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Kachhwa Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1986CriLJ306; 1984WLN(UC)574
AppellantKachhwa
RespondentState of Rajasthan
Cases ReferredIn Hazara Singh v. State of Uttar Pradesh
Excerpt:
.....and bow) furnishes no incriminating material against the appellant.;(c) evidence act - oral dying declaration--nothing unworthy of belief in evidence of witnesses--deceased gasped out story of being hit by arrows--held, there was no time to fabricate false hood.;all these witnesses were cross-examined, but nothing could be elicited from them which may make their testimony unworthy of belief. the deceased, thus gasped out his story of being hit with an arrow shot by the appellant soon after the occurrence. there was no time for him to fabricate falsehood. the learned sessions judge put faith on what they testified.;(d) evidence act and rajasthan police rules, 1965 - rule 6.22--dying declaration--recording of--dying declaration recorded by police officer during investigation in..........him to government dispensary, rohira. as hindura's condition was fast becoming precarious, his dying declaration ex. p. 8 was recorded by the head constable uma ram (p.w. 13) in the presence of dr. noor mohammed (p.w. 10). hindura was taken from rohira to sirohi for treatment. despite treatment, hindura did not survive and breathed his last at about 7.00 a.m. on jan. 17, 1979. before that the police had registered a case under section 307, i.p.c. after his death, section 302, i.p.c. was added. the post-mortem examination of the victim's deadbody was conducted at about 9.15 a.m. on jan 17, 1979 by medical jurist dr. barmera (p.w. 1). he found three wounds on the victim's deadbody, two of which were surgical and one caused by an arrow with the following dimensions: a stitched wound 2.....
Judgment:

S.S. Byas, J.

1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Sirohi dated Nov. 24, 1979, by which the appellant Kachhawa was convicted under Section 302, I.P.C. and was sentenced to imprisonment for life.

2. The incident is a live-illustration of the clash between two Adams for one Eve with the usual result that one of the former was finished forever by his opponent.

3. P.W. 3 Mst. Champa, a young married woman of 20 years in age, was living with her husband, parents-in-law and the other members of their family in village Tankiya P.S. Abu Road district Sirohi. P.W. 5 Lachiya and P.W. 6 Cheliya are the brothers of her husband. The deceased Hindura developed illegal intimacy with her. The appellant Kachhwa also tried his luck in the matter and was after her in an attempt to develop illicit relationship with her. This brought the deceased and the appellant into direct conflict. A few days before Jan. 12, 1979, Champa's husband and parents-in-law went to Swaroopganj in connection with medical treatment of her mother-in-law. Mst. Champa, Lachiya and Cheliya remained behind at the house. In the night of Jan. 12, 1979, after the dinner time was over, the deceased Hindura went in search of his missing cow. While returning, when he happened to pass near the house of Champa (P.W. 3), the appellant met him. The appellant told him that as he was going towards the house of Mst. Champa in the night, he would not let him alive. Saying so, the appellant shot an arrow at Hindura, which hit him in the stomach. The arrow had a pointed iron-head. The accused thereafter made good his escape. There was profuse bleeding from the wound of Hindura and he raised cries. Hearing his cries, his brother Bhaga (P.W. 4) came there and he took him to the house. Hindura told his brother how he was hit by the appellant. At his house, many persons including PW 2 Bholiya, P.W. 7 Pabu and P.W. 8 Pooniya assembled, to whom he also narrated the incident and told them that he was hit by the appellant. P.W. 8 Pooniya reached Police Out Post, Gopalabeda at about 7.30 A.M. on Jan. 13, 1979 and verbally lodged report Ex. P. 6. As the report was not a detailed one, the Head Constable on duty informed the concerned police station, Abu Road. The Head Constable Uma Ram himself arrived on the spot. He thereafter took him to Government Dispensary, Rohira. As Hindura's condition was fast becoming precarious, his dying declaration Ex. P. 8 was recorded by the Head Constable Uma Ram (P.W. 13) in the presence of Dr. Noor Mohammed (P.W. 10). Hindura was taken from Rohira to Sirohi for treatment. Despite treatment, Hindura did not survive and breathed his last at about 7.00 A.M. on Jan. 17, 1979. Before that the police had registered a case under Section 307, I.P.C. After his death, Section 302, I.P.C. was added. The post-mortem examination of the victim's deadbody was conducted at about 9.15 A.M. on Jan 17, 1979 by Medical Jurist Dr. Barmera (P.W. 1). He found three wounds on the victim's deadbody, two of which were surgical and one caused by an arrow with the following dimensions:

A stitched wound 2 c.m. lying parallel to the coastal margin.

In the opinion of Dr. Barmera, the cause of the victim's death was shock caused by peritonitis and perforating injuries to the intestines. The medico-legal report issued by him is Ex. P. 1. The appellant was arrested on Jan. 14, 1979. In consequence of the disclosure statement made by him, one bow and some arrows were recovered. The blood-stained clothes of the deceased were also seized and sealed. On the completion of investigation, the police submitted a challan against the appellant in the Court of Judicial Magistrate, Abu Road, who in his turn committed the case for trial to the Court of Session. The learned Additional Sessions Judge framed a charge under Section 302, I.P.C. against the accused, to which he pleaded not guilty and faced the trial. The defence taken by the accused was that of complete denial and false implication. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Judge found the prosecution case substantially true and charge duly proved against the appellant. The appellant was consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction and sentence, the accused has taken this appeal.

4. We have heard the learned amicus curiae and the learned Public Prosecutor. We have also carefully gone through the record.

5. The learned amicus curiae did not challenge the opinion of Dr. Barmera (P.W. 1) relating to the cause of death of Hindura. We have also carefully gone through the statement of Dr. Barmera and we find no reasons to distrust what he testified about the cause of death of the victim. The death of Hindura was, thus, not natural. It was homicidal in nature.

6. Admittedly, there is no eye witness of the incident and the case squarely rests on circumstantial evidence, which consists of the following links:

(1) extra judicial confession of the appellant, (2) the recovery of arrows and bow in consequence of the disclosure statement made by the appellant whilst in police custody and (3) dying declarations oral and written made by the deceased.

7. In assailing the conviction, it was vehemently contended by the learned amicus curiae that the extra-judicial confession does not stand proved. The trial court was in error in taking the extra-judicial confession proved on the testimony of P.W. 9 Pagta. It was further argued that the prosecution has been unable to connect the recovery of arrows and bow with the commission of the offence. As regards dying declarations, it was argued that the evidence relating to them is discrepant. There was no corroboration and as such in absence of corroboration, the conviction of the appellant merely on the dying declarations would not be proper and free from risk. The learned Public Prosecutor, on the other hand, supported the judgment of the Court below and submitted that the three sets of evidence, referred to above, are sufficient to seek the conviction of the appellant. As such, his conviction should be maintained. It would be proper to deal with these sets of evidence at seriatim.

Re: 1. Extra-Judicial Confession -

8. The only witness stating about the extra-judicial confession of the accused is P.W. 9 Pagta. He deposed that the appellant came to him at the well where he was working and told him that he had hit Hindura with an arrow. He requested him to take him to Police Station. He also stated that the appellant is the son of the brother-in-law of his brother. This relationship is too distant. In cross-examination, he admitted that he is the real maternal uncle of the deceased Hindura. An extra-judicial confession is generally made to a person in whom the accused confides. Looking to the proximate relationship of this witness with the deceased Hindura, we are unable to conceive that the appellant would make clean-breast confession before him. It does not appear that the appellant could repose utmost confidence in this witness so as to confess the guilt before him. The learned Sessions Judge accepted the testimony of this witness at its face value without properly scrutinizing the various circumstances, which make his evidence incredible and unworthy of belief. Such sort of evidence can be procured and manoeuvred without any difficulty. The contention of the learned amicus curiae is, thus, not without force. The extra-judicial confession relied upon by the trial Court does not stand proved.

Re: 2. Recovery of Weapons:

9. According to prosecution, the accused. after his arrest, made the disclosure statement Ex. P. 13 and in consequence of it, got some arrows and bow recovered from his house. The contention of the learned amicus curiae is that there is no evidence to connect these weapons with the commission of the offence. It was argued that no blood was found on them. Nobody has come forward to state that these arrows and bow were used by the appellant in the commission of the offence. There is considerable force in the contention. No blood was found on these weapons and there is no evidence to connect them with the commission of the offence. Nobody has stated that the bow and arrows recovered at the instance of the appellant were used by him in the commission of the offence. There is no evidence to link these weapons with the incident. As such, the mere recovery of these weapons (arrows and bow) furnishes no incriminating material against the appellant.

Re: 3. Dying declarations of the deceased:

10. The most formidable evidence against the appellant is that of dying declarations oral as well as written. The written dying declaration is Ex. P. 8 recorded by the H.C. Police during investigation in the presence of a doctor. The persons speaking about the oral dying declaration are P.W. 2 Bholiya, P.W. 4 Bhaga, P.W. 7 Pabu and P.W. 8 Pooniya.

11. It was strenuously contended before us that the various dying declarations relied upon by the Court below in convicting the appellant have been given unnecessary and undue importance. It was argued that on a critical anylysis of the evidence relating to these dying declarations, it would appear that no such declarations were made by the deceased. It was also argued that these declarations are not sufficient to seek the conviction of the appellant.

12. We have carefully gone through the statements of P.W. 2 Bholiya, P.W. 4 Bhaga, P.W. 7 Pabu and P.W. 8 Pooniya, whose evidence relates to oral dying declarations. P.W. 4 Bhaga reached the place of occurrence immediately on hearing the cries of the deceased. He deposed that the deceased told him that he was hit with the arrow shot by the accused. The remaining three witnesses went to the house of the deceased when he was taken there. To them also, he narrated the incident and told that the accused had shot an arrow at him, which hit him in his stomach. No doubt, P.W. 4 Bhaga is the real brother of the deceased and the other witnesses are his relatives, but their testimony cannot be discarded simply on the ground of their relationship with the deceased. All these witnesses were cross-examined, but nothing could be elicited from them which may make their 'testimony unworthy of belief. The deceased, thus, gasped out his story of being hit with an arrow shot by the appellant soon after the occurrence. There was no time for him to fabricate falsehood. The learned Sessions Judge put faith on what they testified. On a careful examination of what they deposed, we are unable to take a view different from that taken by the trial Court.

13. Coming to the written dying declaration, there are two witnesses speaking about it, viz., P.W. 10 Dr. Noor Mohammed and P.W. 13 Uma Ram, H.C. Police. The dying declaration is Ex. P. 8. H.C. Uma Ram deposed that when he reached the village of the deceased, he found him lying injured in his house. As his condition was rapidly deteriorating, he took him for treatment to Government Dispensary, Rohira. His condition went on deteriorating and as such he recorded his statement Ex. P. 8 in the presence of Dr. Noor Mohammed (P.W. 10). The witness stated that the entire matter marked C to D in Ex. P. 8 was recorded as was stated by the deceased in his presence and in the presence of Dr. Noor Mohammed. Dr. Noor Mohammed, who was Medical Officer In charge of Government Dispensary, Rohira and who had examined the deceased before his death, deposed that the statement Ex. P. 8 was recorded by H.C. Uma Ram (P.W. 13) in his presence. The witness further stated that he endorsed the endorsement A to B 'statement taken in front of me' on the back of Ex. P. 8 and appended his signatures together with the seal of his designation thereunder. Both these witnesses were cross-examined, but again, nothing could be taken out which may induce us to discard the dying declaration Ex. P. 8.

14. The learned amicus curiae assailed the dying declaration Ex. P. 8 on two grounds, viz., (1) it was not recorded in presence of two independent witnesses and (2) it was not recorded ipsissima verba. We have examined both these grounds and find no force in either of them.

15. Ex. P. 8 was recorded by the police officer during investigation. A statement recorded during investigation is not admissible in evidence. But a dying declaration has been exempted from this provision. Section 162(2) of the Cr. P.C. exempts from its operation dying declaration falling within S, 32(1) of the Evidence Act. A dying declaration made to a police officer during the course of investigation is not therefore inadmissible in evidence. The law makes no distinction between a dying declaration recorded by a police officer during investigation and that recorded by a Magistrate. One is as good as the other. It is true that according to Rule 6.22 of the Rajasthan Police Rules, 1965, a dying declaration should be recorded by a police officer in the presence of two or more reliable witnesses unconnected with the police department or with the parties concerned in the case. The emphasis in the rule is the presence of reliable witnesses. Here in the instant case, P.W. 10 Dr. Noor Mohammed is an independent person not connected with the police department or with the parties. He holds a responsible post. He has attested the dying declaration Ex. P. 8 by his endorsement that it was recorded in his presence. We are unable to conceive that Dr. Noor Mohammed will be a tool in the hands of police so as to be a party to fabricate the dying declaration Ex. P. 8. We are, therefore, unable to accept the contention of the learned amicus curiae that dying declaration Ex. P. 8 should be excluded from consideration simply because it was recorded by a police officer during investigation or that two or more responsible persons were not kept present when it was recorded.

16. Coming to the other contention that Ex. P. 8 was not recorded ipsissima verba, we find the contention barren of substance. No doubt, the safe, sound and salutary rule is, so far as possible to record the dying declaration ipsissima verba, i.e. in the exact words of the declarant. But the rule is not rigid or inflexible. A dying declaration cannot be thrown away over-board simply on the ground that it is not ipsissima verba if there is unimpeached evidence that it contains a true and correct record of what the declarant stated. It. is the substance of the declaration which matters and not the language in which it is recorded. A dying declaration does not lose its evidentiary value simply because the very words uttered by the declarant have not been reproduced, it it is established that the dying declaration, as reduced into writing, correctly reproduces what was stated by its maker.

17. In Bakhshish Singh v. State of Punjab : 1957CriLJ1459 , the deceased gave a narration in the Punjabi but it was reduced into writing in Urdu. A contention was raised that the dying declaration, not being ipsissima verba, should not be admitted in evidence and should be given no evidentiary value. The contention was repelled. It was observed by their Lordships:

In the Punjab the dying declarations are taken down in Urdu, though the deceased gave the narrative in the Punjabi and that has been so ever since the Courts were established and judicial authority has never held that to be an infirmity in dying declarations making them inefficacious. As a matter of fact in the Punjab language used in the subordinate Courts and that employed by the police for recording of statements has always been Urdu and recording of the dying declaration in Urdu cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant. This is a wholly inadequate reason for rejecting the dying declaration.

18. Here in the instant case, H.C. Uma Ram (P.W. 13), who recorded the dying declaration Ex. P. 8 deposed that the narration in Ex. P. 8 was written as dictated by the deceased Hindura. He further deposed that Hindura was speaking in his local dialect and that he (witness) wrote it in Hindi script in Ex. P. 8. P.W. 10 Dr. Noor Mohammed deposed that Hindura was speaking in the local dialect which he (witness) could follow. The local dialect in Sirohi district is more or loss akin to Hindi language. Any body whose vernacular is Hindi, can easily follow the local dialect of every part of the State. There is nothing in the statement of P.W. 10 Dr. Noor Mohammed and P.W. 13 H.C. Uma Ram that Ex. P. 8 is not the correct reproduction of narration given by the deceased Hindura. We are, therefore, unable to accept the contention of the learned amicus curiae that as Ex. P. 8 was not recorded ipsissima, verba, it should be excluded from consideration and should not be used against the accused. The contention fails.

19. Now, a dying declaration has its own peculiar features. It is not made on oath, it is not made in the presence of the accused and its maker is not available for cross-examination. It is, thus, all one-sided affair. And yet law attaches considerable importance and special sanctity to a dying declaration. The logic for this rests on the popular belief and legal assumption that truth sits in the lips of a dying man and one who goes with a lie in his mouth does not meet the Almighty and does not get salvation and eternal peace. The conviction of an accused can be safely based on the sole strength of a dying declaration without any corroboration, provided the dying declaration is found trustworthy. Since the dying declaration is a one-sided affair with its own peculiar features, as discussed earlier, it should be closely scrutinized before it is acted upon. If after close scrutiny the dying declaration is believed, no corroboration is required and an accused can be safely convicted on its strength alone.

20. In the instant case, the deceased came out with a story of being hit with an arrow shot by the accused, within a few seconds of the occurrence. Later on he again repeated the same narration in Ex. P. 8 before the doctor. In Hazara Singh v. State of Uttar Pradesh : 1969CriLJ1428 , Karnel Singh was done to death by Hajarasingh. The deceased Karnel Singh made a dying declaration. The dying declaration was assailed and it was argued that the name of the appellant was wrongly dragged in. The contention was repelled and it was observed:

It is hard to imagine that if Hajara Singh is not the real culprit, he should have been named by Karnelsingh.

21. So also, in the instant case if the appellant had not shot an arrow at the deceased, the deceased would not have named him. It is not difficult to conceive that the deceased would leave out the real culprit and substitute the appellant for him. The dying declarations thus, constitute very valuable evidence against the appellant and on their basis it can be held without any risk that the deceased was shot with an arrow by the appellant which ultimately resulted in his death. It was the accused and the accused alone who had caused his death.

22. The last contention raised by the learned amicus curiae is that the accused was wrongly convicted under Section 302, I..P.C. It was argued that no case under Section 302, I..P.C. is made out. The offence made out falls within the ambit of Section 304 Part II, I..P.C. It was urged that only one arrow was shot at the deceased. It was a night. There is nothing to show that the appellant intended to cause his death. The deceased died after five days of the occurrence. There is nothing to suggest that the appellant intended to cause that particular injury which was found on the stomach of the victim and which ultimately caused his death. The learned Public Prosecutor, on the other hand, contended that the deceased was hit on the vital part like stomach. The injury was designated as sufficient in the ordinary course of nature to cause death by the doctor. The offence therefore, is covered by Clause 3rd of Section 300, I..P.C. We have given our careful consideration to the rival submissions.

23. Admittedly, it is a case of single injury. The occurrence took place in the night. The death of the deceased did not take place instantaneously on the spot. The occurrence took place in the night of Jan. 12, 1979 and Hindura breathed his last at about 7.00 A.M. on Jan. 17, 1979 i.e. to say nearly after five days. We are unable to gather from the circumstances that the accused intended to cause that particular injury which was found on the deceased's stomach. Dr. Barmera (P.W. 1), who had performed the postmortem examination, no doubt, stated that the injury caused by the appellant was sufficient in the ordinary course of nature to cause death. But he added that it was so because it pierced the small intestines and the stomach. He did not state that the injury of the kind sustained by the deceased is generally sufficient in all the cases to cause death in the ordinary course of nature. Simply because the death is the result of a particular injury, it cannot be said that the particular injury was sufficient in the ordinary course of nature to cause death. We are, therefore, unable to maintain the conviction of the appellant under Section 302, I.P.C. However, since the death has been caused, the matter must still come at least within the meaning of culpable homicide not amounting to murder. The appellant did the act with the knowledge that by his act he was likely to cause the death of the victim. He can be at least imputed with knowledge that the injury he was going to inflict was likely to cause the death. The matter, therefore, falls within 3rd part of Section 299 and the offence made out is punishable under the II part of Section 304, I.P.C. as culpable homicide not amounting to murder.

24. In the result, we partly accept the appeal of accused Kachhwa. His conviction and sentence under Section 302, I.P.C. are set aside and instead he is convicted under the II part of Section 304, I.P.C. and is sentenced to seven years' rigorous imprisonment with a fine of Rs. 100/-, in default of the payment of fine to further undergo three months' rigorous imprisonment. The period of detention, if any, undergone by him during investigation, enquiry or trial shall be set-off against the term of imprisonment imposed upon him. The appeal shall accordingly stand disposed of.


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