G.C. Das, J.
1. This is an appeal by the petitioner Jagabandhu Gial against his conviction Under Section 302 Indian Penal Code, and the sentence of R. I. for life for having caused the murder of one Kuba Gori, wife of Hari Gial oh January 12, I960. Originally there was another accused person along with the present appellant who stood his trial Under Section 302/34, Indian Penal Code, and has since been acquitted by the learned Sessions Judge of Koraput-Jeypore.
2. Shortly stated the prosecution case is this-. in the evening of January 11, 1960, a daughter of Hari Gial died at his house in village Gialput which is a hamlet of village Tantor the village of P.Ws. 8, 9 and 10. The deceased having lost successively two daughters in course of a week, believed that those deaths were due to some witchcraft, and her suspicion including certain members of her family fell on Aita Gial, the father of the present appellant. On the morning of January 12, I960, P.Ws. 2, 8, 9 and 10 of village Tantor arrived in the house of Hari Gial for the purpose of cremating the deceased girl who was about eight years of age at the time of her death. P. Ws 2, 8, 9 and 10 went to the house of Aita Gial to borrow a spade and a crowbar for effecting the cremation. Aita who has been examined as D.W. 1 in this case admits the fact of their going for the purpose of borrowing the spade and the crow-bar, but refused on the ground that all the abuses were being hurled against him by the mother of the girl as well as the other members of the family.
While P.Ws. 2, 8, and 9 were still at the door of Aita Gial, Sukra Gial, P.W. 1 a son of Hari Gial suddenly appeared on the scene of occurrence and hit Aita on his righf leg with the blade of a spear, M. O. II, Aita on receipt of the blow cried1 out 'Marigali' and caught hold of the iron blade of the spear with both his bands. P.W. 1 tried to pull out the spear, but was unsuccessful. Afterwards he left the place leaving the spear sticking to the leg of Aita. Aita himself, however, pulled out the spear and fell down senseless and thereafter he was taken inside his house by the wives of his two sons including the appellant. At the time when Aita was being assaulted, his younger son who lives with him and is the present appellant, was sitting below the Pinda at a short distance from Aita. The other accused Sukra, his elder son who was living separately from his father, was inside the house a few yards away.
On hearing the cries of Aita, Jagabandhu came out with a big axe M. O. I. and Sukra came with a spear, MO III in hand. Thereafter, both of them ran together towards the house of Hari Gial and found Kuba Gori, his wife, sitting in front of his house. On seeing them, Hari Gial and his sons ran away and concealed themselves. When the two brothers could not find out Hari Gial and his sons, Sukra caught bold of the right arm of Kuba Gori (wife of Hari Gial) and dragged her the to three yards, when the appellant Jagabandhu have her two blows on the back with the big axe; MO. I. The prosecution case is that on receipt of these, two biows, Kuba Gori ran to the house at Sukra (P.W. 1) and remainea there for sometime bolting the room from inside. The appellant thereafter followed her and gave certain strokes to the doorleaves of the house of Sukra with the blunt-end of the iron axe, M. O. I. The prosecution case is that thereafter both the brothers left the place of occurrence, and soon after their departure Kuba Gori came back from the house of P.W. 1 and ran towards her own house and fell down in front of the house. There was profuse bleeding from her injuries and she was taken inside the house by her daughter-in-law and sister-in-law.
3. P.W. 1 Sukra went to the Police Station at Padua which is situated at a distance of seven miles from the place of the occurrence and lodged the first information report at about 11-30 A.M. on that very day. In the first information report, he stated that there was a quarrel between the two accused persons and their father on the one hand and the parents of the informant on the other. During that quarrel the accused appellant Jagabanduh tried to assault Hari Gial (his father) with an axe. Hari Gtal ran away and Jagabandhu then assaulted Kaba Gori with an axe as a result thereof she for down. The accused Sukra having chased the informant, he ran away out of fear towards the Police Station. It is important to note that he said nothing about the assault by him on Aita Gial, the father of both the appellant and accused Sukra.
4. On receipt of the first information report, the Police registered a case Under Sections 326/307, Indian Penal Code, examined P.W. 1, and the persons who accompanied him. About an hour .later, the appellant also came to the police station, and made a report against Hari Gial and his two sans, Sukra and Jogi. He alleged that Hari Gial assaulted Aita Gial with an axe and his son Sukra .also assaulted him with a spear and that when Hari. Gial attempted to assault Jagabandhu with a blow, the blow actually fell on the back of IKuba Gori as she caught hold of her husband by this waist. The Sub-Inspector registered a case Under Sections 324/34, Indfan Penal Code, and then left for the village Gialput along with the 'appellant and Sukra, P.W. 1. On the way, he found Aita being carried in an injured state to--wards the police station with spears, M. Os. H and III, and the axe, M. O. V. Since there was no 'doctor available at Padua, the Sub-Inspector took Aita back to his village, examined him there and seized the three weapons which were being carried in his cot.
When the Sub-Inspector arrived in the village, the found Kuba Gori lying inside her house, and interrogated her. She told the Sub-Inspector at that time that she had cursed Aita suspecting the death of her two children was due to the witchcraft practised by the latter, and thereupon the two accused persons came to her house. Accused Sukra caught hold of her arm when appellant Jagabandhu gave two blows on her back with an axe. The result was that she had bleeding injury and she fell down. Thereafter, the Sub-Inspector sent her to Nandapur Hospital for medical examination so also Aita Gial. Kuba Gori was admitted as an indoor patient that very evening and was treated by the medical officer. On the next morning, at about Section 30 A.M. her condition was found to be getting worse, and the doctor requested the sub-inspector of Nandapur to make arrangements for recording her dying declaration. The Block Development Officer at the request of the Sub-Inspector, Nandapur Police Station, (P.W. 3), came to the hospital and recorded the dying declaration of the deceased (Ext. 5) at 9 a. m. Subsequently Kuba Gori died at about 10 or 10.30 A. M. at the hospital. Immediately thereafter information was sent to the Sub-Inspector and arrangements were made for the autopsy.
5. In the meanwhile, at about 4.30 p.m. on January 12, 1960, the Sub-Inspector ha3 arrested the appellant who produced the small axe, M. O IV, and thereafter produced the big axe, MO I which contained some blood-stains near the cutting edge. The Sub-Inspector seized both the axes and proceeded simultaneously with investigation of both the cases. He, however, seized certain bloodstained earth from the ground in front of the houses of Hari Gial and Aita Gial, and also the door leaf (M O VI) from the house of Sukra P.W. 1, M. Os. 1, II and v. were sent to the Chemical Examiner and were found to have contained human blood. During the course of investigation, the appellant was produced before a 1st. Class Magistrate for recording his confession on January 30th; and his statement was recorded -Under Section 164 of the Code of Criminal Procedure, Which was marked at the trial as Ext. 18. The learned Sessions Judge, however, did not accept it as a confessional statement on the ground that it contained allegations to the effect that it was Hari Gial's own axe which struck the deceased at her back at a time when the deceased caught hold of him.
At this stage, I would like to refer to the medical evidence in this case. P.W. 5 is the Medical Officer of Nandapur who examined the -injuries on Kuba Gori and also conducted the autopsy. The external injuries found by him on the morning of January 13 at about 9-30 A. M. were:
(1) One incised wound 3-3/4' X 3/4' long deep directed obliquely over the right side of the back. 3' below the right shoulder blade :
2. One incised wound 9 1/2' X 1 1/2' X muscle deep, 1 1/2' below the injury No. 1, on the right side of the back, directed perpendicularly from above downwards:
3. One abrasion 1' X 1/2' on the left side of the forehead caused by coming in contact with some hard and blunt substance.
According to the doctor, injuries Nos. 2 and 5 were simple in nature, but injury No. 1 was grievous. On dissection, he found under injury No. 1, the skin, the muscles and the 6th, 7th and the 8th ribs on the right side were cut and the corresponding pleura and lung on the right side were also cut to the extent of 2'x 1/6', Effused and coagulated blood was found in the subcutaneous tissues and there was also infiltration of blood in the muscle fibers. On dissection of injury No. 2, it was found that the skin and the muscles were cut and that there was coagulated blood in the subcutaneous tissues and muscle fibres. The depth of this injury was only i' to 1'. Injury No. 2 with its corresponding internal injury was simple, but injury No. 1 with its corresponding internal injury was definitely fatal and was sufficient in the ordinary course of nature to cause death. Injury No. 3 was due to the contact welt some hard and blunt substance.
6. The defence of the appellant was that P.W. 1 Sukra assaulted his father Aita with a spear on his leg. Sukra's brother Jogi chased him with a spear and so he went inside the room and bolted the door. Hari Gial caused the injuries on both the arms of Aita Gial by means of an axe. Thereafter Hari Gial attempted to assault him also with an axe and that at that stage Kuba Gori ipaught hold of Had Gial by his waist and so Hari Gial himself assaulted her and caused her death. At the trial, at the first instance, he admitted the statements made in the committing court, but at the later stage he stated that he does not know whether Kuba Gori sustained any injury that morning or whether she is alive or dead.
7. The prosecution examined as many as 11 witnesses in this case. The learned Sessions Judge relying on the direct evidence of P.Ws. 8, 9 and 10 as also the dying declaration (Ext. 5) coupled with the recovery of the axe, M. O. I. convicted the appellant Under Section 302, Indian Penal Code, and sentenced him as stated above. He, however, acquitted him of the charge Under Section 302/34 of the Indian Penal Code. It is against this judgment that the present appeal is filed by the appellant Jagabandhu Gial.
8. Three contentions were raised before this Court by Mr. M. S. Rao, learned Counsel on behalf of the appellant; (1) The so-called eye-witnesses, P.Ws. 8, 9 and 10 should have been discredited by the learned Sessions Judge; (2) The dying declaration being contrary to medical evidence should not have been relied upon; and (3) The recovery of the axe, M. O. I. was not in accordance with law.
9. The learned Sessions Judge, as I have stated earlier, had relied upon the evidence of the direct witnesses, P.Ws. 8, 9 and 10, as also the dying declaration (Ext. 5) and the recovery of the big axe M. O. I. The prosecution itself did not want to rely upon the evidence of P.W. 1 since he had suppressed his part of the incident in the case. P.W. 2 though was an eye witness to the occurrence has been disbelieved by the Teamed Sessions Judge on the ground that there were certain inconsistencies in his evidence, particularly his evidence regarding the relative position of the assailant and the victim does not fit in with the ' medical evidence. It seems likely that he did not notice the actual assault by the assailant on the deceased. Of the rest of the three witnesses, P.Ws. 8, 9 and 10, P.W. 9 was not named in the first information report. His presence, however, was admitted by Aita who was examined as D.W. 1 in this case.
The defence argument was that none of these witnesses had seen the assault on Kuba Gori as is apparent from the evidence of P.W. 9 that when they saw Jagabandhu and Sukra coming armed with axe and spear, they all got frightened and ran away. The evidence of these three witnesses are substantially the same. The learned Sessions Judge believed the evidence of these witnesses and found that their evidence gets support from the dying declaration of the deceased herself, coupled with the recovery of the axe, M. O. I. from the house of Jagabandhu which was ultimately found to have contained human blood. The learned Sessions Judge, it appears, has over-looked certain salient points of difference between the evidence of these persons and the dying declaration. Their evidence in essence was that when Aita cried out 'Marigali', accused Jagabandhu' brought Police Tangia (M. O. 1) from inside his house and Sukra brought M. O. III from inside his house. Then both of them ran together to Hari Gial's house when Kuba Gori was sitting oh Her Pinda, and accused Sukra caught hold of her right arm and dragged her two or three yards away. Hari and his sons were not then there at that time.
Accused Jagabandhu then gave two blows with the big axe on the back of Kuba Gori and she ran away to Sukra's house and bolted the door from inside. Then the accused Jagabandhu ran to P.W. 1's house and dealt two blows on the doorleaf with the blunt side of the iron blade of the axe. Then the accused appellant challenged Hari and his sons to come out. Thereafter both the accused persons went to their father's house. Gori came back from P.W. 1's house and fell down in front of her own house. Her daughter-in-law and sister-in-law carried her inside he house. There was profuse bleeding from her injury. It appears that the prosecution has set up 4 versions before the trial court. It is difficult to find out which version is reliable. The version of P.W. 1 at the trial was that while he and the other members of his family were sitting round the dead body of the child and were crying, the two accused persons and their father Aita Gial came there. Thus he has suppressed his own part of the incident.
Another version is by P.W. 2 in which he had stated that the assault was from the front side of the deceased which improbabilizes the fact that she received the injury on her back. The third Version was by the witnesses, P.Ws. 8, 9 and 10 which I have already referred to. The fourth one is the dying declaration of the deceased herself.
10. The dying declaration is in Oriya, which when translated into English runs-as~ follows :
One of my daughters died ten days back. Another daughter died yesterday. Therefore, I abused that somebody had caused the death of my daughters by black art. Thereafter yesterday morning Jagabandhu came and entered inside my house and assaulted me thrice on my back with a 'Mundi Tangia'. I fell down. My daughter-in-law took me in and made me to sleep suspended. Long after I regained consciousness. At that time the police Sub-Inspector had come to my house. I told him that Jagabandhu and Sukra hail assaulted me. The Inspector sent me to hospital yester3ay.
Apart from the propriety of this dying declaration to which I would refer presently, it does not support the evidence of P.Ws. 8, 9 and 10. It diffws widely as to the place, the manner of assault and the number of blows given by the appellant to the deceased With regard to the place, the witnesses had stated that she was . dragged two or threat yards from the Pinda of her house where the assault was committed. In fact, according to the dying declaration it was inside the house that the assaatt was made.. Secondly with regard to the manner of assault, P.Ws. 8, 9 and 10 have stated that Sukra caught hold of her arm and Jagabandnu gave two blows on her back. But in the dying declaration nothing about Sukra is stated. She does not state anything as to Sukra having caught hold of her arm and then Jagabandhu dealing the blows. In fact, there were two injuries on the back of (he deceased, which is consistent with the theory put forward by P.Ws. 8, 9 and 10, though Ext 5 states that three blows were given. It is impossible to believe that the third blow did not leave any injury on the back of the deceased.
Further these witnesses had stated that immediately after the assault the' deceased ran into the house of P.W. 1 and remained there until the departure of the accused persons bolting the doors from inside, and it is when the accused persons left the place of occurrence, she came out and ran towards her own house and fell down near about her Pinda where from she was lifted by her daughter-in-law and sister-in-law. The dying declaration not only belies the statements of P.Ws. 8, 9 and 10, but it also asserts that she fell down at the spot inside her house and remained unconscious until the Police Inspector arrived at her house. Apart from this difference between the evidence of the direct witnesses and the dying declaration, the evidence of P.Ws. 8, 9 and 10 is not credible on the ground that it is highly exaggerated. The story of dragging, the deceased going inside the louse of P.W. f with flit injury ahead of appellant Jagabandhu, her remaining there inside the house of P.W. 1 for sometime until the departure of the appellant and his brother appears to be rather improbable. The Police had not seized any blood-stained earth from inside-the house of Sukra, nor was there any trail of blood from the place of occurrence to the house of Sukra or from the house of Sukra to the house of Hari Gial, her own house. It i9 inconceivable to believe that Gon would run from the house of P.W. 1 to her own house with those injuries on her back which brought about her death on the following morning. Thus, in view of this character of the evidence of the eve-witnesses it is unsafe to base the conviction of the appellant thereon.
11. Coming now to the dying declaration, in fact there are two dying declarations, one made to the Police Officer and the other made before the Magistrate. The Police Officer, P.W. 11, stated m his cross-examination that he recorded the statement of Gori in the case diary at 2.40 p.m. of January 12, 1960. He could have produced the case diary and got it marked, which is clearly admissible Under Section 162 of the Code of Cr. Procedure. But he did nothing. What he stated in the witness box was that Gori was conscious at the time when she reached her house, On being questioned by him, she told that suspecting the deatli of her two children du6 to the witcii-ciaft practised by Aita, she cursed him, and that on hearing this, the two accused persons came to hen house and that the accused Sukia caught hold of her while accused Jagabandhu gave her two blaws with the Mundi Tangia as a result of which she fell down. Whether this statement of the police officer amounts to a secondary evidence or not, We express no opinion. The direct evidence, that is the dying declaration recorded by the Magistrate being there, it is unnecessary to decide this question.
12. Coming now to the legality of the dying declaration, Ext 5, it appears that the appellant, according to the deceased, entered inside her house and assaulted her thrice on her back by a 'Mundi Tangia'. The law is well settled that dying declaration by itself requires no corroboration, if believed to be true, but if it sutlers from inherent infirmities like any other evidence it requires corroboration. The Supreme Court in the case of Khusbal Rao v. State of Bombay : 1958CriLJ106 has laid down that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.
A dying declaration which has been recorded by a competent Magistrate in the 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 infirmities of human memory and human character, and 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, 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 bevond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it. and that the statement had been made at the earliest opportunity and 'was not the result of tutoring by interested parties.
In order to pass the test of reliability, a dying declaration has to be subjected to a very class scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If on the other hand, the Court, after examining the dying declaration to ail its aspects, and testing its veracity, has come o the conclusion that it is not reliable by itself, 'and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.. Thus, the necessity for corroboration arises not from and inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to' the conclusion that the particular dying declaration was nof free from the infirmities.
In the instant case, it appears that the dying declaration suffers from certain major infirmities. It is inconsistent with the medical evidence. The medical evidence shows that there were two injuries on the back of the deceased whereas in the dying declaration, the deceased had stated to have received three injuries. Further, lucre is another inherent inconsistency in the dying declaration itself. In the first part of the dying declaration the deceased had stated that it is Jagabandhu who entered her house and assaulted her thrice on the back whereas in the latter part of the statement she stated that she told the police that Jagabandhu and Sukra both assaulted her. Thus, not only this dying declaration is inconsistent with the medical evidence and the finding, but it is also inconsistent as to the facts stated therein. Hence unless it is corroborated by other material evidence, it cannot be accepted as a torte piece of evidence.
13. In order to find corroboration, the Section wanted to rely upon the axe, M. O. I on which human blood was found. This axe, according to the prosecution, was produced by the appellant. The appellant in his 342 statement had denied it The investigating officer, P. V. 11 in his deposition -bad stated that he searched the house of the appellant and found this axe lying inside the room and asked the appellant to bring it out and he produced it The actual statement of the investigating officer is that during the investigation her searched the house of the appellant in order to find out It there was any weapon. During the search he recovered from his house two axes. M. Os, I and IV. He further had stated that he had not entered the house when the smaller axe M. O. IV was produced by the appellant. He was waiting outside on the verandah when the appellant Jagabandhu brought out M. O. IV. He then went inside and found the big axe, M. O. I was resting against a Kholki inside the room. He asked the appellant to process that axe whereupon he handed it over to him.
He had further stated that he had not recorded his reasons for entering the house of Jagabandhu. Thus, the fact remains that he entered the house of Jagabandhu, but did not record his reasons Section 165 of the Code of Cr. Procedure provides the procedure for search by a police officer. Clause (1) of Section 165 is relevant for the present purpose.
Whenever an Officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into arty offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording is writing the grounds of his belied and specifying in such writing so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.
This Section apparently empowers certain specified, police officer to make search without a search warrant and it provides certain safeguards for the person whose house is searched. The observance of these safe-guards, namely 'reasonable ground for belief', 'the thing necessary for purposes oil investigation', 'recording in writing the grounds for such belief' and 'specifying the thing for which tile search is made' is mandatory and they must be fulfilled before a search is made; vide,' A.I.R. 1944 Pat 222, Sitaram Ahir v. Emperor A.I.R. 1935 Nag 237, Hiralal v. Raradularc and A.I.R. 1946 Lah 456, Emperor v. Mohammad Shah.
The law, however, is now set at rest by the recent decision of the Supreme Court in the case of State of Rajasthan v. Rahman : 1960CriLJ286 , wherein their Lordships have held that if the provisions of Section 165, Cr. Procedure Code, have not been followed, then the search cannot be said to be a legal search. That was a case under ( the Central Excises and Salt Tax Act, and their' Lordships laid down that the object of the search under the Act is only to. ascertain whether there is a contravention of the provisions of the Act or the Rules. Rule 201 enables the authorised officer to make a search only for the investigation of an offence. The power of search given under Chapter 14 of the CrIPC is incidental to the conduct of the investigation which the police officer is authorised by law to make. Searches made by a police officer during the course of an investigation of a cognizable offence can properly be approximated with the searches to be made by the authorised officer under Rule 201 of the Rules, for in the former case, the Police officer makes a search during the' investigation of a cognizable offence and in the latter the authorised officer makes the search to ascertain whether a person contravened the provisions of the Act or the Rules, which is an offence.
There is also no reason why conditions should be imposed in the matter of a search by the Police Officer Under Section 165 of the Criminal Procedure Code, but no such safeguard need be provided in the case of a search by the Excise Officer under the Rules. The Legislature, by stating in Section 18 of the Act that the searches under the Act and the Rules shall be carried out in accordance with the provisions of the Code relating to searches, clearly indicated that the appropriate provisions of the Code shall govern searches authorised under the Act and the Rules. Therefore, the provisions of Section 165 of the Code must be followed in the matter of searches under Rule 201 of the Rules. The recording of reasons Under Section 165 does not confer on the officer jurisdiction to make a search, though it is a necessary condition for making a search. Section 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If that can be ignored, it cannot be said that the search is carried out in accordance with the provisions of the Code of Criminal Procedure and it would be a search made in contravention of the provisions of the Code.
14. Applying the above principles to this case, there is no doubt that the search made in this case was in contravention of the provisions of Section 165 of the Code of Criminal Procedure; and accordingly the search on which reliance was sought to be made by the prosecution cannot be held to be a legal search. The appellant had denied the allegations of the prosecution in his 342 statement. Prosecution sought to rely upon P.W. 6 who was a search witness. P.W. 6 does not corroborate P.W. 11 either as to the manner of the search or as to the actual production of the axe. Accordingly we have no doubt in our mind that the search was an illegal search and the prosecution cannot rely upon the same. In the result, there is no doubt in our mind that the prosecution has failed to bring home the guilt to the accused. Accordingly, we would set aside the judgment of the learned Sessions Judge, allow this appeal; and acquit the appellant of the charge Under Section 302, Indian Penal Code, and direct that he be set at liberty forthwith.
J.K. Misra, J.
15. I agree.