Jharkhand High Court
Shankar Mahto vs The State Of Bihar (Now Jharkhand) on 16 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:15696-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 08 of 1999 (R)
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(Against the Judgment of conviction dated 21.11.1998 and order of sentence
dated 24.11.1998 passed by learned First Additional Sessions Judge,
Dhanbad, in Sessions Trial No. 118 of 1993)
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Shankar Mahto, son of Late Tiku Mahto, resident of Village-Konartanr,
P.S.-Barwa-adda, District-Dhanbad.
... ... Appellant
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
With
Cr. Appeal (DB) No. 09 of 1999 (R)
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1. Lokhuwa Mahto @ Lukuwa Mahto
2. Ashwa @ Ashu Mahto
3. Hemlal Mahto
All sons of Late Tiku Mahto.
All residents of Village-Konartanr, P.S.-Barwa-adda, District-Dhanbad.
... ... Appellants
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellants : Mr. Peeyush Krishna Choudhary, Advocate
Mr. Amrit Anunay, Advocate
For the Resp.-State : Mr. Abhay Kr. Thakur, APP
[Cr. Appeal (DB) No. 08 of 1999]
Mrs. Ruby Pandey, APP
[Cr. Appeal (DB) No. 09 of 1999]
.....
th
C.A.V./Reserved on 05 May, 2025 Pronounced on 16/06/2025
Per Sujit Narayan Prasad, J.:
1. The instant appeals, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the Judgment of conviction dated 21.11.1998 and order of sentence dated 24.11.1998 passed by learned First Additional Sessions Judge, Dhanbad, in Sessions Trial No. 118 of 1993, whereby and whereunder, the appellants have been convicted and sentenced 2025:JHHC:15696-DB to undergo rigorous imprisonment for three years for the offence under Section 498-A of IPC and further imprisonment for life for the offence under Section 302/34 of IPC. Both the sentences have been directed to run concurrently.
Factual Matrix
2. The prosecution story in brief as per the allegation made in the fardbeyan by the informant, Pawani Devi (deceased), read as under:
The informant, Pawani Devi (deceased) has informed that she was in her Sasural at Village-Konartand on 20.01.1992. Her sasural people always used to say to the informant "Bring and given us money from her Naihar only then we shall let you live in our house otherwise we shall burn you to death." On the said date, i.e., on 20.01.1992, Tiku Mahto (since dead) father- in-law of the informant told her "Fetch money from your Naihar or live with me." At that the informant stated that where she should fetch money from and that since she was married to his son, how she would live with him. On that Tiku Mahato, Somari Mahatain (since dead) wife of Tiku Mahato and Shankar Mahato son of Tiku Mahato respectively father-in-law, mother-in- law and husband of deceased Pawani Devi (informant) and Ashwa Mahato, Likuwa Mahato and Hemlal Mahato all sons of Tiku Mahato caught hold of the informant and poured kerosene oil from 'Diya' on her person and then set fire to her body by means of a matchstick. Owing to the burning Pawani Devi cried very loudly at which the neighbour rushed there and put out the fire of her body as also brought her to the Central Hospital, Jagjiwan Nagar, Dhanbad and got her admitted there to where she was undergoing treatment at the time of making her statement (fard beyan) to the police.
The informant has further alleged that in regard to the occurrence her sasural people had tutored her that when the police come, she should say that she caught fire at the time of lighting the oven (Chulha) for cooking food and got burnt. They were present there (in the hospital near her) and so thinking and being under fear from them that later they would subject her to bearings, she narrated the occurrence as tutored by them. When in their absence her mother asked her she revealed the reality to her mother as disclosed by her that day (30.01.1992) before the A.S.I. of Police who 2 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB recorded her fardbeyan. Also before the occurrence her sasural people always used to subject her to cruelty for dowry.
3. After investigation, the police submitted the charge sheet against all the six persons, namely, Tiku Mahato, Somari Mahatain, Shankar Mahato, Ashwa Mahato, Likuwa Mahato and Hemlal Mahato for offences u/s 302 and 498-A of IPC. Somari Mahatain died before commencement of the trial and Tiku Mahto died after commencement of the trial, as such, the case got abated against them.
4. Accordingly, the trial proceeded and the appellants were found guilty by the learned trial court for the offence under Section 302/34 and 498-A of IPC and have been sentenced to undergo rigorous imprisonment for three years for the offence under Section 498-A of IPC and further imprisonment for life for the offence under Section 302/34 of IPC. The aforesaid order of conviction and sentence is under challenge herein.
Submission of the learned counsel for the Appellants:
5. Learned counsel for the appellants has taken the following grounds for interfering with the finding recorded by the learned trial court in the impugned judgment:
(i) Except investigating officer and doctor, only related and interested witnesses have been examined by the prosecution, although the independent witnesses were available but purposely, they were not examined by the prosecution which creates doubt about the prosecution story. Even the neighbours who had extinguished the fire, according to the informant, have also not been examined to support that part of the prosecution story.
(ii) There is inordinate delay in instituting the First Information Report and no sufficient explanation has been offered for the same.
(iii) The learned trial court has not assigned any reasons as to why it discarded the Fardbayan of the deceased recorded on 24.01.92 and has also not been given reason as to why learned trial court relied upon the statement of the deceased recorded on 30.01.92. It has come in evidence that the first fardbayan dated 24.01.92 bears the thumb 3 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB impression of the deceased as well as P. W.1 Sonia Mahtain, who is none else but the mother of deceased Pawani Devi and the aforesaid fact has not been appreciated properly by the trial court.
(iv) There is no evidence on record to prove the prosecution case about meeting Superintendent of Police, where after the second Fardbayan dated 30.01.92 was recorded, the learned trial court has unnecessarily given importance to this aspect of the prosecution story and has erred in believing the second Fardbayan dated 30.01.92 and an such, has come to erroneous finding which has resulted into miscarriage of justice.
(v) Even the post-mortem report does not conclusively support the prosecution story of burns as in the said report, doctor who had conducted autopsy, did not smell or trace kerosene oil on the body of deceased and doctor who had treated the deceased had not been examined by the prosecution.
6. The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that the learned trial court has not taken into consideration the aforesaid facts, as such, the impugned judgment requires interference, hence not sustainable in the eyes of law.
Submission of learned counsel for the Respondent-State:
7. While defending the judgment of conviction and sentence, the learned Additional Public Prosecutor appearing for the State has raised the following arguments in response to the grounds raised by the learned counsel for the appellant that:
(I) The demand of dowry from the deceased by the appellants and their family has been fully been substantiated by the prosecution witnesses particularly from the testimony of P.Ws.1, 2 ,3 and 5, therefore the motive behind alleged occurrence has fully been established.
(II) So far as the recording of second fardbayan is concerned, it has come in the testimony of P.W.1 (Sonia Devi) who is the mother of deceased Pawani Devi that in hospital the accused/persons did not allow anyone to talk to Pawani Devi that when they went towards one side, 4 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB deceased Pavani Devi told her while she was alone there that the accused persons poured kerosene oil on her person and then set fire to her body and they tutored her to say that she caught fire accidentally.
P.W.1 further stated that when she learnt the said facts from Pawani Devi, she rushed to the S.P. Dhanbad thereafter statement of Pawani Devi was recorded by S.I. of Police on 30.01.1992. The aforesaid fact of recording of second Fardbayan has been substantiated by the P.W.3 who had stated that second Fardbayan has been recorded in front of him, therefore the learned trial court has rightly emphasized on the second Fardbayan.
(III) Since the demand of dowry is generally the internal matter for any family therefore on this point non-examination of independent witness has not eroded the base of prosecution story. Further, it is settled position of law that quantity of witness does not matter rather quality of prosecution witness matter most in order to prove the prosecution case beyond reasonable doubt.
(IV) It has been contended on behalf of the learned counsel for the appellants that all the prosecution witnesses are related witnesses as such prosecution case has no leg to stand on own, the same is not acceptable herein, reason being that in such type of occurrence generally no person come forward to support the case of prosecution. Further it is settled position of law that just because some of the witnesses are agnates or related to each other, their evidence or testimony cannot be categorized as that of interested witnesses and the same cannot be thrown out only on this basis.
(V) It is argued that the trial court has considered and elaborately discussed the material evidence in its correct perspective. That the judgment of conviction and order of sentence is based on the evidence marshalled out during the trial and it does not require any interference by this Court.
8. The learned Additional Public Prosecutor appearing for the respondent- State, based upon the aforesaid premise, has submitted that the impugned 5 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB judgment does not suffer from any error, hence the instant appeals are fit to be dismissed.
Analysis
9. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.
10. We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits appended therewith.
11. Learned trial court, based upon the testimonies of witnesses, has passed the judgment of conviction and has convicted the appellants under Section 302/34 of Indian Penal Code and under Section 498-A of IPC and sentenced them to undergo rigorous imprisonment for three years for the offence under Section 498-A of IPC and further imprisonment for life for the offence under Section 302/34 of IPC.
12. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the testimonies of witnesses which have been recorded by learned trial Court. The learned trial court during the trial has altogether examined six witnesses and testimony of the same is required to referred herein.
13. P.W.-1- Sonia Devi is the mother of the deceased Pawani Devi. She has stated in her examination-in-chief that Pawani Devi was her daughter and was married to Shankar Mahato 13 years ago. At the time marriage she had given R.25,000/- and ornaments of Gold and silver. After her marriage when the daughter went to her in-laws' house, the in-laws started demanding from her a colour TV, Hero Honda motorcycle and money. Due to poverty, she could not give the said things, because of that they started beating her. Once, in-laws had assaulted her daughter and she filed a case in Dhanbad court. They took the daughter to their house on court's order, on executing a bond undertaking not to assault her. After taking her away, they again started demanding the abovementioned things. In reply to which her daughter used to tell her father-in-law, husband and brother-in-law that how will her mother give the demanded things. They started beating her and did not give 6 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB her food and water. They locked her in a room, sprinkled kerosene oil on her body and set her on fire. Father-in-law, brother-in-laws, and husband all together set her on fire. It has also been deposed that four years ago, her nephew Manbharan Mahato came and informed her about this incident that they set her daughter on fire and burnt her.
14. Then she went to Saraidhela hospital and saw her daughter burnt. Her father- in-law and brother-in-law were in the hospital who did not let them talk face to face. When all of them went aside, her daughter told her while she was alone that all the accused person asked her money and when she did not bring it, they all burnt her together. Her daughter also told that her father-in- law, husband and brother-in-laws tutored her to say that she caught fire accidently. When the daughter said that she was set on fire by sprinkling kerosene oil on her, then she went to the SP, Dhanbad. The S.P sent a sub- inspector of Police and thereafter Pawni's (deceased) statement was recorded. She had also given her statement to the police. She had further stated that after giving statement her daughter died during treatment in the hospital.
In the course of her cross-examination P.W.1 has stated at para 3 that within a period of 13 years after her daughter's marriage, her daughter used to visit her naihar. She also stated that even after all the assault to her at in-law's house her daughter still wanted to be in her in laws house. Her daughter used to disclose the story of her assault to which her daughter was subjected to by the accused persons. Four years ago before she died, there was a case filed against the accused person. That case is still pending. The degree or severity of assault was not the same as earlier so they did not give any information in writing about the assault in the earlier case concerned. It was her daughter only who told her of the demand of the articles by her in laws.
15. P.W.2 is Manbharan Mahato is the own Fufera brother of the deceased Pawani Devi. He has stated in examination-in-chief that occurrence took place in January 1992. Pawani Devi was his mameri sister. Four years ago, her in-laws locked her in the house and burnt her by setting fire to her body. He was not at home. Someone came to his house and informed him that in-
7 Cr. Appeal (DB) No. 08 of 1999with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB laws of Pawni Devi has set her on fire and had burnt her to death. When he came home, on learning about the said information, he informed his mami Sonia Devi (P.W.1) about the incident. He too later visited the hospital and saw Pawnni Devi in a burnt condition. He talked to her (Pawani Devi) to which she told him that she had been burnt. Her husband, Devar, bhaisur and saas. all pressurized her to give a statement that she caught the fire while lighting the stove. She also told him that they were demanding a colour TV, Hero Honda motorcycle and money which could not be provided due to which they burnt her. P.W.2 further stated in his examination-in-chief that even before this incident, she was beaten and thrown out of the house many times by them in respect of which panchayat was held many times. Once Pawani Devi was beaten and thrown out of the house, for which she filed the case in the court, then they took her away to home after getting her bidai from the court itself. Even then they started demanding the same thing, and started harassing her. He stated that she had told him about all this even before the occurrence, on which he had told sasural people that he would ask his mami first then he will appraise them accordingly. But they set fire to Pawani Devi before P.W.2 could ask his mami about anything. He also stated that Pawani Devi has told her mother (P.W-1), her uncle (P.W.3) about this occurrence.
In his cross-examination at para-3 he has stated that he came to know from his mami (P.W.1) about the accused demanding the articles. Before the occurrence, panchayat was held a number of times related thereto. After Panchayat there was a compromise between the parties in the court and thereafter bidai of Pawani Devi was done from the court itself. At that time, he was not present there. He also stated that he came to know about the assault from his mami and also from Pawani Devi. 10-15 days before the burning incident, Pawani Devi told him about the assault in the presence of her sasural people. He consoled her that he would convey the matter to her mother (P.W.1). He stated those facts to his mami (P.W.1). before the burning incident took place.
16. P.W.3, Khedu Mahato is the own uncle of deceased Pawani Devi and Dewar of Sonia Devi (P.W.1). He has stated in his examination-in-chief that Pawani 8 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB Devi was his niece who was married to accused Shankar Mahato 13 years ago (from the date of his examination in court). They burnt her to death. The occurrence took place four years ago. He was at home when his Bhagina Manbharan Mahato (P.W.2) came to him and informed that accused Shankar Mahato, husband of Pawani Devi and her father-in-law, mother in-law, Bhaisur and Dewar had burnt her. On this information he went to the Central Hospital, Dhanbad where he saw his niece. Accused Shankar Mahato and his parents and brothers were present there and they had surrounded Pawani Devi. When they went away from there, he enquired Pawani Devi as to how she sustained the burns. In reply to that she told him that her Sasural people poured kerosene oil on her and then set fire to her body. She also stated to him that sausural people were tutoring her that on the arrival of the police she should say that she caught fire in the course of lighting the stove. The witness has further stated that subsequent to that they went to the S.P., Dhanbad and appraised him of the situation and matter. Then the police came to enquire the matter and verified the same and also recorded the statements of Pawani Devi. He was not present there when the police recorded the first statement of Pawani Devi. He was there when the second statement of Pawani Devi was recorded by the Police on which both he and Pawani Devi put their respective thumb impression. This witness has again stated in his examination- in- chief that at the time of marriage of Pawani Devi ornaments and utensils were given. Thereafter her Sasural people started demanding Hero Honda motor cycle, coloured T.V. and money amounting to Rs. 15,000/- When their demand was not met, they started subjecting her to cruelty. Also, they assaulted her and driven her out of their house. Then a case was lodged against them in which a compromise was reached later on the condition that in future the accused persons would not do so and they took her home by getting her Vidai performed. The witness claimed at the time of his examination in court he knew and identified the accused from long before. In the course of his cross-examination this witness has stated in para 6 that Pawani stated to him regarding the demand of the said things. Manbharan Mahato (P.W.2) came to his house and informed him of the burning incident that Pawani Devi had suffered burns.
9 Cr. Appeal (DB) No. 08 of 1999with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB
17. P.W.-4 is Doctor Vinod Kumar. On 05.02.92 he was posted as Asstt. Prof. in the Deptt. Of FMT, PMCH, Dhanbad. On that day at 3.10 P.M. he conducted P.M. Examination on the dead body of Pawani Devi W/o Shankar Mahto. Deceased was female aged about 28 years. Her dead body was brought and identified by constable no. 1481 Kailash Yadav.
The following observations were made on the body of the deceased.
Deceased was of average built, rigor mortis was passed out, head hairs were trimmed, no smell of any inflammable oil was perceived in head hair.
Found the following ante mortem injuries :-
Partial to full thickness skin deep burn with thick pass and granulations tissues . The left upper expermities, thorax all around, medial side of right upper extremity and neck.
No other external injury seen On dissection found the following:-
Both side chambers of the heart were empty. Uterus and urinary bladder were empty. Stomach contained about 100 cc fluids. All the Internal organs were pale in general.
Time passed since death was between 36 to 48 hours before the time of P.M. examination. He stated that in his opinion death was due to aforementioned extensive burn injuries. This P.M. report is in his pen and signature marked as Ext. 1. He also stated that after elapse of 10 to 15 days of burn there will be no smell of oil.
18. In Cross examination he stated that he did not find any smell of kerosene oil during the course of P.M examination.
He also stated that injuries caused by burns through Kerosene oil which is usually known from its characteristics of tie down and sooty blackening if death occurs within two hours of the burns. He did not find any sign of sooty blackening.
He also stated that the doctor who treated the patient would have been in a better position to say as to whether the burnt were caused through the application of Kerosene oil or not. He cannot say conclusively that the burns 10 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB were caused through the application of kerosene oil. He had not given any reference to the inquest report in the P.M. Report.
19. P.W.5 Yamuna Devi (P.W.5) is own sister of deceased Pawani Devi. She has stated in her examination-in-chief that Pawani Devi was her own sister who was married to accused Shankar Mahato about 15 years ago (from the date of her examination in court). At the time of her marriage her father had given Pawani Devi ornaments and clothes. After the marriage, her Sasural people began to subject her to cruelty for coloured T.V. and motor cycle. She stated that her father did not meet their said demand. Subsequent to that her Sasural people left Pawani in her Naihar for about two years. Thus, in respect of which a case was lodged in court against them. Then they took Pawani Devi home from the court itself. But again, her Sasural people began to subject her to trouble and torture her for the said things but even at that time her father did not meet their said demand. This witness has further stated in her examination- in chief that when their said demands were not met, her husband, father-in-law, mother-in-law, Bhaisur, Devar and gotani killed Pawani Devi by pouring kerosene oil on the person of Pawani Devi and set fire to her body owing to severe and extensive burn injuries and she thereof died in the hospital in the course of treatment. The witness has stated in her examination- in- chief that Pawani Devi was undergoing treatment at Saraidhela Hospital, she (this witness) had gone to see her. Then she had talked with her in the course of which Pawani Devi told her that after pouring kerosene oil her Sasural people set fire to her head by means of match-stick. Pawani Devi also stated to her that her father in-law told to her (Pawani Devi) that when her husband is not loving her, she should live with him (sasur) and then she would bear a male child. The witness has again stated in her examination in chief that Pawani Devi died 15 days after she was admitted to the hospital.
20. P.W.5 has stated at para 5 inter alia that she went to meet Pawani Devi in the hospital 3-4 days after she was admitted there. On the very same day Pawani Devi told her the said facts.
She has stated in her cross-examination that Pawani Devi gave her statement to police and marked her thumb impression and nobody else has 11 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB signed or marked thumb impression. She has stated in para 8 and 9 that she has given her statement to police the same day Pawani Devi has given her statement to police. She has stated that she has not put any thumb impression on the statement she has given.
21. P.W.6 is Sugrive Singh. He stated that he was posted on 12.05.1992, A.S.I of Police at Barwadda police station, Dist. Dhanbad. He has stated in his examination in chief that the charge was of the remaining investigation of the case was entrusted to him according to the direction of the officer-in- charge, Barwadda P.S. because the initial I.O. Imamuddin Khan had been transferred to a different place from there. He obtained warrant of arrest (non-bailable) u/s 82 and 83 of Cr.P.C from the Court of C.J.M., Dhanbad against the three absconding accused persons Shankar Mahato, Tiku Mahato and Somari Mahato on 13.05.1992 and executed the warrant against them on 14.05.1992. Thereafter according to the order of the superior police officer he submitted the charge sheet against the accused persons on 15.05.1992. He stated that the fardbayan was in writing of Devendra Prasad Singh of saraidhela (jagjivan nagar) police station and he recognised his signature and writing. He has stated in the course of his cross-examination that in this case he neither recorded the statement of any witness nor inspected the place of occurrence. He has only submitted Charge sheet.
22. Md. Imamuddin Khan (C.W.1) who is the initial and main I.O. of the case has been examined as a court witness u/s 311 Cr.P.C. for just decision of the case. He has stated in his examination in chief that on 30.01.1992 he was posted as A.S.I. of Police at Barwadda P.S. under Dhanbad district. That day the fard-beyan of Pawani Devi was sent by the officer-in-charge of Saraidhela P.S. to Barwadda P.S. The then Officer-in-charge Shyam Mohan Sinha forwarded the same to Govindpur P.S. for instituting the case, and entrusted the charge of investigation to him. According to his direction he took over charge of investigation. In the course of investigation, the fard- beyan of Pawani Devi recorded by Devendra Singh A.S.I. of Police of Saraidhela P.S. was received on 27.01.1992. Since on the basis of that fard- bayan, no case of any cognizable offence was made out, that's why the same was not forwarded by Devendra Singh to Barwadda P.S. on 24.01.1992. He has further stated in his examination-in-chief that during investigation he 12 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB recorded the statement of Pawani Devi in the hospital. In her restatement she told that she was married to Shankar Mahato 7-8 years back and that after her huband, sasur Tiku Mahato, saas Sundari Mahato, devar Hemlal Mahato and Ashwa Mahato and Lalua Mahato started harassing her to get hero honda motorcycle and T.V form her parents and she was thrown out of the house for which she had filed the case regarding the dowry demand which was going in the court, in the meanwhile her father expired, after which she settled that case in the court, that after settlement she was assured that in future she will not be beaten in any way, or taunted as she doesn't have any child . On 21.01.1992 at about 12 noon, all the abovementioned persons came to the plaintiff and said that hero honda motorcycle and T.V were demanded in dowry earlier but till date she has not given to them and that she should be burnt to death. That the abovementioned persons caught her and forcibly poured lamp oil on her body and lit a match-stick. When the fire broke out, she started shouting for help "bachao" " bachao" but out of fear of those people nobody came at that time. She also stated that the abovementioned people got her admitted in saraidhela hospital and told her that whatever has happened, now she would not be harassed in any way in future and also if police came to take her statement she should give a statement to them that while cooking food her clothes caught fire from the stove and her body got burnt, that's why she gave the first statement to the police under the threat and intimidation of her in-laws. But she told her relative that the abovementioned persons has set her on fire and burnt her by using lamp oil. On basis of her statement her family members informed the police that she gave her first statement under threat and duress of her in-laws and that the statement she is giving today is true.
23. On 31.01.1992 he inspected the place of occurrence. Place of occurrence is a residential small-long mud-built and tiled room of Pawani Devi facing north behind the main house. He has stated that the investigation of the place of occurrence after 10 days of the incident He has yet stated in his examination in chief that in course of investigation he recorded the statement of witnesses.
24. On 06.02.1992 post mortem examination report of deceased Pawani Devi was sent to Barwadda P.S. from the Saraidhela P.S. which was received by 13 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB him. Then he came to know Pawani Devi had died during treatment. In the meantime, he was transferred from Barwadda P.S. to another place as a result of which Shyam Mohan Singh was made in-charge of investigation of the case, the then officer-in-charge, Barwadda P.S. on 12.05.1992.
25. In his cross-examination the I.O. has stated in his examination at para 7 and 9 that, both 1st fard beyan and the 2nd fard-beyan of Pawani Devi were recorded by Devendra Singh, Saraidhela P.S. on 24.01.1992 and 30.01.1992 respectively and none of them was recorded by him. He himself recorded the statement of Pawani Devi on 31.01.1992. He also stated that he has taken statement from the witnesses on 31.01.1992 itself. In para 7 he stated that the said statement of Pawani Devi was entirely taken from the statement he recorded in his case diary and that statement was given to him by Pawani Devi directly. He did not prepare any inquest report of the dead body.
26. At this juncture, it would be apt to reiterate the contention of the parties. Learned counsel for the appellants has argued that the trial court has committed manifest error in not appreciating the fact that the most of witnesses except doctor and investigating officer who have been examined by prosecution are highly interested witnesses as they are related to each other. Learned counsel has submitted that the findings of the doctor who conducted the post-mortem over the dead body has not corroborated the testimony regarding the burn injuries sustained by the deceased as there was no trace of kerosene found on the body of the deceased.
27. Learned counsel further submitted that in view of the material contradictions in the 1st and 2nd fardbeyan, it cannot be said that the prosecution has brought home the charges against the appellants beyond all reasonable doubt therefore, the appellants are entitled to the benefit of doubt.
28. There is no evidence on record to prove the prosecution case about meeting the Superintendent of Police, where after the second Fardbayan dated 30.01.92 was recorded, the learned trial court has unnecessarily given importance to this aspect of the prosecution story and has erred in believing the second Fardbayan dated 30.01.92 and as such, has come to erroneous finding which has resulted into miscarriage of justice. Further delay in instituting the FIR has also been raised.
14 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB
29. On the aforesaid grounds it is emphatically contended that the impugned judgment is not sustainable in law or on facts and deserves to be set aside.
30. Per contra, learned APP has contended that just because some of the witnesses are agnates or related to each other, their evidence or testimony cannot be categorized as that of interested witnesses. Further, the demand of dowry from the deceased by the appellants and their family members has been fully been substantiated by the prosecution witnesses particularly from the testimony of P.Ws.1, 2 ,3 and 5. therefore the motive behind alleged occurrence has fully been established.
31. Further, the fact of recording of second Fardbayan has been substantiated by the P.W.3 who had stated that they had gone to meet S.P. Dhanbad with P.W.1, and second Fardbayan has been recorded in front of him, therefore the learned trial court has rightly emphasized on the second Fardbayan. It is argued that the trial court has considered and elaborately discussed the material evidence in its correct perspective. That the judgment of conviction and order of sentence is based on the evidence marshalled out during the trial and it does not require any interference by this Court.
32. This Court, on the basis of aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court:
(I).Whether the prosecution has been able to prove the charge beyond all shadow of doubt?
(II).Whether the prosecution has been able to prove the charges leveled against the appellant as the fact of the given case is?
(III).Whether the discrepancies, which is alleged to have been found in the 1st and 2nd fardbayan, is sufficient to disbelieve the prosecution version in the facts of given case?
(IV).Whether the present case comes under the fold of suicidal or accidental or homicidal death?
15 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB
33. Since all the issues are inter-linked with each other and as such they are being taken together by taking into consideration the facts of the given case including the testimony of witnesses and arguments of the learned counsel for the parties.
34. Before adverting in to the merit of the case this Court thinks deem fit and proper to refer herein the admitted factual aspects of the case.
(i) Before the alleged occurrence the deceased Pawani Devi was married to the accused/appellant Shankar Mahato and the rest of the appellants are full brothers of the accused/appellant Shankar Mahato.
(ii) At the time of occurrence since all accused/appellants were part of the joint Hindu family therefore they lived together and were residing in the one and same house in which alleged occurrence took place.
(iii) The deceased Pawani Devi became a victim of fire and sustained extensive burn injuries to which she succumbed in the course of treatment after about 15 days of the alleged occurrence.
(iv) Two fardbayan of Pawani Devi was recorded by the Devendra Singh (A.S.I. Saraidhela P.S.) on 24.01.1992 and 30.01.1992 respectively at the central hospital, Dhanbad and both the fardbayan were sent to Barwadda P.S. which had territorial jurisdiction over the alleged place of occurrence.
(v) The said Devendra Singh had not been examined as witness by the prosecution.
(vi) The case was based upon the content of 2nd fardbayan dated 30.01.1992 and the first fardbayan has not come on record but recitals thereof have been incorporated in para-2 of the case diary and the said para has been marked as Ext. A.
35. In the backdrop of the aforesaid admitted facts this Court is now adverting to the contention of the learned counsel for the parties as well as merit of the case.
36. The learned counsel for the appellants has contended that most of the prosecution witnesses are interested witness, furthermore, no independent 16 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB witness has been examined by the prosecution in corroboration of 2nd fardbayan of deceased basis upon which FIR was instituted.
37. The position of law is well settled that the testimony of the witness even if related, one cannot be discarded mechanically rather the testimony is to be considered consciously, as has been held by Hon'ble Apex Court in the judgment rendered in Rizan v. State of Chhattisgarh (2003) 2 SCC 661, wherein it has been held which reads as under:
"6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down as under:
(AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, 17 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
10. Again in Masalti v. State of U.P. this Court observed: (AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-andfast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." [Emphasis supplied]
38. Likewise, the Hon'ble Apex Court in the judgment rendered in Shamim v. State (NCT of Delhi), (2018) 10 SCC 509 held as under:
"9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit. We see no reason why the same principle cannot be applied when such a witness deposes against a closely related accused. According to normal human behaviour and conduct, a witness would tend to shield and protect a closely related accused. It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness. PW 4 is the daughter of the appellant. She has deposed that two days prior to the occurrence the appellant had threatened the witness to leave PW 1 else she would get his family members killed. Soon after the occurrence having reached the house of her in-laws she stepped out on the verandah. The appellant who was standing on her own verandah told the witness that she had got the deceased killed because the witness did not listen to her and that her husband would be killed next. In cross-examination she reiterated the same. The statement, in our opinion, can be considered as a corroborative evidence being a voluntary extrajudicial confession, considering the nature of relationship between the witness and the appellant.
39. Similar view has been taken by Hon'ble Apex Court in the judgment rendered in Mohd. Rojali Ali v. State of Assam, (2019) 19 SCC 567 relevant paragraphs of which is quoted as under :
"13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki2; Amit v. State of U.P.3; and Gangabhavani v. Rayapati Venkat Reddy4). Recently, this 18 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB difference was reiterated in Ganapathi v. State of T.N.5, in the following terms, by referring to the threeJudge Bench decision in State of Rajasthan v. Kalki2: (Ganapathi case5, SCC p. 555, para 14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."
14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab6, wherein this Court observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person." 15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry)7: (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
40. Thus, from the aforesaid settled position of law it is evident that the court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.
41. So far as ground of non-examination of independent witness is concerned it has been held that for non-examination of independent witness the case of the prosecution cannot be doubted alone, as has been held by Hon'ble Apex Court in the judgment rendered in Sadhu Saran Singh Vs. State of U.P. [(2016) 4 SCC 357], wherein at paragraph 29 it has been held as under:
19 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB "29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.
42. It transpires from the above proposition of law that even if the independent witness has not been examined the testimony of the witness being related one to the deceased cannot be discarded.
43. In the context of aforesaid contention of the learned counsel for the appellants, this Court is going to revisit the testimony of the investigating officer who had done major part of the investigation and has been examined as C.W.1. From his testimony it is evident that admittedly Devendra Singh who has recorded 1st and 2nd fardbayan on 24.01.1992 and 30.01.1992 has not been examined as prosecution witness. It has been stated by the prosecution witnesses particularly P.W.1 and 3 that due to tutoring by the appellants, the deceased in his 1ST statement/fardbayan has stated that on 20.01.1992 at about 1 P.M, she was trying to light the oven by putting Goitha (cow dung) in order to cook food and in the said course she poured kerosene oil and at sudden tongue of the flame became fierce from which her whole body was burnt.
44. In the second fardbayan which was also recorded by the said Devendra Singh on the instruction of the S.P. Dhanbad as alleged by the prosecution witnesses (P.W.1 and 3), the Pawani Devi (deceased) had stated that her sasural people always used to say to the informant "Bring and give us money from your Naihar only then we shall let you live in our house otherwise we shall burn you to death." On the said date, i.e., on 20.01.1992, Tiku Mahto (since dead) father-in-law of the informant told her "Fetch money from your Naihar or live with me." At that the informant stated that where she should fetch money from and that since she was married to his son, how she would live with him. On that Tiku Mahato, Somari Mahatain (since dead) wife of Tiku Mahato and Shankar Mahato son of Tiku Mahato 20 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB respectively father-in-law, mother-in-law and husband of deceased Pawani Devi (informant) and Ashwa Mahato, Likuwa Mahato and Hemlal Mahato all sons of Tiku Mahato caught hold of the informant and poured kerosene oil from 'Diya' on her personal and then set fire to her body by means of a matchstick. Owing to the burning Pawani Devi cried very loudly at which the neighbour rushed there and put out the fire of her body as also brought her to the Central Hospital, Jagjiwan Nagar, Dhanbad and got her admitted there to where she was undergoing treatment at the time of making her statement (fard beyan) to the police.
45. She had further deposed that she was being tutored by the accused/appellant and due to said tutoring she has stated in first farbayan that during the cooking alleged occurrence was happened. She categorically stated that in regard to the occurrence her sasural people had tutored her that when the police come, she should say that she caught fire at the time of lighting the oven (Chulha) for cooking food and got burnt. She had further alleged that they were present there (in the hospital near her) and so thinking and being under fear from them that later they would subject her to bearings, she narrated the occurrence as tutored by them and in their absence when her mother asked her she revealed the reality to her mother as disclosed by her on that day (30.01.1992).
46. The learned counsel for the appellant contended that there is no independent corroboration of the aforesaid recitals as made by the deceased in the 2nd fardbayan dated 30.01.1992 hence the prosecution case has no leg to stand on his own.
47. But it is the considered view of this Court that the aforesaid contention of the learned counsel for the appellant is totally misplaced reason being that the recital of 2nd fardbayan of the deceased has fully been substantiated by P.W.1 and P.W.3. and apart from this the C.W. 1 (I.O. of the case) has categorically stated that he has taken the separate statement of deceased on 31.01.1992 wherein she had stated on the same line as she had stated on 30.01.1992 in the second fardbayan. For ready reference the relevant part of the testimony of PW.1, 2 and C.W.1 is being quoted as under:
21 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB P.W.1 : 1. -----मैं सरायढे ला अस्पताल जाकर बेटी को जला दे खें। अस्पताल में उसके ससुर भैंसुर थे जो सामने बात करने नहीीं दे ते थे। ये सब एक तरफ गये तब मुझे लड़की अकेले में बतायी कक पैसा लाने कहा नहीीं लाने पर सब कमलकर जला कदये। यह भी बताई कक ससुर, भैसुर, पकत कह रहे थे कक कहो कक अपने आग लग गया जब बेटी बताई कक उसे तेल किड़ककर आग लगा कदये हैं तब S.P. के यहाीं गये। दरोगा को भेजकर पुनः पौनी का बयान कलये। मैं भी पुकलस को बयान दी।
P.W.2: 1. पौनी दे वी मेरी भकतजी थी। इसकी शादी शींकर महतो के साथ आज से 13 साल पहले हु थी। पौनी दे वी को जलाकर मार कदये। घटना 4 साल पहले की है । मैं घर में था तो भगीना मनभरण महतो आकर बताया कक भकतजी को जला कदया है । बताया कक शींकर महतो, ससुर, भैंसुर, सास, दे वर जला कदये है । यह सुनकर मामी सोकनया दे वी के साथ Central अस्पताल धनबाद आये, भकतजी से भेंट हुई। शींकर महतो, शींकर महतो का बाप मााँ । भाई लोग वहाीं थे। ये लोग भकतजी को घेरे हुए थे। ये लोग जब चले गये तब लड़की से पुिे कक कैसे जली तो बताई कक ककरासन तेल किड़क कर आग लगा कदये। उसे कसखा रहे है कक पुकलस आने पर कहना कक चूल्हा जलाने में आग लग गया। हमलोग एक०पी० को जाकर कहे तो पुकलस जाीं च करने आया। जाीं च ककया, पौनी दे वी का बयान कलया। पौनी के पहला बयान के समय मैं वहाीं नहीीं था। दु सरा बयान पौनी का मेरे सामने कलया। इस पर पौनी का और मेरा अींगुठे का िाप कलया।
C.W.1: 3. अनुसींधान के कम में ही वाकदनी का पवनी दे वी का पुवव बयान मैने रारायडे ला अस्पताल में जाकर कलया। उसने अपने पु नबवयान में बताया कक उसकी शादी सात-आठ वर्व पुवव शींकर नहतोीं से हुई थी, कक शादी के बाद वाकदनी को उत्तमे पकत शकर महतो, ससुर टीकू महतो सात सुन्दरी महताईन दे वर मालाल महतो तथा अशवा महतो एवीं ललुआ महता द्वारा हीरोहोण्डा मोटर साईककल टीभी मी-बाप से लाकर दे ने के कलए उसे प्रताकड़त ककया जाने लगा और घर से कनकला कदया गया कजसके कलए उसे न एक मामला दहे ज मागने के सम्बन्ध में ककया था जो कोटव में चल रहा था, कक इस बीच उसके कपता का दे हान्त हो गया कजसके बाद तारीख 25.09.91 को कोटव में उसने उस मामला को सुलह कर कलया कक उत्स सु लह के बाद उसे आश्वासन कदया गया कक भकवष्य में उसे ककसी भी तरह मारपीट नहीीं ककया जायगा, कक उसे कोई औलाद नहीीं है कक कदनाीं क 20.01.92 को करीब बा बजे कदन में उपरोक्त सभी लोग कमलकर वाकदनी के पास आये और बोले कक पहले से हीरो होण्डा और टीवी दहे ज में माीं गी गई थी लेककन आजतक नहीीं लाई कक आज इसे जलाकर जान से मार कदया जाय कक उपरोक्त सभी लोग पकाकर जबरदस्ती शरीर पर दीया का तेल डालकर माचीत लगा कदए कक आग लगने पर "बचायो-बचावोीं का हल्ला ककया परन्तु उन लोगोीं के डर से उस समय कोई नहीीं आया, कक उपरोक्त लोग ही उसे सरायढे ला अस्पताल में भती कराये और उससे कहने लगे कक जो हो गया सो हो गया. अब भकवष्य में ककसी तरह से प्रताकडत नहीीं ककया जायेगा, कक यकद पुकलस बयान लेने आये तो उसे बयान दे ना कक धान्य बनाते समय चुल्हा से कपडा में आग पकड़ कलया और बदन जल गया कक इस प्रकार ससुराल वालोीं के डराने धमकाने एवीं बहकावे में आकर खाना बनाने के कम में चुल्हा से साड़ी आग पकड़ने तथा शरीर जलने का बयान उसने पहले पुकलस को कदया था जबकक अपनी माीं और सगे-सम्बन्धी को बताया था कक उपरोक्त मुद्दालय लोगोीं ने उसे पकड़कर, बदन पर दीया का तेल डालकर माचीत से आग लगा दी कजससे उसको शरीर जल गया कक उसके बयान के आधार पर उसके पररवार के सगे सम्बनधी द्वारा दू बारा पुकलस के पात्त पर सूचना दी गई कक पहला बयान जो कलया गया है वह 22 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB बाकदनी द्वारा उसके ससुराल वालोीं के द्वारा कराने करने और बहकाने के कारण कदया गया था जबकक आज जो वह बयान द रही है हकीकत है ।
48. Thus, from the aforesaid it is evident that the recitals of 2nd fardbayan has fully been substantiated by the C.W.1. i.e. I.O., as such the contention of the learned counsel for the appellant that farbayan of deceased upon which FIR was instituted has not been substantiated is totally fallacious hence same is hereby rejected.
49. It needs to refer herein that after the 2nd fardbayan, the deceased died during course of treatment at the hospital; therefore, she had not been examined before the trial court. After death of injured, this fardbeyan of injured becomes admissible in evidence, as dying declaration, under section 32 of the Evidence Act.
50. The Hon'ble Apex Court in the case of "Dharampal vs. State of UP"
reported in (2008) 17 SCC 337 has held that the FIR lodged by deceased would attain the character and legal status of dying declaration, if the victim dies before his or her examination in the Court. The Hon'ble Apex Court has held as under:
"15. ...
7. The report was admissible under section 32 of the Evidence Act as a dying declaration of the deceased Raj Pal the names of the accused and important futures of the case have been mentioned therein. The report contain truthful version of the incident as narrated by Raj Pal as to cause of death.
8. The version given in the FIR found corroboration from the testimony of eye witnesses and medical evidence on record."
51. The Hon'ble Apex Court in the case of "Suraj Deo Ojha and Anr. vs. State of Bihar" reported in AIR 1979 SC 1505 at paragraph nos. 2 and 3 has held as under:
"2. The central evidence in this case consist of dying declaration made by deceased before the sub inspector which has been treated as FIR the dying declaration was made within a hour of assault when the deceased was fully conscious. Both the courts below have relied upon the dying declaration and have held that the dying declaration is proved. All the appellants are named in dying declaration and even the witness no.1 and 3 have been mentioned clearly as having seen the occurrence, in such dying declaration. These witnesses have been believed by the court below.
3. Mr. Mukherjee appearing in support of the appeal submitted that having regard to the large number of injuries sustained by the deceased, he would not be in a position to speak or give dying declaration. We have ourselves examined injuries and we find that there was no injury which may have affected the brain or heart and 23 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB only serious injury are on the abdomen which will not make the deceased in conscious immediately."
52. The Hon'ble Apex Court has held in "Nanchau Ram and others vs. State of Madhya Pradesh" reported in AIR (1988) SC 912 that wherein eye witnesses said that the deceased was in fit and conscious state of mind to make dying declaration, the medical opinion cannot prevail.
53. The Hon'ble Apex Court in the case of "Luxman vs. State of Maharashtra"
reported in (2002) 6 SCC 710 has held that the mere absence of doctor's certification as to fitness of declarant's state of mind would not ipso facto render the dying declaration unacceptable. Evidentiary value of such a dying declaration depends upon the facts and circumstances of each case.
54. The Hon'ble Apex Court in the case of The State of Uttar Pradesh Versus Subhash @ Pappu reported in 2022 Livelaw SC 336 at paragraph 6 has held as under :
"6. At the outset, it is required to be noted that as per the dying declaration recorded by Assistant Divisional Transport Officer on 05.12.1980, six/seven persons attacked the deceased. Even in the F.I.R., lodged by Hari Singh (PW-5), it was specifically mentioned that six persons attacked his brother Bengali, who assaulted him with hockey stick and knife. It is true that Hari Singh (PW-5) - informant turned hostile. However, at the same time, we see no reason to doubt the dying declaration recorded by Assistant Divisional Transport Officer on 05.12.1980. The submission on behalf of the accused relying upon the decision of this Court in the case of Laxman (supra) that the day on which the dying declaration was recorded, there was no extreme emergency and/or his condition was not so serious or there was any danger to his life and therefore there was no reason and/or cause to record the dying declaration and therefore the dying declaration is not believable, has no substance. In the case of Laxman (supra), which has been relied upon by learned counsel appearing on behalf of the accused there is no absolute proposition of law laid down by this Court that, in a case when at the time when the dying declaration was recorded, there was no emergency and/or any danger to the life, the dying declaration should be discarded as a whole. In the present case, as the deceased was having a stab injury by a knife, there was a possibility of danger to his life and therefore, by way of prudence, if the dying declaration was recorded on 05.12.1980, there is no reason to doubt the dying declaration, which was recorded by Assistant Divisional Transport Officer. Therefore, in our view the Trial Court has rightly relied upon and/or believed the dying declaration recorded by Assistant Divisional Transport Officer on 05.12.1980."
55. The Hon'ble Apex Court in the case of Laxman vs. State of Maharashtra (supra) at paragraph 4 has held as under :
24 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB "4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma v.
State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise."
56. The Hon'ble Apex Court in the case of Rafique alias Rauf and Others vs. State of Uttar Pradesh reported in (2013) 12 SCC 121 at paragraph 19 to 26 has observed as under :
"19. In this context when we make reference to the statutory provisions concerning the extent of reliance that can be placed upon the dying declaration and also the implication of Section 162(2) CrPC vis-à-vis Section 32(1) of the Evidence Act, 1872, we feel that it will be appropriate to make a reference to the decision of this Court in Khushal Rao v. State of Bombay [Khushal Rao v. State of Bombay, AIR 1958 SC 22 : 1958 Cri LJ 106] . Sinha, J. speaking for the Bench after making further reference to a Full Bench decision [Guruswami Tevar, In re, ILR 1940 Mad 158 : AIR 1940 Mad 196] of the High Court of Madras headed by Sir Lionel Leach, C.J.; a decision [Chandrasekera v. R., 1937 AC 220 (PC)] of the Judicial Committee of the Privy Council and Phipson on Evidence, 9th Edn., formulated certain principles to be applied to place any reliance upon such statements. We feel that the substance of the principles stated in the Full Bench decision and the Judicial Committee of the Privy Council and the author Phipson's viewpoint on accepting a statement as dying declaration can also be noted in order to understand the principles ultimately laid down by this Court in para 16.
20. The Full Bench of the Madras High Court in Guruswami Tevar [Guruswami Tevar, In re, ILR 1940 Mad 158 : AIR 1940 Mad 196] 25 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB ILR at p. 170 (AIR at p. 200) in its unanimous opinion stated that no hard-and-fast rule can be laid down as to when a dying declaration should be accepted, except stating that each case must be decided in the light of its own facts and other circumstances. What all the court has to ultimately conclude is whether the court is convinced of the truthfulness of the statement, notwithstanding that there was no corroboration in the true sense. The thrust was to the position that the court must be fully convinced of the truth of the statement and that it should not give any scope for suspicion as to its credibility. This Court noted that the High Court of Patna and Nagpur also expressed the same view in the decisions in Mohd. Arif v. Emperor [AIR 1941 Pat 409] and Gulabrao Krishnajee v. Emperor [AIR 1945 Nag 153] .
21. The Judicial Committee of the Privy Council while dealing with a case, which went from Ceylon, which was based on an analogous provision to Section 32(1) of the Evidence Act, 1872 took the view that apart from the evidence of the deceased the other evidence was not sufficient to warrant a conviction. It was, however, held that in that case when the statement of the deceased was received and believed as it evidently was by the jury it was clear and unmistakable in its effect and thereby, the conviction was fully justified and was inevitable. The Judicial Committee noted that the factum of a murderous attack, though resulted in the cutting of the throat and the victim was not in a position to speak but yet by mere signs she was able to convey what she intended to speak out, and the said evidence was brought within the four corners of the concept of dying declaration, which formed the sole basis ultimately for the Court to convict the accused, which was also confirmed by the Supreme Court of Ceylon, as well as by the Judicial Committee of the Privy Council.
22. The author Phipson in his 9th Edn., of the book on Evidence made the following observations: "... The deceased then signed a statement implicating the prisoner, but which was not elicited by question and answer, and died on March 20. It was objected that being begun in that form, it was inadmissible :
Held (1) the questions and answers as to his state of mind were no part of the dying declaration; (2) that even if they were, they only affected its weight, not its admissibility; and (3) that the declaration was sufficient, without other evidence, conviction, R. v. Fitzpatrick [(1910) 46 Ir LT 173] ." for 23. After considering the above legal principles, this Court has set down the following six tests to be applied for relying upon a material statement as a dying declaration : (Kushal Rao case [Khushal Rao v. State of Bombay, AIR 1958 SC 22 : 1958 Cri LJ 106] , AIR pp. 28-29, para 16) "16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench [Guruswami Tevar, In re, ILR 1940 Mad 158 : AIR 1940 Mad 196] of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration 26 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
(emphasis supplied)
24. We also wish to add that as on date, there is no statutory prescription as to in what manner or the procedure to be followed for recording a dying declaration to fall within the four corners of Section 32(1) of the Evidence Act. The presence of the Magistrate; certification of the doctor as to the mental or the physical status of the person making the declaration, were all developed by judicial pronouncements. As has been repeatedly stated in various decisions, it will have to be found out whether in the facts and circumstances of any case the reliance placed upon by the prosecution on a statement alleged to have been made by the deceased prior to his death can be accepted as a dying declaration, will depend upon the facts and circumstances that existed at the time of making the statement. In that case it would mainly depend upon the date and time vis-à-vis the occurrence when the statement was alleged to have been made, the place at which it was made, the person to whom the said statement was made, the sequence of events, which led the person concerned to make the statement, the physical and mental condition of the person who made the statement, the cogency with which any such statement was made, the attending circumstances, whether throw any suspicion as to the factum of the statement said to have been made or any other factor existing in order to contradict the statement said to have been made as claimed by the prosecution, the nexus of the person who made the statement to the alleged crime and the parties involved in the crime, the circumstance which made the person to come forward with the statement and last but not the least, whether the said statement fully supports the case of the prosecution.
25. In this context, we can also make a reference to a decision of this Court in Cherlopalli Cheliminabi Saheb v. State of A.P. [(2003) 2 SCC 571 : 2003 SCC (Cri) 659] , where it was held that it was not absolutely mandatory that in every case a dying declaration should be recorded only by a Magistrate. The said position was reiterated in Dhan Singh v. State of Haryana [(2010) 12 SCC 277 : (2011) 1 SCC (Cri) 352] wherein it was held that neither Section 32 of the Evidence Act nor Section 162(2) CrPC, mandate that the dying declaration has to be recorded by a designated or particular person and that it was only by virtue of the development of law and the guidelines settled by the judicial pronouncements that it is normally accepted that such declaration would be recorded by a Magistrate or by a doctor to eliminate the chances of any doubt or false implication by the prosecution in the course of investigation.
27 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB
26. In a recent decision of this Court in Sri Bhagwan v. State of U.P. [(2013) 12 SCC 137 : (2012) 11 Scale 734] , to which one of us was a party, the Court dealt with more or less an identical situation and held as under in paras 21 and 22:
"21. As far as the implication of Section 162(2) CrPC is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 statement could be relied upon, as rightly contended by the learned Senior Counsel for the respondent, once the said statement though recorded under Section 161 CrPC assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deem to apply in all force to such a statement though was once recorded under Section 161 CrPC. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of the Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.
22. Keeping the above principle in mind, it can be stated without any scope for contradiction that when we examine the claim made on the statement recorded by PW 4 of the deceased by applying Section 162(2), we have no hesitation in holding that the said statement as relied upon by the trial court as an acceptable dying declaration in all force was perfectly justified. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We reiterate that having regard to the manner in which the said statement was recorded at the time when the crime was registered originally under Section 326 IPC within the shortest time possible within which it could be recorded by PW 4 in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the appellant to discredit contents of the said statement, we hold that the reliance placed upon the said statement as the dying declaration of the deceased was perfectly justified. Having regard to our above conclusion, the said submission of the learned counsel for the appellant also stands rejected."
57. Learned counsel for the appellants contended that in view of the material contradictions in the 1st and 2nd fardbeyan, it cannot be stated that the prosecution has brought home the charges against the appellants beyond all reasonable doubt therefore, the appellants are entitled to the benefit of doubt.
58. In the aforesaid context it needs to refer herein that deceased Pawani Devi had stated in her 2nd fardbayan on 30.01.1992 that accused/appellants had tutored and pressurised her to give the statement that alleged occurrence was an accident. She further stated that accused persons were present there 28 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB (in the hospital near her) and so thinking and being under fear from them that later they would subject her to bearings, she narrated the occurrence as tutored by them and in their absence when her mother asked her, she revealed the reality to her mother as disclosed by her on that day (30.01.1992).
59. From the aforesaid it is evident that initially she was under fear and influence of the accused/appellants and therefore she had stated that the alleged occurrence was an accident but later on when she saw that accused/appellants were not present nearby then she revealed the reality to her mother and thereafter 2nd fardbayan was recorded by the A.S.I Devendra Singh based upon which FIR has been instituted. It is general phenomenon that the married women always try to save her matrimonial life at any cost and here in the instant case the deceased in sheer pressure of husband's family member has not disclosed the alleged occurrence in the 1st fardbayan. But the veracity of 2nd fardbayan has fully been established by the C.W.1 (I.O.) of the instant case who had recorded the statement of the deceased on 31.01.1992 and aforesaid fact has also been corroborated by the statement of P.W.1 and 3.
60. Further the learned counsel for the appellants has also submitted that there is no evidence on record to prove the prosecution case about meeting Superintendent of Police, where after the second Fardbayan dated 30.1.92 was recorded, the learned trial court has unnecessarily given importance to this aspect of the prosecution story.
61. In the aforesaid context, it needs to refer herein that when deceased had stated the real occurrence to the P.W.1 then P.W.1 had gone to S.P. Dhanbad, it has come in the testimony of P.W.1 that on instruction of S.P. the 2nd fardbayan of the deceased had been recorded on 30.01.1992. The aforesaid fact has fully been substantiated by the P.W.3, for ready reference the relevant paragraph of the testimony of the aforesaid witnesses has already been quoted hereinabove in the preceding paragraph.
62. Further it needs to refer herein that from the cross examination it is evident that on the said evidence of P.W.1, no question has been asked on behalf of the accused persons, therefore it becomes crystal clear from the above that 29 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB the second fardbayan of Pawani Devi was recorded by the said Devendra Singh on instruction of his superior police officer.
63. The contention of the learned counsel for the appellants that there is no evidence on record to prove the prosecution case about meeting Superintendent of Police, where after the second Fardbayan dated 30.01.1992 was recorded, is not fit to be acceptable herein, hence same is hereby rejected.
64. The learned counsel for the appellants further raised the issue of delay in the institution of FIR and has submitted that delay in lodging FIR has not properly been explained by the prosecution, as such the prosecution story is doubtful.
65. In the aforesaid context it needs to refer herein that a FIR should be filed as soon as possible after the offence is committed, even though there is no time restriction specified in any law or regulation for doing so. The Court's determination of what constitutes an acceptable time will vary on the facts of each case and the reasonable time will vary accordingly. Further, if the informant takes a long time to file a FIR and the reason for the delay is clear, there will be no suspicion of the delay, and the case will proceed as if it was filed immediately. However, if the delay is unexplainable, suspicions of embellishment, fabrication, or exaggeration of facts will arise.
66. Further it is settled position of law that the delay in lodging an FIR by itself cannot be regarded as the sufficient ground to draw an adverse inference against the prosecution case, nor could it be treated as fatal to the case of prosecution. The Court has to ascertain the causes for the delay, having regard to the facts and circumstances of the case. If the causes are not attributable to any effort to concoct a version, mere delay by itself would not be fatal to the case of prosecution reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Hariprasad @ Kishan Sahu Vs. State of Chhattisgarh 2023 INSC 986. For ready reference the relevant paragraph is being quoted as under:
"10. Of course, the delay in lodging an FIR by itself cannot be regarded as the sufficient ground to draw an adverse inference against the prosecution case, nor could it be treated as fatal to the case of prosecution. The Court has to ascertain the causes for the 30 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB delay, having regard to the facts and circumstances of the case. If the causes are not attributable to any effort to concoct a version, mere delay by itself would not be fatal to the case of prosecution."
67. In the instant case as per the 1st fardbayan which has been mentioned in the para-2 of the case diary and as per the impugned order the 1st fardbayan has not been produced separately before the learned trial court but recital of the same has been mentioned in the case diary wherefrom it is evident that the deceased has stated that alleged occurrence was happened due to an accident while cooking. Since no cognizable offence has been made out from the aforesaid recital of 1st fardbayan, therefore no FIR was lodged but when the real occurrence was narrated by the deceased victim on 30.01.1992 to P.W.1 and P.W.3 then on instruction of S.P. Dhanbad 2 nd fardbayan of the deceased was recorded and based upon that the FIR has been instituted.
68. From the aforesaid, it is evident that delay in lodging FIR has sufficiently been explained by the circumstances of the case itself, therefore the contention of the learned counsel for the appellants is misplaced and hence the same is hereby rejected.
69. Learned counsel for the appellants has submitted that the findings of the doctor who conducted the post-mortem over the dead body of deceased has not corroborated the testimony regarding the burn injuries sustained by the deceased as there was no trace of kerosene oil found on the body of the deceased.
70. In the aforesaid context it needs to refer herein that post-mortem of the body of deceased was carried out by the doctor after 15 days of alleged occurrence and in between she was being treated at hospital at Dhanbad, therefore it is impossible to find out the trace of kerosene oil on the body of deceased as such the aforesaid contention of the learned counsel for the appellant is not tenable hence the same is also hereby rejected.
71. Further, it has come on record that matrimonial dispute between the deceased and one of appellants namely Shankar Mahato, husband of the deceased, was going on and later on compromise was occurred between the parties concerned and the deceased had gone to her sasural. Further demand of dowry has fully been substantiated by the prosecution witnesses 31 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB particularly P.W.1, 3 and 5. Further the deceased before his death in 2 nd fardbayan has categorically stated the on 20.01.1992, Tiku Mahato, Somari Mahatain (since dead) wife of Tiku Mahato and Shankar Mahato son of Tiku Mahato respectively father-in-law, mother-in-law and husband of deceased and Ashwa Mahato, Likuwa Mahato and Hemlal Mahato all sons of Tiku Mahato caught hold of the informant and poured kerosene oil from 'Diya' on her person and then set fire to her body by means of a matchstick and owing to the burning Pawani Devi deceased cried very loudly at which the neighbour rushed there and put out the fire of her body as also brought her to the Central Hospital, Jagjiwan Nagar, Dhanbad. The aforesaid fardbayan has fully been substantiated by the C.W.1 (Investigating officer) who had categorically stated that on 31.01.1992 he had taken the statement of the said Pawani Devi wherein she had stated on the same line as she had stated in the 2nd fardbayan on 30.01.1992. Therefore, the veracity of the aforesaid 2nd fardbayan has fully established beyond reasonable doubt.
72. This Court, after having discussed the factual aspect and legal position and considering the finding recorded by the learned trial Court, is of the view that the learned trial Court after giving its thoughtful consideration to the testimony of prosecution witnesses being corroborated by the testimony of investigating officer (C.W.1) has come to the conclusion that the prosecution has been able to prove the charge beyond all shadow of doubt against the present appellants, therefore, requires no interference by this Court.
73. Consequent upon dismissal of the appeals preferred by the appellants, since both the appellants are enjoying the suspension of sentence after the order being passed by this Court directing to release them during pendency of the appeal, their bail bonds are cancelled and they are directed to surrender before the learned trial Court for serving out the sentence inflicted upon them.
74. Needless to say, that if the appellants will not surrender, the trial Court will take endeavors for securing custody of the appellants to serve out the sentence as inflicted by the learned trial court.
32 Cr. Appeal (DB) No. 08 of 1999 with Cr. Appeal (DB) No. 09 of 1999 2025:JHHC:15696-DB
75. Accordingly, with the aforesaid direction and observation the instant criminal appeals stands dismissed.
76. Pending interlocutory application(s), if any, also stands disposed of.
77. Let this order/judgment be communicated forthwith to the court concerned along with the Lower Court Records.
(Sujit Narayan Prasad, J.)
I agree,
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 16/06/2025
Saurabh /A.F.R.
33 Cr. Appeal (DB) No. 08 of 1999
with
Cr. Appeal (DB) No. 09 of 1999