GULI MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THOUGH the Appellant stood charged under Section 304 of the Indian Penal Code, the trial Judge recorded verdic of guilt under Section 325 of the Indian Penal Code on premises that there was no evidence suggesting them to have acted with intention of killing the deceased, to make him answerable under Section 304 of the Indian Penal Code and, accordingly, sentenced them to suffer rigorous imprisonment for a term of three years each.

(2.) AT the outset I may refer to the salient features of the prosecution case which have been spelt out, in the judgment of the court below and which centres round the incident in question. The factual matrix are that in the mid -night of 6th August, 1978 while deceased Ram Chandra Bhagat, Bhukhal Bhagat, P.W. 4 and Balkuer Bhagat, P.W. 5 were guarding paddy field of Keshwar Prasad, 7/8 persons came and began to harvest paddy crops which was resisted by them. It was alleged that on resistence, they dealt blows on them, as a consequence of which Ram Chandra Bhagat suffered lathi blows on his both legs. After alarms were raised by the villagers, the miscreants managed to escape, and among them, he claimed to have identified only the Appellants. It was deceased Ram Chandra Bhagat, who, before he succumbed to the injuries, rendered statement before the Police which was recorded at fourteen hours on 7th August, 1978, pursuant to which, investigation commenced, during which police officer recorded statement of witnesses, visited place of occurrence, referred injured to doctor for his clinical examination, got autopsy held over the dead body of Ram Chandra Prasad, who, eventually, succumbed to the injuries in course of treatment, and having concluded investigation, laid chargesheet before the court. In eventual trial that commenced against the Appellants, the State examined altogether nine witnesses who are the persons who were guarding field on the fateful night and also those, who claimed to be conversant with the incident in question, doctor who examined three injured and also the police officer who carried out investigation of the incident and laid chargesheet before the court to put the Appellants on trial.

(3.) TWO -fold contentions were raised at bar on behalf of the Appellants and the foremost criticism was against the dying declaration which was the sheet anchor of the prosecution case, and which also forms basis of the finding recorded by the trial Judge. It is urged that though said Ram Chandra Bhagat, the deceased, who was also the maker of fardbeyan did not make explicit accusations against the Appellants to be his only assailant at whose hands he suffered fracture in his legs, in dying declaration which was Ext. 3, such explicit accusations were attributed only to the Appellants which was a major improvement over earlier version which he rendered before the police and, on this score, it is urged that since document of dying declaration was not a credible document that cannot form basis of conviction which itself was not free from blemishes. Other contentions raised on behalf of the Appellants was that it would appear not only from testimony of D.W. 1 but also from evidence of P.Ws. 1 and 3 that Tarkeshwar Prasad was quite active and also instrumental behind prosecution of the Appellants. The trial judge had taken pains to consider various submissions canvassed at bar during the trial and rightly came to a finding recording guilt against the Appellants. The learned Counsel appearing for the Appellants has fairly urged that though dying declaration alone can form basis of conviction if the same was found free from blemishes, and it is no longer res integra, having been crystalised through various decisions of court. However, it is brought to my notice by the learned Counsel for the Appellants that the prosecution was launched against them in the year 1978 and since then more than two decades have elapsed when the Appellants have suffered ordeal of protracted prosecution for about 24 years. The factum of the Appellants having suffered custody for about two and half months during trial, has also been brought to my notice and, on these premises, it is urged that if the finding recorded by court below is endorsed by this Court, these mitigating circumstances may deserve consideration for imposition of sentence against them.