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IN THE HIGH COURT OF ALLAHABAD
N. L. GANGULY, R. N. RAY
ROOP CHAND - Appellant
Versus
STATE - Respondents
Criminal Appeal 644 Of 1980
Decided On : 03/11/1996
CRIMINAL APPEAL - SECTION 302 IPC - SECTION 32(1) EVIDENCE ACT - DYING DECLARATION - ADMISSIBILITY - CONDITIONS - INTERPRETATION - SECTION 161 CRPC - STATEMENT RECORDED UNDER - VALUE - SECTION 307 IPC - CONVERSION TO SECTION 302 IPC - PROCEDURE.
Fact of the Case:
The appellant was convicted for the offence under Section 302 IPC for assaulting the deceased with a knife. The prosecution's case was that the appellant had not paid the deceased the full amount for repairing the grinding stones of his atta chakki, and when the deceased went to demand the balance amount, the appellant assaulted him. The deceased named the appellant as the assailant to his son, who then lodged a report at the police station.
Finding of the Court:
The court found that the alleged dying declaration was not recorded in the question-answer form and was not signed by the deceased or any witnesses. The court also found that the doctor and nurse who were present at the hospital were not interrogated or made prosecution witnesses. The court further found that the evidence of recovery of the alleged incriminating knife did not inspire confidence as it was taken from an open place accessible to all and no blood-stained earth had been collected from the place of occurrence.
Issues: 1. Whether the alleged dying declaration was admissible under Section 32(1) of the Evidence Act? 2. Whether the evidence of the police officer who recorded the alleged dying declaration was reliable? 3. Whether the evidence of recovery of the alleged incriminating knife was reliable?
Ratio Decidendi: 1. The court held that the alleged dying declaration was admissible under Section 32(1) of the Evidence Act but should not be considered as an unimpeachable document. The court held that it was not recorded in the question-answer form and was not signed by the deceased or any witnesses. The court also held that the doctor and nurse who were present at the hospital were not interrogated or made prosecution witnesses. 2. The court held that the evidence of the police officer who recorded the alleged dying declaration was not reliable. The court held that the police officer did not follow the procedure of recording a statement under Section 161 CrPC and that his explanation for not doing so was not satisfactory. 3. The court held that the evidence of recovery of the alleged incriminating knife was not reliable. The court held that it was taken from an open place accessible to all and that no blood-stained earth had been collected from the place of occurrence.
Final Decision: The court allowed the appeal, set aside the judgment and order of sentence of the lower court, and acquitted the appellant from the charge of the offence under Section 302 IPC.
( 1 ) THE appellant Roop Chand preferred this appeal being aggrieved by the judgement and order of sentence passed in Sessions Trial No. A-129/79, u/s. 302 I. P. C. The learned sessions Judge, Sri P. C. Saxena has convicted him for the offence under S. 302 I. P. C. and was further pleased to sentence him to suffer R. I. for life.
( 2 ) THE prosecution story runs as follows : The appellant owns an atta Chakki and some time before the incident he had got the grinding stones of the said Chakki repaired by the deceased for which Rs. 30. 00 was settled as labour charges. Out of the said amount Rs. 10. 00 only was paid to the deceased and on 27-10-78 at about 8. 45 p. m. when the deceased went to the appellant to demand the balance amount of Rs. 20. 00 the appellant assaulted him with a knife in front of the betel shop of Shyam Lal. The place of occurrence is situated just in front of Sadar Hospital, Pilibhit and so the deceased immediately was taken, in injured condition, to that hospital where he was medically examined by Dr. O. P. Warankar (P. W. 7), Mangali Prasad (P. W. 2) is the son of the deceased. At about 9 oclock when he came out of his house, he heard some passers by talking that some body had been assaulted with knife in Chowk. On hearing this he went there and he came to know that the victim had been already removed to the hospital. Then he went to the hospital and to his surprise he found that the persons who received injuries was his father who had received a knife injury in his abdomen. The deceased was in senses at that time and being interrogated by the P. W. 2 Mangali Prasad, the victim told that he had been assaulted by Roop Chand and the incident took place when he went to demand the balance amount of his labour charge. According to the prosecution this incident had been witnessed by P. Ws. Munna Lal and Ram Bharosey who were also present in the hospital at the time when Mangali Prasad (P. W. 2) reached there and met his father. Then Mangali Prasad got a written report of the incident prepared by Ram Naresh in the hospital itself and subsequently he lodged the report at the police station. In this report he narrated the incident as told by his father. On the basis of this written information the formal F. I. R. was lodged and the investigation of the case was entrusted to S. I. Surendra Pal Singh (P. W. 5 ). The papers for the investigation were delivered to S. I. Sri S. P. Singh at about 10. 45 p. m. On receiving the papers P. W. 5 proceeded to the hospital and reached there at about 11. 00 p. m. The deceased wasadmitted in the medical ward of the hospital and S. I. Sri S. P. Singh recorded the statements of the deceased in the case diary. Some time after this interrogation doctors advised that the deceased be taken for further treatment to Bareilly and Mangali Prasad became busy in making arrangement for his fathers treatment at Bareilly and so P. W. 5 could not interrogate P. W. 2 at that time. However, P. W. 5 visited the spot in the next morning at about 7. 00 a. m. and inspected the place of occurrence and with the assistance of Munna Lal, one of the eye witnesses he prepared site plan. He also interrogated Munna Lal. The investigation of the case was however, entrusted to S. I. Paras Ram Singh on 30-9-78 because he was senior to S. I. S. P. Singh. Sri Paras Ram Singh (P. W. 4) interrogated Mangali Prasad and another eye witness Ram Bharosey on 2-10-78 and after complying all others formalities he submitted charge sheet u/s. I. P. C. on 4-11-78. It is evidenced that the deceased was taken to the district hospital at Bareilly and he succumbed to his injuries in the said hospital on 29-10-78. The inquest was done on the dead body by S. I. Ku. Usha Saxena of police station Kotwali Bareilly and the post mortem examination was conducted by Dr. Harit (P. W. 9) of the district hospital, Bareilly. The accused-appellant pleased not guilty to the charge framed against him and claimed to be tried.
( 3 )
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