police at police station along with Jhagdu, did not disclose that the dying declaration has been made by his father and only said that these two accused appellants had caused injuries to his father. He simply named the accused-appellants as the assailants of his father, but did not say as to how he learnt about this fact. So at the first instance, he did not disclose of the dying declaration. He might have been speaking on suspicion . It is urged that initially Radhey Shyam had informed Phulia Bai that Bonder was lying in an injured condition under a banyan tree and Bonder had informed him to ask Phulia Bai to take him home. Radhey Shyam has not stated that Bonder had informed him as to who had caused injuries. Similarly Phulia Bai does not say, if Bonder had told Radhey Shyam who had caused injury. It is argued that the information given by Suresh at Police Station has to be treated as the first information report in this case, as he had stated that these two appellants had caused injuries to Bonder who was lying injured in a field under the tree. The later narration of event in Dehati Nalishi, - report by Phulia Bai to police officer, in which she disclosed about the dying declaration made by Bonder, cannot be treated as the first information report, as it was later in time. So it does not have-the evidentiary value for corroboration. Thus, the argument is that important witnesses have not been examined and so the presumption should be that, if examined, they would not have supported the prosecution case, that the dying declaration was not referred to at the first available opportunity by Suresh, that the testimony of these relatives is totally uncorroborated and further that they cannot be said to be sufficiently reliable witnesses to base conviction on their testimony. The argument is that these appellants have been named by the witnesses merely because there was an enmity between them arising out of a litigation about the agricultural land. That litigation was long drawn and there was an injunction in favour of the accused and against Bonder. Alternate argument is that if the injured was lying in a field of the accused, then he must have trespassed on that land and the assault might have been the result of right of private defence of property. It is urged that the evidence of dying declaration by partisan witnesses is too frail for basing conviction without corroboration. It may be noticed here that one Tej Ram P.W. 6 was examined as an eye witness of the incident, but he was disbelieved by the trial Court for various reasons given in the judgment. Some other witnesses, who were projected as eye-witnesses to the occurrence became hostile to the prosecution in the witness-box and only claimed that they had not seen the incident.
4. First point to be considered is whether the report made by Suresh to police, recorded as Rojnamcha Sanha No. 1695 (Ex.P.-16), was the first information report or the Dehati Nalishi recorded on the statement of Phulia Bai, later on. Sharda Prasad P.W. 10 was working as Head Constable at Police Station Hoshangabad on 16-12-1985 at 11 p.m. Suresh P.W. I had informed him about the incident that night and he recorded that information in Rojnamcha Sanha No. 1695 (Ex.P-16). Suresh appeared as P.W. 2. On 18- 12-1985, at about 7 p.m., he returned from Hoshangabad and on information received from his Bhanji Prembai, he went to his field and noted that his mother was bringing his father Bonder on a cot. Bonder was put at the house of Kotwar Jhagdu. There, he asked his father as to who had hurt him. His father had told him that Radhey Shyam and Munna had given injuries to him in the field. Even Jhagdu was told the same fact by the father of Suresh. So, he along with Jhagdu, went to Police Station, Hoshangabad, and made a report which was recorded in Rojnamcha Sanha No. 1695. The witness confirmed the report. Then he came back to his house by about 3 a.m. and his father had already died by that time.
5. The report Ex.P-16 was recorded at about 11 P.M. It is to the effect that some distance from the village on the field, his father Bonder was lying injured, Radhey Shyam and Munna had beaten him there (MAAR PEET KI) resulting in injuries to his arms, legs and head and that Bonder was, unable to move or was unable to be brought in absence of any conveyance. The report contained a note by the police officer that he along with a number of police staff was proceeding to the site of incident. So in this report, there was given time and place of assault, names of persons, who assaulted, name of the victim and some description of injuries were also given and the police proceeded to the spot for enquiry. Bonder died by the time the police reached there-with Suresh. That was the consequence of the injury. For a report to be first information report, it is not necessary that every details of incident should be mentioned in it. Information of the incident given first is time in sufficient to call it the first information report. So this report (Ex.P-16) was the first information report and the police started for enquiry on this report.
6. Recording of detailed statement of Phulia Bai later by the police is only her statement under Section 161, Criminal Procedure Code irrespective of the fact that it is treated in the form of F.I.R. by the police. P.W. 15 is Narsingh Pal Singh Rathor Sub-Inspector of Police. He says that he proceeded to make investigation on the report made by Suresh on 18-12-1985 in the night at Police Station, Hoshangabad. He reached village Mohari at about 3 a.m. and there Phulia Bai gave statement Ex.P-1 which he recorded. This was recorded at 3.30 a.m. She narrated how son of Komal (Shyam Sundar) had come at about 6 p.m. and informed that her husband was lying injured below the banyan tree and had asked him (Shyam Sunder) to inform his wife to take him home. She and her daughter Resham Bai went there and found her husband lying with injuries and bleeding. So on a cot, they took him to the house of Jhagdu, Kotwar. Jhagdu asked him as to who assaulted and he named that Radhey Shyam and Munna had assaulted him in the field. She narrated the subsequent events also regarding how her son came and her son and Jhagdu went to the police station. This was transformed into formal F.I.R. by the police officer.
7. Apparently, this subsequent information by Phulia Bai cannot be treated as the F.I.R. F.I.R. means the information first given, first in time about the crime. In the present case, information given by Suresh was sufficiently clear and was first in time. It contained most of the particulars, which were material, death had not taken place by the time. The trial Court has observed that since this report by Suresh only referred to MARR PEET it cannot be treated as the first information report of murder. The trial Court has erred on the point of law in not understanding the true import of the first information report under Section 154 of Criminal Procedure Code. It is that information which moved the police to investigate the matter and it is sufficiently clear as to what happened. It need not have all the details. All the consequences may not have taken place by that time. So the report Ex.P-I6 given by Suresh was the first information report and the statement of Phulia Bai Ex.P-1 cannot be treated as the first information report. It is relegated to the status of statement to police under Section 161, Criminal Procedure Code.
8. Now we come to the question whether Bonder, before his death, told all these witnesses that he had been assaulted by the two appellants. One criticism raised is that Suresh son of Bonder did not tell the police in the F.I.R. (Sanha Report) Ex.P-16 that Bonder told him so. To understand this criticism, it is essential to understand that at the time Suresh made his report to police, Bonder had not died, Bonder was alive when Suresh started for police station along with Jhagdu. He had injuries mainly on extremities and chest. He was speaking. So Suresh could not expect that his father would have died by the time he reached back, nor the police expected this. Suresh named the two appellants as the assailants of his father in this report. On what basis he named, he did not disclose. He does not claim that he had seen the incident. Then how he named the appellants. His explanation that he learnt it because his father told him so, has to be accepted as true. If his father was alive, then information by father to son could not be proved as the relevant factor under Section 32(1), Evidence Act and father would have to give evidence. If father was dead, when Suresh started for police station, it would have been an important factor which the police was bound to take on record in the first information report. But when the father was alive, even if Suresh had stated to the police that his source of information was what was told to him by his father, the police would not have recorded it, ordinarily, considering that it was irrelevant factor of evidence, as there was no intimation whatsoever that there was likelihood of dying of Bonder. An F.I.R. is statement of first informer to police about the incident. It is not expected to record what other witnesses have to say about the incident. At the time when Bonder was alive whatever he said, would be statement of a witness, if death had not taken place. So, at that time it need not have been included in the F.I.R. Suresh appearing as P.W. 2 stated that his father told him that these two appellants had hit him with lathis. Suresh had stated in the cross-examination that he did not know why it was not recorded in the Sanha report as to what his father told him about the assailants. It appears clear that even if he told this fact to the police, they might have omitted it as unnecessary details. Their own decision in this respect, even if it is made by mistake or blunder, could not militate against the reliability of witness Suresh. It would have certainly affected the reliability adversely, if Bonder was dead, when Suresh started for police station for lodging information. But since there was hardly any apprehension of death of Bonder, it could happen that the source of information of Suresh might not have been considered so material by the police officer, while recording the Sanha report. The Sanha reports are not detailed reports. They are only substances of the events. The Supreme Court has recognised that it is neither customary nor necessary to mention every minute details in the F.I.R. The Judgment cited as State of U.P. v. Ballabh Das, AIR 1985 S.C. 1384 may be referred in this respect. In this case, the F.I.R. did not mention that there was assault with Lathi, although the evidence led and the medical evidence showed that assault had been made with lathi. Their Lordships said that mere fact that the assault by lathi was not mentioned in the F.I.R. would not be sufficient to discard this important fact. One pronouncement of Kerala High Court also appears pertinent on this question. This is Asan Tharayil Baby v. State of Kerala, 1981 Cri. L.J. 1165 (1168). In this case, dying declaration was made to the brother of the deceased. That brother did not mention about the declaration in his statement to the police. But at the inquest, he had said that his brother told him that he was stabbed by the accused. The court said that a non-mention of the declaration in his statement to police can only be taken as omission. It was found that the evidence with regard to dying declaration did not suffer from an infirmity.
9. In our case, the police officer who recorded the Sanha report was not purporting to have recorded it as F.I.R., formal as such. It has been illegally not treated as the F.I.R. All these factors would go to suggest that certain facts, which were detailed at that time, may not have been recorded by the police officer concerned. After all he was a police officer of the Head Constable level. For all these reasons, the evidence of Suresh or other witnesses about what was told to them by Bonder cannot be discarded as improvement. In fact, the mention of the names of these two appellants in the F.I.R. shows that Suresh had come to know of their names. His evidence that was told so by his father Bonder, is acceptable.
10. Another criticism against the evidence of dying declaration is that Jhagdu has not been examined as a witness. This loses sight of fact that Jhagdu is dead. This is so stated by Suresh in his testimony. So nonproduction of Jhagdu as witness can raise no presumption against the prosecution.
11. There is one more criticism on behalf of the appellants. Shyam Sunder P.W. 8, a lad of 18 years, was the first person with whom Bonder had talked when he was lying injured near the Banyan tree. Shyam Sunder has not stated that Bonder had informed him as to who hurt him. Shyam Sundar did not tell this even to Phulia Bai. He simply informed her about Bonder lying under the Banyan tree. Argument is that it should have been natural for Bonder to have told Shyam Sundar as to who had assaulted him. Not doing so means Bonder did not know who assaulted him. Perusal of the evidence of this witness shows that he had gone to the field to answer the call of nature. He was a lad of about 18 years at that time and while returning, it was dark. He noticed Bonder from a distance of about 6 yards and Bonder simply asked him to inform his wife to take him home. In fact, this statement of the witness does not disclose how closely known he was to Bonder. If he was merely a villager passing-by and Bonder asked him as passer-by from a distance to inform his wife to take him home and the witness did not care to come near Bonder, it would hardly be expected that Bonder would tell him how he reached the condition in which he was. In fact, the evidence of Shyam Sunder suggests clearly that Bonder was in a condition to speak at that time and was conscious. It is not a case where the witness must have asked Bonder as to who attacked him. He did not come near him and the distance was 6 yards nearly while it was already dark. So there is no inference against the truth of the dying declaration made to the other witnesses, because it was not made to Shyam Sunder.
12. Now we may go through the evidence of Phulia Bai, Resham Bai, Suresh and Imrat, about what Bonder informed them about the assailants. Imrat is Kotwar and an independent witness. He had no enmity against the accused. So there is no reason why he would speak falsely against them, nor he had any interest in the family of the deceased. He has appeared as P.W. 4. He knows both the parties and the deceased. At about 8 p.m., on the night of the incident, Resham Bai had approached him at his house saying that her father Bonder had been assaulted by Radhey Shyam and Munna. So he went to the house of Jhagdu, Kotwar, where there is a Panchayat Bhavan. Bonder was lying on a cot. He asked Bonder as to who had beaten him. Bonder told him that Radhey Shyam and Munna had assaulted him. So he asked Jhagdu and Suresh to go to the police station to make a report. They went away. Bonder was taken to his (Bonder's) house. Then police had reached there by 3 a.m., but Bonder had died by that time. Cross-examination of this witness does not bring out anything to suggest any infirmity in the evidence or interested ness in the parties. Of course, in previous statement to police, there was no mention that Resham Bai had told him the names of the assailants. She simply told that her father had been assaulted. Police recorded statement of this witness in the same way on 19-12-1985. It was natural for the Kotwar to have asked the injured as to who assaulted him. He has simply stated that Bonder informed him that the assailants were Radhey Shyam and Munna. There appears no reason to doubt the truth of his statement.
13. Now we turn to the evidence of wife, daughter and son of the deceased regarding the reliability of the dying declaration made to them.
14. Phulia Bai, on being informed that Bonder was lying injured near Banyan tree, rushed to the spot along with her daughter Resham Bai. She noted that Bonder was lying under the Banyan tree about 50 paces from the house of Komal. It was natural for her to ask Bonder who had hit him. Bonder's reply was that Radhey Shyam and Munna had assaulted him with Kulhadi and Danda. Then she narrated about taking Bonder on a cot to the house of Jhagdu Kotwar whom also Bonder told the names of his assailants and then Suresh came and learnt from Bonder and Jhagdu about the incident and then Suresh went to the Police Station to report the matter. This later part, that Phulia Bai brought Bonder on a cot to the house of Jhagdu and there Suresh also came and Bonder named the accused as their assailants and also they went to the police station, is fully established by their evidence and the evidence of Sanha report as has already been discussed. So in this part of narration, Phulia Bai is corroborated. Bonder was in a state to talk, there is no doubt about it. This has not been challenged in the medical evidence also. First his close family members had asked Bonder who had caused injuries, so it was natural for Bonder to have named his assailants. There is no reason for him to give false names or conceal the names of his real assailants. So, as it was natural conduct of the injured, the truth of what Bonder told to his wife and daughter, has to be accepted. Similarly, it has to be accepted that Bonder did tell the names of his assailants to his wife and daughter. It is within the scope of natural conduct of the injured. Statement of Resham Bai fully supports the statement of her mother in all respects and is corroborated. No infirmity arises therefrom. Her conduct in carrying Bonder to the house of Jhagdu Kotwar was also natural and is supported by the evidence of Imrat. Suresh appearing as P.W. 2 had learned about the fact that his father was lying outside the house of Jhagdu in an injured condition and he went there and enquired from his father about the assailants and then Bonder gave the names of his assailants as Radheyshyam and Munna. Then he went with Jhagdu Kotwar to police station. His statement is fully corroborated by the fact that he lodged a report. Evidence of this witness appears to be acceptable that Bonder told him that he was assaulted by Radhey Shyam and Munna who are the present accused-appellants.
14-A. Recently in case of Sunil Kumar etc. v. State of M. P., 1997(1) JLJ 192, the Apex Court has occasion to consider a situation whether statement of a mother was believable regarding what her injured son told her about how and who caused injuries to him and to his brother, who was lying dead. The mother had rushed to the spot where her sons were lying on hearing about incident. She narrated in court what her injured son told her about who caused hurt to him and to his brother who died. Their Lordships of the Apex Court observed that it was expected of a mother, who gets information about assault on her sons, to immediately rush to their help and ascertain the details of their assaults. She would naturally ask her son what happened and who did it and there is no reason to disbelieve her about it. The Apex Court said that such a mother could not be disbelieved even if the police recorded her statement 11/2 months later, as she cannot be disbelieved for dereliction of duty by the police. This case is Sunil Kumar and Ors. v. State of M. P., 1997(1) JLJ 192. In that case, the particular son who told the fact to her mother lived to state facts before the court and evidence of mother was held to be corroborative of him. In our case, the narration by Phulia Bai, Resham, Suresh and Imrat as to how they rushed to Bonder who was lying injured and what Bonder told them, is of similar nature, as was before the Supreme Court in above cited case. In our case, the narration of Bonder has weight of dying declaration orally made to these witnesses. The narration is acceptable as natural.
15. One criticism raised against their evidence by the learned counsel is that there was a land dispute between Bonder and these appellants and a litigation was going on. Phulia Bai admits this. The two accused are brothers and sons of Banshilal. It is argued that Banshilal had obtained an injunction order from civil court against Bonder. Injunction as revealed by certified copy of the order was that Bonder is restrained from prosecuting the partition proceedings in revenue court during the pendency of the civil suit. Argument is that in view of this injunction, there was suspicion in the mind of Bonder as also his family members that these accused must be the assailants, due to enmity.
16. This is imaginary criticism. In fact, enmity could be motive for these accused to attack Bonder. Bonder, throughout and to all, named these accused as actual assailants. It was not a case of mere suspicion. Another argument is that Bonder was in fact residing in village Kandra Khora with Rukmani, his other wife. Phulia Bai admits this fact in her cross-examination, but she said that she had good relation with Rukmani Bai. These factors hardly militate against the narration of Phulia Bai.
17. One more argument of the learned counsel for the appellants is that, according to Phulia Bai, Bonder had told him that he was hit by lathi and axe and there is no sharp edged injury found on the person of Bonder. All are lacerated wounds. However, this medical evidence cannot be said to be inconsistent with the dying declaration regarding weapon. Kulhari can be used from sharp side as well as from the blunt side. It causes great disaster when used from the head side also, for hitting. In fact, injuries III to VI are sufficient to cause by blunt weapon. These could be caused with the head side of the axe, considering the sizes of the wounds. So there is no contradiction or variance in the dying declaration compared to the medical evidence.
18. Considering all the aspects revealed in the evidence, it becomes clear that the evidence of witnesses Imrat, Phulia Bai, Resham Bai and Suresh is fully believable as truthful that the deceased told them that he was attacked and hit by these two accused-appellants. This statement of the deceased does not have intrinsic or circumstantial, infirmity in it, nor there is any cause to doubt it. On the other hand, these accused had motive to attack him due to inimical feeling resulting from litigation. The dying declaration was instantaneous and the natural conduct of the deceased. It is sufficiently clear and truthful to base the conviction of the accused persons. So I find no legal infirmity in the trial Court judgment of conviction, being based on this dying declaration.
19. The trial Court has found the appellants guilty of offence under Section 325 read with Section 34, Indian Penal Code. Both had participated in the attack actually. The trial Court has given them benefit of doubt regarding their mens rea to cause death. The State is not in appeal against that part of the judgment. This Court need not not motu take up that issue against the accused. So the conviction of the appellants for offence punishable under Section 325 read with Section 34, Indian Penal Code is confirmed. Sentence of R.I. for 4 years on each of the appellant is proper in this case as the acts of the accused had resulted in the death of the victim. I confirm the sentence.
20. The net result is that the appeal is dismissed. Conviction and sentence against the appellants are confirmed. Warrant of confirmation shall be sent. Appellants shall surrender to their bonds to undergo the sentence. The trial Court shall see that the accused are surrendered to undergo their sentences.