Manglu and Others vs State of C.G.

Sunil Kumar Sinha, J.—Appellants have been convicted Under Sections 148 & 302/149 IPC and sentenced to undergo R.I. for 1 year & fine of Rs. 100/- and imprisonment for life & fine of Rs. 1,000/- with default sentences of S.I. for 10 days and S.I. for 6 months respectively with a further direction to run the sentences concurrently, by the Additional Sessions Judge, Rajnandgaon (C.G.) in Sessions Trial No. 06/2004 on 25th of August, 2005.

The facts, briefly stated, are as under:

In the intervening night of 25.2.2003 & 26.2.2003, complainant Kamlesh @ Nawlu Usendi (since deceased), his father Nohruram (PW-3), mother Sukobai (PW-1) and nephew Ashok Kumar (PW-11) were present in their house in village Medha. At about 12.00 in the night, the accused persons (33 in numbers), armed with deadly weapons, came to his house and called his father. When they were taking his father, the complainant intervened, on which, they caught the complainant, started beating him and took him to a nearby place known as Dhabba Road Nala. They caused injuries by sword and knife. Due to injury on the abdomen, the intestine of the complainant came out. When his mother tried to intervene, the accused persons fired from a gun. The matter was reported by the complainant himself in the concerned police station on 26.2.2003, on which, a First Information Report (Ex.-P/18) was registered Under Sections 147, 148 & 307/149 IPC and Sections 25 & 27 of the Arms Act. The complainant named 10 accused persons, including the five Appellants, in the F.I.R. i.e. Manglu Souri (Appellant No. 1), Ramesh Salame, Kochku (Appellant No. 5), Sankur Pudo, Renuram, Ranveer (Appellant No. 4), Ramsai (Appellant No. 3), Durguram, Dinesh Ghawde (Appellant No. 2) and Naru Pudo. He also mentioned that these persons were accompanied by other naxalites who were also armed with deadly weapons.

Complainant Kamlesh @ Nawlu Usendi was sent for his medical examination to Government Hospital, Manpur under Ex.-P/10 A, where he was examined by Dr. Sanjay Meshram (PW-7) who prepared his report Ex.-P/10. He noticed one penetrating injury on right side of abdomen, one lacerated wound on the right side of forehead, swelling, pain and tenderness on the right cheek parietal area and contusions on the right eye. He observed that abdominal contain has come out from injury No. 1. Injury No. 2 was of the size of 2 � 1 � 1 inches and injury No. 3 was of the size of 1 � � � � inches. The injuries were caused by sharp and hard object and were grievous in nature. He referred the patient to District Hospital, Rajnandgaon for surgical checkup, from where, he was shifted to Medical College, Raipur, where he died during the course of his treatment on 27.2.2003 at 13.00 hours.

A Merg intimation (Ex.-P/11) was given by Ward-Boy, Shyamlal Pathak, in police station, Mohadapara (Raipur). The Investigating Officer gave notice (Ex.-P/12) to the Panchas and prepared inquest (Ex.-P/13) on the body of the deceased. A requisition (Ex.-P/9A) was sent to Dr. Ambedkar Hospital, Raipur for conducting post-mortem, on which, the post-mortem examination was conducted by Dr. Ulhas Gonnade (P W-6), who prepared his report Ex.-P/9. The Autopsy Surgeon noticed many injuries including one stitched wound on the abdomen of the deceased. In internal examination, he found pus and infection around the intestine and opined that cause of death was cardio respiratory failure on account of penetrating injury sustained on the abdomen.

During the course of treatment of the deceased in Primary Health Centre, Manpur, his dying declaration (Ex.-P/21) was recorded by the Executive Magistrate, D.R. Thakur (PW-13).

After taking the accused/Appellants Dinesh and Manglu, their memorandum statements (Ex.-P/5 & P/6) were recorded u/s 27 of the Evidence Act and bharmar gun, lathis and objectionable materials like naxalite pamphlets etc. were seized at their instances under Ex.-P/7 & P/8. Blood stained soil, plain soil and one broken piece of pointed object were seized from the place of occurrence under Ex.-P/2.

After completion of usual investigation, a charge-sheet was filed against 33 accused persons in the Court of Judicial Magistrate, First Class, Ambagarh Chowki. 19 accused persons were produced before the Court, whereas, 14 accused persons were shown as absconding. The said Magistrate committed the matter to the Sessions Court, Rajnandgaon, from where it was received on transfer by the Additional Sessions Judge, Rajnandgaon, who conducted the trial against the 19 accused persons, including the Appellants, out of which the 5 accused/Appellants were convicted as aforementioned, whereas, remaining 14 accused persons were acquitted. The trial against the other 14 accused persons could not be conducted showing them to be absconding.

The conviction of the Appellants is based on the dying declaration (Ex.-P/21) made by deceased Kamlesh @ Nawlu Usendi supported by the First Information Report (Ex.-P/18).

The homicidal death of the deceased is not in dispute. It comes in the F.I.R. (Ex.-P/18) and the dying declaration (Ex.-P/21) made by the deceased that he was assaulted by the deadly weapons, due to which he sustained many injuries including the injury in the abdomen. The two Doctors also found various injuries on the body of the deceased and the Autopsy Surgeon opined that the cause of death was cardio respiratory failure on account of penetrating injury sustained on the abdomen. Therefore, it was established that the death of deceased Kamlesh @ Nawlu Usendi was homicidal in nature.

Mr. P.K.C. Tiwari, learned Sr. Counsel appearing on behalf of the Appellants, argued that the First Information Report (Ex.-P/18) appears to be forged and concocted. He took us to the requisition memo (Ex.-P/10 A), by which the deceased was sent for medical examination, and submitted that it is mentioned in the memo that the naxalites have attacked over the deceased, whereas, the names of the accused persons would have been there who were named in the F.I.R. We do not find any force in the said argument. There is no legal requirement to write the names of the culprits in the requisition memo. The column in the requisition memo only calls for a general detail available with the police for the purposes of facilitating the medical examination of the person injured. We find that the Investigating Officer has mentioned in the requisition memo that the injured (since deceased) was attacked by the naxalites. We also find that in the F.I.R. firstly the names of 10 accused persons have been mentioned in the column prescribed for the same and it has also been mentioned that "other naxalites armed with weapons". That means the Investigating Officer, in a general manner, without mentioning the names of all the accused persons, simply mentioned that the deceased was attacked by the naxalites, which appears to be quite natural. In our considered view, omission of mentioning the names of the assailants in the requisition form for medical examination of the deceased (Ex.-P/10 A) was neither the requirement of law nor was fatal to the prosecution particularly when it has been mentioned that the deceased was attacked by the naxalites which is similar to the mentioning made in the F.I.R. which was lodged by the deceased himself.

Mr. Tiwari argued that "it does not comes in the evidence of witnesses that the deceased was taken to the police station and then he was sent to the hospital, therefore, the F.I.R., said to have been lodged by the deceased appears to be doubtful". The F.I.R. gives a detail picture of the incident. The Investigating Officer, Vinod Kumar Mandavi (PW-12), has proved the F.I.R. He has proved the signature over the F.I.R. saying that it was written by him on the information given by the deceased. He has also proved the signature of the deceased in the F.I.R. In the cross examination vide Para-10, he deposed that the F.I.R. was lodged at the instance of the deceased, the names of the accused persons has been mentioned on the information given by the deceased alone and the information�s were reduced into writing which were given by the deceased. He further deposed that it is incorrect to say that he had received information that the deceased was admitted in the hospital and then he lodged the report. Ashok Kumar (PW-11) has clearly deposed in Para-2 of his examination-in-chief that Kamlesh returned to the house after the assault in the night and thereafter he was taken to Manpur police station by them. In light of the above evidence on record, we cannot accept that there is no evidence to show that the deceased was firstly taken to the police station where he himself lodged the report.

Mr. Tiwari then argued that the signatures over the F.I.R. and the dying declaration are not tallying, therefore, the documents appear to be forged. We cannot accept such argument on the face of evidence of writer of the F.I.R. (P W-12) as also the concerned Executive Magistrate who recorded the dying declaration and has proved the signature of the deceased over the dying declaration (Ex.-P/21). We observe some minor differences in the two signatures but the mode thereof appears to be the same. These two documents were signed on 2 different dates. Admittedly, the deceased has received fatal injuries and was under treatment in the hospital, therefore, such natural variations are likely to come in the signature. If the police would have concocted these documents it would have forged them by getting signatures by a common man so as to avoid the factum of variations. Moreover, we do not find any cross examination on this point by the defence. On the face of evidence of S.H.O. (PW-12) and the Executive Magistrate (PW-13) the argument advanced by Mr. Tiwari cannot be sustained.

Mr. Tiwari also argued that it was a dark night and there is no material to show the availability of light, therefore, there was a possibility of mistaken identity of the assailants. We find no force in the said argument as it comes in the evidence of PW-11 that he was sleeping along with Kamlesh. Sukobai was sleeping in verandah and lights in the verandah were on. The naxalites came there and took his brother with him. We also find that in the F.I.R., the deceased has mentioned that the lights in the verandah were on. Therefore, there was ample opportunity to the deceased to identify the assailants and it cannot be said that the deceased was unable to identify the assailants on account of darkness or non availability of the lights at his house.

Mr. Tiwari then advanced his second argument regarding the dying declaration. He argued that the dying declaration was not proved; it cannot be believed and the evidence of the Executive Magistrate (PW-13) is not trustworthy and further that the deceased was not fit to give the dying declaration. Referring to the matter of K. Ramachandra Reddy and Another Vs. The Public Prosecutor, , he also argued that the dying declaration was not recorded in question-answer form.

In K. Ramachandra Reddy''s case (supra) the Apex Court held that the dying declaration is undoubtedly admission u/s 32 and not being a statement on oath so that its truth could be tested by cross examination, the Courts have to apply the strictest scrutiny and closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man 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. Yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. It further held that a dying declaration which has been recorded by a competent Magistrate in proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. In order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

Therefore, the Apex Court has only said that a dying declaration recorded in the proper manner, i.e., in the form of questions and answers and as far as possible in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony. This means that if the dying declaration is otherwise acceptable by a court of law on various characteristics of its genuineness, it will not be discarded by the Court only on the ground that the same was not recorded in question and answer form particularly when the court was fully satisfied regarding genuineness and truthfulness of the said declaration.

In the present case, the dying declaration was recorded by the Executive Magistrate, D.R. Thakur (PW-13). He deposed that on 26.2.2003 on receiving a memo from the police station, Manpur that the dying declaration of Nawlu @ Kamlesh son of Nohruram was to be recorded, he went to Community Health Centre, Manpur and contacted the Block Medical Officer regarding position of Nawlu to record the dying declaration. When the Block Medical Officer certified that Nawlu was in a position to give the dying declaration, he recorded his dying declaration Ex.-P/21. Nawlu made statement that the assailants had come to assault his father and on his intervention, he was assaulted by them. This witness has proved his signature on the dying declaration. The said dying declaration was kept in a closed cover and was handed over to the S.H.O., Manpur. The document to this effect is Ex.-P/23. The dying declaration was in two sheets, on which, he proved his signature and also the signature of the Block Medical Officer. This witness has been formally cross examined by the defence but the defence has not been able to elicit any such circumstance, on which, either the evidence of this witness may be discarded or it may be said that he has concocted the aforesaid document as alleged by the defence. We gather from the contents of the dying declaration that it is in first form and the deceased has categorically stated the names of six accused persons in the dying declaration. Out of six accused persons, five are the present Appellants and the sixth one is the accused who is absconding. We have no reason to disbelieve the testimony of the Magistrate in regard to the dying declaration made by the deceased. The Magistrate, in all precautions, firstly got it assured from the Doctor, whether the deceased was in a fit mental condition to record the dying declaration and when the Doctor certified that he was able to give the dying declaration, then only, he recorded the same.

In the matter of Laxman Vs. State of Maharashtra, , a reference was made to the Constitutional Bench of the Apex Court, in which, a question has cropped up as to whether the certificate of Doctor to the effect that the patient is conscious and there was no certification that the patient was in fit state of mind at the time of making the declaration makes the declaration unacceptable and the subjective satisfaction of the Magistrate recording the dying declaration that injured was in a, fit state of mind at the time of making declaration cannot be relied on, is the correct enunciation of law? The Apex Court after considering the entire matter held that normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. The Apex Court further held that the dying declaration can be oral or in writing and adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. It has also been stated that 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. The Apex Court has further held that 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. The Apex Court replied the reference in terms that "In the absence of medical certification that the injured was in a fit state of mind at the time of making declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making declaration", is not correct enunciation of law.

A question was raised before us in the matter of Lokendra Tiwari alias Kaushlendra Vs. State of Chhattisgarh, , as to whether the Magistrate recording the dying declaration should state in clear words that the declarant was in a fit state of mind to give dying declaration, or, firstly, he should give a certificate like this, then, he should begin to record the dying declaration and if they are lacking, the dying declaration will not be held to be truthful or correct? We held in the said case that if the satisfaction of the Magistrate is reduced into writing, it is well and good but if such satisfaction or certificate has not been reduced into writing, merely on this ground, the dying declaration cannot be discarded if otherwise it was established on record that the Magistrate was satisfied about the consciousness and state of mind of the deceased and he was of the opinion that the deceased was in a position to make a dying declaration. We further held that the satisfaction of the Magistrate in this regard can be gathered by a Court while scrutinizing the dying declaration as also the evidence of the Magistrate and it is not necessary that the Magistrate should speak in so many words that the deceased was in a fit state of mind to record the dying declaration or he should give a certificate like this then begin to record the dying declaration.

The above legal position clinches the issue raised before us. In the present case, there is a certification by the Doctor. Apart from the above, the Magistrate deposed about taking of the certificate by Doctor and then he recorded the dying declaration in which the deceased took the names of six accused persons as the assailants including the five Appellants. In view of the above, we do not find any infirmity in the evidence of the Executive Magistrate (P W-13) or in the dying declaration (Ex.-P/21) on the grounds raised by Mr. Tiwari.

In the dying declaration, the deceased had taken the names of the five Appellants and their names also find place in the F.I.R. lodged by the deceased. It is on this account, the Sessions Judge held that the dying declaration was corroborated by the contents of the F.I.R. and the conviction has been awarded to the Appellants. The learned Sessions Judge held that the accused persons formed an unlawful assembly and thereafter they participated in rioting with deadly weapons and in furtherance of common object of the unlawful assembly, they assaulted the deceased who received serious injuries including that of abdomen and succumbed to those injuries during his treatment in the hospital.

We do not find any infirmity or illegality in such findings recorded by the Sessions Court. The conviction of the Appellants is based on cogent, clinching and reliable evidence available on record.

The appeal has no merits, the same is liable to be dismissed and is hereby dismissed.