High Court
Case Details
Criminal Appeal (D.B.) No. 308 of 2016 [Arising out of judgment of conviction dated 14.03.2016 and order of sentence dated 18.03.2016 passed by learned District & Additional Sessions Judge-II, Dumka in Sessions Trial No.238 of 2013] 1. Binod Rajak @ Binod Kumar Rajak @ Vinod Kumar Rajak, son of Sri Shankar Baitha, resident of Village Gilanpara, P.O. Dumka, P.S. Dumka (Town), District Dumka (Jharkhand) 2. Suniram Murmu @ Suni Ram Murmu, son of Bhushan Murmu, resident of Village Baskiya, P.O. & P.S. Ramgarh, District Dumka (Jharkhand) 3. Mistry Tudu, son of Mangal Tudu, resident of Village Kanehra, P.O. & P.S. Ramgarh, District Dumka (Jharkhand) --Versus-- The State of Jharkhand …. …. …. Respondent .... .... …. Appellants For the Appellant For the State For the Informant : Mr. Rishav Kumar, Advocate Mr. Indrajit Sinha, Advocate : Mr. Tarun Kumar, A.P.P. : Mr. Binod Kumar Jha, Advocate PRESENT: SRI ANANDA SEN, J. -----
Legal Reasoning
witnesses, we are of the view that non-examination of the scribe of the dying declaration, will not render the dying declaration to be nugatory. 21. Testimony of witnesses are consistent regarding the incidence that 5 appellants set on fire the deceased resulting in his death. We do not find any infirmity in the judgment of conviction and order of sentence. Criminal Appeal stands dismissed. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) Per Ananda Sen, J. I agree. (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 22nd July, 2024 AFR/Anit 6
Arguments
SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 11.07.2024 Pronounced On: 22.07.2024 Per Gautam Kumar Choudhary, J. This appeal is directed against the judgment of conviction and sentence passed in Sessions Case No.238 of 2013 by which the appellants have been convicted and sentence under Section 302/34 of the Indian Penal Code. 2. FIR is the statement of Sujit Kumar Sen (deceased) recorded on 30.07.2013 at 21.30 hours in Sadar Hospital, Dumka in Burn Ward recorded by Sub Inspector – Surendra Rai. 3. As per the statement of the deceased, he was serving in a Bank and was returning home from his duty on a motorcycle. At 6 O’ Clock in the evening, when he reached near Munjhi Garha Bridge, he was signaled to stop by the appellants namely Binod Rajak, Mistry Tudu and Suniram Murmu @ Suni Ram Murmu, he stopped as they were also Bank employees. Thereafter, Binod Kumar Rajak made an attempt to stab him with knife from which he 1 some how escaped. Then all the three caught hold of him and dragged him towards ditch by the side of the road and doused him with Kerosene Oil and set him on fire and fled away. Somehow, he informed his family members by his mobile, who came to the place of occurrence and took him to the hospital in an injured condition. The dispute was on account of past enmity. The said statement was recorded in presence of Medical Officer of Sadar Hospital, Dumka and Block Development Officer, Dumka. 4. Dumka Sadar Ramgarh P.S. Case No.119/13 was registered on 30.07.2013 under Sections 341, 307, 326/34 of the Indian Penal Code against all these three named appellants and subsequently after his death, Section 302 of the Indian Penal Code was added in the FIR on 31.07.2013. 5. Police on investigation, found the case true and submitted charge sheet. After cognizance, the accused persons were put on trial under Section 302/34 of the Indian Penal Code. 6. Altogether 13 witness have been examined on behalf of the prosecution and exhibits 1 – 7 have been adduced into evidence including the fardbeyan cum dying declaration and post mortem report. 7. After prosecution evidence, statement of the accused persons have been recorded and one defence witness has also been examined. Defence is of innocence, but no specific defence has been pleaded in the statement under Section 313 of the Code of Criminal Procedure however, a plea of alibi has been pressed into service in the testimony of D.W. 1 stating therein that Mistry Tudu was engaged on that day in burial work of his grandfather. 8. It is argued by the learned counsel on behalf of appellants that there is no direct or circumstantial evidence, and the prosecution case rests on the dying declaration of the deceased. Dying declaration in the present case, suffers from serious infirmities and does not deserve to be made the solitary basis of conviction without any corroboration. Following points have been made in this regard: I. Deceased sustained 100% burn injury therefore, he cannot be said to be in a fit state of mind and body to have made the said statement. II. Autopsy Surgeon (P.W. 12) noted in para 3 of the cross-examination that due to deep burn injury, the hands with palm as well as joints will be in contraction. Therefore, he cannot be said to be in a position to 2 sign over the said dying declaration which has been marked as Exhibit 2. III. The scribe of the dying declaration, Sub Inspector – Surendra Rai, has not been examined. Reliance is placed on Manjunath & Others Versus State of Karnataka, 2023 SCC OnLine SC 1421. IV. Although the Doctor was present at the place of occurrence when the statement was recorded, but he has not given any certificate regarding fitness of the deceased making the said statement. 9. It is also argued that there were serious lapses on the part of the Investigating Officer. As per the prosecution case, the deceased had intimated the family members by his mobile, but neither the mobile was seized nor Call Detail Report in proof of said conversation, has been brought on record. 10. Investigating Officer (P.W. 13), in para 36, has deposed that there was no mark of blood or soil on the knife at the place of occurrence. 11. It is argued by the learned counsel on behalf of State that dying declaration is substantive piece of evidence and can serve as the sole basis for conviction without any corroboration. Manjunath case (supra) is distinguishable for the reason that the said case was with respect to the deceased whose thumb impression was taken on the dying declaration however, it was not a case of the prosecution that the deceased was illiterate. In such circumstance, the certification by the Doctor was held to be necessary that he was not in a condition to sign. In the present case, the dying declaration is corroborated by P.W. 5 – Sushant Kumar Singh in para 1 that the deceased had telephonically informed him that he was being assaulted by Binod Rajak. On this information, he along with 5 – 7 persons went there. He found him lying near a bush and was calling for help. He disclosed to them that he had been doused by Kerosene Oil and set on fire by the appellants. 12. Having considered the submissions advanced on behalf of both sides and the materials on record, evidently prosecution case rests on the dying declaration and the evidence of P.W.-5 who received the frantic mobile call from the deceased, when he was under assault. 13. Law is settled that dying declaration is substantive piece of evidence and can be solitary basis for conviction, if it is not vitiated by suspicious circumstances and was made by victim in a fit state of mind. There is no 3 prescribed format of dying declaration and it can be in writing as well as it can be oral also. 14. Like any appreciation of evidence, dying declaration is to be looked into isolation and is to be scrutinized in the overall facts and circumstance of the case and the other evidence on record. Scrutiny of dying declaration is part of appreciation of evidence, there cannot be any straight jacket formula to accept or reject it. It has been held in Lalliram & Another Versus State of M.P., (2008) 10 SCC 69 that in criminal cases, the question of a precedent, particularly relating to appreciation of evidence, is really of no consequence. 15. In the present case, the FIR has been lodged without any delay on the statement of the deceased recorded in the hospital in the presence of Doctor (P.W. 3) and Block Development Officer (P.W. 11). Doctor – P.W. 3 (Dr. Kumar Abhay Prasad) has deposed that on the said day, he was posted at Sadar Hospital, Dumka. One patient had been brought in a burnt condition, who had disclosed to him that he was intercepted by 2 – 3 persons and attacked by knife from which he had escaped. Thereafter, he was set on fire by them. He was in a very serious condition. P.W. 11 has also corroborated the testimony of other witnesses and has stated that on receiving telephonic direction of Sub Divisional Officer, he had gone to the General Hospital where statement of Sujit Kumar Sen was recorded by Sub Inspector – Surendra Rai. He had narrated the dying declaration recorded in his presence and has stated that the statement of the deceased was read over to him, over which he signed. Signature was counter signed by Sub Inspector – Surendra Roy, Dr. Kumar Abhay Prasad and Block Development Officer himself. In para 2, he deposed that he was fit to make the statement, which he made voluntarily. 16. Considering the fact the dying declaration can be oral, the very narration of the incidence before these two witnesses by the deceased, itself becomes dying declaration which is very much in accord and consistent with the written dying declaration. Non-examination of the scribe shall have therefore no bearing on the evidentiary worth of the dying declaration. It has been held in Laxman Versus State of Maharashtra, (2002) 6 SCC 710 that absence of certificate of Doctor about the mental fitness of the declarant at the time of dying declaration, would not render the dying declaration 4 unacceptable. 17. Furthermore, the mobile call made by the deceased to P.W.5 – Sushant Kumar Sen at 6.30 in the evening, contemporaneously at the time of incidence that he was being assaulted by Binod Rajak is a direct evidence relevant under Section 6 of the Evidence Act. In Rattan Singh v. State of H.P., (1997) 4 SCC 161 deceased Kanta Devi had pronounced and called out the name of the accused immediately before the fatal shot was fired. Question before Hon’ble Supreme Court was can such a statement be regarded as relevant under Section 6 of the Evidence Act. It was held, “16. Even apart from Section 32(1) of the Evidence Act, the aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration ‘A’ to Section 6 makes it clear. It reads thus: “(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.” (emphasis supplied) Here the act of the assailant intruding into the courtyard during dead of the night, victim's identification of the that appellant was assailant, her pronouncement standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act.” 18. Thus apart from the dying declaration, the incidence is also corroborated by the direct evidence of P.W.-5. 19. On the call from the deceased, P.W.- 5 along with other witnesses, P.W.-2, P.W.-4, P.W.-8 along with others rushed to the place of occurrence, where the deceased narrated to them that he had been set ablaze by the appellants, which will also come within the meaning of dying declaration. 20. In view of testimony of Doctor and the Block Development Officer in whose presence dying declaration was made and also corroboration by other