Jamrul Hoda and Others vs The State of Bihar

Gopal Prasad, J—The appellants have been convicted under Sections 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. Appellant No. 7 Rajeshwar Rai has further been convicted under Section 148 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year. The other appellants Md. Jamrul Hoda, Md. Qamrul Hoda, Md. Sah Jahan, Munga Lal Rai, Shivnandan Rai and Najbul Hoda @ Najbu Hodda have further been convicted under Section 147 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for six months. However, all the sentences have been directed to run concurrently.

The prosecution case, as alleged in the fardbeyan of the informant Sheikh Shamshuddin is that on 26th January, 1982 at 1:00 P.M. the informant was bringing bricks from Marvan brick kiln on a "tyre gari" (bullock cart). The informant was sitting on the bullock cart and when the cart reached near Raksadih accused Rajeshwar Rai, Shivnandan Rai, Gula, Md. Qamrul Hoda, Md. Jamrul Hoda, Najbul Hoda @ Najbu Hodda, Md. Sah Jahan and Munga Lal Rai appeared at once and Rajeshwar Rai brandished one farsa and attempted a blow. The informant jumped from the tyre cart and fled away to conceal himself in the house of one Raghunath Singh wherefrom the informant was dragged and assaulted by lathi, sipaha as well as by bricks on his shoulder, hands and legs as also Rs. 700/- from his pocket and a wrist watch was snatched from him. The informant sent Shivraj Ram (P.W. 9) to his house to inform his family members and, thereafter, the father, brother and the other family members of the informant came and brought him to Sadar Hospital, Muzaffarpur where he was being treated and claimed in his statement given to the police that the above mentioned accused persons assaulted the informant for deposing in a case against Md. Qamrul Hoda.

It appears that Sk. Shamshuddin died during treatment in Hathwa ward of Sadar Hospital, Muzaffarpur after giving his statement Ext. 4 to the police.

P.W. 9 Shivraj Ram the other cart man, coming with informant is named in fardbeyan, though has been declared hostile, but supported the prosecution case in material particulars as regards the story in the First Information Report. He has stated that after the occurrence he went to the house of the father of the informant and his family members and disclosed about the occurrence, then the father and the brother of the deceased came to the place of occurrence. He has also stated that while coming on tyre cart loaded with bricks from the brick kiln and had reached at Brahm Asthan in Raksadih, then the occurrence took place and accused person surrounded and committed the occurrence.

P.W. 1 is Md. Baseer, deposed that Shivraj Rai (P.W. 9) disclosed about the occurrence then he went to the place where informant was lying down. The informant was lying down to the west of the road near the house of Raghunath Singh in an injured condition. The informant was conscious and when asked about the occurrence, he disclosed that while he was bringing bricks form Marvan brick kiln by the tyre cart of Shivraj Ram (P.W. 9) sitting on the bricks loaded in the tyre cart and reached west of the house of Raghunath Singh near Brahm Asthan then the accused Rajeshwar Rai, Shivnandan Rai, Munga Lal Rai, Md. Qamrul Hoda, Md. Jamrul Hoda, Najbul Hoda @ Najbu Hodda and Md. Sah Jahan surrounded him and Rajeshwar Rai gave a farsa blow to him. The informant jumped from the cart and tried to conceal himself in the house of Raghunath Singh by fleeing away. The accused persons also entered the house, caught him and dragged him from the house of Raghunath Singh and assaulted him by lathi, sipaha, bricks and stone in the sahan of the house of Raghunath Singh. He further stated that he saw injuries on the person of the informant, like, on his hands, legs and chest and thereafter, they took the injured to Muzaffarpur Sadar Hospital the fardbeyan of the informant was recorded. He further stated that whatever the informant stated to him he also stated to Daroga before him and the informant died in the same night and again said that in the morning of the said night. He has further stated that the deceased was wearing a lungi.

P.W. 2 Akhtar Hussain is the brother of the informant. He has stated that Shivraj Ram (P.W. 9) came to his house at about 1:00 P.M. which is at a distance of 1/2" K.M. from the place of occurrence and disclosed about the occurrence and assault on the informant and disclosed the name of accused persons, namely, Rajeshwar Rai, Shivnandan Rai, Md. Qamrul Hoda, Md. Jamrul Hoda, Najbul Hoda @ Najbu Hodda, Md. Sah Jahan and Munga Lal Rai. He has further disclosed that they had assaulted his brother at the place of occurrence. He has further stated that he came to the place of occurrence and saw his brother lying injured to the west of the road and to the north-west of the house of Raghunath Singh in a ditch. His brother disclosed that while he was coming from tyre cart along with the bricks from Marvan brick kiln sitting on the bricks and was reaching at Raksadih at Brahm Asthan Rajeshwar Rai, Shivnandan Rai, Md. Qamrul Hoda, Md. Jamrul Hoda, Najbul Hoda @ Najbu Hodda, Md. Sah Jahan and Munga Lal Rai came at once and Rajeshwar Rai immediately brandished farsa then he jumped from the tyre cart and went in the house of Raghunath Singh to conceal himself thereafter accused persons came, dragged and assaulted him by lathi, sipaha in the sahan of Raghunath Singh.

P.W. 3 Dr. Yogesh Kumar is the doctor who examined the informant on 26.01.1982 at 4:50 P.M. at the Sadar Hospital and found the following injuries on his person:-

(i) One defused swelling on the right leg ankle joint with tenderness.

(ii) One lacerated wound situated on the right leg on the skin of the tibia 1 1/2" x 1/2" x skin deep.

(iii) On scratch on the medial aspect of the knee joint 1/2" x 1/2" x skin deep.

(iv) One bruise on the right side of the front of the chest 3" x 3 1/4" with tenderness and defused swelling near infra maxillary region.

(v) One lacerated wound situated on the right area 4" above the elbow joint 2 1/4" x 1/4" x muscle deep.

(vi) Diffused swelling and tenderness on the right arm including forearm right palm and wrist joint.

(vii) Diffused swelling and tenderness on the left leg including the ankle joint.

(viii) One bruise situated on the medial aspect of the right arm 2 1/4" x 1/2".

The doctor, P.W. 3, has stated in his evidence that the weapon used in the occurrence was hard and blunt substance may be lathi, bamboo stick, sipha, brick and stone. The nature of injuries No. 2, 3, 5 and 8 was simple and as regards injuries No. 1, 4, 6, 7 the opinion was reserved by P.W. 3 who advised for X-ray for final opinion. Age of injuries was within 6 hours. Hence, the medical evidence corroborates the prosecution case.

P.W. 7 is the Assistant Sub-Inspector, Shashinath Thakur who recorded the fardbeyan of the informant at 7:30 P.M. at the Sadar Hospital, Muzaffarpur in Hathua Ward. He has stated that he proceeded on OD slip received at the police station and reached hospital. He enquired from a nurse about the victim and found the informant. He recorded the fardbeyan correctly whatever was stated by the informant. P.W. 7 has further deposed that at the time of recording of the fardbeyan the informant was in a fit state of mind and he gave his statement on his own sweet will and after writing the fardbeyan he read the same over to the informant and he put his left thumb impression on it. He has proved the fardbeyan as Ext. 4. However, subsequently the informant died and his inquest report was prepared on 27.01.1982 in presence of two witnesses. He had found the bandage on the person of the informant on his injuries.

P.W. 4 Hemendra Mohan Jha is the Investigating Officer of this case who had come to depose that on 27.01.1982 at 2:00 P.M. he heard rumor about the murder of a person in village Karza. He recorded the station diary entry No. 361 and reached village Katha at 3:30 P.M. along with the armed constables. He learnt that on 26.01.1982 at 1:00 P.M. the informant had been murdered by Md. Qamrul Hoda and others and had been taken to the hospital. He put armed guards in Raksadih and himself proceeded to Muzaffarpur and reached Kazi Mohammadpur Police Station where he received the fardbeyan as well as the inquest report of the deceased Sheikh Shamshuddin. On the basis of the fardbeyan First Information Report was lodged which has been marked as Ext. 5. He has stated that Karza Thana is under Kanti Police Station and the case was required to be registered at Kati Police Station. On 26.01.1982 at 6:00 P.M. he reached Raksadih and recorded the statement of the witnesses Baskit, Mukin, Sheikh Damari, by starting the investigation. He inspected the place of occurrence.

The place of occurrence was a road of Raksadih village coming from Marvan village and crossing from the west side of the house of Raghunath Singh and adjoining west to the road there was Brahm Asthan and on the east side of the road he found the house of Raghunath Singh facing North. The sahan, land and khalihan of Raghunath Singh were in the north of his house and in west of the said sahan there was a cattle shed facing east. He found blood stain in an area of about two yards north of the house of Raghunath Singh in the sahan in a radius of about three yards. He has further stated that on the said place, it appeared that sand was spread over to conceal the blood and the Investigating Officer on removing the sand found the signs of blood. He seized the blood stained soil and prepared seizure list marked as Ext. 6. He also found one ditch at a distance of about 3-4 yards from the house of Raghunath Singh towards west and there he also found blood on the grass and above the ditch to the west of the road. He also found blood on the grass and the sign of dragging up to a distance of about five hands and on some portion above the ditch, he found blood for which seizure list has been prepared which has been marked as Ext. 6/1. He searched the accused, recorded the statement of the witnesses and after completing investigation submitted charge-sheet.

P.W. 8 is Dr. Manoranjan Kumar Srivastava conducted the post mortem examination on the dead body of Sheikh Shamshuddin, Son of Sk. Damari on 27.01.1982 at 8:00 P.M. and found following injuries:-

(i) Fracture of right tibia and fibula of right leg.

(ii) Fracture of right ankle joint of right leg.

(iii) Fracture of right arm and right wrist joint.

(iv) Bruise 3 1/2" x 1/2" on the front of chest.

(v) Bruise 2 1/2" x 1/2", on right shoulder joint.

(vi) Lacerated wound 1 1/2" x 1/2" x bond deep on right leg.

The doctor (P.W. 8) found that death had been caused due to shock and haemorrhage resulting from the above mentioned injuries and that all the injuries were ante-mortem in nature caused by hard blunt substance, such as, lathi, sipaha, bricks etc. He has further stated that he did not find any foreign substance in the injuries. None of the injuries, independently was sufficient to cause death. He has further stated that due to cumulative effect of the above injuries, the injured might have gone under unconsciousness. The time elapsed since death and post-mortem examination held was within 24 hours. The post-mortem report was marked Ext. 10.

P.Ws. 10 and 11 Bujhawan Ram and Shivnandan Ram have been tendered. P.W. 6 Baskit Sheikh has been declared hostile and has not supported the prosecution case.

P.W. 5 Bhanu Pratap Singh was the Investigating Officer. He had taken the charge of investigation and handed over the investigation to one Indrajit Singh. However, nothing substantial had been done by him to take note of.

The defence of the accused is that no occurrence took place as alleged and the witnesses had deposed falsely to implicate the appellants due to enmity. The further defence as is apparent from the suggestion to witnesses was that the victim was unconscious after the assault to make any statement.

The trial Court taking into consideration the evidence of the witnesses convicted the appellants on the basis of the dying declaration of Sheikh Shamshuddin, treating his oral statement before P.Ws. 1 and 2 as oral dying declaration and the fardbeyan recorded by P.W. 7 as written dying declaration.

Learned counsel for the appellants has challenged the judgment of conviction and order of sentence on the ground that there is no eye-witness to the occurrence. The signature either of the doctor or the witnesses or even the family members was not on the fardbeyan which has been treated as dying declaration and there is no evidence as to whether the deceased was in a fit state of mind to make the statement at the time of recording the fardbeyan or at the time when P.Ws. 1 and 2 had reached the place of occurrence and no reliance can be placed on the oral dying declaration in the facts and circumstances of the case.

Learned counsel for the State, however, contended that it is true that there is no eye-witness to the occurrence and P.W. 9 has been declared hostile, but his evidence cannot be rejected out-rightly as his evidence supported the prosecution case that he was there on the tyre cart from the inception of loading of brick and was coming with the deceased and after the occurrence he went to the house of the informant and informed his father and other family members. Though the father of the informant Sheikh Damari has not been examined as he died before the trial, but the other witnesses, like, P.Ws. 1 and 2 have come to depose that they came to the place of occurrence on the information given by Shivraj Ram (P.W. 9). The evidence of P.Ws. 1 and 2 and the informant disclosed about the occurrence and assault causing his death. The dying declaration as well as the fardbeyan recorded by the police was rightly treated as dying declaration and the same was consistent with the oral dying declaration. These evidences fully justified the passing of the impugned judgment.

It appears that while the informant was coming by the tyre cart and reached at the place of occurrence on the road passing in between the houses of Raghunath Singh and Brahm Asthan, then all the accused persons surrounded him and Rajeshwar Rai brandished a farsa. The informant jumped from the tyre cart and tried to flee away to conceal himself in the house of Raghunath Singh when the accused persons caught, assaulted him with lathi, sipaha, stone and bricks and threw him in a ditch near the house of Raghunath Singh. The further case is that the bullock cart belonged to Shivraj Ram (P.W. 9) who immediately rushed to the house of the informant and informed the family members of the informant. The father of the informant Sk. Damari, his brother P.W. 2 and others came to the place of occurrence and found the informant lying in the ditch in an injured condition and on the query about the occurrence, the informant stated about the occurrence to the witnesses and then the witnesses took him to the hospital where the doctor P.W. 3 examined him and gave injury report and thereafter P.W. 7 the police officer of Kazi Mohammadpur police station reached Muzaffarpur, Sadar Hospital on the O.D. slip issued from the hospital and recorded the statement of the victim at about 7:30 P.M. The victim/informant died in the night/early morning in the hospital and then inquest report was prepared on 27.01.1982 at 10:00 A.M. and the dead body was sent for post mortem examination. P.W. 4 Hemendra Mohan Jha, the Investigating Officer on rumor came to the village then to Kazi Mohammadpur police station, got the fardbeyan and inquest report and on the basis of the fardbeyan lodged the First Information Report on 27.01.1982 as Karza P.S. Case No. 29 of 1982.

Hence, from the nature of the prosecution case, there is possibility of two types of evidence the ocular evidence and the dying declaration. Shivraj Ram (P.W. 9) though is the eye-witness to the occurrence as he was the person who had seen the occurrence and supported the prosecution case, but had been declared hostile for the reason that he did not name all the accused persons though in his evidence in cross-examination he has stated the name of other accused persons but he is the sole witness to the occurrence. However, in cross-examination by the prosecution after declaring him hostile he has named the other accused persons and he has also disclosed that he went from the place of occurrence to the house of the informant and informed his family members and in consequence thereof the father of the informant and other witnesses P.Ws. 1 and 2 came to the place of occurrence and when the witnesses reached there they saw the informant lying in an injured state and thereafter the witnesses asked the informant about the occurrence and the informant disclosed about the occurrence. P.W. 1 has specifically stated that the informant disclosed that while he was coming from Marvan brick kiln with the bricks on the tyre cart of Shivraj Ram (P.W. 9) by loading the bricks and the informant was sitting on the brick and reached on the road near the house of Raghunath Singh in between the house of Raghunath Singh and Brahm Asthan, then seven accused persons Rajeshwar Rai, Shivnandan Rai, Md. Qamrul Hoda, Md. Jamrul Hoda, Najbul Hoda @ Najbu Hodda, Md. Sah Jahan and Munga Lal Rai surrounded him and Rajeshwar Rai gave a farsa blow to him. The informant jumped from the cart and fled away to conceal himself in the house of Raghunath Singh and when he entered in the house of Raghunath Singh, the accused persons Rajeshwar Rai, Shivnandan Rai, Md. Qamrul Hoda, Md. Jamrul Hoda, Najbul Hoda @ Najbu Hodda, Md. Sah Jahan and Munga Lal Rai dragged him out from the place of his hiding and surrounded the informant and assaulted him by lathi, sipaha and bricks. P.W. 2 has specifically stated about the disclosure by the informant in the same terms and hence, the evidence of P.Ws. 1 and 2 is relevant for being a witness of dying declaration regarding the disclosure about cause of death to the deceased. They have stated that they brought the victim to the hospital where the doctor examined him. The evidence of the doctor P.W. 3 Dr. Yogesh Kumar is that he examined the victim at 4:50 P.M. and had given the injury report and has stated that the weapon used are lathi, bamboo, sipaha and brick stone. There is no challenge by the defence in cross-examination of P.W. 3 that the informant was conscious or was not in a position to speak. P.Ws. 1 and 2 have specifically deposed about the statement made by the informant at the place of occurrence to them when they had reached the place of occurrence and there is nothing significant in their cross-examination to disbelieve their testimony. They have specifically stated that Shivraj Ram (P.W. 9) came to the house of the informant, informed the family members of the informant and the place of occurrence is only 200 to 300 laggas from their house and the house of Shivraj Ram (P.W. 9) is only 100 lagga. On query from the informant, the informant specifically stated about the occurrence in detail. Thereafter the Daroga came on O.D. slip and recorded the statement of the informant when there were several people present there and hence, there is nothing substantial to disbelieve their evidence. No question has been asked from P.Ws. 1 and 2 about the state of health of the deceased and no suggestion has been made that the deceased was not in a fit state of health to make statement and hence, there is nothing in the evidence of P.Ws. 1 and 2 to disbelieve them regarding the oral dying declaration of the deceased. They have specifically stated that they took the victim and remained in the hospital till his death. P.W. 9 though has been declared hostile but has supported the prosecution case that the occurrence took place in the manner alleged when the informant was coming after loading the bricks from Marvan brick kiln and reached at the place of occurrence in between the house of Raghunath Singh and Brahm Asthan and was assaulted near the sahan and thrown in the ditch. The Investigating Officer found blood at the sahan of Raghunath Singh and had collected the blood stained earth from the ditch also. The Investigating Officer also found sign of dragging in between the house of Raghunath Singh and the ditch. Hence, the prosecution case as disclosed to the witnesses in the dying declaration by the informant that he was caught in the house of Raghunath Singh while he was fleeing from the tyre cart due to being assaulted by the farsa to conceal in the house of Raghunath Singh and then the informant was caught and dragged out of the house, assaulted in sahan by lathi, sipaha and brick and then was thrown in the ditch. The statement in the dying declaration has been corroborated by the evidence of the Investigating Officer and the doctor. The Investigating Officer has stated that he found blood in the sahan and even prepared seizure list and also found the mark of dragging at the place of occurrence near the ditch in sahan in front of the house of Raghunath Singh. Thus, the evidence of the Investigating Officer corroborates the dying declaration. The victim was taken to the hospital where P.W. 3 examined him and found injury on his person, gave injury report and has mentioned that the weapon used were lathi, bamboo and brick. There is nothing in the cross-examination of P.W. 3 to challenge that the victim was not in a conscious state or was not in a position to speak when the doctor examined the victim (the deceased) first in the hospital, thereafter P.W. 7 reached the hospital on the O.D. slip issued by the hospital and the statement of the victim was recorded by P.W. 7 the Police Officer of Kazi Mohammadpur police station. He had deposed that he reached the hospital on the O.D. slip issued to him and thereafter recorded the statement of the victim. He has specifically stated that whatever was stated by the deceased to him, he recorded it correctly and thereafter he read the same over to him. He has further stated that the mental state of the victim was quite fit and he gave his statement out of his own sweet will and put his signature over the statement.

It is true that the only ocular evidence is the evidence of P.W. 9 who was declared hostile though had supported the prosecution case in its material particulars. But, is the sole eye-witness who has been declared hostile is not worthy of credence is it not safe to record conviction on the ocular evidence of such a witness. There are three dying declaration in the case. Two oral dying declarations by the witnesses P.Ws. 1 and 2. However, the father of the deceased Sheikh Damari who was also a witness to the dying declaration could not be examined due to the fact that he died prior to his deposition in the Court. The oral dying declaration of the victim was given to P.Ws. 1 and 2 and fardbeyan recorded by P.W. 7 is the written dying declaration.

However, it is the settled principle that in a case of multiple dying declarations the dying declaration can only be relied upon, if all the dying declarations are consistent. The three dying declarations claimed in the case, are comprised of two oral dying declarations and one written dying declaration recorded by P.W. 7 which is admissible in evidence. However, going through the three dying declarations, that''s, the oral dying declaration as per the evidence of P.Ws. 1 and 2 and the written dying declaration recorded by P.W. 7 as fardbeyan, we find that the three dying declarations are consistent and there is no inconsistency to disbelieve either of the three. The prosecution case as per dying declaration is also corroborated by the medical evidence and the injury found is consistent with the medical evidence. The place of occurrence as disclosed in the dying declaration also found corroborated by the fact that the police found blood at the place of occurrence and even the sign of dragging was found at the place of occurrence as per the case of prosecution.

Learned counsel for the appellants, however, contended that no witness has been named in the fardbeyan. It is true that the fardbeyan does not bear the signature of any person neither of the doctor nor of any witness but there are evidence that the witnesses were present at the hospital at the time of recording of the fardbeyan and there is nothing in their evidence to distrust their testimony. The first information may be given orally as well, and in that case it has to be reduced into writing either by the Officer-in-Charge of the police station or at his orders by any other officer. The statement is required to be signed as well if it has been reduced into writing. Section 154 Cr.P.C. does not direct that any one should sign it as a witness to its recording.

Hence, I do not find any reason to disbelieve the evidence of P.Ws. 1, 2 and 3. When the prosecution evidence is corroborated also by the evidence of other witnesses in other material particular, like, the place of occurrence, the manner of occurrence as the dragging marks were found at the place of occurrence as stated in the dying declaration, I find and hold that the prosecution has succeeded fully in proving the charges and there is no infirmity in the judgment of conviction and order of sentence recorded by the trial Court with regard to the conviction of appellants under Sections 302/34 of the Indian Penal Code. However, when the conviction has been recorded under Sections 302/34 of the Indian Penal Code, it is not proper to convict the appellants for the offence under Sections 148 and 147 of the Indian Penal Code and hence, the conviction of the appellants under Sections 147 and 148 of the Indian Penal Code and sentences passed on them are hereby set aside. Accordingly, the appeal is dismissed.

Dharnidhar Jha, J.

I Agree.