……… Ajit Gope, S/o Barho Gope, R/o Bara Bazar (Gowal Toli), P.S. Sadar, District v. ……… …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI ……... (Against the judgment of conviction dated 22.01.2003 and order of sentence dated 23.01.2003 passed by learned Additional Sessions Judge, Fast Track Court, Hazaribagh in Sessions Trial No.146 of 1986). Cr. Appeal (D.B.) No. 242 of 2003 ……… Ajit Gope, S/o Barho Gope, R/o Bara Bazar (Gowal Toli), P.S. Sadar, District- Hazaribagh The State of Jharkhand Versus ……… ….. Appellant …. Respondent For the Appellant For the State : Mrs. Juhi Kumari, Amicus Curiae : Mr. Shailesh Kumar Sinha, AddI. Public Prosecutor ----------- PRESENT Sri Ananda Sen, J. Sri Pradeep Kumar Srivastava, J. J U D G M E N T 02.12.2024 By Court:
Legal Reasoning
11. After going through the prosecution evidence, we find that P.W.- 5 and P.W.-6 have been declared hostile. It is an admitted case that Doctor who had conducted the postmortem, has not been examined in this case. 12. It is the case of the prosecution that the informant received information, while he was in Court that his father has been stabbed by someone. This P.W.-2 stated that on receiving the information, he along with Deo Narayan and Arjun Ram went to the field when his father disclosed that it is this appellant, who has committed his murder. P.W.-3 and P.W.-4 are brothers of the informant. They also stated that in their presence, the deceased has disclosed the name of this appellant as the assailant. Save and except this oral dying declaration before the informant there is no other evidence in this case. 3 13. The Hon’ble Supreme Court in the case of Makhan Singh vs. State of Haryana, reported in 2022 SCC OnLine SC 1019 has held that there is no impediment in convicting an accused solely based on the dying declaration, but the Court should be very cautious while doing so. The Hon’ble Supreme Court in the case of Purshottam Chopra v. State (NCT of Delhi), reported in (2020) 11 SCC 489, at paras 21 and 21.8 has held as follows:- “21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:- 21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.” From the aforesaid judgment, it is clear that dying declaration, to be accepted, should be voluntarily and should be consistent and coherent. Further in Madan vs. State of Maharashtra, reported in (2019) 13 SCC 464, the Hon’ble Supreme Court has held that if the dying declaration is consistent and in the opinion of the Court, it inspires confidence that the deceased at the time of making such dying declaration, was in a fit state of mind and there was no tutoring or prompting, conviction can be sustained on the basis of the said dying declaration. From the aforesaid judgment, it is clear that the dying declaration should inspire confidence and must be made in fit state of mind. The Hon’ble Supreme Court in the case of Jai Karan v. State of Delhi (NCT), reported in (1999) 8 SCC 161 held that the maker of the statement of dying declaration should be in fit state of mind and the statement should be voluntarily. The dying declaration is like other piece of evidence which is neither extra strong or weak and the same can be acted upon without corroboration, if it is found to be otherwise true and reliable. 4 14. In view of the aforesaid judgment of the Hon’ble Supreme Court, we have to consider and arrive at a conclusion as to whether the dying declaration is reliable or not. In this case, informant (P.W.-2) has stated that before him the dying declaration was made implicating this appellant. P.W.-3 and P.W.-4 also stated in the same manner. Be it noted that P.W.-3 and P.W-4 are the sons of the deceased. As per the F.I.R., it is the prosecution case that one Deo Narayan Kumar, Advocate accompanied the informant to the field on receiving the information that his father has been assaulted. Be it noted that when the informant has got the information of the assault, the name of this appellant did not crop up as he stated that he had heard “someone” had assaulted the deceased. Surprisingly, this Deo Narayan Ram has been withheld by the prosecution. He has not been produced as a witness. He could have been the best independent witness to say about the dying declaration. Be it noted that, in this case there is an allegation that the deceased was stabbed. Thus, doubt always remain in the mind as to whether he was in a fit state of mind to give the dying declaration or not. 15. Another very important witness is D.W.-1, namely, Abdul Jabbar. Reference of D.W.-1 is also found in the evidence of P.W.-4 at para 7 wherein he stated that D.W.-1 being the driver of the vehicle was all along with them from the beginning till end. When we go through the evidence of D.W.-1 the driver, he stated that when he had seen the injured, he was already dead. Thus, the defence has created a reasonable and convincing doubt in the mind of this Court as to whether the deceased was dead or alive at that time. The postmortem report is Exhibit-6. From the postmortem report, we find that the stab wound is on the left side of the chest below the left of nipple around 5th rib. It is close to the sternum and cutting the front wall of the right ventricle and penetrating the cavity of the right ventricle. This injury clearly suggest that the impact was heavy and left ventricle was penetrated. This also gives 5 an impression to us that the death might have occurred instantaneously, within a short span time from the assault. 16. The nature of the injury coupled with the statement of D.W.-1 creates doubt in the mind of the Court as to whether the deceased was alive when the informant reached to the place of occurrence or not. Non-examination of the independent witness like Deo Narayan and Arjun Ram who were along with the informant at the time of lodging the F.I.R. is also fatal for the prosecution. When doubt is created about the genuineness of oral dying declaration, it would not be proper for the Court to convict the appellant solely based on the same. Accordingly, the instant criminal appeal stands allowed by acquitting the appellant. 17. The judgment of conviction dated 22.01.2003 and order of sentence dated 23.01.2003 passed by learned Additional Sessions Judge, Fast Track Court, Hazaribagh in Sessions Trial No.146 of 1986 is set aside. 18. As this appellant is already on bail, he and his bailors are discharged from the liabilities of the bail bonds.
Arguments
Since, the learned counsel for the appellant, who is on record has not appeared on the first half of the Court proceeding on repeated call, we requested, Mrs. Juhi Kumari to assist this Court as Amicus Curiae considering the appeal is of the year, 2003. She accepted our request and argued the case at length in the second half. 2. This criminal appeal is preferred against the judgment of conviction dated 22.01.2003 and order of sentence dated 23.01.2003 passed by learned Additional Sessions Judge, Fast Track Court, Hazaribagh in Sessions Trial No.146 of 1986, whereby the sole appellant was convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay Rs.5,000/-. 3. Learned Amicus Curiae submits that only on the basis of oral dying declaration before the informant, this appellant has been convicted. The other witnesses in support of dying declaration i.e. P.W.-3 (Bhaiya Kaushalendra Sahay) and P.W.-4 (Bhaiya Roghubendra Sharan), who are brother of the informant and son of the deceased are related and interested witness. There are no other independent corroborative evidence on the point of dying 1 declaration. When there is no corroborative evidence, it would not be proper to convict, the appellant solely on the basis of the aforesaid oral dying declaration before the informant. She also submits that Doctor has not been examined in this case, which goes to the root of the trial. On these grounds, learned Amicus Curiae prays for acquittal. 4. Learned counsel for the State submits that P.W.-3 (Bhaiya Kaushalendra Sahay) and P.W.-4 (Bhaiya Roghubendra Sharan) have clearly stated that the deceased in an injured condition narrated before them that it is this appellant, who had assaulted him, thus there is corroboration of the statement of the informant (P.W.-2). The postmortem report has been exhibited and as per the said postmortem report the death is homicidal. Thus, this appeal needs to be dismissed. 5. Prosecution story as per the fardbeyan of the informant- Maruti Sharan Sahay [P.W.-2], who is son of the deceased is that he stated that as an Advocate, he was in the Court and on the fateful day, when he received an information that his father, who had gone to the field, has been stabbed by someone. He then left the Court along with Deo Narayan Kumar, another Advocate and went to the field and saw his father in an injured condition. He stated that the deceased in an injured condition disclosed before him that it is the appellant who had stabbed him. 6. On the basis of the fardbeyan, Katamsandi P.S Case No.100 of 1981 was registered under Sections 302/34 and 120(B) of IPC. 7. After investigation police submitted chargesheet against the appellant and cognizance was taken for the offence under Sections 302/34 and 120B of IPC. Thereafter the case was committed to the Court of Sessions where charge was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. Charges were framed against the appellant under Section 302/34 IPC and the trial proceeded. 2 8. Altogether seven witnesses have been examined in this case, who are as follows:- (i) P.W.-1 Moti Ram (ii) P.W.-2 Maruti Sharan Sahay, informant (iii) P.W.-3 Bhaiya Kaushalendra Sahay (iv) P.W.-4 Bhaiya Raghubendra Sharam Sahay (v) P.W.-5 Javed Akhtar (vi) P.W.-6 Madhu Sudan Prasad (vii)P.W.-7 Rajdeo Singh, Investigating Officer 9. The following documentary evidences were exhibited by the prosecution:- Exhibit-1- Formal F.I.R. Exhibit-2 Fardbeyan Exhibit- 3 Signature of Arjun on the inquest report Exhibit- 4 Signature of S.I. on Fardbeyan Exhibit-4/1 Signature of P.W.-7 on the endorsement Exhibit-5 Inquest report Exhibit- 6 postmortem report 10. The Trial Court after completion of the prosecution evidence examined this appellant under Section 313 of Cr.P.C. One defence witness was also examined. After hearing the parties, the Trial Court convicted this appellant under Sections 302/34 of IPC.
Decision
19. Interlocutory application(s), if any, also stands disposed of. 20. Considering the proper assistance of learned Amicus Curiae, we direct the Jharkhand High Court Legal Services Committee to pay remuneration of Rs.7,500/- to Mrs. Juhi Kumari, the learned Amicus Curiae. 21. Let the Trial Court Record be transmitted to the Court concerned along with a copy of this judgment. (Ananda Sen, J.) (Pradeep Kumar Srivastava, J.) High Court of Jharkhand, Ranchi Dated 02/12/2024 AFR /R.S./ Cp 03. 6