Important Point
Where Statements of the deceased to several witnesses including Police Sub-Inspector who recorded the statement consistently and clearly stated manner of assault and identified the accused, conviction treating statements as dying declarations was justified.

Headnote:Indian Penal Code, 1860-Section 302/34 - Murder-Conviction for-Accused 2 and 3 allegedly caught hold of deceased and assaulted him while accused 1 gave Chhura blow which proved fatal-No eye witness-Farbdeyan of deceased to number of witnesses who rushed to place of occurrence on hearing hullah-Farbdeyan recorded by Police Sub-Inspector who was on patrolling duty - Farbdeyan treated as dying declaration-Deceased was conscious and in a position to speak and in fact died after 24 hours of receiving injury-Dying declaration clearly stated that accused 1 caused injury-All witnesses consistently deposed and supported version of deceased-Medical evidence also supported version of deceased-Conviction of accused 1 justified-Part played by accused Nos. 2 and 3 not clearly established-Inconsistencies in dying declaration and evidence of witness regarding part played by accused 2 and 3-Conviction of accused 2 and 3 set aside.
       Held : Dying declarations consistently establish beyond reasonable doubt that deceased Sambhu was conscious and was in a position to speak after receiving the injuries. (Para 7)
       It has been contended by the learned Counsel for the appellants that the Investigating Officer has not bothered to record the dying declaration of the deceased nor the dying declaration is recorded by the Doctor. The Doctor is also not examined to establish that the deceased was conscious and in a fit condition to make the statement. It is true that there is negligence on the part of Investigating Officer. On occasions,such negligence or ommission may give rise to reasonable doubt which would obviously go in favour of the accused. But, in the present case, the evidence of prosecution witnesses clearly establishes beyond reasonable doubt that the deceased was conscious and he was removed to the hospital by bus. All the witnesses deposed that the deceased was in a fit state of health to make the statements on the date of incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the evidence of number of witnesses who rushed to the scene of offence at Ghogha Chowk. Their evidence does not suffer from any infirmity which would render the dying declarations as doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the Investigating Officer should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such ommissions to find out whether the said evidence is reliable or not. (Para 8)
       With regard to Paras Yadav (accused No. 1), in our view, there is no reason to disbelieve the oral dying declaration as deposed by number of witnesses and as recorded in farbdeyan of deceased Sambhu Yadav. The farbdeyan was recorded by the Police Sub-Inspector on the scene of occurrence itself, within few minutes of the occrrence of the incident. Witnesses also rushed to the scene of offence after hearing hulla gulla. The medical evidence as deposed by P.W. 11 also corroborates the prosecution version. Hence, the courts below have rigthly convicted Paras Yadav for the offence punishable under Section 302 IPC. (Para 9)
       The prosecution version with regard to the part played by accused Nos. 2 and 3 is inconsistent. Some witnesses deposed that the deceased informed that accused Nos. 2 and 3 surrounded him while other witnesses deposed that the deceased told that they gave fist blows or slaps while some witnesses state that the deceased told that Tulsi Sonar and Satan Yadav caught hold of the deceased. Considering, the aforesaid inconsistencies in the dying declaration as deposed by the witnesses with regard to the part played by accused Nos. 2 and 3, and as there is no direct evidence in our view, it cannot be said that prosecution has proved beyond reasonable doubt that accused Nos. 2 and 3 are guilty for the offence punishable under Section 302 read with Section 34, IPC. (Para 10)
       Held consequently, the conviction of original accused No. 1 Paras Yadav is confirmed and the conviction of original accused Nos. 2 and 3, that is, Satan Yadav and Tulsi Sonar is set aside. (Para 11)

Judgment

Shah, J.-These two appeals are filed against the Judgment and Order dated 3rd September, 1996 in Criminal Appeal No. 14 of 1985 and Criminal Appeal No. 62 of 1985 by which Conviction of original accused Nos. 2 and 3 under Section 302 read with Section 34 IPC and that of original accused No. 1 under Section 302 IPC is upheld by the High Court and they all have been sentenced to undergo rigorous imprisonment for life.

2. It is a prosecution version that on 7th February, 1983 Sambhu Yadav who was working as an employee in the cloth shop at Chanpatia Bazar was returning at about 7.00 p.m. on a bicycle. At about 8.00 p.m., when he reached about 100 yards north of Ghogha Chowk on the pitch road, he met three persons who abused him and asked him to shop his bicycle. Thereafter, Paras Yadav (accused No. 1) caught hold of the bicycle and accused Nos. 2 and 3, Satan and Tulsi caught both the arms of Sambhu Yadav and started assaulting him with fists and slaps. In the meantime, Paras Yadav gave chhura blow in abdomen. Accused thereafter fled away. On hulla being raised, Jhakhari Yadav (P.W. 9), Bagur Raut (P.W. 8), Basgeet Yadav (P.W. 1), Gogari Yadav and other persons came there. It is the prosecution version that Sambhu Yadav (deceased) stated before the witnesses and the Police Sub-Inspector that he was surrounded by Tulsi, Satan, Munshi and Paras and thereafter Paras stabbed him on abdomen. It is also a prosecution version that there was enmity between the accused person and the deceased on account of land dispute. Sub-Inspector of Police, Shri Dina Nath Singh (P.W. 16) arrived on the spot while he was on patrolling duty along with others and recorded farbdeyan under Section 307 IPC against the three appellants, besides two unknown persons. The victim was shifted to hospital where he succumbed to the injuries at night on 8th February, 1983. Thereafter, offence under Section 302 IPC was added.

3. The Sessions Court convicted the accused by relying on fardbeyan (Ext. 1), which was treated as dying declaration. The learned Additional Sessions Judge held that as there was no eye witness to the occurrence the entire case rested on the dying declaration made by the deceased. The Court arrived at the conclusion that there was nothing to suggest that the Police Sub Inspector Dina Nath Singh who recorded the dying declaration-cum-statement of Sambhu Yadav had any ill feeling against any of the accused persons. The said statement is consistent with what other prosecution witnesses have deposed before the Court. It is also found that dying declaration is corroborated by the medical evidence as the doctor (P.W. 11) who held post-morterm examination found injury in the abdominal region of the deceased by a penetrating weapon like dagger. After appreciating the entire evidence on record, the High Court has upheld the conviction of the appellants. Hence, this appeal by special leave is preferred.

4. Learned Counsel appearing on behalf of the accused vehemently submitted that there is no evidence on record to hold that the accused were having any common intention and there is no evidence on record from which common intention could be inferred. The evidence of the prosecution witnesses is totally inconsistent with regard to the role played by accused No. 2 and 3 as stated by the deceased. It is further submitted that farbdeyan should not be treated as dying declaration as it is recorded in a routine manner by the Police Sub-Inspector.

5. The learned Counsel referred to the evidence of P.W. 1, Basgeet Yadav who has stated that at 8.00 p.m., he rushed to the newly built bridge and saw Sambhu Yadav lying there and he was bleeding. Sambhu, on being asked, informed that Paras Yadav, Tulsi and Munshi surrounded him and Paras gave a chhura blow. Similarly, P.W. 2, Bachu Das stated that he alongwith Jagannath was going home on bicycle and when they reached at the distance of 200 yards from Ghogha Chowk, they saw five persons going away. They were Par

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1999 Supreme(SC) 22

Important PointWhere Statements of the deceased to several witnesses including Police Sub-Inspector who recorded the statement consistently and clearly stated manner of assault and identified the accused, conviction treat­ing statements as dying declarations was justified.

Cases Referred (1)

Important Point
Where Statements of the deceased to several witnesses including Police Sub-Inspector who recorded the statement consistently and clearly stated manner of assault and identified the accused, conviction treating statements as dying declarations was justified.