Judgment:
J.M. Mahapatra, J.
1. The appeal is directed against the judgment and order dated 1-12-1986 of the learned Sessions Judge, Mayurbhanj convicting the appellant under Sections 302, IPC and 25(a) of the Arms Act and sentencing him respectively to imprisonment for life and R.I. for six months, the sentences being directed to run concurrently.
2. Prosecution case briefly stated, is that the parties belonged to village Kendumundi under Jharapokharia P. S., district Mayurbhanj. The incident took place around 9 O'Clock in the night of 23-3-1985. The deceased Surendra along with Girish (P.W.9), Sachindra (P.W.2) and Bira (P. W. 3) had been to answer the call of nature to a pond in the Bari of P.W. 9. After easing P.Ws. 2 and 3 left the place while P.W. 9 and the deceased stayed back and were washing themselves after easing. At that time two persons came near the bank of the pond seeing whom the deceased stood up and flashed the torch he was carrying and at that time the person standing behind the accused also flashed the torch towards the deceased. At that point of time the accused fired at the deceased from a country made gun. The deceased fell down and cried out for help. At that time P.W. 9 was nearby. Hearing the alarm P.Ws. 2, 3 and others came near the deceased and found him lying with bleeding injuries on his left side chest, belly and arm and he was groaning under pain. The deceased was immediately removed to Bangriposi hospital, where he was given first-aid and his dying declaration recorded by the doctor, P.W. 14. No facility for treatment being available at Bangriposi P.H.C., P.W. 14 referred the case to the District Headquarters hospital at Baripada. It appears that from Baripada, the deceased was being taken to Cuttack for treatment, but he died on the way at about 7 p.m. on 24-3-85, P.W. 3 in the meantime had reported about the incident at Jhadpokharia P.S. in the night of 23-3-1985 at about 1-30 a.m. P.W. 15 the officer-in-charge of the P. S. registered a case and took up investigation. He visited the spot, examined witnesses, made seizures of broken pieces of country made gun and took various other steps in the investigation of the case. P.W. 5 the A.S.I. of police attached to Jhadpokharia P. S. held inquest over the dead body of the deceased at Baripada hospital and sent the dead body for post-mortem examination. P.W. 8, the successor in office of P.W. 15 took charge of investigation of the case on 27-5-85, and on completion of investigation submitted charge sheet against the accused.
3. The plea of the appellant is one of complete denial of his complicity in the crime. He has specifically pleaded that he never fired the gun nor had he ever purchased any explosive substance. He had been falsely implicated on account of previous ill-feeling with the deceased and P.W. 9. His further plea is that some other unknown person might have fired the gun at the deceased and that he has been falsely implicated in this case.
4. In support of its case prosecution has examined as many as 15 witnesses of whom P.W. 3 is the informant, P.W. 9, the sole eye witness to the occurrence, P.Ws. 1 to 3 witnesses to oral dying declaration, P.W. 14 the doctor conducting autopsy on the dead body of the deceased, P.W. 14 the first doctor giving first-aid to the deceased and recording his dying declaration, P.W. 5 the A.S.I. of police holding inquest, P.W. 6 the constable accompanying the dead body, P.Ws. 7 and 10 seizure witnesses, P.W. 15 the I.O. conducting the investigation and P.W. 8 succeeding I.O. taking over charge from P.W. 15 while P.Ws. 11, 12 and 13 who were supposed to have sold some fire arm and connected materials to the appellants were declared hostile. Prosecution case rests on the direct evidence of the eye-witness, P.W. 9, oral dying declaration of the deceased in presence of P.Ws. 1, 2 and 3 and the dying declaration Ext. 19 recorded by P.W. 14 the medical officer of Bangriposi P.H.C., as also the medical evidence of the doctor, P.W. 4, besides the seizure of broken parts of fire arm and empty cartridge. The learned Sessions Judge on a careful analysis of the entire evidence on record, the facts, circumstances and broad probabilities of the case came to hold that it was the appellant and none else who fired from the country made gun at the deceased and thereby caused his death. Accordingly he found him guilty Under Section 302, IPC and Under Section 25(a) of the Arms Act and sentenced him to imprisonment for life and six month's R.I. respectively.
5. P.W. 4, the Assistant Surgeon attached to District Headquarters Hospital, Baripada conducted the post-mortem examination of the deceased at 3-30 p.m. on 24-3-85. He found the following external injuries on the dead body of the deceased :
(1) Three fire arm wounds each of 3 mm. diameter, round with diverted margin on the lateral side of the left elbow joint.
(2) Three rounded wounds of 4 ml. diameter each everted margin on the medial side of the left elbow joint.
(3) 13 firearm wounds of 3 ml. diameter each rounded on the lateral side of the left chest wall in between 4th and 10th rib with everted margin.
(4) 8 firearm wounds of 3 ml. diameter rounded with inverted margin on the lateral side of the upper abdomen.
(5) One rounded wound 3 ml. in diameter on the left lateral side of penis 1' above the tip. This injury injured the skin and the subcutaneous tissues.
(6) One rounded wound 3 ml. in diameter 1' above the second matacarus phalangeal joint of bone depth.
(7) One abrasion 1 1/2' x 1' on the lateral side of right elbow joint.
On dissection, he found the following internal injuries :--
(1) Chest wall on the lateral side of the left chest was congested. There was extra cessation of blood into the intercostal muscle between 4th and 10th rib.
(2) The left pleural cavity was full of blood.
(3) There was laceration of the left lower lobe and lower part of left upper lobe of the lungs. The left lung was found to be congested with haemorrhage. One pellet was found in left lower lobe of the lungs. The left lower lobe contained some bard black particles about 1 ml. Both chambers of heart were empty.
(4) The muscles of lateral abdomen wall were congested and there was extra cessation of blood.
(5) The paritoneal cavity was full of blood with clots.
(6) There was injury of the lateral wall of the descending colon with three perforations. The walls of the descending colon were congested.
(7) Two wounds of the lateral surface of the spleen and one wound on the medial surface of the spleen. One pellet was found near the hilum of the spleen. The tissue of the spleen was lacerated and contained blood with clots.
All the injuries according to him were ante-mortem in nature and the cause of death was due to haemorrhage and shock resulting from the injury to the left lungs, spleen and large intestine. According to him, two pellets were recovered from the lungs and spleen and the hard particulars recovered from the lungs were handed over to the police. He further opined that all the injuries were firearm wounds. His further opinion is that the external injuries on chest, and abdomenal wall on the left are sufficient in ordinary course of nature to cause death since these affected the lungs and spleen and intestine. Ext. 2 is his post-mortem report. In cross-examination nothing substantial has been elicited to discredit the testimony of this witness. It is elicited that in the present case fire arm must have been fired from a distance beyond 4 feet and firing appears to have been made from the left side of the deceased as all the injuries were found on the left side of his body. It is further elicited that the deceased might not have lost his consciousness as there was no injury to the brain. The evidence of the medical expert leaves no room for doubt that the death of the deceased was homicidal, and that all the injuries were ante-mortem in nature, and that the cause of death was due to haemorrhage and shock resulting from fire arm and injuries caused to vital organs like lungs, spleen and intestine. Mr. Misra, the learned counsel for the appellant also does not dispute these facts.
6. Coming to the evidence of the eye witness, PW. 9, it would be noticed that he has given a vivid picture as to how the incident took place on the bank of the small tank lying inside the premises of their homestead. He has stated in his evidence about the prior enmity between the appellant and the deceased and this was on account of 2 or 3 incidents which he has narrated and which facts also find support from the evidence of P. Ws. 1, 2 and 3. As to the occurrence taking place in the night of 23-3-85 his version is that P.Ws. 2, 3, the deceased and he himself had been to ease themselves to the western side of the tank, the deceased carrying a torch and P. W. 2 carrying a lantern and a torch. P.Ws. 2 and 3 left the place earlier having finished the call of nature. P. W. 9 entered the tank for washing when the deceased flashed his torch, at which time another person who was behind the appellant also flashed his torch and in that light, he could see the appellant holding a gun about one cubit long. The person behind the appellant focused his torch towards the deceased, while the deceased focused his torch towards the appellant. The appellant fired his gun aiming at the deceased, and the gun shot hit the deceased at his left hand, left side of his chest and belly. The deceased then walked from the western side to the southern side of the tank. P.W. 9 himself also states to have been injured on his left index finger as a result of the fire arm. He shouted for help and several villagers came running to the spot. The deceased was then carried on a cot to the village road. After P.Ws. 1, 2 and 3 reached, to the query made by P.W.9's father P.W. 1, the deceased 'gave out that he was shot at by the appellant. The deceased was carried to Bangriposi P.H.C. where his dying declaration was recorded by P.W. 14 the medical officer. Thereafter the deceased was being removed to Cuttack hospital, but he died on the way. Thereafter he was brought back to Baripada hospital, where his post-mortem examination was conducted. This star witness for the prosecution has been cross-examined by the defence counsel at some length. But nothing substantial has been elicited from him. He has also been cross-examined about some omissions and contradictions, in his earlier statements recorded by the I.O. These are minor in nature as I find from the evidence of the I.O., P.W. 15. P.W. 9 had omitted to state before the I.O. that the dying declaration of the deceased was recorded by the doctor, and he also did not state before the I.O. as to whom the deceased focused the torch. The narration of events from start to finish has not been shakened in cross-examination although P.W. 9 has been cross-examined on different aspects in relation to the incident. This witness has been sought to be discredited on the ground that in the dark night he could not have seen and identified the accused properly and that the deceased actually did not focus any torch on the appellant and that he had implicated the appellant only out of suspicion. He has not been cross-examined on the oral dying declaration made by the deceased before P.Ws. 1, 2 and 3 as also before him. On a scrutiny of the ocular testimony furnished by P.W. 9, I do not find any infirmity in his evidence. His evidence has, therefore, been rightly relied upon by the learned Sessions Judge in accepting the prosecution case.
7. Coming next to the evidence of P.Ws. 1, 2 and 3, I find the learned trial Judge has rightly accepted the testimony of P.Ws. 1 and 2 in regard to their evidence of oral dying declaration made by the deceased implicating the appellant as the person who shot the fire arm at him and thereby causing injuries on his person. He has also rightly discarded the testimony of P.W. 3 who has made exaggerations in his statements and has made embellishments and embroideries. I propose briefly to advert to the testimony of P.Ws. 1 and 2. P.W. 1, the father of P.W. 9 has stated that on hearing the alarm raised by P.W. 9 that the appellant fired a gun, he followed by P.Ws. 2 and 3 and many others, reached the spot and found the deceased Surendra lying with bleeding injuries on his left side chest, belly and arm near the water spread of the tank on the southern side. The deceased was groaning under pain. He asked the deceased as to how it happened to which he replied that 'Uma Mari Dela' P.W. 9 told P.W. 1 at the spot that Uma (appellant) fired from a gun and caused injuries. Thereafter the deceased was removed to Bangriposi Hospital. P.W. 2 in his evidence has supported the version of P.W. 1 with regard to dying declaration as also the evidence of P.W. 9 that he along with P.Ws. 3, 9 and the deceased had been to the pond to answer the call of nature where the incident took place. His evidence is that after finishing the call of nature P.W. 3 and he returned, whereas the deceased and P.W. 9 stayed back. On hearing the sound of explosion, coming from the side of the tank and the shout of P.W. 9 'Mari Dela, Mari Dela', he along with P.W. 1 rushed towards the tank. On their arrival they found the deceased lying with bleeding injuries on his person. He has also stated in his evidence that to the question put by P.W. 1, as to how it happened, the deceased replied that Uma fired a gun shot. P.W. 9 who was present there also told them about the incident and as to how the appellant shot from the country made gun at the deceased. Although P.Ws. 1 and 2 have been cross-examined at some length, but nothing substantial has been elicited in their cross-examination to discredit their testimony. The only substantial contradictions, omissions which have been elicited from their earlier statements before the I.O. are that P.W. 1 did not state before the I.O. that Girish was shouting that the accused had fired, nor did he, name the person who went hearing the shout. These omissions on the part of the witness P.W. 1 is not very material when his evidence at the trial with regard to material facts as referred to earlier have not been shattered in cross-examination. P.W. 2 had also omitted to state in his earlier statement before the I.O. that Girish (P.W. 9) did not state about recording of dying declaration by the doctor, and P.W. 9 also did not state before him as to whom the deceased Surendra focussed his torch. These omissions in my opinion are very innocuous, and they do not affect the substratum of the prosecution story. There has been absolutely no omission or contradiction with regard to the oral dying declaration made by the deceased before P.Ws. 1 and 2 or to the facts narrated by P.W. 9 to P.Ws. 1, 2 and 3 what he saw regarding the incident. I, therefore, find from the evidence discussed above that the learned trial Judge has rightly accepted the testimony of P.Ws. 1 and 2 as having corroborated the version of P.W. 9 not only with regard to the incident itself but also in regard to oral dying declaration.
8. From the foregoing discussions I am of the view that the ocular testimony with regard to the incident as deposed to by P.W. 9 and corroborated by P.Ws. 1 and 2 and the evidence of oral dying declaration furnished by P.Ws. 1 and 2 are very strong pieces of evidence against the appellant. The learned trial Judge has elaborately discussed in his judgment all these aspects and he has also repelled various contentions raised before him on the side of the defence to discard the testimony of P.Ws. 1, 2, 3 and 9. No doubt P.Ws. 1, 2, 3 and 9 are all close relations of the deceased. But having regard to the fact that the incident took place at about 9 O'Clock in the night and in a deserted place like the bank of the pond situate inside the Bari of P.W. 1, no outsider was expected to have been present at the spot. In such background the evidence tendered by the prosecution that P.W. 9 was the only eye-witness available at the material time to speak to the incident appears to be very natural as also very convincing. If P.Ws. 2 and 3 wanted to perjure themselves they could as well have stated in their evidence of having seen the incident from a distance, instead of deposing that they left the spot earlier after easing themselves. But they have not said so. This, in my opinion, would go to show that P.Ws. 1, 2 and 3 are witnesses of truth. They have deposed only with regard to the facts which they actually saw or which they heard from P.Ws. 1, 9 and the deceased.
9. Mr. Misra, the learned counsel appearing for the appellant has raised a few contentions to discredit the ocular testimony of P.W. 9 mainly on the ground that from the situation at the time of the incident he could not have seen as to who the culprit was. He has drawn our attention to the evidence of P.Ws. 2, 3 and 9 and has raised several factual aspects of the case in this regard but all these submissions do not appeal to us. We are not convinced that from the materials on record, the deceased as also P.W. 9 could not have seen the appellant in the flash of the torch light focused by the deceased himself.
10. I would now advert to the dying declaration Ext. 19 recorded by P.W. 14, the medical officer, Bangriposi P.H.C. at the material time. The evidence of P.W. 14 is that on 23-3-1985 he got information of Surendra the deceased having been fired at. Surendra was brought to the Primary Health Centre at 9 p.m. There were marks of firing on the left side of the body of Surendra, the diametre being almost the size of cycle balls. The deceased was able to talk. To his query as to who fired at him Surendra replied that Umakanta fired a gun. When P.W. 14 found the condition of the deceased becoming serious, he recorded the dying declaration in presence of the second Medical Officer and the Pharmacist who were then present. He has proved the recorded dying declaration Ext. 19. The signature of the deceased Surendra was not taken on Ext. 19, nor was Ext. 19 read over to him. Ext. 19 having been recorded by a responsible Government Officer like the doctor of the P.H.C., who rendered necessary first-aid to the deceased and referred him to Baripada Hospital for better treatment, it is difficult to accept the defence contention that Ext. 19 has been got up and concocted document prepared after the death of the deceased at the instance of the police. Another ground on which Ext. 19 has been commented upon is the delayed receipt of the document by the I.O. P.W. 14 in his evidence has stated that after recording the dying declaration the officer in charge, Bangriposi police station took the document Ext. 19 and kept it in a sealed cover. But he did not remember if he received any requisition from police to record the dying declaration nor did he remember if he handed over Ext. 19 to Police on the date it was recorded. He also states not having sent any official information to police about his recording of the dying declaration. He stoutly denied the suggestion that Ext. 19 was prepared on a later date.
11. The learned counsel for the appellant has relied on a few authorities on the question of dying declaration namely, (1984) 1 Orissa LR 756 : (1985 Cri LJ 248) (Puma Ch. Singh v. State of Orissa), AIR 1976 SC 1519 : (1976 Cri LJ 1186) (Jayaraj v. The State of Tamil Nadu) (1987) 2 Orissa LR 363 (Golap Naik v. State of Orissa) and 1981 SCC (Cri) 581 (Ram Manorath v. State of Uttar Pradesh). I find all these authorities cited before us have been considered in a Bench decision of this Court in (1984) 1 Orissa LR 756 : (1985 Cri LJ 248) (supra). Various legal aspects touching the question of dying declaration have been dealt with, viz., in what circumstances it should be relied upon and when it would form the basis of conviction. A catena of decisions of the Supreme Court in the subject have been referred to. In the aforestated Bench decision of this court, (1984 ) 1 Orissa LR 756 : (1985 Cri LJ 248) the law laid down by the Supreme Court from time to time has been taken into consideration and the decision of the well known case of Khusal Rao v. State of Bombay, (AIR 1958 SC 22 : 1958 Cri LJ 106), AIR 1972 SC 1776 : (1972 Cri LJ 828) has been particularly referred to and the principles laid down by Their Lordships of the Supreme Court have been quoted with approval which we propose to extract hereunder :--
'16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court. Aforesaid, (1) 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; (2) that each case must be determined on its own facts keeping in view of circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that 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; (5) that 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 the infirmities of human memory and human character, and (6) that 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, for example, whether there was sufficient light if the crime was committed at night; 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 beyond 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.
17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close 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 of 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 in all its aspects, and testing its veracity, has come to 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 any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.'
The principles laid down in the decision of K. Ramachandra v. Public Prosecutor, AIR 1976 SC 1994 : (1976 Cri LJ 1548) has also been quoted with approval in the following words (para 6) :--
'....The dying declaration is undoubtedly admissible Under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration......'
12. Considering the evidence led with regard to the oral dying declaration as also the recorded dying declaration Ext. 19 in this case in the light of the legal perspective discussed above, we are of the view that both categories of dying declaration satisfy the various tests laid down by the authoritative pronouncements referred to above. The evidence in the instant case is very clear that the deceased at the time of making the statement was in a fit state of mind and was capable of making statement. The statements were not the product of tutoring as there was absolutely no scope for this. The recording of the dying declaration made by the medical officer, P.W. 14 was done in the question-answer form. Needless to extract the statements made by the deceased under Ext. 19 but he has stated very categorically that it was the appellant Umakanta Mahanta who fired the fire arm at him and caused injuries on his person. The statement further indicates that the incident took place near the tank, when P.W. 9 Girish was present nearby at the material time. It further goes on to say that along with the appellant Umakanta another person was present behind him and focused the torch but he could not be identified by the deceased; it was Umakanta who fired the gun.
13. On a consideration of the evidence of dying declaration which alone in our view could form the basis of conviction, we find that in consideration of both the ocular testimony of P.W. 9 as also the dying declaration, both oral and recorded, the conclusion is irresistible that it was appellant and none else who fired the country made gun at the deceased causing severe injuries to his person, eventually resulting in his death. The learned trial Judge has rightly discarded the evidence with regard to seizure of various explosive substance and broken parts of the country made gun. Notwithstanding the want of evidence with regard to the seizure of the weapon of offence, the evidence is very clear that the deceased received gun shot injuries from the country made gun, and that the appellant fired the shot at the deceased and caused injuries on his person resulting in his death.
14. From the foregoing discussions, we have no hesitation in our mind that prosecution has proved its case against the appellant beyond all reasonable doubts. The conviction and sentence of the appellant Under Section 302, I.P.C. and Section 25(a) of the Arms Act is, therefore, affirmed. The appeal thus fails being devoid of merits.
15. In the result, the appeal is dismissed and the order of conviction and sentence is confirmed.
P.C. Misra, J.
16. I agree.