S.J.MUKHOPADHAYA, J. - (1.) THIS appeal has been preferred by the appellant, Sikra Oraon against the judgment dated 9th December, 1988 passed by Sri Damodar Prasad, VII Additional Judicial Commissioner, Ranchi in Sessions Trial no. 510 of 1986 arising out of Ratu P.S. case no. 34 of 1986, corresponding to G.R. no. 1318 of 1986. By the impugned judgment and order of conviction dated 9th December, 1988, the appellant has been convicted for the charge u/s. 302 I.P.C. and sentenced to undergo R/l for life. The fard beyan of the deceased, Bishu Oraon was recorded on 18th May, 1986 at 1 P.M. in R.M.C.H., Ranchi by the Police on the basis of which formal F.I.R. Bulaki Ram Versus Jatru Mahali was drawn u/s. 324/307 I.P.C. Later on Bishu Oraon died of the injury caused to him whereinafter the police submitted charge sheet u/s. 302 I.P.C. after completion of the investigation. The case was committed to the Court of Session.
(2.) THE case of prosecution, in brief, is that on 12th May, 1986 at about 6 P.M., deceased, Bishu Oraon was returning home from Shalimar market. As soon as he reached near the Imli tree in front of his house, accused, Sikra Oraon assaulted him with Farsa from behind causing injury on his head in the right side. The informant (deceased) fell down and became unconscious for three days. Thereafter, though he became conscious but was not in a position to speak fluently for about two days. It was reported that the deceased was assaulted as the accused misbehaved with the Natni (grand -daughter) of his (deceased) aunt (Bari Ma). The deceased forbade the accused from doing such act. Thereupon, the accused threatened the deceased and assaulted him. In course of trial, the prosecution examined nine witnesses in order to substantiate charges, framed against the accused. Out of them, P.W. 5, Charo Oraon was tendered and P.W. 8, Nanhki Oraon was declared hostile by the prosecution. P.W. 7, Kameshwar Prasad Singh, A.S.I. was the Investigating Officer and P.W. 9, Dr. Daya Brageshwar Dayal, Medical Officer, Department of Forensic Medicine, R.M.C.H., Ranchi conducted the post mortem examination on the dead -body of Bishu Oraon. Rest of the five witnesses, P.W. 1, Charo Oraon, P.W. 2, Gana Oraon, P.W. 3, Budhua Oraon, P.W. 4, Jhari Oraon and P.W. 6, Lachhu Oraon are eye witnesses. Out of whom, P.W. 4, Jhari Oraon and P.W. 6, Lachhu Oraon are independent eye witnesses, who supported the case of prosecution. Learned VII Additional Judicial Commissioner, Ranchi relied on the evidence of five eye witnesses of the alleged occurrence, namely, P.Ws. 1, 2, 3, 4 and 6 and the fact that they have fully supported the story of prosecution, as corroborated by the medical evidence and the fact that the fard beyan was recorded by the deceased, held the accused guilty for the charge u/s. 302 I.P.C., convicted him and sentenced R/l for life. Learned counsel for the appellant brought to the notice of the Court that the occurrence took place at 6 P. M. on 12th May, 1986 (Monday). The fard beyan of deceased, Bishu Oraon was recorded at 1 P.M. on 18th May, 1986 in R.M.C.H., Ranchi. It was sent to the court on 25th May, 1986 and was received in the court on 27th May, 1986. It was submitted that there being delay in lodging F.I.R., thereafter, delay of sending F.I.R. to learned Magistrate and further delay in receipt of F.I.R. by the learned Magistrate, correctness of F.I.R. to be suspected. There is no ground available with the prosecution to explain the delay. It was further submitted that the prosecution failed to disclose as to who had taken the informant to R.M.C.H. nor it has been disclosed as to who were present at the place of occurrence. Though motive has been mentioned in the fard beyan but the prosecution failed to prove it. P.W. 8, Nanhki Oraon, grand daughter (Natni) of the aunt (Bari Ma) of the deceased having denied the fact that she used to be harassed by the accused, the motive as shown in the fard beyan cannot be accepted.
(3.) LEARNED A.P.P. refuting the argument, advanced on behalf of the appellant, has submitted that the eye witnesses, namely, P.Ws. 1, 2, 3, 4 and 6 have corroborated the prosecution case that it was the accused, Sukra Oraon, who assaulted the deceased, Bishu Oraon with Farsa from behind, which caused injury on his head in the right side; later on the deceased died of the injury caused to him. Dr. Daya Brajeshwar Dayal (P. W. 9), who conducted postmortem on the body of the deceased, also reported to have found stitched incised wound 10 1/2 C.M. x 1/2 CM. x Cravial cavity over right temproperital head, cutting the right temproperital bone completely, durametar completely and the brain underneath partially. It was also found that there is presence of epidural, subdural blood and blood clot in the cravial cavity. The Doctor opined that the injury was ante mortem in nature caused by heavy sharp cutting weapon, such as Farsa, which is consistent with the case of prosecution, as stated in the fara beyan. He further submitted that the deceased being the informant, after his death, the fard beyan should be treated as dying declaratioh of the deceased. P.W. 1, Charo Oraon, full brother of the deceased stated that he was sitting near the tree of Imli at about 6 P.M. on 12th May, 1986. Jhari Oraon (P.W. 4), Budhua Oraon (P.W. 3) and Gana Oraon (P.W. 2) were also sitting there. The deceased, Bishu Oraon was returning from market. Suddenly, accused, Sukra Oraon came from behind and assaulted Bishu Oraon with Farsa on the right side of the head and Bishu Oraon fell down. Thereafter, Bishu Oraon was brought to R.M.C.H., Ranchi in a truck where he died after ten days. In his cross -examination, he explained the delay. He (P.W.1) stated that he could not go to the police on the day of alleged occurrence as he brought his brother(deceased) to the hospital and served him for about ten days. P.W. 2, Gana Oraon is another brother of the deceased. He also supported the case of prosecution. He stated that he had seen the Bulaki Ram Versus Jatru Mahali occurrence when the accused, Sukra Oraon assaulted the deceased, Bishu Oraon. Bishu Oraon was returning home from Shalimar Market on the date of occurrence when the accused, Sukra Oraon inflicted Farsa blow on his head and Bishu Oraon was taken to hospital where he died. In the corss -examination, he (P.W. 2) stated that Bishu Oraon was taken to hospital in a truck. He explained the motive. As the accused used to tease his Bhagni, the deceased, Bishu Oraon protested. P.W. 3, Budhua Oraon, another brother of the deceased also supported the prosecution case and stated that he had seen the accused, Sukra Oraon assaulting his brother, Bishu Oraon with Farsa on his head. His brother fell down. Thereafter he was brought to the R.M.C.H., Ranchi where he died after ten days. He stated that all four brothers were busy in saving the life of their brother, Bishu Oraon (deceased). He has also stated that the accused used to tease Nanhki Oraon, their Bhagni, and on protest the accused assaulted their brother, Bishu Oraon. P.W. 4, Jhari Oraon is an independent witness. He also fully supported the case of prosecution. He stated that the accused, Sukra Oraon assaulted Bishu Oraon while he was returning from market near the Imli tree. Bishu Oraon fell down and thereafter he was taken to R.M.C.H., Ranchi in a truck of Tand Mia where he died after ten days. He also stated that the accused used to tease Nanhki Oraon and the deceased protested. Hence the accused assaulted the deceased. In his cross -examination, he stated that his house is situated only at a distance of 3 to 4 steps from the tree of Imli. He informed the Jamadar about the occurrence, who directed him to rush to the hospital. He further stated that he was present at the time the police recorded fardbeyan of Bishu Oraon. The other eye witness, P.W. 6, Lachhu Oraon is also an independent witness. He also supported the case of prosecution and stated that the accused, Sukra Oraon used to misbehave (cherchar) with Nanhki Oraon to which Bishu Oraon always protested. He stated that the accused assaulted the deceased with Farsa because the deceased forbade him from teasing Nanhki Oraon. The deceased fell down and thereafter he was brought to the hospital where he died. All the eye witnesses, namely, P.Ws. 1, 2, 3, 4 and 6 stood to their evidence even during the lengthy cross -examination and no contradiction could be brought in their statement. They stated the place of occurrence which is quite consistent with the case of prosecution, as stated in the fardbeyan. It has been noticed that P.W. 9, Dr. Daya Brajeshwar Dayal conducted the post mortem of the dead -body of the deceased, Bishu Oraon. The Medical Officer also found injury on the right side of the head of the deceased caused by heavy sharp cutting weapon like Farsa. The evidence of Medical officer also corroborated the statement of eye witnesses. It has been argued by learned A.P.P. that the fardbeyan amounts to dying declaration of the deceased which supports the prosecution case. In this regard, one may notice the evidence of the I.O. P.W. 7, Kamleshwar Prasad Singh, A.S.I. of Police, who was the Investigating Officer of the case. He proved the fardbeyan and the forma! F.I.R. He stated that the fardbeyan was recorded by Sri. S.N. Singh, Inspector of Police, Ratu Police Station and he knows the signature of the said Officer. He gave the details of the place of occurrence. In the cross -examination, he stated that the fardbeyan was not written in his presence. In the case of 'Panchdeo Singh V/s. State of Bihar ', 2002 AIR S.C.W. 88 [: 2002(1) PLJR (SC) 110], the Court held that the dying declaration must allure to the satisfaction of the Court that reliance ought to be placed thereon rather than a distrust. The confidence of the Court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, the questions of any disbelief or distrust would not arise. In the event, however, of there being some infirmity, howsoever, negligent it be, the Court unless otherwise satisfied of credibility thereof, ought to look for some corroboration. If however it is otherwise, question of requirement of corroboration would not arise, dying declaration alluring confidence of the Court would be a sufficient piece of evidence to sustain conviction.;