Manphul vs State of Haryana

R.L. Anand, J. (Oral)

Whether conviction can be based on sole dying declaration if it inspires confidence in the mind of this Court, is the short legal point involved in this appeal filed by Manphul son of Baru Ram, who was convicted under Section 304 PartII, Indian Penal Code, and was sentenced to undergo rigorous imprisonment for a period of five years, allegedly for causing the death of his real brother Sube Singh.

According to the prosecution story, Sube Singh deceased had three brothers, including Manphul appellant. Out of them Sube Singh deceased and Manphul appellant were married and the remaining two, i.e. Dharamvir and Subhash, were not yet married at the time of the occurrence, which took place on 31st May, 1986 in the area of village Baroda, falling within the jurisdiction of Police Station Uchana and F.I.R. No. 52 dated 10th June, 1986 was registered. To proceed further with the facts, Sube Singh deceased became separated from his father 4/5 years ago before the occurrence. 8/9 months before the day of occurrence, Manphul appellant also separated from his father. In the family partition, a vacant plot fell to the share of Manphul appellant, while a constructed building fell to the share of Sube Singh. However, Sube Singh permitted Manphul accused to continue living in one Kotha of the share which had fallen to him upto the month of Jeth. On 30th May, 1986 the deceased told his brother Manphul accused to vacate the Kotha. The accused, however, showed his unwillingness. Again on 31st May, 1986 at about 7 P.M. the deceased told the accused in the presence of his father to vacate the Kotha. The accused took affront, went inside the Kotha, brought a two pronged Jaili and gave a thrust on the right side of the navel of Sube Singh. The occurrence was witnessed by Baru, father of the deceased and the accused, who tried to intervene. Manphul accused ran away when he saw Pappal son of Teka, who resides in the neighbourhood of the deceased and the accused.

Baru Ram removed the injured to the hospital at Jind, where he was medically examined by Dr. R.P. Taneja (PW1) who found one lacerated would 1/4 cm. x 1/4 cm. on the right side of abdomen, 10 cm. away from the midline of abdomen and 8 cm. above the anterior superior aliac spine. The doctor also noticed fresh bleeding. The doctor advised Xray. The doctor also sought the advice of the Surgeon. Dr. R.P. Taneja (PW 1) also found one reddish contusion, 1/5th cm x 1/5th cm. 3 cm. medial and interior to injury No. 1. According to the opinion of the doctor, both the injuries were caused within six hours of the examination with a blunt and pointed weapon. Ruqa (Ex.PB) was sent on the night intervening 31st May and Ist June, 1986 to S.H.O. Police Station City, Jind, at about 12.40 A.M. Along with the ruqa, he also forwarded a carbon copy of the Medicolegal report prepared by him. First of all D.D.R. No. 25 (Exhibit PL) was entered at 1.30 A.M. at Police Station City, Jind. A.S.I. Ram Kala (P.W.7) went to the General Hospital, Jind, where he made application (Ex.PC) before Dr. Taneja in order to ascertain his opinion whether the injured was fit to make a statement or not. The doctor vide his endorsement (EX.PC/1) declared the injured as unfit to make the statement. Resultantly, A.S.I. Ram Kala returned to the Police Station and recorded D.D.R. No.26 at 2.15 A.M. (Exhibit PB/1). The said A.S.I. during the course of visit to the hospital came to the conclusion that the occurrence had taken place at village Baroda in the jurisdiction of Police Station Uchana. He, therefore, forwarded Medicolegal Report (Exhibit PA), Ruqa (Ex.PB), application (Exhibit PC) and copy of the D.D.R (Ex. PB/1) to Police Station Uchana, regarding the admission of Sube Singh in the hospital in an injured condition, through Constable Hari Kishan. A wireless message was also flashed from Police Station City, Jind, to Police Station Uchana, regarding the admission of Sube Singh injured in the hospital. S.I. Prabhu Ram, S.H.O., Police Station Uchana (P.W.9), deputed A.S.I. Sumer Chand (P.W.6) to proceed to Jind to record the statement of the injured. The said A.S.I. after obtaining the opinion of the doctor, who certified that the injured was fit to make a statement, recorded the statement (Exhibit PK). The A.S.I. came to the conclusion that no cognizable offence was made out till the receipt of the X ray and the advice of the surgeon. Unfortunately on 10th June, 1986 Sube Singh died at about 8.10 P.M. Ruqa (Ex.PF) was sent at 8.30 P.M. by Dr. Narvir Singh regarding the death of Sube Singh. Thereafter formal F.I.R. (Exhibit PK/1) was recorded in Police Station Uchana on 10th June, 1986. The case was registered under Section 304, Indian Penal Code. S.I. Prabhu Ram (P.W.9) prepared inquest report (Exhibit PE/2) on the dead body of Sube Singh and it was sent for postmortem examination vide request (Exhibit PE/1).

The accused was arrested by S.I. Prabhu Ram (P.W.9) on 19th June, 1986 and was interrogated about the weapon of offence on 20th June, 1986 in the presence of Baru Ram and A.S.I. Mohinder Singh. In the disclosure statement the accused stated that he got concealed a Jaili in his Bara. The disclosure statement is Ex. PU. It was thumb marked by the accused and attested by the said witnesses. The disclosure statement was read over and explained to the accused before he thumbmarked the same. The accused led the Police Party and the witnesses to the specified place of concealment and got recovered Jaili (Ex.P1) and it was taken into possession vide recovery memo. Ex. PU/1. A sealed parcel was prepared of the Jaili.

On 16th July, 1986 the Jaili in question was shown to the doctor, who gave his opinion (Ex. PD/1) that the injury on the person of the deceased was caused with the Jaili. The Jaili was resealed. On the completion of the investigation of the case, the accused was challaned under Section 304, Indian Penal Code, in the court of Illaqa Magistrate, who supplied copies of the documents to the accused and committed him to the Court of Session.

The learned Sessions Judge, Jind, framed a charge under Section 304, Indian Penal Code, against the accused. In order to prove the charge, the prosecution examined as many as 9 witnesses, including the statement of the doctor. On the closure of the prosecution evidence, the statement of the appellantaccused had been recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to him. Though the accused denied all these incriminating circumstances and pleaded innocence, yet the learned trial Court convicted him under Section 304 Part II, I.P.C., and sentenced him to undergo rigorous imprisonment for a period of five years, as stated above. Aggrieved by the conviction and sentence, the appellant has filed the present appeal, which I am disposing of with the assistance rendered by Shri S.K. Garg, Advocate, appearing on behalf of the appellant, and Shri Sanjiv Sheoran, Advocate, appearing on behalf of the State, and I have gone through the record of the trial Court carefully.

Section 32(1) of the Indian Evidence Act lays down as follows :

"Statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases :

(1) When it relates to cause of death.

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

The other part of the Section I do not want to reproduce, as it is not relevant to the present judgment. A reading of the above would show that in order to constitute a dying declaration or statement of a maker may be read as dying declaration, it is not necessary that the man must die immediately or he must be under the contemplation of death at the time of making the statement. The principle of law on dying declaration in India is broader as compared to the English system. I have already posed the question at the very outset whether the dying declaration simpliciter without corroboration can be acted upon by the law courts in recording conviction or not ? The answer to this proposition is in the affirmative. Only rider upon the Court is that before it relies upon the dying declaration, it must be convinced that it was voluntary and that the deceased was not influenced by any extraneous circumstances so as to detract the veracity of his statement. In the present case the dying declaration is coming through the statement of deceased Sube Singh and the said dying declaration was recorded by A.S.I. Sumer Chand (P.W.6). In this case the accused is none else but the real brother of the deceased. According to the version of the prosecution, it was Baru Ram, father of the deceased and the accused, who was the attesting witness. The motive of this crime is also well stated in the dying declaration (Exhibit PK) because the residential Kotha fell in the share of the deceased and one room of the Kotha was given to the appellant, who was supposed to vacate it by the end of Jeth. He did not do it. As a result it was the natural curiosity on the part of the deceased to call upon the appellant to vacate the room. Asking of the deceased did not appease the present appellant and, therefore, he had the occasion to resort to violence. The trial Court while recording the conviction under Section 304, Part II, Indian Penal Code, adopted the reasons as follows :

"12. I have devoted my best consideration to each one of these contentions. In my opinion none of these contentions deserves acceptance. Most of the criticism levelled by the learned Counsel for the accused stands explained by the fact that no one concerned could anticipate that Sube Singh would die and, therefore, what A.S.I. Sumer Chand purported to do was to record statement of the injured in order to register a case on the basis thereof. When he found that the nature of the only substantial injury was yet to be ascertained, he decided not to register the case but only entered the statement in the Daily Diary Register. If A.S.I. Sumer Chand did not purport to record dying declaration of Sube Singh, he was not expected to record the same either in questionanswer form or secure the presence of a Magistrate or to have the statement attested from the two independent witnesses. The law in India as contained in Section 32 of the Evidence Act is quite clear that it is not only a statement relating to cause of death which is made in expectation of death but all statements made relating to cause of death by a person who has died that are considered dying declarations. In the peculiar facts of this case, it is a circumstantial assurance of the truth of the contents of the statement that the deceased named his own real brother for the assault. No doubt, Baru who was named as an eyewitness in the dying declaration has not supported the prosecution case but as pointed out above, he has supported the prosecution case insofar as the background leading to the occurrence is concerned. To that extent the statement of Baru (PW3) furnishes corroboration to the prosecution case as well as the dying declaration Ex PK. One son having died, the anxiety of father, his widowed daughterinlaw Kamla PW4 and a neighbour Dharampal PW5 is to save the surviving son Manphul from legal punishment. It is everyday''s experience in the Courts that wherever murder takes place amongst close relations, the witnesses who are closely related seldom support the prosecution case. This, however, does not absolve the Court of its duty to decide the case according to law.

The contention of the learned Counsel for the accused that the dying declaration is not consistent with the medical evidence is based on the fact that if a twopronged Jaili is used thrustwise, it is bound to cause two punctured wounds corresponding to the prongs of the Jaili. In this case, Dr. R.P. Taneja PW1 found only one lacerated wound. The other injury was only a reddish contusion 3 cm. medial and interior to injury No. 1. He also argued that a lacerated wound cannot be caused by a sharp pointed weapon but only by a blunt weapon. Dr. R.P Taneja PW1 was shown Jaili Ex. P.1 recovered in this case along with an application Ex. PD dated 16.7.1986 during investigation. He examined the same and gave the opinion Ex. PD/1, that the injuries on the person of the deceased could be caused with that Jaili. Dr. Taneja stated that the injuries found on Sube Singh at the time of examination had been caused with a blunt pointed weapon. The distinguishing feature is that a blunt pointed weapon would cause a lacerated wound; a sharp pointed weapon would not cause a lacerated wound but a punctured wound. The fact that there was one lacerated wound and the other was only a reddish contusion is explained by the fact stated by Dr. R.P. Taneja in crossexamination that if the Jaili were used thrustwise, it would depend on the force used as also the angle of contact, whether both the prongs would make punctured wounds. Apart from the expert opinion, it is sheer common sense that it will depend on the angle on which the prongs of the Jaili hit the victim which will decide whether there will be two wounds made by the twopronged jaili or one punctured wound and the other a reddish contusion.

The learned Counsel for the accused next contended that in the post mortem examination report, Ex. PE as many as five injuries had been noted. According to the prosecution case, only a single blow was given. In other words, there was inconsistency between the MLR Ex.PA and the postmortem report Ex.PE. Far from being any inconsistency, the above discrepancy clearly goes to show that the remaining three injuries found on the back of the medial side of right knee and on the right lower leg 3 cm. above the ankle were received between the medicolegal examination on 1.6.1986 and death on 10.6.1986. These are injuries mentioned at serial No. 2 and 3 in the post mortem examination report Ex.PE. Injuries No. 1, 4 and 5 are injuries noted in the MLR except for the surgical intervention which admittedly took place between Ist June and 10th June, 1986. There is thus no inconsistency.

The learned Counsel next referred to the report Ex.PF and Ex.PR/1 of the F.S.L.H. According to the opinion of Dr. Hans Raj Aggarwal in the report Ex.PR/1, it was stated that holes mark Q1 on shirt, Q2, Q3, Q4 on the baniyan of the deceased had not been caused by a jaili recovered at the instance of the accused. This only means that the jaili recovered in this case is not the one which was used by the accused for inflicting the injuries. This is not sufficient to throw out the prosecution case.

This brings me to a consideration of the next important question, namely, what offence is made out from the prosecution evidence. Dr. Subhash Sharma PW2 stated that injury No. 4 as noted in the postmortem examination report Ex.PE which corresponds to injury No. 1 noted in the MLR Ex.PA was not sufficient to cause death in the ordinary course of nature. The cause of death in this case according to Dr. Sharma PW2 was peritonitis septicaemia which developed as a result of injury No. 4 as per postmortem examination report. The case does not, therefore, fall within the ambit of Section 300 IPC and the offence under Section 302 IPC is, therefore, not made out. The facts, however, further clearly show that knowledge can be ascribed to the accused that the injury was likely to cause death. The case thus clearly falls under the second part of Section 304 IPC."

Learned Counsel for the appellant submitted that the deceased had no occasion to give a statement. Further his statement (Ex.PK) is not corroborated by medical evidence.

I have applied my mind to the submission raised by the learned Counsel for the appellant and I am of the considered opinion that his contentions are totally devoid of any merit. A reading of the dying declaration would show that the offence has been committed with the help of a twopronged jaili. Jaili, if used thrustwise, would cause stab/punctured wound. If it is used with a little slant, it can cause punctured wound and also an abrasion or a lacerated wound. It appears in the present case that one Kanta of the Jaili had pierced in the abdomen of the deceased, while the other did not pierce in the abdomen, as a result of which lacerated wound was caused on the person of the deceased. At the first instance attempt was made to record the statement of the injured by the Police of Police Station, Jind. The Police made an application before the doctor, who certified that the injured was unfit to make a statement. The matter was then referred to the Police Station Uchana. Thanedar Sumer Chand submitted application (Ex.PC) and it was certified by the doctor vide endorsement (Ex.PC/2) that the injured was fit to make a statement. Even the medico legal report (Ex.PA) would indicate that the injured was in conscious condition when he was admitted in the hospital. In these circumstances it can be well established and can be safely held that the deceased was in a position to make statement when his statement (Ex.PK) was recorded by the Thanedar. I cannot lose sight of the fact that the deceased was none else but the real brother of the appellant. Perhaps for these reasons the other prosecution witnesses did not support the story of the prosecution. But nevertheless the conviction of the appellant can be safely recorded if the dying declaration made by the deceased was found to be reliable, credible and trustworthy and if this Court further comes to the conclusion that the deceased had no occasion to implicate the present appellant. There is ample corroboration to the statement of the deceased visavis motive and injury, coming from the statement of Shri Baru Ram, who deposed about the factum of partition and also that the residential Kotha fell to the share of Sube Singh deceased. It has been further stated by Shri Baru Ram that Manphul appellant had been living in the Kotha, which fell to the share of Sube Singh deceased and the appellant promised to vacate the kotha in the month of Jeth. Dr. Subhash Sharma (P.W.2) deposed that on Ist June, 1986 on application (Ex.PC) he examined patient Sube Singh and certified that he was fit to make a statement and his certificate is Ex.PC/2. It has also been certified by the doctor that whatever question was asked from him he was fit enough to make a complete and rational answer. Further the doctor has stated that injury No. 4 could be caused with the Jaili. Thus, the oral statement made by Sube Singh deceased stands corroborated in all material particulars from the statement of Shri Baru Ram as well as the doctor. Learned counsel for the appellant has not been able to show from the record that Baru Ram or Sube Singh had at any point of time illwill or motive to make incriminating circumstances statements against the appellant. The case of death in this case is septicaemia, which was the direct consequence of the injury suffered by the deceased and caused by the present appellant. In these circumstances I place implicit reliance on the statement Exhibit PK made by the deceased and hold that this statement does not suffer from any infirmity or illegality and was enough individually to record a finding of conviction against the appellant.

Resultantly, I do not see any merit in this appeal and dismiss the same.

All concerned be informed.