MUNWA Vs. STATE

JUDGEMENT

(1.) This is an appeal by Shiam Kishore alias Munwa aged 18 years, son of Chhunnu Pande alias Yagdutt, a resident of Maksudabad, within police circle Ka-lianpur, District Kanpur, who has been convicted by the Additional Sessions Judge, Kanpur, for an offence under Section 302, I. P. C., for having committed the murder of one Chhotelal, on the 18th November 1955, at about 11 a.m. near Gumti No. 10 on Grant Trunk Road, by inflicting injuries on him with a knife as a result of which Chhotelal died on the same day at 11-45 p.m. The learned Sessions Judge gave the appellant a sentence of death. Along with the appeal there is the usual reference for the confirmation of the death sentence.

(2.) Chhotelal lived at Maksudabad along with his father Dharmu. He had 3 other brothers, Putti-lal, Sanehilal, and Sundar. The prosecution contended that village Maksudabad was torn into two factions, one headed by the father of the appellant who was once a big Zamindar and is even now an influential man of the village, and the other party was headed by another person. The prosecution further contended that Sanehi Lal separated from the other members of the family and began to live in a house provided by the appellant's father and used to work for him as an agricultural labourer; that about 3 or 4 years before the" present occurrence the appellant's father by certain device took away the wife of Sunder (P.W. 4) who is the brother of Chhotelal, and forced her into the keeping of Sanehi Lal, that Sunder made an effort to take away his wife but she was prevented by Yagdutt and Sanehi Lal from going back; that about 2 years later the appellant's father complained to Dharmu that the deceased Chhotelal had misbehaved with his daughter and had spread a rumour to that effect in the village; that on account of these disputes Yagdutt got the house of Dharmu looted and took forcible possession of his cultivation; that a case was started under Section 395, I. P. C., but the accused persons were acquitted on 7th November 1955, and that during the pendency of that case the appellant and his father had been threatening Sundar that since the criminal case was falsely launched dire consequences would follow; that on the 30th October 1955, Sundar had been beaten by the accused and one Sheo Balak on the canal distributary near the village and that all these incidents finally culminated into the occurrence of the 18th November 1955, at 11 a.m. when Chhotelal had been assaulted by the appellant with a knife as a result of which he expired. It was contended on behalf of the prosecution that on the 18th November 1955, Har Prasad Saxena (P.W. 13), who is the manager of the Kalianpur Dairy Farm where Chhotelal had been working, had commissioned Chhotelal to go to the flour mill in order to have certain quantity of wheat turned into flour. Chhotelal then proceeded on foot with the wheat. The accused Munwa was also seen leaving the village on his cycle at 9-30 or 10 a.m. When he had reached Gumti No. 10 on the Grand Trunk Road at about 11 a.m. the appellant, it is alleged, attacked him with a knife causing him an injury in the abdomen, and after doing so he escaped on his cycle. A number of persons who were on the road, some on foot and others on cycles, gave a chase to him but they could not apprehend him. Ultimately after a few minutes Lalua Singh (P.W. 1) happened to proceed that side on a rickshaw. He found Chhotelal lying on the side of the road groaning, with a fresh injury on his abdomen which he was pressing with both his hands. On enquiry he was told by Chhotelal that just 5 minutes before he had been attacked by Munwa, son of Chhunnu Pandey of his village. Chhotelal had further expressed to him that he might not survive and he asked him to carry him to the hospital. Lalua Singh, it is said, made him sit in a rickshaw plied by Abdul Shakoor (P.W. 2) and sent him to the hospital and he himself went to police station Kalianpur where he lodged the first information report at 12-5 in the day mentioning the facts stated above. Chhotelal was admitted to the hospital at 11-30 a.m. His condition was found serious. Dr. J.N. Tiwari took down his statement in the nature of a dying declaration. That statement is Ex. P-13 on the record in which Chhotelal is said to have stated that on the morning of the 18th November 1955, he was going from Maksudabad to Gutayya to get the grain ground inio flour; that Munwa, son of Chhunnu Pande caught hold of him at the Gumti and struck him with a Karauli; that there was enmity between him and his brother from before; that there was a litigation in which his brother had been unsuccessful; that Munwa met him while, he was cycling on the road; that on seeing Munwa, Chhotelal apprehended danger and he made an attempt to get back and he did so, that Munwa returned from the way and struck him with a Karauli in the abdomen and that some persons who were carrying planks along the Railway patri, whom Chhotelal did not know, saw the occurrence. When Chhotelal was admitted into the hospital he was, as has been stated by Dr. J.N. Tiwari, attended by some police men and 4 or 5 other attendants. Dr. Tiwari found one perforating injury in the abdomen in the epigastric region. The cut was transyerse, 1-1/2 inches long, and it was an incised wound. The omentum was protruding out. The patient was immediately sent for operation in the general operation theatre after noting the injury in the accident register and after noting in that register that police men came with the patient and that the patient had been brought to the hospital by one Abdul Patool in bis rickshaw. Dr. Tiwari made it clear that as the condition of the patient was serious he started recording his dying declaration after sending a note to the Tahsildar to come up in order to take down his dying declaration. He further made it clear that the dying declaration (Ex. P-13) recorded by him was noted down word for word to the dictation of Chhotelal, that the injured was then in proper senses; that no outsider was present at that time except the staff of the operation theatre and that before recording that statement he had to turn out the attendants of the injured who had come along with him and were talking to him. Dr. Tiwari further stated that after the operation the condition of the patient was such that he was incapable of making a detailed statement and that he could only reply to questions put to him in ''yes" or "no", and that also in a faltering voice. This condition, according to him, continued upto 1. p.m. Dr. Tiwari was unable to say as to what was the condition of the patient at 3-30 p.m. as he was not on duty at that time. On the same day at 3-30 p.m. another dying declaration of Chhotelal is said to have been recorded at the hospital by the Sub-Divisional Magistrate, Ghatampur, which is Ex. P-14 on the record. This dying declaration is in the form of questions and answers. In reply to the question as to who had struck him the declarant is said to have stated that it was Munwa, son of Ghhunnu who had struck him near the Bargadwali Gumti near the Railway Patri. In reply to another question as to who else were with Munwa he said that Sarju Lohar and Sheobalak were also with him. In reply to a third question he said that some persons who were there had seen the occurrence but he did not know their names. Sri J. O. G. Russel who had recorded this dying declaration stated that it had been made voluntarily by him, that before recording it he had satisfied himself that the deceased was in proper senses and was fit to make a dying declaration and there was no outsider near him except the nurses and the medical staff. The condition of the patient was certified by Dr. C.M. Agarwal who had noted on the dying declaration that the patient was in a fit condition to make a statement. Mr. Russel stated that he finished recording the dying declaration at 3-30 p.m. that it took him about half an hour to record it, that the deceased was not replying in a faltering voice and that his replies were coherent and firm. Looking into the length of the statement (Ex. P-14) it is, however, clear that the deceased must have given his replies slowly and at intervals so that it took the Magistrate nearly half an hour to record it. the statement (Ex. P-14) introduces the presence of two other persons namely Sarju Lohar and Sheobalak along with the appellant at the place of the occurrence, whose names were not mentioned by Chhotelal in the earlier dying declaration (Ex. P-13) recorded by Dr. Tiwari. There is another dying declaration which is Ex. P-18 on the record and which is said to have been reduced into writing by Sub-Inspector S.B. Tripathi which he recorded on the same date after 3-30 p.m. This statement covers a full printed page of the paperbook of this case and is a very much more detailed statement than what is to be found in any of the earlier dying declarations referred to above. Sri Tripathi, the Station Officer, tried to create a certain amount of confusion in the evidence as to the time when it was recorded; but there is intrinsic evidence in the dying declaration (Ex. P-18) itself which goes to show that it was recorded after the earlier statement (Ex. P-14) which had been recorded by the Sub-Divisional Magistrate at 3-30 p.m. The dying declaration (Ex. P-18), said to have been made before Sri Tripathi, mentioned that a doctor and a Magistrate had already taken the statement of Chhotelal. This dying declaration (Ex. P-18) besides mentioning the facts relating to the occurrence goes on to state the motive in sufficient detail. It also mentioned that at the time of the occurrence the accused was accompanied by his companions Sheobalak and Sarju, who are residents of Maksuda-bad and who were standing nearby.

(3.) There is the evidence of Dr. C. M. Agarwal (P.W. 24) on the record who had appended a certifi-cate about the physical fitness of Chhotelal in the dying declaration (Ex. P-14). Dr. Agarwal mentioned that at the time the general condition of the patient was low, that the pulse was imperceptible and that blood transfusion has started at 3 p.m. He further made it clear in answer to a question to the Court that imperceptible pulses does not mean that the patient was unable to make a statement. At any rate the medical evidence goes to indicate that the condition of Chhotelal at about 3-30 p.m., when the dying declaration (Ex. P-18) is said to have been recorded by Sub-Inspector Tripathi was not such that he could have made a detailed statement of that nature. Sub-Inspector Tripathi in order to explain as to how that detailed statement of Chhotelal in that state of health was taken mentioned that he had recorded the statement of the injured in detail not in the language of the injured but in his own language. Whether the statement was recorded in the language of the injured or in the language of Sri Tripathi, we are driven to the conclusion that at about 3-30 p.m. when blood transfusion was being given to Chhotelal, Chhotelal could not have been in a position to make such a detailed statement as if contained in Ex. P-18. Moreover Chhotelal was at that time still in the hospital and it has not been stated by any of the medical attendants that the statement of Chhotelal had been recorded by the Sub-Inspector in such detail in the presence of any medical attendant.