Jharkhand High Court
Dayanand Khatik vs The State Of Jharkhand on 6 February, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (D.B.) No. 179 of 2014
With
Cr. Appeal (D.B.) No. 159 of 2014
..........
(Against the judgment of conviction dated 18.02.2014 and order of sentence
dated 25.02.2014, passed in Sessions Trial No.565 of 2003 by the learned
Sessions Judge, Koderma)
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Dayanand Khatik, Son of Late Hari Khatik, resident of At Khatik Muhalla,
Gurudwara Road, Jhumri Telaiya, P.O. & P.S.- Telaiya, District- Koderma
(Jharkhand)
..... Appellant (In Cr. Appeal (D.B.) No.179 of 2014)
Rajesh Sao, Son of Bhagelu Sao, resident of J.P. Nagar, Jhumri Telaiya, P.O. &
P.S.- Telaiya, District- Koderma (Jharkhand)
..... Appellant (In Cr. Appeal (D.B.) No.159 of 2014)
Versus
The State of Jharkhand ...... Respondent
(in both cases)
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
------------------
For the Appellants : Mr. Deepak Kumar, Advocate
(in both cases)
For the Respondent-State : Mrs. Laxmi Murmu, A.P.P
(in both cases)
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JUDGEMENT
Per, Shree Chandrashekhar, J. Dated: 06th February, 2020 Oral Order Dayanand Khatik, Rajesh Sao and Chandan Khatik were named as his assailants by the informant in his fardbeyan which was recorded at Telaiya Clinic at about 8:40 p.m on 26.01.2001. On the basis of his fardbeyan, Telaiya P.S. Case No. 37 of 2001 has been lodged against them. After the investigation a chargesheet was submitted against them and 2 a common charge under section 302/34 and section 120 B of the Indian Penal Code has been framed against them vide order dated 03.11.2003. Thereafter Chandan Khatik was declared juvenile and, accordingly, his trial has been separated.
2. In Sessions Trial No. 565 of 2003, the appellants have suffered conviction and sentence of R.I for life and fine of Rs.20,000/- each under section 302/34 of the Indian Penal Code.
3. During the trial the prosecution has examined 10 witnesses. The fardbeyan of the informant who succumbed to the injuries on intervening night of 26/27.01.2001 has been treated as his dying declaration.
4. The prosecution has projected P.W.5 and P.W.6 as the eye-witness.
5. Sub-section 1 to section 32 of the Indian Evidence Act, 1872 provides that statement of a person as to the cause of death or as to any of the circumstances of the transaction which resulted in his death in which the cause of that person's death is in question is admissible in evidence. Besides sub-section 1 to section 32, statement of a person which is not in issue but which refers to the fact that is so connected with the fact in issue as to form part of the same transaction is relevant under section 6 of the Indian Evidence Act. The rule of evidence incorporated under section 6 which is commonly known as res gestae provides that statement of a victim given immediately after the occurrence is a relevant fact and admissible in evidence if such statement forms part of the same transaction referring to the cause of the incident. In "Rattan Singh Vs. State of H.P." 3 reported in (1997) 4 SCC 161, the Supreme Court has discussed relevancy of statement of a victim, thus:
"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 assailant, her pronouncement that appellant was 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."
6. The fardbeyan of Binay Kumar Khatik who has died in the intervening night of 26/27.01.2001 refers to the circumstances which has resulted into his death. In his fardbeyan he has stated that Chandan Khatik, Rajesh Sao and Dayanand Khatik came to his shop in the evening of 26.01.2001 and Chandan Khatik exhorted them to shoot him and thereafter all three have fired at him indiscriminately. He has received injuries on upper and lower parts of elbow of right arm and right and left side of panjara below armpit and he was taken to Telaiya Clinic for treatment. These facts are so connected with the fact in issue, that is, his death that these form part of the same transaction and therefore relevant under section 6 of the Indian Evidence Act.
7. P.W.1, P.W.2, P.W.3 and P.W.4 are not the eyewitnesses. P.W.7 has been declared hostile and P.W.9 is a pharmacist, who has proved the 4 post-mortem report which was prepared by Dr. Jaibrat Roy and P.W. 8 and P.W.10 are the Investigating Officers.
8. P.W.1 is not an eye witness. On receiving information about the occurrence that his brother was shot dead he went to Telaiya police station where he has seen firearm injuries on his brother's dead body. He has signed the inquest report which was prepared in his presence. He has stated that he was told name of the accused persons who have fired at his brother. In his cross-examination he has admitted that there are several cases filed between his family and the family of Chandan Khatik. P.W. 2 is also an inquest witness. He has stated that the inquest report was prepared in the night of 26.01.2001 in his presence. P.W.3 is mother of the deceased. She has stated that Chandan Khatik, Dayanand Khataik and Rajesh Sao have fired at her son due to which he has died. P.W.4 is wife of the deceased. At the time of the occurrence she was inside her house. She has also taken name of the accused persons who have shot her husband dead.
9. P.W.5 has stated that at about 8.30 p.m in the evening of 26.01.2001 he has seen Chandan Khatik, Dayanand Khatik and Rajesh Sao going to the shop of Binay Kumar Khatik. They fired at him and thereafter he fled away towards northern side. After sometime when he returned he has seen firearm injuries on Binay Kumar Khatik. He has further stated that the injured was taken to Telaiya Parwati Clinic and referred for further treatment to Ranchi, however, on the way he has died. On 25.05.2004, he was not cross-examined by the prosecution and on the request of the accused persons the matter was adjourned. Mr. Deepak Kumar, the learned counsel for the appellants has submitted 5 that P.W.5 was thereafter not produced for cross-examination and there is no order of his discharge by the Court. Therefore, it must be inferred that no opportunity to cross-examine P.W.5 was afforded to the accused persons.
10. The proceedings in Sessions Trial No. 565 of 2003 would disclose that after cross-examination of P.W.5 was deferred for the next date and P.W.6 was examined on 31.08.2012, the trial has remained pending for about 8 years and there is no reference of an application by the defence for further cross-examination of P.W.5. The manner in which P.W.5 has narrated the incident in his examination-in-chief corroborates the manner of occurrence described by the deceased in his fardbeyan and the evidence of P.W.5 is sufficiently corroborated by P.W.6. He has deposed in the court that Chandan Khatik, Dayanand Khatik and Rajesh Sao came in the evening of 26.01.2001 at about 7:00 p.m at the shop of Binay Kumar Khatik and they have fired at him from their revolver. He is one amongst the others who have taken the injured for treatment to Parwati Clinic. He has proved the fardbeyan and stated that the inquest report was prepared at Koderma and thereafter the post-mortem has been conducted.
11. The appellants have challenged the fardbeyan of Binay Kumar Khatik on the grounds that: (i) it was not recorded at Telaiya Clinic and
(ii) it is not signed by any other witness who has claimed that he was present with Binay Kumar Khatik when he was taken for treatment.
12. P.W. 6 has stated that Binay Kumar Khatik was taken to Parwati Clinic for his treatment but fardbeyan of Binay Kumar Khatik 6 refers to Telaiya Clinic. In this context we find that P.W.5 has given description of the clinic as Telaiya Parwati Clinic. During the cross-examination of P.W.6 and the Investigating Officer no suggestion was given to them that there is no such clinic as Telaiya Clinic. In our opinion, it was a simple mistake and instead of giving complete description of the clinic a simple reference of the clinic has been given. It appears that Binay Kumar Khatik was taken to a clinic at Telaiya which is called as Telaiya Parwati Clinic.
13. Mr. Deepak Kumar, the learned counsel for the appellants has next contended that mother of the injured has stated that on receiving information about the occurrence she had gone to the police station and given a written information and wife of the injured has stated that her husband became unconscious after recording his statement at the police station and, therefore, there is considerable doubt on the place where fardbeyan of Binay Kumar Khatik has been recorded. In this context, it is pertinent to record that the Investigating Officer has deposed in the court that he has recorded restatement of Binay Kumar Khatik and statement of other prosecution witnesses on the same day. The statement of wife of the deceased that after recording his statement her husband has become unconscious therefore refers to his restatement and not to his fardbeyan. The mother of the deceased has stated that she had gone to the police station and given her written report but during cross-examination of the Investigating Officer this was not put to him and, therefore, nothing much turns on it.
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14. The fardbeyan of the injured who has succumbed to the injuries within few hours is admissible under section 32 as well as under
section 6 of the Indian Evidence Act. P.W.6 who is father of the deceased has stood by his statement made before the police and during his cross-examination he has reiterated his statement in examination-in-chief.
The facts elicited by the defence during his cross-examination, such as, various shops around his shop and several shopkeepers among them being alive at the time of the trial reflect the factual scenario and non-examination of the other shop-keepers during the trial has, infact, been answered by the defence witness D.W.1. In his cross-examination, D.W.1 has stated that after the firing a commotion has ensued and he had to hide himself at a nearby shop. Moreover, in the face of consistent evidence of P.W.6 which is sufficiently corroborated by other prosecution witnesses and which is in line with the manner of occurrence recorded by the injured in his fardbeyan, non-examination of the nearby shopkeepers would not create a doubt on the prosecution's case. Minor inconsistency in testimony of P.W.6 and other prosecution witnesses may have occurred on account of lapse of time, forgetfulness, fear and stress of cross examination, but on such minor inconsistency or discrepancy in their testimony the prosecution's case cannot be thrown to the winds [refer, State of U.P Vs. Naresh reported in (2011) 4 SCC 324]. A prosecution witness when he is examined in the court is not expected to narrate the entire incident that has happened on the fateful day in a graphic manner.8
15. Having said so, we find that the prosecution has proved presence of the appellants at the place of occurrence and at the time of occurrence.
16. Dr. Jaibrat Roy who has conducted the post-mortem examination has not been examined during the trial but the post-mortem report has been taken on record without objection by the defence. P.W.9 has been examined by the prosecution to prove the post-mortem examination report which reveals the following injuries on Binay Kumar Khatik:
(1) Lacerated wound in shape about 1/4" in diameter, edges inverted and blackening of skin around it on right lower lateral side of chest wall (wound of entry). (2) Lacerated 1/2" x 1/2" left side of chest laterally on posterior axillary line about 1 ½" below mammary line with overhead margin and blackening of skin (wound of exit) both of these injuries are communicating.
(3) Lacerated round in shape about 1/4" in diameter, edges inverted and blackening of skin around it on right arm 2 ½" above elbow joint posteriorly (wound of entry). (4) Lacerated 1 ¼" x ½" on right forearm 4" below elbow joint posteriorly with everted margins and blackening of skin around it (wound of exit). Both of these injuries (3) and (4) are communicating.
(5) Lacerated round in shape about 1/4" in diameter deep structures about 4 ½ above right elbow joint on right arm laterally with inverted margins and blackening of skin around it (wound of entry).
(6) Swelling of skin 1/4" x 1 ¼" (approx) on medial side of right arm about 4" above elbow joint.
(B) On Dissection:-
(1) Lungs - Pale
(2) Heart - both chambers empty.
(3) Liver - lacerated and pale.
(4) Spleen - pale.
(5) Kidneys - pale.
(6) Stomach - lacerated.
(7) Both domes of diaphragm - lacerated.
(8) Bladder - Full.
(9) Peritoneal cavity - full of blood.
(10) Brain - pale.
(11) Fracture of 8 rib on right side and 7th rib on left th side on lateral sides.9
The doctor has given his opinion that death was caused due to haemorrhage and shock caused by gun-shot injuries. He has also opined that injury no. 1 and 2 are fatal by its causal agent. He has also been mentioned that a bullet extracted from the right arm below the swelling of injury no. 6 mentioned above and is being sealed in a container for handing over it to the I.O. of the case.
17. Under Section 293 of the Code of Criminal Procedure the post-mortem report even in absence of the doctor who has prepared it can be admitted in evidence, however, it should be proved by a person who was working with the doctor and conversant with facts of the case. In his cross-examination P.W.9 has stated that Dr. Jaibrat Roy who has passed away was posted at Sadar Hospital, Koderma on 27.01.2001. He has proved the signature and writing of Dr. Jaibrat Roy on the post-mortem report but in his evidence he has admitted that he is not a medical expert nor a handwriting expert and he has never worked as personal assistant of Dr. Jaibrat Roy.
18. Under section 45 of the Indian Evidence Act, 1872 opinions of the experts are relevant. Chapter IV of the Indian Evidence Act, 1872 deals with oral evidence. section 59 of the Indian Evidence Act, 1872 provides that all facts (except content of documents or electronic records), may be proved by oral evidence. Section 61 of the Indian Evidence Act, 1872 provides that contents of a document may be proved either by primary or by secondary evidence. A document in original if produced during the trial is a primary evidence, however, contents of a document unless the maker is examined cannot be read in evidence. In terms of section 293 of the Code of Criminal Procedure a post-mortem report needs to be proved by the doctor who has conducted the examination or a 10 person who is conversant with the facts of the case and can satisfactorily depose in the court on behalf of the doctor. In "Munna Kumar Vs. State of Bihar" reported in (2005) 12 SCC 209 case, finding that the post-mortem report was not proved in terms of section 293 of the Code of Criminal Procedure, the Supreme Court has observed that the appellant was entitled for the benefit of doubt. It has been held that the prosecution should have produced the best evidence by proving the post-mortem report by examining the doctor or any other person acquainted with the hand-writing of the doctor who had prepared post-mortem report.
19. The maker of the post-mortem report has not been examined during the trial and the person who has proved his writing and signature has admitted that he is not a medical expert and, therefore, the cause of death of Binay Kumar Khatik has not been proved by the prosecution. However, he has suffered firearm injuries stands proved from the prosecutions' evidence. According to the prosecution he was treated at a clinic but no injury report or medical prescription of his treatment has been produced by the prosecution. The doctor who has treated him or any other staff of the clinic has not been examined during the trial and in his cross- examination the investigating officer has admitted that he has not recorded in the case diary name of the doctor or about the treatment of Binay Kumar Khatik.
20. The above being the factual scenario; three persons have fired at Binay Kumar Khatik resulting in injuries on upper and lower part of elbow of right arm and right and left side of panjara below armpit, no injury caused on the vital part of body, cause of death not established and 11 what treatment was given to the injured has not been disclosed, in our opinion conviction of the appellants under section 302 of Indian Penal Code read with section 34 of the Indian Penal Code for causing death of Binay Kumar Khatik is not proper and, accordingly, the judgment of conviction under section 302/34 of the Indian Penal Code dated 18.02.2014 and order of sentence of R.I. for life and fine of Rs.20000/- under section 302/34 of the Indian Penal Code dated 25.02.2014 passed by the learned Sessions Judge, Koderma in Sessions Trial No. 565 of 2003 are set-aside.
21. On exhortation of Chandan Khatik the appellants have fired at Binay Kumar Khatik. The incident has happened quickly and enmity between the parties is admitted. Therefore, it can be safely inferred that the appellants have caused such injury to Binay Kumar Khatik which was likely to cause death and, therefore, they are liable to be convicted under section 326 of the Indian Penal code [refer, "Vijay Singh and another Vs. State of Madhya Pradesh" reported in (2014) 12 SCC 293 and "Rama Meru and another Vs. State of Gujarat" reported in 1993 Supp (1) SCC 315].
22. Accordingly, the appellants are convicted and sentence to R.I. for 10 years under section 326 r/w section 34 of the Indian Penal Code.
23. Rajesh Sao who is the appellant in Cr. Appeal (D.B.) No. 159 of 2014 has been declared juvenile during pendency of this criminal appeal and by an order dated 09.10.2015 he has been released on bail.
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24. The order dated 9th October, 2015 is extracted below:
"Through the instant application, applicant-appellant Rajesh Sao, is praying for suspension of sentence during the pendency of the appeal taking the plea that he was juvenile on the alleged date of occurrence.
2. Vide the order dated 2nd September, 2015, the Juvenile Justice Board, Koderma, was directed to enquire into the exact age of the applicant-appellant on the date of occurrence i.e. 26th January, 2001 as the applicant-appellant was relying upon the School Leaving Certificate where his date of birth is indicated as 05.06.1984. Thus, on the date of occurrence, his age comes to 16 years 07 months and 21 days. A detailed report has now been submitted by the Juvenile Justice Board after holding an enquiry with regard to the exact age of the applicant-appellant on the date of occurrence. It is observed by the Juvenile Justice Board that the the applicant-appellant was juvenile on the date of occurrence (26.01.2001), thus, below the age of 18 years on the alleged date. This enquiry in our view has been held in consonance with Rule 12 of the Juvenile Justice ( Care and Protection of Children) Rules, 2007. One Ravinder Kumar Sharma, the Principal In-charge, Rajkiya Madhya Vidyalaya (Government Middle School), Gomoh, was examined who from the original Admission Register, stated before the Board that the date of birth of the applicant- appellant as recorded in the Admission Register is 05.06.1984. The School Leaving Certificate was also prepared on the basis of the entry made in the Admission Register. Thus, on the basis of the reports submitted by the Board, the applicant-appellant can certainly derive the benefit of being a juvenile on the alleged date of occurrence.
3. Mr. Deepak Kumar, learned counsel appearing on behalf of the applicant-appellant stated that on merits also the the applicant- appellant has a good case as he has been involved in this case along with Dayanand Khatik and Chandan Khatik or omnibus allegations. Dayanand Khatik appears to be the main assailant. Learned counsel submitted that Chandan Khatik, the co-accused of the applicant- appellant was declared juvenile by this Court as his age was determined less than 16 years on the date of alleged occurrence, thus, his trial was segregated and he has since been acquitted.
4. Strengthening his arguments, learned counsel submitted that the applicant-appellant, otherwise, has already remained in custody for more than six years as after he was arrested, he remained in custody for more than five years and then got bail from this Court and now is in custody since 18.02.2015, the date of passing of the impugned judgment of conviction and sentence.
5. Learned counsel while relying upon the judgment of Hon'ble Supreme Court in the case of Lakhan Lal Vs. State of Bihar with Pappu Lal @ Manoj Kumar Srivastava Vs. State of Bihar, reported in, 2011 AIR SCW 889 stated that in the said case, the sentence of life imprisonment of a juvenile was reduced to the sentence already undergone by him which turned out to be three years and few months. On the strength of the aforesaid submissions, learned counsel submitted that even in the event of the conviction of the applicant- appellant being maintained, still he will be entitled to get the concession vis-a-vis the sentence part being juvenile. He thus prayed 13 for suspension of the substantive sentence slapped upon the applicant- appellant during the pendency of the appeal.
6. Although, the State counsel has opposed the prayer made on behalf of the applicant-appellant, yet keeping in view the totality of the facts and circumstances, especially, the fact that the applicant- appellant has been held to be juvenile on the date of alleged occurrence and the fact that he remained in custody for a considerable period as under trial prisoner and now in custody since the date of conviction, deserves the concession of suspension of sentence.
7. Prayer allowed.
8. Let appellant namely, Rajesh Sao , be released on bail, during the pendency of the instant appeal, on furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned Session Judge, Koderma, in connection with Session Trial No.565 of 2003.
9. I.A. No.5794 of 2015 stands disposed of.
10. Consequently, I.A. No.4615 of 2015 also stands disposed of."
25. The law laid down by the Supreme Court in "Gopinath Ghosh Vs. State of West Bengal" [1984 Supp. SCC 228], "Bhoop Ram Vs. State of U.P." [(1989) 3 SCC 1], "Bhola Bhagat Vs. State of Bihar"
[(1997) 8 SCC 720] and "Pradeep Kumar Vs. State of U.P." [1995 Supp.
(4) SCC 419] has been reiterated by the Supreme Court in a catena of judgments. The law as it stands today is that while sustaining the judgment of conviction the sentence awarded to a juvenile has to be set-aside. In view of the fact that Rajesh Sao has been declared a juvenile on the date of occurrence while upholding his conviction under section 326 r/w section 34 of the Indian Penal Code, we set-aside the sentence of R.I. for 10 years inflicted upon him. He is on bail by virtue of the order dated 09.10.2015 and, therefore, the appellant, namely, Rajesh Sao shall stand discharged of liability of the bail-bonds furnished by him.
26. Mrs. Laxmi Murmu, the learned APP states that Dayanand Khatik is in custody for more than 10 years. 14
27. Accordingly, the appellant, namely, Dayanand Khatik in Cr. Appeal (D.B.) No. 179 of 2014 shall be released forthwith if not wanted in connection to any other criminal case.
28. In the result, Criminal Appeal (DB) No. 179 of 2014 and Criminal Appeal (DB) No. 159 of 2014 are partly allowed.
29. Let the lower-court records be transmitted to the court concerned, forthwith.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 06th February, 2020 R.K.M/A.F.R.