BRIJ MOHAN ALIAS BAJJA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal arises out of the following facts. On 19th July, 1991 at about 5.30 or 6 p.m. Jagbir deceased and his friend Rajesh Kumar P.W.5 were sitting in front of the house of Ram Kishan in Ravi Dass Nagar, Rohtak, Jagbir was playing cards with Jaswant when accused Brij Mohan alias Bajja (hereinafter referred to as 'Brij Mohan') came to the place carrying a Rapi (an instrument used for cutting leather) and inflicted a blow on the shoulder of Jagbir. He also tried to repeat the blow, on which Rajesh and Jaswant tried to catch hold of him but be ran away from the spot. Rajesh removed the injured to the Medical Hospital, Rohtak and he was got admitted there. The police was summoned to the hospital and A.S.I. Mam Chand recorded his statement exhibit PS at 10.50 p.m. and on its basis a formal first information report was registered at Police Station Civil Lines Rohtak at 11.10 p.m. under Section 324 of the Indian Penal Code. The accused was arrested on 2nd August, 1991 and on interrogation revealed that he could get the Rapi recovered. His statement was reduced into writing and a blood- stained Rapi was recovered. Jagbir succumbed to his injuries on 3rd August, 1991 and the case was converted to one under Section 302 of the Indian Penal Code and on the completion of the investigation the accused was challaned for the said offence and as he pleaded innocence, was brought to trial.

(2.) THE prosecution in support of its case examined, inter alia, P.W.2 Dr. Vimal Kumar Sharma who had conducted the post mortem examination of the dead- body and had noticed one wound on the back of the neck in the cervical region, P.W.3 Dr. S.P. Chug who at 7.30 p.m. on 29th July, 1991 had examined Jagbir and had admitted him to the hospital; P.W.4 Dr. Umesh Kalra who on the same day had made his endorsement on the application Exhibit PM at 10 p.m. certifying that the injured was fit to make statement; P.W.5 Rajesh Kumar the solitary eye-witness produced by the prosecution; P.W.6 Ram Niwas, the witness to the arrest and the recovery of the murder weapon at his instance, and P.W.9 Constable Ramesh Kumar who had on the dictation of ASI Mam Chand recorded the statement of Jagbir which formed the basis of the first information report. ASI Mam Chand, however, could not be examined as he had in the meanwhile died. The prosecution case was thereafter put to the accused. He denied his involvement and pleaded false implication on account of strained relations as criminal proceedings were going on between him and the deceased.

(3.) MR . K.C. Bhatia, the learned counsel representing the appellant, has urged that there was a serious delay in the lodging of the first information report and, as such, the prosecution case was liable to suffer on that account. We have considered this argument and find on merit in it. The incident had taken place at about 6 p.m. on 29th July, 1991. The injured was carried to the hospital by Rajesh P.W.5 and medico-legally examined by Dr. Chug at 7.30 p.m. and found to be in a semi-conscious state. A ruqa was sent to the police station at 8.25 p.m. which brought ASI Mam Chand to hospital who recorded the statement of Jagbir at 10.50 p.m. with the formal FIR being registered at 11.10 p.m. We are, therefore, of the opinion that it cannot be said that there was any delay in the lodging of the first information report. We are also of the view that the statement of Jagbir recorded in the hospital would constitute a dying declaration. The learned trial Court has held that as this statement had not been attested by a doctor, it could not be treated as a dying declaration. We find this conclusion to be wholly erroneous. A statement which has not been attested by a doctor may be found to be untrustworthy and lacking in credibility but it cannot be said that it was not a dying declaration. We are of the opinion that from the facts as made out on record the statement given by Jagbir was a dying declaration and as it was recorded without delay naming a single accused, it must be believed on that account.