JUDGMENT
M. Chaudhary, J.
1. This is a criminal appeal filed on behalf of the accused appellant from judgment and order dated 8th of June, 1983 passed by III Additional Sessions Judge, Fatehpur in Sessions Trial No. 495 of 1981 State v. Bhullu convicting the accused appellant under Section 302 IPC and sentencing him to imprisonment for life thereunder.
2. Facts giving rise to this appeal as unfolded during the trial in nutshell are that Semiya used to reside with Ghasi at village Korka and from their union one daughter named Bhaganiya was born to them. Bhaganiya, daughter of Ghasi resident of Korka was married with Manna resident of village Taura. Both the villages are situate adjacently as village Taura is only at a distance of one mile from village Korka, and only one pond and fields are in between the two villages. Since Bhaganiya was the only daughter of her parents and her father Ghasi had died Bhaganiya and her husband Manna used to look after the cultivation of Semiya. Both of them used to go to village Korka daily and return back to village Taura in the evening. Since Bhaganiya was the only daughter of Semiya the latter wanted to give her agricultural land and house to her son-in-law Manna. Rajni, married sister of Semiya used to reside in her close neighbourhood and she had a son named Bhullu. Bhullu wanted to take the agricultural land of his mausi Semiya. He used to quarrel with them now and then. During the night between 23rd and 24th of August, 1978 at about midnight time Bhullu gave knife blows to Semiya who was in her house all alone and as she cried Bhullu ran away after giving her knife blows. Hearing the shrieks of Semiya one Sarju, Parsadi, Ram Khilavan and some others rashed to the scene of occurrence and saw that Semiya sustaining injuries was lying out of the door of her house and her intestine protruding out of the wounds. The co-villagers lifted her and made her lie on a cot in the chaupul. On being enquired she told that Bhullu gave her knife blows. She asked the co-villagers collected there to fetch her son-in-law Manna and daughter. Then Parsadi, Shiv Charan and Sarju went to village Taura and informed Manna and his family members about the incident. Immediately Manna long with his wife Bhaganiya and other family members rushed to the house of Semiya and saw that injured Semiya was lying on a cot in chaupal. and she had sustained injuries on her abdomen. On being inquired by her daughter and son-in-law she told them that Bhulla jumped from the roof and overpowered her and pressed her mouth with his one hand and gave knife blows to her with right hand. Since it was rain season, in he morning Manna and Bhaganiya alongwith some of the co-villagers took Semiya on a cot to police station Sultanpur Ghosh where Manna lodged a FIR of the occurrence with the police at 10:00 a.m. Police station Sultanpur Ghosh was situate at a distance of some eight miles from village Korka. The police registered the crime against the accused under Section 307 IPC and made entry regarding registration of the crime in the GD. Immediately SI Chhotey Singh Panwar to whom investigation of the crime was entrusted recorded statement of injured Semiya and sent her to Khaga Hospital with constable Babu Singh for medical examination. It appears that aster going a little distance she succumbed to the injuries sustained by her in the incident and then the constable returned back to the police station. The investigating officer who proceeded to village Korka got information on the way from CP Awadh Narain regarding death of Semiya and he returnee back to the police station. He drew inquest on the dead body of Semiya and handed over the dead body in a sealed cover alongwith necessary papers to constable Babu Singh and village chawkidar Ram Avtar for being taken for its postmortem. Then the crime was altered under Section 302 IPC. Thereafter he recorded statements of witnesses namely Manna, Bhaganiya, Ram Khilavan and Sarju. Next day the investigating officer went to the place of occurrence inspected the site and prepared its site plan map. He also collected bloodstained earth and simple earth from the scene of occurrence and prepared its memo.
3. Autopsy conducted on the dead body of Semiya by Dr Som Sharma, Medical Superintendent District Hospital, Fatehpur on 25th of August, 1978 at 1:00 p.m. revealed below noted ante mortem injuries on the dead body:
1. Penetrating wound 11/4″ x 1/2″ x abdominal cavity deep on the abdomen in epigastric region moved towards left side, margins cleancut. It is spindle shaped, portion of stomach protruding out of the wound.
2. Penetrating wound 11/4″ x 1/2″ x abdominal cavity deep on right side abdomen just below costal margins of chest 4″ right to injury No. 1 Margins clean cut. It is spindle shaped Portion of omentum protruding out of the wound.
On an internal examination peritoneum was perforated at two places and abdominal cavity contained one litre blood and partially digested food. Stomach was perforated with incised wound 1 cm x 1/2 cm x whole wall deep on the front in middle part. Small intestine was empty. Liver was perforated over left lobe with incised wound 1″ x 1/4″ x whole liver tissue deep. Margin clean cut.
The doctor opined that the death was caused due to shock and hemorrhage as a result of ante mortem injuries about one and half day ago.
4. The investigating officer searched for the accused but in vain. On 5th September, 1978 investigation of the crime was entrusted to station officer Sher Bahadur by the order of Superintendent of Police. Accused Ramesh surrendered in the Court of Chief Judicial Magistrate, Fatehpur on 9th of September, 1978.
After completing investigation the police submitted charge sheet against the accused.
5. After framing of charge against the accused the prosecution examined Manna (PW 1), Smt Bhaganiya (PW 2), Sarju (PW 4) and Ram Khilavan (PW 5) in its support. PW 7 HC Chet Ram Sharma who recorded FIR as told by Manna (PW 1) orally and made entry regarding registration of the crime in the GD proved the same (Ext ka 4). He also proved entry regarding alteration of crime (Ext ka 13). PW 3 Dr Som Sharma who conducted autopsy on the dead body proved the post mortem report (Ext ka 2). PW 6 SI Chhotey Singh Panwar who investigated the crime initially proved the police papers including the site plan map (Ext ka 15).
6. The accused pleaded not guilty denying the alleged occurrence altogether attributing his false implication in the case to enmity. He stated that when his mausi Semiya started residing with Ghasi his mother severed all relations with her. He also stated that his terms with Tunku were strained over the land lying in front of his house and Ram Khilavan (PW 5) was behnoi of Tunku.
On an appraisal of evidence on the record the learned trial judge held the accused guilty of the charge levelled against him and convicted and sentenced him as stated above.
7. Feeling aggrieved by the impugned judgment and order the accused appellant preferred this appeal for redress.
8. We have heard Sri Subhashish Banerjee, learned counsel for the accused appellant and Sri Karuna Nand Bajpayee, learned AGA for the State respondent.
9. After going through the impugned judgment and the record we find no good reason to differ from the findings recorded by the court below. There is no eye witness of Semiya’s murder in this case and only evidence is the statement of Smt Semiya recorded by SI Chhotey Singh Panwar under Section 161 of Code of Criminal Procedure and the dying declaration made by her to Ram Khilavan (PW 5) and her daughter Smt Bhaganiya (PW 2) and son-in-law Manna (PW 1).
10. Regarding the alleged dying declaration made by Smt Semiya to SI Chhotey Singh Panwar, the investigating officer we are reluctant to place any reliance thereon for the following reasons: PW 7 HC Chet Ram Sharma deposed in his cross-examination that on account of the injuries sustained by her she was so much shocked that she was unable to speak distinctly and therefore the report was not taken down at her instance. A perusal of the said dying declaration recorded by SI Chhotey Singh Panwar goes to show that it is quite detailed one. From a perusal of the statement of PW 2 Bhaganiya it appears that fatal injuries would have been caused to her at about 11:00 p.m. or so in the night and some twelve hours after receiving the fatal injuries she might not be in a position to give such a detailed statement to the investigating officer at the police station particularly when she was taken to the police station on a cot passing a distance of about eight miles and died within half an hour thereafter. The alleged dying declaration of Smt Semiya recorded by the investigating officer is therefore left out of consideration.
11. Now remains the testimony of PW 1 Manna, PW 2 Bhaganiya, PW 4 Sarju and PW 5 Ram Khilavan. PW 4 Sarju stated in his examination-in-chief that Semiya and Rajni were real sisters and both were wdows; that agricultural land of Semiya was used to be cultivated by her son-in-law Manna, and Semiya wanted to give her land and house to her daughter and son-in-law, that the alleged night she was given fatal blows and on hearing the hue and cry he rushed to the house of Semiya and saw that sustaining the injuries at her abdomen she was lying injured out of the door other house and intestine was protruding out of the wounds and that he did not see the assailant there. He further stated that since Semiya was unconscious she did not state anything before him. He was declared hostile and cross-examined by the prosecution with the permission of the Court but to no use. PW 4 Ram Khilavan deposed that on hearing the hue and cry of Semiya he rushed towards the house of Semiya and saw that she was lying injured out of the door of her house sustaining injuries at her abdomen and intestine was protruding out; that he with the help of some of the co-villagers tied the wounds with a cloth and then lifted her and made her lie on a cot in the chaupal and then he asked her if she had seen the assailant or recognized him she replied that Bhulla had given her blows and that then Shiv Charan, Parsadi and Sarju went to village Taura to inform her daughter and son-in-law and he remained present near Semiya till her daughter and son-in-law alongwith others reached there and upto that time Semiya was conscious and responding. He honestly stated in his cross-examination that he did not see any person giving blows to Semiya nor did he see any person running away from her house. PW 2 Smt Bhaganiya stated that since she was the only child of her parents she alongwith her husband used to go daily to village Korka and used to look after the cultivation of her mother and in me evening she and her husband used to go back to their village Taura; that Bhullu is the son of her real mausi Rajni who is widow and Bhullu wanted to take the agricultural land of her mother but her mother did not want to give the same to him and that was the bone of contention. She further stated that in the noon of fateful day her mother was cutting grass with the spud at the mendh and Bhullu asked her not to cut the grass as there were mango trees which resulted in a quarrel between them and he hurled abuses to her mother telling that he would kill her in the night; that in the evening she and her husband went back to their village Taura; that about 12:00 in the night Sarju, Paisadi and Shiv Charan came to her house from village korka and told that Bhullu had caused knife injuries to her mother; that then she alongwith her husband and other family members went to the house of her mother and saw that she was lying injured on a cot and that all the gold and silver ornaments which she used to put on were intact on her body. She further stated that there were injuries at her abdomen and intestine was protruding out and Khichdi which she had taken also came out and there were bloodstains on the wall where she was assaulted. She further stated that her mother told her that she had gone to case herself and after taking water she was chewing tobacco that Bhullu jumped from the roof and overpowered her and pressed her mouth with one hand and gave knife blows to her and that she asked him not to kill her. PW 1 Manna, son-in-law of Semiya corroborated her stating likewise. All the three were subjected to rambling and gruelling cross-examination but nothing substantial could be elicited therefrom to shake their credibility. A perusal of the site plan map goes to show that Bhullu resided in close neighbourhood of Smt Semiya. If Bhullu had not assaulted Semiya, on her shrieks he must have reached at her house when the other persons resided in her close neighbourhood rushed to her house. Relations between two sisters may not be cordial but still Bhullu knew fully well that his mausi Semiya was residing all alone in his close neighbourhood and it was but natural for him to run to her house on her shrieks; but he was not available to the investigating officer till he surrendered in the court of Chief Judicial Magistrate on 9th of September, 1978. Soon after the incident he ran away as he was not seen there after he assault. This very fact also points towards his guilt. Further, statement of PW 2 Bhaganiya is quite spontaneous and natural. Her statement stands corroborated with medical evidence. She stated that in the night when she alongwith her husband and other family members came to see her mother she was lying injured on a cot; that there were injuries at her al iomen and intestine was protruding out and khichdi which she had taken also came out. A perusal of the post mortem report goes to show that portion of stomach and omentum were protruding out of the wounds and stomach contained partially digested food. PW 2 Bhaganiya further stated that her mother told her that she had gone to case herself and after taking water she was chewing tobacco that Bhullu jumped from the roof and overpowered her and pressed her mouth with one hand and gave knife blows to her and that she asked him not to kill her. PW 3 Dr Som Sharma who conducted autopsy on the dead body of Semiya stated that immediately after receiving the injuries she would not have gone in a state of shock because no big blood vessel was cut; that she could have been alive for about 10-11 hours after receiving juries and would have been capable of speaking well and that it all depended on her viability and will power also. It has come in evidence that after receiving the injuries she chased the accused assailant upto sixty paces and the fell down at the western southern corner of her house (Ext ka 15). It goes to show that she was a lady of strong willpower.
12. Clause (1) of Section 32 of the Evidence Act makes the statcmem of the deceased admissible which is generally described as ‘dying declaration’. Dying declaration essentially means statement made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death by itself is guarantee of truth of the statement of the person making declaration regarding circumstances leading to his death. Therefore, We are of the considered opinion that dying declaration made by Semiya to her next door neighbour Ram Khilavan and then to her daughter Bhaganiya and son-in-law Manna is truthful, genuine and voluntary and can form sturdy basis for conviction of accused Bhullu.
13. For the foregoing discussion, we find no good reason to interfere with the findings recorded by the learned trial judge against the accused appellant and interfere with the impugned judgment and order convicting him under Section 302 IPC and sentencing him to imprisonment for life thereunder.
14. The appeal is dismissed and the impugned judgment and order convicting accused Bhullu under Section 302 IPC and sentencing him to imprisonment for life is hereby affirmed. Accused appellant Bhullu is on bail. His bail is hereby cancelled. Chief Judicial Magistrate Fatehpur is directed to get accused Bhullu arrested and send him to jar to serve out the sentence imposed upon him.
15. Office is directed to send copy of the judgment and record of lower court to the court below immediately for ensuring compliance under intimation to this Court within two months from today.