J.M. Mahapatra, J.
1. Both these appeals filed by the two accused persons arise out of a common judgment in S.T. Case No. 27 of 1986 of the learned Sessions Judge, Keonjhar convicting both the appellants Under Section 302/34, I.P.C. and sentencing them each to life imprisonment. This common judgment would govern both the appeals.
2. Put briefly, the facts of prosecution case are these. The incident took place in the night of 18-3-86 in village Radhapur. On the previous day the deceased along with his wife had gone to his sister's place in village Radhapur to observe Phula Baguni, locally known as Nuakhia festival. The brother of the deceased with his family members who had also gone there returned to their village Pingu Patna in the night. It is stated that the deceased leaving his wife in Radhapur was returning to his village, when he was attacked by the two appellants and dealt severe blows by means of axe, as a result of which he succumbed to the injuries on the Goda land of one Mangal in the outskirt of village Radhapur. Next morning. P.W. 1, the brother of the deceased on receipt of this information went to the spot and found the deceased lying dead with severe cut injuries on his head and other parts of the body. He proceeded to Saharpada out-post and orally reported about the incident. P.W. 7, the A.S.I. of Police, in-charge of the out post recorded in plain paper FIR in the Station Diary and took up investigation of the case. He visited the spot, held inquest over the dead body of the deceased and sent the dead body for post-mortem examination. He also made seizure of blood stains earth and sample earth, M.O.I., axe said to be the weapon of offence, and took various other steps in the investigation of the case, on 9-6-86, the Officer-in-charge of Patna Police Station took charge of the investigation from P.W. 7, and eventually submitted charge sheet against the two appellants. Both the appellants being committed to the court of session stood their trial for the offence of murder of the deceased, and were convicted and sentenced to life imprisonment as indicated earlier.
3. The plea of both the appellants at the trial was one of total denial of their complicity in the crime.
4. In support of its case, prosecution has examined as many as 7 witnesses, of whom P.Ws. 1 and 2, brother and nephew of the deceased respectively, are witnesses to oral dying declaration of the deceased, P.W. 3 a witness to seizure P.W. 5 the constable carrying dead body of the deceased, P.W. 6 the medical officer conducting autopsy on the dead body of the deceased, while P.Ws. 4 and 9 are the Investigating Officers of the case. There is no eye witness in this case, and prosecution case rests solely on the oral dying declaration of the deceased spoken to by P.Ws. 1 and 2, and the corroborative evidence of the doctor. P.W. 6 finding fatal injuries on the person of the deceased and the evidence regarding motive for the crime. The learned trial Judge relying mainly on the evidence of P.Ws. 1 and 2 has accepted the oral dying declaration of the deceased as a very strong piece of evidence to base the conviction of the appellants. He also found that the medical evidence has lent corroboration to the prosecution case as to the injuries sustained by the deceased resulting in his death. The motive for the heinous offence, namely, the previous illicit relationship of the deceased with the mother of the two appellants has also provided another piece of strong circumstance against the appellants.
5. Mr. Nanda learned Counsel for both the appellants has strenuously urged that the evidence in regard to the oral dying declaration of the deceased having suffered from certain infirmities should not have been accepted by the learned trial Judge to base the conviction of the appellants. He took us through the evidence on record as also the impugned judgment and pointed out to us a few apparent discrepancies in the evidence of P.Ws. 1 and 2 inter se, and he has also urged that the evidence as to the mental and physical
condition of the deceased at the time of making the statement was far from satisfactory as revealed from the evidence of P.Ws. 1, 2 and 6. His further contention is that the incident having taken place during night the visibility was poor, and as such it was doubtful if the deceased could have identified his assailants properly. Having regard to the nature of challenge made to the most important item of evidence, we propose to take up each of these items, the first and foremost being the acceptability of the testimony of P.Ws. 1 and 2 with regard to the oral dying declaration of the deceased.
6. P.W. 6 the medical officer who conducted post-mortem examination on the dead body of the deceased found following external injuries on his person.
Pradesh v. Rama Sagar Yadab AIR 1985 SC 416 : (1986 Cri LJ 836(i) Incised wound 2 1/2' x 1/5' on scalp on right side 2' back to forehead hairline.
(ii) Incised wound 3' x 1/2' x 1/3' on scalp with fracture of underlying cranium on right side 3' above the right ear.
(iii) Incised wound 1/2' x 1/4' x 1/5' behind the right ear.
(iv) Incised wound 2' x 1/2' x 1/4' on the scalp, on the left side.
(v) Incised wound 1 1/2' x 1/3' x 1/4' on scalp on the left side of back 2' x 14' from left ear.
(vi) Bruise 9' x 1 1/2' on right chest wall extending from sixth rib to 2' above iliospine.
(vii) Bruise 5' x 1 1/2' on front left chest wall extending from left clavicle to left clavicle to left niplle.
On dissection, he found that there was fracture of scalp on the right side and haemorrhage in the crenial cavity though membrane covering the brain was intact. He found that the fourth, fifth and sixth ribs on the left side were fractured and there was haematoma on the site. The cause of death according to him was due to intra cranial hamorrhage from the injuries. The injuries were all ante-mortem in nature and were sufficient in ordinary course of nature to cause the death of the deceased. The doctor has further opined that the axe (M.O. II) and the Lathi (M.O.I) could cause the incised wound and the bruises respectively. Nothing substantial has been elicited in the cross-examination except that there was no fracture on the scalp barring injury No. 2, and further the brain matters were coming out before opening the scalp. The further opinion elicited was that all the injuries could cause internal haemorrhage without causing damage to the membrane and such bleeding might cause congestion to the brain. As to the mental condition of the patient, the Doctor has said that in case of injuries of such type, an injured may not became conscious immediately, but there might be extreme chance of becoming unconscious soon after infliction of injuries. He has denied the suggestion that the injuries would bring about unconsciousness immediately. The evidence and the opinion of the doctor, P.W. 6 as discussed above would, therefore, leave no doubt that the death of the deceased was homicidal and this position was not challenged by the learned counsel for the appellants.
7. Before proceeding to deal with the oral evidence of P.Ws. 1 and 2 on the question of dying declaration we propose to deal with the dicta of law laid down by the leading decisions of the Apex court as to when the dying declaration would form the sole basis of conviction without any corroboration. In the earliest decision in the case of Khusal Rao v. State of Bombay, AIR 1958 SC 22: (1958 Cri LJ 106), their Lordships of the Supreme Court have laid down the following propositions for judging the acceptability of the dying declaration of the deceased (Para 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 its own facts keeping in view the circumstances which the dying declaration was made; (3) that it be laid down as a general proposition that dying declaration is a weaker kind of evidence 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 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.
The dicta of the law laid down in this earlier decision has been followed by subsequent decisions of the Apex Court in the case of Kusa v. State of Orissa AIR 1980 SC 559 : (1980 Cri LJ 408), State of Uttar Pradesh v. Rama Sagar Yadab AIR 1985 SC 416 : (1986 Cri LJ 836), and a host of other decisions which need not be multiplied.
8. The first and foremost challenged to the evidence of dying declaration furnished by P.Ws. 1 and 2 is that their evidence is not consistent as to the exact statement made by the deceased in the dying declaration. This requires scrutiny of the evidence of P.Ws. 1 and 2 and we would, therefore, turn to their evidence. P.W. 1 the brother of the deceased has deposed that the deceased had gone to village Radhapur to their Bhanaja's house for Fulabhanguni which is a social function during Nuakhia time. He along with his wife and children had been to village Radhapur, but they returned prior to sunset, while the deceased was there. On the following day he came to learn from his son that the deceased had been assaulted, and on hearing this she went to Radhapur and found the deceased sitting on a cot with injuries on his person. He asked the deceased as to who assaulted him to which the deceased told him that he had been assaulted by the appellants Ramrai and Palu and that the deceased had no chance of survival. He further requested him to take care of his properties and children. The Oriya statements were recorded in verbatim by the trial court in the following language.
Bhai Mora Banchibar Asha Nahin, Mote Ramrai and Palu Budia o Katha Bentare Maridele. Tume Chasabasa Dekha Chhuapila Bisaya Dekha, Mora Banchibapa Asha Nahin.
After making the statements, the deceased learned down and slept, and his eye were also closed and he did not respond to call. They all shifted him to Karanjia hospital, but he died on the way. According to P.W. 1 Mochiram, P.W. 2 was near him when the deceased made the statement as indicated above. The version of P.W. 2 is that he went to the spot alongwith his aunt (wife of the deceased) and found the deceased lying with severe injuries on his person. They lifted the injured to a nearby Mahula tree and made him seat on a cot. He asked the deceased as to how he sustained the injuries to which he said that appellants Ramrai and Palu assaulted him in the previous night by means of Budia (axe) and Lathi at the spot where he was lying. Then afterwards P.W. 1 came and on his enquiry the deceased also told the same thing to him implicating the appellants as his assailants. This is all about the statements made by the deceased, and deposed to by P.Ws. 1 and 2 at the trial. From the foregoing discussions as to the tenor of evidence given by P.Ws.1 and 2, we fail to understand as to how there is any discrepancy in the statements of these two material witnesses inter se. The deceased in clear terms has named his assailants and had stated that he was assaulted by means of an axe and lathi on the previous night. He only told his brother P.W. 1 to take care of his children which is quite natural. We, therefore, find no substance in the contention that there was any discrepancy in the statement of the dying declaration of the deceased. As the deceased had been assaulted quite sometime prior to making the statements, he was obviously not in a fit state of health or mind to give a narration of the entire events that took place at the time of the assault or as to how the assault took place or what led to the assault. He only gave out a gist indicating as to how and by whom he sustained injuries on his person which culminated in his death. So he only named the two appellants as his assailants and the weapons of assault.
As to the contention that the deceased was not in a fit state of mind to make any statement it was brought to our notice that immediately after making the statement the deceased lost his sense as deposed to by P.W. 1 We were also pointed out the evidence of the doctor that the injured might become unconscious after infliction of the injuries on his person. As discussed earlier, the Doctor, P.W. 6 has not categorically stated that the injuries would make the deceased unconscious immediately nor had he stated that the injuries would result in instantaneous death. On the other hand, he had denied the suggestion that the injuries would make the deceased unconscious immediately. His evidence is that there was remote chance of the deceased becoming unconscious immediately after infliction of injuries. From the foregoing materials on record, we would hold, while agreeing with the learned trial Judge, that the deceased was in a fit state of mind to make the statement before P.Ws. 1 and 2 in the morning of the day following the incident, that is, on 19-3-86.
The next contention is that only close relations have been examined although a few independent witnesses were available to be examined. No doubt a few persons other than P.Ws. 1 and 2 appear to have been present at the material time, but the statements having been made to the queries made by P.Ws. 1 and 2, they were the most natural and competent witnesses to depose about the dying declaration made by the deceased. There cannot be any manner of doubt that close relations in a case of this nature would hardly speak falsehood or have a tendency to implicate persons other than the real culprits. There is no evidence on record to show that P. Ws. 1 and 2 were in any way inimical to the appellants nor is there any material to show that for any reasons whatsoever, the appellants had any hostility with P.Ws. 1 and 2. For the reasons discussed above, we find that P.Ws. 1 and 2 are quite trustworthy and reliable witnesses whose evidence as to dying declaration has been rightly accepted by the learned trial court.
9. The next important item of evidence is the motive on the part of the appellants to inflict injuries to the deceased. It transpires from the evidence of P.Ws. 1 and 2 that prior to the incident the deceased had developed illicit relationship with the mother of the appellants. P.W. 1 had gone to the extent of saying that he had warned the deceased not to visit the house of the appellants, but he did not pay any heed to his words. He had also stated in his evidence that prior to the incident the appellants had quarrel with the deceased with regard to the incident of illicit relationship of the deceased with their mother. The incident of prior relationship between the deceased and the mother of the appellants provides a strong motive for the murder as the appellants perhaps wanted to take revenge on the deceased for this matter.
10. In the light of the foregoing discussions, we would hold that the learned trial Judge is perfectly justified in relying on the items of evidence such as dying declaration and the motive for the incident as also on the medical evidence to hold that the charge of murder has been brought home against the appellants beyond all reasonable doubts. We would, therefore find that the order of conviction and sentence are perfectly justified, and there is no reason to interfere with the same.
11. In the result, the appeal is dismissed and the order of conviction and sentence passed against the appellants is affirmed.