LAWS(PAT)-1985-5-8

DILLI RAO Vs. STATE OF BIHAR

Decided On May 03, 1985
DILLI RAO Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) The sole appellant has been convicted under S. 302/34 of the Indian Penal Code and has been sentenced to imprisonment for life.

(2.) The fardbeyan of the informant, Raja Rao, (the deceased) was recorded in Rajendra Medical College Hospital on 27-5-1981 at 10.30 a.m. On the basis of this fardbeyan, a formal F.I.R. was drawn up. According to the Fardbeyan, the case of the prosecution is that the informant Raja Rao had gone to his brother, D. D. Rao (the appellant) at Patratu where he was an employee of Rolling Factory and used to live in a quarters of that factory. Further case of the prosecution is that the deceased along with the appellant (his elder brother) and his mother came to Ranchi by a bus. They stayed at Ranchi Railway station as they had to catch a train for going outside. One Loknath, a friend of the appellant, came to Ranchi Railway station. The appellant and his friend Loknath asked the deceased to accompany them when they were going to Railway colony for taking drink. The informant went along with them to the Railway colony near the Railway station. At that place, the appellant and his friend Loknath took Haria and also asked the deceased to take the same. The deceased refused to take Haria and, thereafter, there was altercation among them. Then they proceeded towards the Railway station from that place and on the way the appellant with the help of his friend assaulted the deceased with a knife which hit him at his abdomen and near his ear. Thereafter, the deceased reached the station somehow or other. When he reached the station in injured condition, he did not find his mother. He could not know as to how he was brought to the hospital at the time his fardbeyan was being recorded. The trial proceeded before the judicial Commissioner, Ranchi, and it ended in conviction and sentenced as mentioned above.

(3.) Learned counsel for the appellant has submitted that in the instant case, the finding of the learned court below is based on three dying declarations. He has further submitted that there are so many contradictions in the dying declarations made at different times and so the same should not have been relied upon. He has also submitted that in a case in which there is no eyewitness and the conviction is based only on the dying declaration, the same should be scrutinised with due caution. He has also submitted that two of the charge-sheeted witnesses have been examined by the defence and the statements made by these defence witnesses do not support the statements made in the dying declarations by the deceased at different times. There is no room for doubt that if any conviction is based on dying declaration, then it must be properly examined. In the instant case, I find that the dying declarations of the deceased at different times are not such which do not inspire confidence. The first dying declaration is the statement made by the deceased before a constable (P.W. 8) who was posted at the Ranchi Railway station. The second dying declaration is the fardbeyan of the deceased which was recorded at the Rajendra Medical College Hospital, The third dying declaration is the statement of the deceased which he made before the Investigating Officer and it has been marked as Ext. 7. The learned counsel has contended that the dying declaration which is marked as Ext. 7 should not be relied upon as this is the statement of the deceased made before the Investigating Officer and according to the decision of the Supreme Court, such dying declaration should be discouraged. Assuming for the moment that dying declaration mentioned in Ext. 7 should not be considered then the other two dying declarations have to be considered. Even if the third dying declaration mentioned in Ext. 7 is discharged, I have to consider whether there is any discrepancy in the remaining two dying declarations. According to the learned counsel for the appellant, in the first dying declaration, the name of Loknath, the friend of the appellant, has not been mentioned, whereas the name of Loknath has been mentioned in the fardbeyan which was recorded in the hospital. From the perusal of the evidence adduced in court, it appears that the statement of the deceased could not be recorded at the police station when he reached there as he was not in such a condition that he could make any statement. Therefore, the deceased was first taken to Sadar Hospital and therefrom he was taken to Rajendra Medical College Hospital. It is, therefore, quite clear from the evidence that the fardbeyan of the deceased was recorded in the hospital when he was quite in sense. The circumstances regarding the first dying declaration at the Railway station, Ranchi itself indicate that the deceased was in great agony and pain as he had received the injury only some time before making the statement. If in such circumstances, he omitted the name of the friend of his brother, it cannot be said that it is very vital contradiction. There are several other circumstances with which I will deal subsequently and the same support that the dying declarations are reliable.