Hon'ble Ravindra Nath Mishra-II,J.
(Delivered by Hon'ble Ravindra Nath Mishra-II,J.)
1. Three separate appeals have been filed against Judgment dated 13.08.2001 passed by Addl. Session Judge, Court No.3, Lakhimpur Kheri in Sessions Trial No. 206 of 1990 under Sections 302/307/452/325 & 323 Indian Penal Code 1860 (here-in-after referred as Code for brevity) whereby accused Sirdar son of Natha, resident of Bhadura, Police Station Phardhan District Lakhimpur Kheri has been acquitted and accused Rahmat son of Fakira, resident of Village Bhadura, Police Station Phardhan, District Lakhimpur Kheri and accused Jaan Mohd. son of Subhan, resident of Birampur Police Station Mitauli, District Lakhimpur Kheri have been convicted under sections 323/325 & 452 of the Code. State has filed Criminal Appeal No. 440 of 2004 to set aside the judgment acquitting accused Sirdar and to enhance the sentence under sections 302/307/452/323 & 325 of the Code against respondent-accused Rahmat and accused Jaan Mohd. respectively. Simultaneously Criminal Appeal No. 784 of 2001 and 866 of 2001 have also been filed by accused Rahmat and Jaan Mohd. against their conviction. Since all the three appeals have been filed against one and the same judgment, they all are taken up together for disposal.
2. Brief facts as revealed from First Information Report (Exhibit Ka-01) are that on 23.5.1989 one Gobare son of Kadhile resident of Kotva, District Lakhimpur Kheri was making "Kothari" in the neighborhood of his son-in-law Siddhique in Village Bhadura for his residence. At about 4.30 p.m. on the same day respondent-accused Rahmat son of Fakira, Fakira son of Abdulla, Sirdar son of Natha and Jaan Mohd. son of Subhan came there and started giving him beating. Accused Rahmat and Jaan Mohd. were armed with "kanta" and accused Fakira and Sirdar were having "lathi" in their hands. On his hue and cry Harun Khan son of Siddhique reached there. Gobre ran away into house of Munshi to save himself, but accused chased him there also and assaulted him. When his wife Haffizan tried to save him they also gave beating to her also. The accused persons were inquiring about his daughter Zaibunnisha and son-in-law Siddhique. When Gobare told him that Zaibunnisha and Siddique had gone to Sallihabad bazar to consult doctor they left him and went to Sallihabad bazaar. Accused persons found them near old Crusher at about 5 o'clock in the evening, while Siddhique and Zaibunnisha were coming back through lakhimpur-mohammadi road. Accused persons assaulted them there with "kanta and "lathi". Witnesses Mustafa, Mohd. Raza-father of Siddhique, Khalil, Callector singh and many others, who were there at "Crusher" came in and saved them. Siddhique and Fakira had old enmity due to some property. Due to this animosity accused persons had attacked them with intention to kill. F.I.R. was lodged by Gobare verbally on 23.5.1989 at 8.20 p.m. in police station Phardhan, District Lakhimpur Kheri and medical examination of injured persons were conducted by Dr V. K .Dixit on the same day in district hospital Kheri and injury report was prepared (Exhibit Ka-13) in which following injuries were found on the body of Smt. Zaibunnisha:
" 1. Lacerated wound 7 cm x 1.5 cm x Scalp deep on left side of head 12 cm above the left ear. Clotted blood adhere in an around the wound.
2. Abrasion Multiple in an area of 9cm x 3cm on back of left elbow & upper part of left forearm.
3. Abrasion 2cm x 1.5 cm on top of left shoulder.
4. Contusion 5 cm x 2 cm on back of Right Arm 17 cm below to top right shoulder Red Around the swelling 12 cm x 8 cm.
5. Contusion 5 cm x 2 cm on outer aspect of left thigh 15cm above the left knee jt.
6. Complains of plain in right thigh but mark of external injury not visible."
3. Gobare was also medically examined and following injuries (Exhibit Ka-15) were found on his body:
" 1. Traumatic Swelling 5.5 cm x 3 cm on top of head 17 cm above the root of neck.
2. Contusion with Abrasion 5 cm x 2 cm on back of left forearm 15 cm below the left elbow Jt.
3. Abraded Contusion 7.5 cm x 2 cm on back of Right forearm 15 cm below the Right elbow Jt. Around the Swelling 12 cm x 8 cm colour Red.
4. Lacerated wound 3 cm x 1.5 cm x bone deep on front of Right leg 18 cm below the Rt. Knee.
5. Abrasion 2 cm x 0.5 cm on inner side of Rt. Ankle Jt.
6. Complains of pain in left leg and chest but mark of external inj. not visible."
4. Siddique had also injuries on his body(Exhibit Ka-16), which may be described as follows:
" 1. Lacerated wound 8 cm x 1 cm x bone deep on left side of head 13 cm above the left ear blood oozing.
2. Lacerated wound 7 cm x 0.8cm x bone deep on left side of head on back 13 cm above posterior to left ear.
3. Lacerated wound 3.5 cm x 0.4 cm x muscle deep on back of left fore arm 8 cm below the left elbow Jt.
4. Contusion 5 cm x 2 cm on back of left elbow Jt. Red.
5. Traumatic Swelling 7 cm x 4 cm on back of left hand.
6. Abrasion 2.5 cm x 1 cm on from of Right leg 27 cm below Rt knee.
7. Multiple contusion in an area of 25 cm x 22cm on back (illegible) scapular region of back on both sides."
5. Following injuries were found on the body of Smt. Haffizan(Exhibit Ka-14):
" 1. Lacerated wound 1.5 cm x 0.4 cm x muscle deep in between the web in between the left thumb of left index finger.
2. Traumatic swelling 5 xm x 3 cm on back of left hand 2 cm below the left wrist."
6. Injured persons were admitted in District Hospital.
7. Investigation was entrusted to Sub Inspector R.B. Mishra, who recorded statement of CC Ram Briksha Yadav, scribe of First Information Report and General Diary of Police Station. Next day he also recorded statement of witnesses Harun Khan, Hafizan and Khalil and thereafter he inspected the place of occurrence and prepared site plans (Exhibit Ka-3) and (Exhibit Ka-6). The injuries of Gobare were serious in nature, therefore, he was kept in Hospital till 14.6.1989 when he died of Septicemia in hospital. Inquest report (Exhibit Ka-7). was prepared on 14.6.1989 at about 14.20. Post-mortem (Exhibit Ka-18)was conducted on 15.6.1989 thereafter the case was converted into Sections 302/34, 307, 325 & 452 of the Code. Having found prima facie case against accused persons, charge-sheet (Exhibit-Ka 12) was submitted under Sections 307/ 325/302/34 & 452 of the Code.
8. Accused Fakira had died after submission of charge sheet Hence trial proceeded only against accused Rahmat, Sirdar and Jaan Mohd and charges under Sections 307/302 read with 34 & 452 of the Code. were framed against them to which they denied and claimed to be tried.
9. In order to prove charges against accused persons, prosecution examined P.W.-1-Zaibunnisha, P.W.-2 Mushtak, P.W.-3, Haffizan, P.W-4 Harun Khan, P.W.-5 Sub Inspector Shyam Raj Yadav, P.W.-6 Dr. V.K.Dixit, P.W.-7 Dr. A.K.Srivastava.
10. After conclusion of prosecution, accused persons were examined under Section 313 Criminal Procedure Code in which they pleaded false implication and had stated that due to enmity witnesses have given statement. No witness has been examined on behalf of accused persons.
11. After hearing submissions of both the parties and appreciating the evidence on record, trial Court found sufficient evidence to convict accused Rahmat and Jaan Mohd. under Sections 323, 325 & 452 of the Code but acquitted accused Sirdar of the charges levelled against him on the ground that prosecution has failed to prove charges against him beyond reasonable doubt. Accused persons were sentenced to one year rigorous imprisonment under Sections 323 of the Code., five years rigorous imprisonment and fine to the tune of Rupees 1,000/- each and in default of payment of fine two months additional rigorous imprisonment under Section 325 of the Code and three years rigorous imprisonment and fine of Rs. 500/- and in default one month rigorous imprisonment under Section 452 of the Code. Trial court found no case under Sections 302 & 307 of the Code against accused persons.
12. Feeling aggrieved by the judgment passed by the trial court, State has filed Criminal Appeal No. 440 of 2004 to set aside judgment of acquittal of accused Sirdar and to enhance the sentence passed by trial court against accused Rahmat and Jaan Mohd. and to convert the same under Sections 302 & 307 of the Code Accused Rahmat and Jaan Mohd also being aggrieved by the judgment, have filed Criminal Appeal No-784 of 2001 and Criminal Appeal No-866 of 2001 respectively against their conviction under section 323/325 & 452 of the Code.
13. Learned A.G.A., Smt. Smiti Sahay has argued that in an appeal against acquittal, this appellate court has full power to review, re-appreciate and re-considered the evidence available on record; that trial Court has committed grave error in acquitting accused Sirdar, whereas on the basis of same evidence respondent-accused Rahmat and Jaan Mohd. have been convicted under Sections 323/325 & 452 of the Code. She has also argued that trial Court has committed error in concluding that charges under Sections 307 and 302 of the Code are not proved whereas evidence available on record was sufficient to hold accused persons guilty of the charges under Sections 307/ 302 & 452 of the Code. The trial court has failed to appreciate the same and has caused injustice by not considering the same. The trial Court did not consider the fact that the statement made in First Information Report lodged by injured Gobare, who later on succumbed to Septicemia resulted from ante-mortem injuries comes within category of his dying declaration. The trial court committed error in considering only the cause of death as mentioned in the post-mortem report.
14. Per contra, the learned counsel for the accused has argued that the trial court has rightly held that charges against accused Sirdar could not be proved by the prosecution beyond reasonable doubt; the trial court cannot interfere with the judgment of acquittal when on the basis of evidence available on record Conclusion drawn by trial court is also plausible. He has also argued that trial has appreciated the evidence on record in arbitrary manner to come to the conclusion that respondent-accused Rahmat and Jaan Mohd. are guilty under Sections 323, 325 & 452 of the Code; there is no evidence on record to prove that accused persons had any intention to kill deceased Gobare; that it is not proved that death of Gobare was caused by septicemia developed out of ante-mortem injuries; motive for the incident is also not proved; no independent witness supported the prosecution case.
15. Time and again it has been propounded by Hon'ble Apex Court that the appellate court while dealing with appeal against acquittal should not interfere in the judgment of acquittal as the principle of criminal jurisprudence with regard to presumption of innocence of accused is further strengthened by their acquittal. The golden thread which runs though the web of administration of justice and criminal jurisprudence is where two views are possible on the evidence adduced in the case, one pointing towards guilt of the accused and the other to his innocence, the view favouring accused person should be adopted. Acquittal of the guilty is no less than conviction of an innocent. It also results in miscarriage of justice. Where admissible evidence is ignored acquitting accused, a duty is cast upon the trial court to re-appreciate the evidence for the purposes of ascertaining as to whether any of the accused really committed an offence. Prevention of miscarriage of justice is the paramount consideration of the Court. Keeping in view the above principle of presumption of innocence of accused and prevention of miscarriage of justice Hon'ble Apex Court in Sidhartha Vashisht @ Manu Sharma Vs. State (Nct of Delhi) 2010 (6) SCC page 1 has culled down certain guidelines in following terms :
"(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
vii. When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed."
16. In the backdrop of above principles laid down by Hon'ble Apex Court, it is to be examined whether there is any compelling and substantial reasons for interference in acquittal of accused.
17. Genesis of incident is said to be enmity over some property between Siddhique, son in law of Gobre and accused Fakire. Learned A.G.A. has pointed out towards statement of P.W.-1 Zaibunnisha where she has disclosed the reason for enmity. She has stated that her husband was three brothers one of them Noor Mohd. Died living behind his window Khiarunisha who after his death entered into Nikah with another brother Dost Mohd. Khiarunisha had tranferred certain property inherited by her from Noor Mohd. in favour of Siddhique through power of attorney holder Mordhawaj, but later on Khiarunnisha herself sold the same land to Rahmunnisha, who on her turn sold it to accused Rahmat. Therefore, they both became enmical. The enmity over property is also disclosed in First Information Report (Exhibit Ka-1). This fact does not appear to have been denied by the accused persons. They have not said anything regarding this sale of property in their statement recorded under Section 313 Criminal Procedure Code. Nothing has been suggested in cross examination of witnesses. Hence the trial court has committed no error in concluding that the parties were on inimical terms.
18. In order to bring home the charges against accused persons, the prosecution has examined P.W.-1 Zaibunnisha, daughter of deceased Gobare, P.W.-2 Mustaq, an independent person, P.W.-3 Haffizan and P.W.-4 Harun Khan who are wife and son of deceased Gobre respectively. Out of these witnesses P.W.-1 Zaibunnisha, P.W.-3 Haffizan are injured witnesses. P.W.-3 Haffizan has stated on oath that on fateful day when deceased Gobare was getting foundation of his house laid on the land towards South of Hata of Munshi. she heard cry of her husband, on which she rushed to the place of incident where she saw accused Rahmat and Jaan Mohd. armed with "kanta" and Fakira and Sirdar armed with "lathi" attacking her husband Gobare. Her husband Gobare in order to save himself rushed into house of Munshi, but there also accused persons caused severe injuries with their arms. When P.W.-3 Haffizan tried to save him, they attacked her in which she suffered injuries. Her injury report Exhibit Ka-14 indicates one lacerated and one traumatic swelling on her body. As per Injury report of deceased Gobare (Exhibit Ka-15) One traumatic swelling, contusion with abrasion, abraded contusion, lacerated and one abrasion wound were found on the body of deceased Gobare. Learned Additional Government Counsel has argued that special status has been conferred on an injured witness in law. Haffizan, being injured, her presence on the place of occurrence, cannot be doubted. For this contention reliance has been placed on Jodhan Vs. State of M.P. 2015 CRLJ page 3291--
"22. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt- guarantee of his presence at the place of occurrence."
19. Thus the testimony of P.W.-3 Haffizan is not liable to be disbelieved. Her statement is also supported by P.W.-4, Harun Khan, who is son of injured Zaibunnisha. He has supported the case of prosecution that accused Rahmat, Jaan Mohd. and Ali Ahmad who were armed with "kanta" and "lathi" inflicted injuries on the body of Gobare, and when he rushed in the house of Munshi in order to save himself, they chased him there also and caused injuries in the house of Munshi. when Haffizan tried to save him accused persons attacked her also. Though P.W.-4 Harun Khan is not an injured witness, but there is nothing in his statement to disbelieve his testimony.
20. Similarly Zaibunnisha and Siddique daughter and son-in-law of deceased Gobare were also attacked with "kanta" and "lathi" by accused persons near "old crusher" when they were coming back from Salihabad market. Zaibunnisha suffered injuries on her body. Injuries were found on her body as per injury report (Exhibit Ka-13). Her statement is also supported by an independent witness P.W.-4 Harun Khan, who had reached the place of occurrence near "old crusher". Though P.W.-2 Mustaq was declared hostile by the prosecution as he did not support the prosecution in his cross examination, but learned A.G.A. has argued that he had supported the prosecution case in his examination-in-chief. But later on when he was called for cross-examination after lapse of considerable period of time he became hostile under pressure of accused persons. Thus she has argued that examination of chief of PW-2 Mustaq which supports prosecution version can be relied upon to prove guilt of the accused. She has further argued that even testimony of hostile witness cannot be brushed aside in toto.
21. Witnesses may be categorized into three distinct categories. They may be wholly reliable. Similarly there may be witnesses who can be considered wholly unreliable. There is no difficulty in placing reliance or disbelieving his evidence when an evidence is wholly reliable or wholly un-reliable, but difficulty arises in case of third category i.e. where witness is neither wholly reliable nor wholly unreliable. Hostile witness ordinarily falls in category of those witnesses who are neither wholly reliable nor wholly un-reliable. She has relied on judgment Hon'ble Apex Court in in Khujji @ Surendra Tiwari Vs. State of M.P. AIR 1991 SC page 1853 has held that:
"The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
22. The term "hostile witness" does not find place in Evidence Act 1872 (here-in-after referred as Act of 1872 for brevity). It is a term borrowed from English Law. Though in English Law to allow a party to contradict its own witness was not acceptable view. The theory of contradicting its own witness was resisted on the ground that party should be permitted to discard or contradict his own witness, which turns unfavorable to party calling him, however, this rigidity of rule was sought to be relaxed by evolving a term "hostile" or "un-favourable witness" in common law.
23. The Act of 1872 merely, provides by enacting Section 154 of the Act of 1872 that -
"the Court may, in its discretion, permit the person who calls a witness to put any question to him, which might be put in cross examination by the adverse party".
Sub-Section (2) of Section 154 of Act of 1872, further provides that "Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of evidence of such witness".
24. Thus discretion is vested in Court to permit a person to put such question, which may be put by adverse party, if Court deems it appropriate. Thus the term "hostile witness" has been borrowed from English Law and developed in through case Laws.
25. The principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything) has no application in India. It is duty of Court to separate grain from chaff. Keeping in view the above principles Hon'ble Apex Court . In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, had held that "even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus (false in one thing, false in everything) has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, truth is the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well."
26. Similarly in Paramjeet Singh v. State of Uttarakhand; AIR 2011 SC 200 also Hon'ble Apex Court has propounded that--
"When the witness was declared hostile at the instance of the public prosecutor and he was allowed to cross examine the witness furnishes no justification for rejecting embloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony".
27. Perusal of statement of P.W.2-Mustaq, shows that Pw-2 has fully supported the prosecution story when he was examined on 17.3.1994 but on that day accused did not cross examined him and his cross examination was adjourned for 02.08.1995. On 2.8.1995 i.e after a lapse of about a year and half, he was declared hostile when he was cross-examined. There can be no two opinion that this witness turned hostile on account of pressure exerted upon him by the accused persons. He refused to state truth about the occurrence, and therefore, he was declared hostile in his cross examination. In his cross-examination he also refused to have witnessed the occurrence; that he ever gave any statement under Section 161 Cr.P.C., but surprisingly neither prosecuting officer nor the Court asked him about the statement given by him in his examination-in-chief. He should have been cross examined on the point as to under what circumstances he had given statement in the Court on 17.3.1994. He was required to submit his explanation regarding his previous statement given in examination-in-chief supporting the prosecution case.
28. We feel pain to observe that our present system of trial has turned most of the trial Court judges into umpires and despite having sufficient power to ask questions to the witnesses in order to find out truth, most of them do not ask questions to the witnesses to shift the grain from the chaff. Practice of leaving witnesses to the Advocates, when a witness becomes hostile, is not un-common in the trial Courts. Trial Court judges just sit and watch like an umpire. Time and again Hon'ble Apex Court has reminded that a Judge does not preside over a criminal trial merely to see that no innocent man is punished, but a Judge also presides to see that a guilty man does not escape. Both are public duties, which the Judge has to perform. Therefore, the trial Court must shed their inertia and must intervene in all those cases where intervention is necessary for the ends of justice.
29. Coming to the present case, perusal of the statement of P.W.-2 makes it evident that he changed his statement under the pressure exerted by accused persons his statement given in examination-in-chief must be taken to be truthful and reliable. Evidence of such witness cannot be treated as effaced or washed off the record altogether, but acceptable to the extent his version is found to be dependable on a careful scrutiny thereof.
30. No explanation of injuries on the person of injured witnesses have been given. It has been suggested to the witnesses that Zaibunnisha, Haffizan, Goabre and Siddique suffered injuries in a robbery case. Mere suggestion is not sufficient. Moreover it itself indicates a false defence. All the witnesses being the close relatives, it is beyond apprehension that they instead of naming out real culprit, they would falsely implicate the accused persons knowing them innocent.
31. Learned counsel for the appellant accused Rahmat and Jaan Mohd has further argued that the accused persons are alleged to have inflicted injuries with "Kanta and lathi". kanta is a sharp aged weapon but no injury was found on the body of injured which can be said to have been caused with sharp edged weapon. We have gone through the impugned judgment and evidence on record. The trial court relying on the testimony of witnesses has concluded that the accused had attacked Gobre, his daughter and his son in law with other side i.e blunt side of "kanta". Therefore no sharp edged injury has been caused. Looking into the totality of statement of witnesses, the Conclusion drawn by the trial court cannot be said to be unreasonable. Hence I do not find any error in arriving at conclusion of guilt of accused appellant.
32. However trial Court relying on the statement of P.W.-3 Haffizan that she did not see accused Sirdar on the place of occurrence has acquitted accused Sirdar. Learned A.G.A. has argued that this finding of trial court suffers with perversity. Trial Court overlooked the statement of P.W.-1 Zabunnisha, who has stated in her statement that Sirdar was also there, but he was empty handed and he did not cause any injury to her or her husband. As has been seen in proceeding paras while dealing with ambit and scope of power of interference by appellate Court in judgment against acquittal, the finding of trial Court can be reversed only when finding suffers with perversity. The word "perversity" in terms as understood in law has been defined to mean "against the weight of evidence" i.e. to say when conclusion drawn by trial Court is against material available on record and unreasonable then there is scope of interference. It is established principle of law of evidence that statement of witness is to be read as a whole and conclusion should not be drawn only by picking up a single sentence of the statement of a witness. P.W.-3 Haffizan herself in the examination-in-chief has stated that Sirdar came along with other accused, he was armed with 'lathi". She has also stated that Sirdar also inflicted injuries to Gobare and to her. It is admitted case of prosecution that witness Haffizan did not go to "old crusher", which is second place of occurrence. P.W.-1 Zaibunnisha in her statement has stated that Sirdar was also there, but did not cause any injury to her or her husband. From this statement, presence of accused Sirdar on the second place of occurrence cannot be doubted. He was present on the second place of occurrence, but he did not cause any injury. Even if it is believed that Sirdar did not cause any injury to the injured persons his presence on the place on occurrence is not doubtful. When he was present along with other co-accused, his common intention with other co-accused is well established. Apart from this witnesses P.W.-3 Haffizan and P.W.-4 Harun also have proved presence of accused Sirdar at the first place of occurrence and also his participation in the crime. They have stated that on fateful day Gobre was constructing house near house of Munshi when she heard his cry, she reached there and saw accused persons attacking her husband with "lathi" and "kanta" when her husband rushed into the house of Munshi to save himself, accused persons chased him there also. When PW-3 tried to save her husband, she was also attacked by them. P.W.-4 Haroon has also supported the statement of PW-3. He has also witnessed the incident. Thus the trial court has overlooked the material evidence available on record with regard to guilt of accused Sirdar and to that extent conclusion drawn by the trial Court suffers with patent infirmity and perversity and therefore, liable to be reversed.
33. On the point of enhancement of sentence in Appeal No. 440 of 2004, learned A.G.A. has argued that Gobare has died due to Septicemia out of ante-mortem injuries inflicting by respondent-accused, therefore, respondent-accused should be held guilty under Section 302 I.P.C.. Trial Court has committed grave error in convicting respondents Rahmat and Jaan Mohd. only under Section 323, 325 & 452 of the Code.
34. Repelling the argument of learned A.G.A., It has been argued on behalf of respondent while inflicting injuries on the body of Gobare on the date of incident, had no intention to kill him. Before we proceed with the merit of the case, Section 299 of the Code. must be looked into:
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
Thus in terms of Sections 299 I.P.C. culpable homicide is described as an act of causing death:
a. With the intention of causing death b. With the intention of causing such bodily injury as is likely to cause death c. With the knowledge that such an act is likely to cause death.
35. Section 299 of the Code. makes it clear that emphasis is on the expression "intention" and "knowledge". Once an offence is caused in any of the three stated manners, noted above, it would be "culpable homicide".
36. Now reverting to the facts of the case, it is established from records that Gobare has died due to Septicemia. Septicemia is an infection of the blood also knows as bacteria or blood poisoning. The incident had occurred on 23.5.1989 and Gobare has died on 14.6.1989. Gobare was examined medically on 23.5.1989. His injury report (Exhibit Ka-15) shows that there was one traumatic swelling on the top of head, two contusions were on forearm. There was one lacerated wound below right knee and one abrasion on right Ankle. The injuries shows that there was only one open wound from where infection can be said to have developed. The post-mortem (Exhibit Ka-18) also mentions one septic wound on the same place where open wound was caused. Bedsore were also all over the back. Thus the only source from where Septicemia can be said to have developed is the open wound on Right leg. The prosecution has not adduced any evidence that Gobare was in Hospital till his death. There is no whisper of evidence that the secondary infection was not hospital acquired, however, presuming that Septicemia was caused due to injuries inflicted by respondent-accused. The question arises whether there was any intention to kill on the part of the respondent-accused. The nature of injuries found on the body of Gobare is not sufficient to indicate this intention on the part of the respondent-accused.
37. Evidence led by prosecution also does not prove intention of killing Gobare. P.W.-3 Haffizan, who is widow of Gobare has stated that respondent-accused were inquiring about Siddique and Zaibunnisha and as soon as Gobare told them that his son-in-law and her daughter Siddique and Zaibunnisha respectively had gone to Salihabad market to consult doctor, respondent-accused left him and proceeded to Salihabad market. It has also come in the statement of P.W.-3 Haffizan that accused Rahmat had "kanta", but he did not assault with reserved side of Kanta i.e blunt side of "kanta" and with "lathi". Had they intended to kill Gobare, they would have used sharp side of "kanta" causing severe injuries. It has also come in evidence that accused attacked Gobre just to know where-about of Siddique and Zaibunnisha and the moment Gobre told them about Siddique and Zaibunnisha, they left him and went to Salihabad market. Thus evidence pertaining to intention of accused to kill Gobare is evidently lacking. For the above reasons, we do not find any substance in the argument of learned A.G.A. that respondent-accused are guilty of offence under Sections 302 or 307 of the Code.
38. Learned A.G.A. has also argued that the First Information Report was lodged by Gobare, which contains his statement as to cause of his death or it can be said that as to circumstances of the transaction, which resulted in his death, therefore, First Information Report should be treated as dying declaration under Section 32 of the Act of 1872.
39. From the side of respondent-accused, learned counsel has argued that at the time of lodging of First Information Report, Gobare was not under eminent expectation of death. Hence a First Information Report containing his statement cannot be treated as dying declaration.
40. Now question is whether in order to attract the provisions of section 32 of the Act of 1872, is it necessary that at the time of making statement, the maker of the statement must be under eminent expectation of death. Provision of Section 32 of the Act of 1872 may be reproduced as follows:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant - Statements, written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death:- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question."
41. Reading of above provision of Section 32 of the Act of 1872 shows mark difference of Indian law on the subject from English law. Unlike English law Section 32 of Indian Evidence Act does not use any word showing that the maker of statement should be under the sense of impending death. If statement is made relating to cause of his death or circumstances of the case causing her death, then the statement is admissible if the maker of the statement is dead or cannot be found.
42. Thus the statement made by Gobare relating to circumstances causing his death is certainly admissible. Gobare has stated in his First Information Report, dictated to Constable Ram Briksha Yadav, who had recorded the First Information Report is certainly admissible in evidence but at the same time recording of statement has also to be proved as per law. Hon'ble Apex Court in Kans Raj Vs. State of Punjab (2000) 5 SCC page 207 has observed that:
"To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement."
43. In the instant case, the First Information Report was lodged verbally in Police Station. His statement was recorded by Head Constable, who was on duty in that point of time. P.W.-5 Sub-Inspector Shyam Raj Yadav has disclosed his name as C.C 120 Ram Briksha Yadav, but C.C 120 Ram Briksha Yadav has not been produced in the Court to prove that Gobare made such statement to him. In absence of proof, the statement contained in First Information Report cannot be used as substantive piece of evidence under the category of dying declaration. In these circumstance, the F.I.R. cannot be used as dying declaration.
44. For the reasons stated above, respondent-accused cannot be held guilty of offence under Section 302 of the Code. Trial court has rightly convicted respondent accused Rahmat and Jaan Mohammad under Sections 323, 325 & 452 of the Code. Therefore, Criminal Appeal No. 440 of 2004 deserves to be allowed partially only to the extent that accused Sirdar is also guilty under Sections 323, 325 & 452 of the Code. Criminal Appeal No. 784 of 2001 and 866 of 2001 are liable to be dismissed.
45. In view of above discussion, Criminal Appeal No. 784 of 2001 and 866 of 2001 are dismissed and Criminal Appeal No. 440 of 2004 is allowed partially only to the extent that accused Sirdar is guilty under Sections 323, 325 & 452 read with Section 34 of the Code. Respondent accused Rahmat and Jaan Mohammad shall appear in the Court of Additional Sessions Judge, Lakhimpur Kheri to serve out the sentences imposed by the Court. Respondent accused Sirdar son of Natha, resident of Bhadura, Police Station Phardhan District Lakhimpur Kheri is held guilty under section 323/325 and 452 read with section of the Code.
46. For hearing on the quantum of sentence list on 22.09.2016.
Order Date :- 16.09.2016 Arvind