Pritam And Others vs State Of U.P.
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 64
 
Case :- CRIMINAL APPEAL No. - 159 of 1988
 
Appellant :- Pritam And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.S. Chaturvedi,Ashok Kumar Singh Bais,S.A. Shah,Sumit Goyal
 
Counsel for Respondent :- A.G.A.,Ajay Kumar Sharma,Mashaluddin Shah
 
Hon'ble Raj Beer Singh,J.

1. The present appeal has been filed against the Judgment and order dated 20.01.1988 / 21.01.1988 passed by IIIrd Additional Sessions Judge, Saharanpur in S.T. No. 340 of 1985 State Vs. Pritam and three others, under Section 304 (Part-I)/34, 325/34 I.P.C. Police Station Nakud, District Saharanpur, whereby accused-appellants Pritam, Dila, Sharma and Shuggan have been convicted under Section 304 (Part I)/34 and 325/34 I.P.C. and sentenced to undergo for rigorous imprisonment of seven years under Section 304 (I)/34 I.P.C. and rigorous imprisonment of two years under Section 325/34 I.P.C. Both the sentences were to run concurrently.

2. According to the prosecution version, there was some dispute between the first informant Asha Ram (deceased) and one Bhagru Pradhan over the issue of land of Gram Samaj and temple and some persons of the party of Bhagru Pradhan were pressing the first informant Asha Ram to withdraw the case lodged by him. On 08.12.1984 at about 05.00 P.M., the accused Pritam, Sharma, Dila and Shuggan came to the informant and asked to withdraw the case but the informant Asha Ram and his son Sadhu Ram refused for the same and thereafter, the said accused persons started assaulting the informant and his son Sadhuram with lathis. Hearing noise one Jeeram, Punna and Budh Singh have reached there and saved the informant and his son.

3. The first informant Asha Ram reported the matter to police by submitting a Tehrir Ex. Ka-4 and on the basis thereof, a Non-Cognizable-Report was registered on 08.12.1984 at 9:10 P.M. vide N.C.R. Ex. Ka-1 No. 132 of 1984 under Section 323 I.P.C. In this regard entry was made in G.D. vide Ex. Ka- 2.

4. As per M.L.C. Ex. Ka-5, the injured Asha Ram sustained the following injuries:-

"1. Lacerated wound 2 c.m. X .5 c.m. X scalp deep on Rt. side head 11 c.m. above Rt. ear with traumatic swelling 8 c.m. X 6 c.m. around the wound. Kept U.O. Adv. X-Ray.

2. Lacerated wound 3 c.m. X .5 c.m. X scalp deep on Lt. side head 13 c.m. above the Lt. ear with traumatic swelling 4 c.m. X 2 c.m. around the wound.

3. Lacerated wound 2 c.m. X .5 c.m. X scalp deep on Lt. side head 6.5 c.m. above Lt. eye brow with traumatic swelling 5 c.m. X 4 c.m. around the wound.

4. Lacerated wound 1 c.m. X .2 X .2 c.m. on Lt. side forehead 2 c.m. above and lateral to Lt. eye brow.

5. Abrasion .5 X .5 c.m. on back of lt. Index finger.

6. Abrasion .5 c.m. X .5 c.m. on back of Lt. middle finger.

5. As per M.L.C. Ex. Ka-6, the injured Sadhu Ram sustained the following injuries:-

1. Lacerated wound 3.5 c.m. X .3 c.m. X scalp deep on Lt.side head 10 c.m. above Lt. ear.

2. Lacerated wound 1.5 c.m. X .2 c.m. X scalp on Lt. side head 8 c.m. above Lt. ear.

3. Lacerated wound 1.5 c.m. X .2 c.m. X scalp deep on Lt. side head extending to forehead 6 c.m. above & Lt. to Bridge to nose.

4. Reddish Traumatic swelling 9 c.m. X 7 c.m. on Rt. fore arm lower part extending to Rt. wrist in posterior & outer side. Kept U.O. Adv. X-Ray.

5. Reddish altered contused swelling 18 c.m. X 12 c.m. on Lt. leg upper 1/2 in front & outer side. Kept U.O. Adv. X-Ray.

6. Reddish abraded contusion 3 c.m. X 1 c.m. on Lt. shoulder in back.

7. Reddish contusion 2 c.m. X 1 c.m. on Lt. supra scapular region.

8. Reddish abraded contusion 4 c.m. X 1 c.m. on Lt. scapular region.

9. Reddish abraded contusion 7 c.m. X 2 c.m. on Lt. infra scapular region."

As per X-Ray report, Ex. Ka-16, fracture was found in his right forearm radius.

6. On 12.12.1984 on the basis of the medical examination report of injured persons, the case was converted into under Sections 323/325 I.P.C as injured Sadhu Ram has sustained fracture and investigation was started vide G.D. entry Ex. Ka-3. The blood stained clothes of injured Sadhu Ram were taken into possession vide Ex. Ka-2 and Ka-13.

7. During the course of treatment, injured/first informant Asha Ram succumbed to injuries and thus Section 304 I.P.C. was added. The inquest proceedings of deceased were conducted on 03.12.1984 vide inquest report Ex. Ka-7 and after that on 14.12.1984 post mortem was conducted on the body of the deceased vide post mortem report Ex. Ka- 15.

8. During the investigation, the statement of witnesses were recorded and site plan of the spot of the incident was prepared. After completion of investigation, all the four accused persons were charge sheeted for offences under Sections 325, 304, 323 I.P.C.

9. The trial Court framed charges under Section 304 ( Part-I)/34 and 325/34 I.P.C. against all the four accused persons. In order to bring home guilt of the accused-appellants, the prosecution has examined ten witnesses.

10. The accused persons were examined under 313 Cr.P.C., wherein they have denied prosecution evidence and claimed false implication. In defence evidence they have examined one Shishu Pal as D.W.1.

11. After hearing and analysing the evidence, all the four accused-appellants were convicted under Sections 304 (Part-I)/34 and Section 323/25 I.P.C. and they were sentenced as stated in opening paragraph of this Judgement.

12. Being aggrieved by the Judgement and order of conviction dated 21.01.1988, the appellants have preferred instant appeal.

13. During the pendency of the instant appeal, the accused-appellant no. 2 Dila and accused-appellant no.4 Shuggan have passed away and thus their appeal stand abated and now this appeal is confined only in respect of accused-appellant nos. 1 and 4 namely, Pritam and Sharma.

14. It has been argued by learned counsel for the accused-appellants that testimony of alleged eye-witnesses is not reliable and there are material contradictions and inconsistencies and that alleged dying declaration of deceased has also not been proved in accordance with law. The trial Court has not considered the evidence on record in correct perspective and committed an error by convicting the accused-appellants. Learned counsel submitted that there was no motive on the part of accused-appellants to cause death of deceased. It was stated that the alleged incident has taken place spur of the moment and that a cross-case was also lodged from the side of the accused persons and that in the incident accused Shuggan and one Shishu Pal have also sustained injures, which could not be explained by prosecution. It was submitted that the deceased has not sustained any serious injury and even if the prosecution case is accepted, the case would not travel beyond the offence under Section 304 (Part-II) I.P.C. Learned counsel futher argued that in view of above facts and circumstances, the conviction and sentence of the accused-appellants is not sustainable.

15. On the other hand, learned A.G.A. has submitted that there is testimony of eye-witnesses and injured witness, who have made clear and cogent statements. Further the tehreer given by the deceased to the police has to be treated as dying declaration and the same has been proved in accordance with law. It was next submitted that there is no illegality or perversity in the impugned Judgment and order of conviction and thus the same is liable to upheld by this Court.

16. I have considered the rival submissions of learned counsel for the parties and perused record.

17. P.W.1 Punna has stated that there is a temple in his village Kakrola and the deceased Asha Ram was manager of the said temple. This temple is situated over the land of Gram Samaj. There was also some open land adjoining the temple, which was allotted by the then Pradhan Bhadru to accused Shuggan and grand mother of the accused-appellant Sharma. In this regard, deceased Asha Ram has made a complaint against Gram Pradhan and thereafter revenue officials have visited the spot. Due to all these facts there was enmity between the two parties. On the day of incident, at about 5:00 P.M. he (P.W.1) heard noise from southern side of his house and when he reached there he saw that accused Shuggan, Dila, Pritam and Sharma were assaulting the deceased Asha Ram and injured Sadhu Ram and he intervened in the matter. Sadhu and Asha Ram have sustained injuries and that after four days of incident, Asha Ram has passed away.

18. P.W.2 Jeeram has stated that about 3 1/2 years back on the day of incident at about 5:00 P.M. accused Shuggan, Dila, Sharma and Pritam have assaulted the informant Asha Ram and his son and he has also reached on the spot and intervened in the matter.

19. P.W.3 Constable Buddh Prakash has recorded the N.C.R. vide Ex. Ka.1 and after the death of deceased, Section 304 I.P.C. was added and general diary entry was recorded by him. He has also recorded the general diary entry with regard to addition of Section 325 I.P.C.

20. P.W.4 Sadhu Ram is injured witness. He has stated that his father Asha Ram was manager of the temple situated in village. The village Pradhan Bhagru has allotted out the land of temple to accused Shuggan and grandmother of accused-appellant Sharma and due to this reason, his father Asha Ram has filed a case for cancellation of the said allotment. Due to these reasons, there was enmity between the parties. The accused persons were pressing his father to withdraw the said case but his father has refused for the same. On the day of incident at about 05.00 P.M., he (P.W.4) and his father Asha Ram were going to their hut and when they were near the house of Jeeram, the accused Sharma, Dila, Pritam and Shuggan met and asked them to withdraw the said case. When his father Asha Ram refused to withdraw the case, all the accused persons assaulted him and his father Asha Ram with lathis. Hearing the noise, one Jeeram, Puna and Buddh Singh have also reached there and saved them. P.W.4 and his father Asha Ram have sustained injuries and they were medically examined and that P.W.4 sustained fracture in his hand. He further stated that his father Asha Ram has lodged the report, which has been proved by P.W-4 as Ex. Ka-4 and he has identified the signature of his father Asha Ram on the said Tehreer.

21. P.W.5 Dr. P.K. Jain has medically examined the deceased and the injured Sadhu Ram on 08.12.1984 and he has proved M.L.C. Ex. Ka- 5 and ka-6.

22. P.W.6 S.I. A.R.Yadav has conducted the investigation. He has conducted the inquest proceedings vide Ex. Ka-7 and other related papers Ex. Ka-8 to Ex. Ka-10 were also prepared and dead body of the deceased was sent for post-mortem. On 01.05.1984 the site plan of the spot was prepared and blood stained clothes of the injured Sadhu Ram were taken into possession. After completion of investigation, charge vide Ex. Ka- 14 was submitted.

23. P.W.7 Geeta Ram has scribed the Tehrir Ex. Ka-4 and he has stated that he has written the Ex. Ka-4 on 08.12.1984 at the dictation of Asha Ram and after writing the same, he has read over the same to Asha Ram and after that Asha Ram has put his thumb impression on Ex. Ka-4.

24. P.W.8 Dr. R.D.Sharma has conducted the post mortem on the body of the deceased. As per post-mortem report Ex. Ka-15, the deceased has sustained the following ante mortem injuries.

"1. Stitched wound 2 c.m. long and after removing the stitches the wound was lacerated 2 X .5 c.m. X muscle deep and it was in the front of head, 13 c.ms. above left ear.

2. Lacerated wound 2 c.m. X .5 c.m. X muscle deep in front of the head 4 c.m. above injury no.1.

3. Lacerated wound 1 X .5 c.m. X muscle deep just above the head and 10 c.ms. behind injury no.1.

4. Abrasion 1.5 X.5 c.m. on the left side of head in front of the head and 2.5 c.ms. above the left eye.

5. Abrasion 1 X .5 c.m. on the middle and back of left little finger and the finger was hanging."

25. P.W.9 Dr. R.K. Pandey has conducted the X-Ray of injured Sadhu Ram and he has proved the X-Ray plate and X-Ray report vide Ex. Ka-16.

26. P.W.10 Constable Brahm Pal is formal witness, who assisted during investigation.

27. D.W.1 Shishu Pal has stated that on 08.12.1984 on the day of incident, he was working at crusher of Jado Ram and his wife told him about the incident and that accused Shuggan and Pritam were also working with him. After that he, Pritam and Shuggan reached at the house of Ram Swaroop at the village and Asha Ram, Sadhu and Punna were present there and they started beating them and in order to save themselves, D.W.1 Shishu Ram, Pritam and Shuggam wielded lathis. In the incident D.W.1 Shishupal, Shuggan and Pritam have sustained injuries and they were medically examined and a report was lodged and thereafter complaint was filed. He stated that accused Sharma was not present at the spot nor he was not involved in the alleged incident. Copy of the complaint case has been filed as Ex. Kha-1.

28. It was submitted by learned counsel for the appellants that there was no motive on the part of accused-appellants to cause death of deceased and that as per prosecution the appellants were asking the deceased to withdraw the case lodged by him regarding alleged land of temple but from the evidence, it is apparent that the said case has already been dismissed in default and at the time of incident no such case was pending therefore, there was no occasion on the part of accused-appellants to ask the deceased to withdraw the said case. It was further submitted that in F.I.R., which was lodged by deceased himself, it was alleged that accused-appellants were asking the deceased to withdraw the said case and when he and his son Sadhu Ram refused, the accused-appellants have assaulted him, however it has come in evidence that the said suit filed by deceased was already dismissed in default.

29. So far the question of motive is concerned, it is well settled that if a case is based on direct evidence, motive has no much significance. Clear proof of motive lends additional assurance to other evidence but the absence of motive does not lead to contrary conclusion however in that case, other evidence has to be closely scrutinized. If positive evidence is clear and cogent the question of motive is not important. However, this is relevant to lend assurance the other evidence. Motive is not a sine qua non for the commission of a crime. Moreover, failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Reference may be made to the case law pronounced in case of State of U.P. V Nawab Singh, 2005 SCC (Criminal) 33.

30. Dealing with similar issue the Apex Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:

"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

31. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. In Shivji Genu Mohite V. State of Maharashtra, AIR 1973 SC 55, the Hon'ble Supreme Court has held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance.

32. Thus, it is clear if a case is based on direct evidence, motive has no much significance. Clear proof of motive lends additional assurance to other evidence but the absence of motive does not lead to contrary conclusion however in that case, other evidence has to be closely scrutinized. If positive evidence is clear and cogent the question of motive is not important. Motive is not a sine qua non for the commission of a crime. In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. In the present matter, it would be pertinent to mention that P.W.-4 Sadhu Ram has stated in his statement that accused-appellants have asked the deceased not to pursue the matter for restoration of the said suit and when the deceased and P.W.4 Sadhu Ram refused, the accused-appellants have assaulted them with lathi. It is correct that in F.I.R. there was no such version that accused-appellants were asking for not pursuing the restoration of the suit but in this regard, the statement of the P.W.4 Sadhu Ram is quite clear and cogent. The fact remains that there there was enmity between the parties over the alleged land of temple, which was allotted by the village Pradhan in favour of accused Shuggan and grandmother of the accused-appellant Sharma and that the deceased has filed a case for cancellation of the said allotment/lease. P.W.1 Punna has also stated that there was dispute regarding the alleged land of temple and there was enmity between the parties. In view of these facts and circumstances, it cannot be said that there was no motive at all.

33. Learned counsel for the accused-appellants has argued that in the same incident, D.W.1 Shishu Pal, accused-appellant Suggan and Pitam have sustained injuries and in that regard, a cross case was lodged from the side of the accused persons. It was submitted that as the prosecution failed to explain the injuries sustained by accused Shuggan, Pitam and DW 1 Shishupal, thus prosecution version is fully doubtful. In this connection it may be seen that accused Shuggan has sustained merely two simple injuries which were reddish abraded contusion of small dimension. D.W.1 Shishu Pal has also sustained three minor injuries of small dimensions and accused-appellant Pritam has sustained two simple injuries which were reddish abraded contusion. It is worth noting that the injuries are superficial in nature, the accused were not sent for medical examination and further there is no suggestion whatsoever as regards the injuries sustained by them to any of the witnesses. The story built up as regards the fight between the two groups does not remotely appeal to common sense and, more so, in the absence of any evidence, it is like building a castle in Spain. Quite apart from the above, non- explaining of injuries of the accused persons is always not fatal to the case of the prosecution. In this context, reference may be made to case Sri Ram v. State of M.P.(2004) 9 SCC 292, wherein it has been held that mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases and the said principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested and so probable, consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. None of the injuries sustained by accused persons or by said Shishupal were grievous and that there was no injury on vital part of the said said injured persons. Thus in view of nature of injuries, prosecution case would not affect on the ground that prosecution has failed to explain as to how the accused Shuggan, Pritam and injured Shishu Pal have sustained injuries. The contention of learned counsel for the accused-appellants has no force.

34. It was next contended by learned counsel for the accused-appellants that the medical evidence does not corroborate the oral evidence and that there are contradictions and inconsistencies in statements of witnesses. In this regard, it may be seen that as per version of the eye-witnesses, the deceased and injured P.W.4 Sadhu Ram were assaulted by the accused-appellants with lathi. As per medical examination report of the deceased, which was conducted on the same day the deceased has sustained four lacerated wounds and two abrasions. Similarly, the injured Sadhu Ram has sustained three lacerated wounds of different sizes, one reddish traumatic swelling and five reddish contusions of different dimensions. In view of nature of injuries, it cannot be said these injuries were not possible by weapon like that of lathi. Thus, it cannot be said that there is any contradiction between the oral and medical evidence. Thus the contention of learned counsel for the accused-appellants has no force.

35. Here it may be stated that PW-4 Sadhuram is an injured witness. He has given vivid description of entire incident. No material contradiction or infirmity could be shown in his statement. The evidence of an injured witness deserves greater weight and firm, cogent and convincing reasons are required to discard the evidence of an injured witness. The evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, Hon'ble Apex court held that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]''

36. Thus, it is clear that the Apex Court has reiterated the special evidentiary status accorded to the testimony of an injured witness. The deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

37. Keeping in view the aforesaid position of law in mind, in the instant case, it may be seen that testimony of injured witness PW 4 Sadhuram is clear and cogent and nothing adverse could emerge in his cross-examination. His version is supported by medical evidence and it is corroborated by evidence of PW 1 Punna and PW 2 Jeeram. The defence had failed to demonstrate any such discrepancy, omission and improvement that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by the Apex Court. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. So far evidence of D.W.-1 is concerned, in view of evidence of eye-witnesses, the defence evidence does not inspire confidence.

38. Further, besides the evidence of above stated eye-witnesses, there is dying declaration of deceased Asharam. It may be pointed out that the case of prosecution is that in alleged incident, the informant Asharam has sustained injuries and after incident he has submitted tahreer exhibit ka-4 to police and on that basis the non-cognizable-report was registered but during treatment on fourth day of incident, Asharam succumbed to injuries and thus, section 304 IPC was added. Thus, the statement/ tahreer exhibit ka-4 submitted by him would fall within the ambit of dying declaration. There can be no doubt in legal position that if an injured person makes an statement regarding the incident that how he sustained injuries and later on he dies of same injuries, such an statement would fall within the ambit of 'dying declaration' as enshrined under section 32(1) of Evidence Act. The admissibility of dying declaration has been explained under sec 32 of Indian Evidence Act which states that such a statement can be proved when it is made by a person as to the cause of his death, or as to any of the circumstances of transaction which resulted in his death. So far as the position of law regarding dying declaration is concerned, it is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. However, when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. In case of Koli Chunilal Savji V State of Gujrat AIR 1999 SC 3695, the Hon'ble Apex Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also: Baburam V State of Punjab, AIR 1998 SC 2808).

39. In case of Babulal v. State of M.P.(2003) 12 SCC 490, it has been held as under:-.

"7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. Then mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."

40. Dealing with the relevancy of dying declaration, Hon'ble the Apex Court in the case of Laxman v. State of Maharashtra reported in MANU/SC/0707/2002 has held as follows:-

"3. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a Rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

41. In Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, the Hon'ble Apex Court, after referring its earlier judgments, has laid following guidelines with regard to admissibility of the dying declaration:

The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute Rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely a Rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

42. From the above stated pronouncements, it is clear that the law regarding dying declaration is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. If the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. However, when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.

43. Keeping in view the cautions reminded from time to time by the Hon'ble Apex Court in dealing with the evidence and dying declaration, in the present case scrutiny of evidence shows that after alleged incident the tahreer exhibit ka-4 submitted by deceased would fall within the ambit of section 32(1) of Evidence Act. The same has been duly proved by PW 4 and PW 7 Geetaram. PW 4 Sadhuram has identified signature of deceased on tahreer exhibit ka-4. As PW 4 Sadhuram is son of deceased thus, it may be accepted that he was well versed with the signature of deceased. PW 7 Geetaram has also clearly stated that he has written the tahreer exhibit ka-4 on the dictation of deceased Asharam and after writing the same he has read over the same to the deceased and after he has put his signature on the same. The said statement of deceased was recorded soon after the incident. Deceased has died after four days of incident. There is absolutely nothing to show that deceased was not in fit state of mind to make such an statement. It is no body's case that after incident deceased has become unconscious or otherwise he was not in fit state of mind to make such an statement. He has also signed the said statement exhibit ka-4. PW 7 Geetaram has been subjected to cross-examination but no such fact could emerge so as to affect his evidence adversely. The version of PW 7 Geetaram finds supports from statement of PW 4 Sadhuram, who has also stated that his father has got written tahreer exhibit ka-4 from PW 7 Geetaram. PW3 Constable Budh Prakash, who has interalia stated that non-cognizable-report was lodged on the basis of tahrir submitted by Asha Ram. No material contradiction or infirmity could be shown in the statements of said witnesses. Thus, the dying declaration of deceased has been proved in accordance with law and the same can safely be acted upon. The dying declaration clearly states the accused person as assailants of deceased.

44. Much thrust has been given by learned counsel for the accused-appellants to the argument that even if the prosecution case is accepted as stated, no case under Section 304 (Part I) I.P.C. is made out against the accused-appellants. It was submitted that mischief of the accused-appellants would not travel beyond the offence under Section 325 I.P.C. and thus conviction and sentence of the accused-appellants for the offence under Section 304 Part-I /34 I.P.C. is not sustainable. Learned counsel for the accused-appellants has submitted that dispute between the parties was regarding the alleged land of temple and that the alleged incident took place spontaneously at the spur of the moment. There was no enmity between the parties on account of some personal dispute. The deceased died after four days of the incident. There are no reasons why the accused-appellants would commit murder or would cause death of the deceased. It was also pointed out that there is no such specific allegations that the fatal injuries were caused by the accused-appellants. It was stated that there is nothing to show that the accused-appellants have no common intention to cause murder or death of the deceased. In support of his contentions, learned counsel for the accused-appellants relied upon a decision of Hon'ble Apex Court rendered in the matter of Shri Kishan and others Vs. State of U.P. Criminal Appeal No. 273 of 1968 reported in 1972 AIR (SC) 2056.

45. In order to appreciate the above stated contention, it may be stated that per initial medical examination of deceased Asha Ram, he has sustained one lacerated wound of 2 X .5 c.m. X scalp deep on right side head, one lacerated wound of 3 X.5 c.m. X scalp deep on the left side of head, one lacerated wound of 2 c.m. X .5 c.m. X scalp deep on left side head, one lacerated wound of 1 c.m. X .2 X .2 c.m. on left side forehead and the remaining two injuries were abrasions on left index finger and left middle finger. As per post mortem report, there was stitched wound of 2 c.m. long at front of forehead and one lacerated wound of 2 c.m X .5 X muscle deep on head and one lacerated wound of 2 c.m. X 0.5 c.m. X muscle deep in front of head and one lacerated wound of 1 c.m. X 0.5 c.m. on top of head. Thus, it is apparent that deceased was given 3-4 lathi blows at his head. As per prosecution version, all of four accused persons have assaulted the deceased with lathi, however, there is no specific evidence that which of the accused or accused persons have caused injuries on the head of deceased, which proved fatal. It may also be seen that the dispute was over the issue of alleged land of temple and not on personal score. There is also no specific evidence that which of the particular accused or accused persons was/were responsible for causing the fatal injuries on the head of deceased.

46. In view of these facts and circumstances, it does not appear that all the accused persons have assaulted the deceased with an intention of causing death of deceased or causing such bodily injuries as is likely to cause death. However, as the deceased has sustained three injuries at his head, which were inflicted with lathis, it appears that the accused persons can safely be attributed with knowledge that causing of injuries to deceased was likely to cause his death. There is no such evidence that accused-appellants have intended to cause death of deceased or to cause such bodily injury as likely to cause death. In the case of Shri Kishan and others Vs. State of U.P. (supra), relied by learned counsel for appellants, there was no previous enmity between the accused persons and deceased and the occurrence was off shoot of trifling incident and that there was only one fatal injury on the head of deceased and that there was no evidence that which of the accused was author of said injury. In these fact and circumstances, the Hon'ble Ape Court held that none of the accused person could be held personally liable for fatal injury and the liability can only be vicarious under Section 34 of IPC. It was also held that in fact and circumstances of the case shows that common intention of the accused was to cause grievous injury and thus conviction of the accused was altered from Section 302 read with Section 34 I.P.C. to Section 325/34 I.P.C.. It may be observed that said case materially differs on several basic aspects from this case and thus it would not apply in the instant case. However, examining entire evidence carefully the accused persons can safely be attributed with knowledge that injury caused to deceased was likely to cause his death and thus, the mischief of accused-appellant would fall within the ambit of section 304 Part II/ 34 IPC.

47. So far the conviction of accused-appellants under Section 325/34 I.P.C. is concerned, it is apparent that injured Sadhu Ram has sustained fracture in his finger and thus the conviction under Section 325.34 I.P.C. in respect of injury cause to injured Sathu Ram is justified.

48. Now the question arise what would be proper and appropriate sentence under Section 304 Part II/34 I.P.C. In case of Gopal Singh Vs. State of Uttarakhand (2013) 7 SCC 545, the Hon'ble Apex Court, held as follows:

"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The Principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and some times lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment"

49. In the instant case, as stated above, the dispute between the parties was regarding the alleged temple land. Both the parties are residents of same village and that the deceased was 65 years old person. He has sustained three lacerated wounds at his head which proved fatal. This fact can also not be ignored that the alleged incident took place in the year 1984 and that the accused-appellants were convicted and sentenced by trial Court on 21.01.1988 and that the instant appeal is pending since last 33 years before this Court. Out of four accused-appellants, two of the accused-appellants namely, appellant no.2 Dila and appellant no.4 Shuggan have already passed away. As per the age mentioned in statements recorded under section 313 CrPC, now the accused-appellants Pritam and Sharma might have been aged about 57 and 56 years respectively. It was submitted by learned counsel for the accused-appellants that accused-appellants have already undergone sentence of more than two years of imprisonment during the investigation, trial and after conviction.

50. Considering all the relevant facts of the matter, it would be appropriate that accused-appellants Pritam and Sharma be sentenced to undergo three years rigorous imprisonment under Section 304 Part II/34 I.P.C. along with fine of Rs. 30,000/- Similarly, considering the fact that injured Sadhu Ram has sustained merely a fracture in finger, it would be appropriate sentence under Section 325/34 I.P.C. be reduced from two years R.I. to one year R.I.

51. In view of the aforesaid, conviction of accused-appellants Pritam and Sharma under Section 304 Part I/34 I.P.C. is altered in to under Section 304 Part II/34 I.P.C. and they are sentenced to under rigorous imprisonment of three years along with fine of Rs. 30,000/- (thirty thousand) each. In default in payment of fine, they have to undergo an additional imprisonment of 18 months. The conviction of the accused-appellants Pritam and Sharma under Section 325/34 I.P.C. is upheld but their sentence is altered and they are sentenced to undergo rigorous imprisonment of one year under section 325/34 IPC. Both the sentences shall run concurrently. The sentence already undergone by the accused-appellants shall be adjusted in accordance with provisions of section 428 CrPC. It is also directed that out of the total amount of fine deposited by the accused-appellants before the court below, 60% amount thereof shall be disbursed to the legal heirs of the deceased Asha Ram. The concerned Court below shall ensure that the accused-appellants are sent to jail to serve out the remaining sentence as per law.

52. Appeal is partly allowed in aforesaid terms.

53. Office is directed to transmit the record of trial Court as well as copy of the judgement to the Court below.

 
Order Date :-03.03.2021
 
S.Ali								(Raj Beer Singh,J)