Patna High Court
Jagdish Raut & Anr vs State Of Bihar on 16 October, 2017
Author: Prakash Chandra Jaiswal
Bench: Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.507 of 2002
Arising Out of PS.Case No. -null Year- null Thana -null District- SITAMARHI
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1. Jagdish Raut, son of Late Tilak Raut.
2. Fulo Devi, wife of Jagdish Raut.
Both resident of village-Kanhma, P.S. Bela, District Sitamarhi.
.... .... Appellants.
Versus
The State of Bihar. .... .... Respondent.
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Appearance :
For the Appellants : Mr. Animesh Kumar Mishra, Amicus Curiae
For the Respondent : Mr. Binod Bihari Singh-I, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
ORAL JUDGMENT
Date: 16-10-2017 Heard Mr. Animesh Kumar Mishra, Amicus Curiae, for the appellants and learned A.P.P. for the State.
2. This criminal appeal has been preferred against the judgment and order of conviction and sentence dated 03.09.2002 passed by the 4thAdditional Sessions Judge, Sitamarhi in Sessions Trial No.223/98, arising out of Bela P.S. Case No.21/96, whereby the learned trial Court acquitted the accused Bharath Raut and convicted the accused Jagdish Raut and Fulo Devi for the offence punishable under Section 306 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years each and also slapped them with a fine of Rs.2000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 306 of the Indian Penal Code.
3. The factual matrix of the case is that Bela P.S. Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 2 / 10 Case No.21/96 was instituted under Sections 324/307/306/498A/34 of the Indian Penal Code against the accused Jagdish Raut and Fulo Devi on the basis of fardbeyan of Urmial Devi, wife of Bharat Raut resident of village Kanwa, P.S. Bela District Sitamarhi recorded by S.I. I.S. Choudhary Officer-in-Charge P.S. Bela on 15.05.1996 at 21:45 hours at the Primary Health Centre, Bela with the allegation in succinct that after demise of first wife of her husband, her husband has performed marriage with her 3-4 months back. After marriage, he started living in her marital house. The father and mother of the first wife of her husband, namely, Jagdish Raut and Fulo Devi respectively were also living with her in the marital house. They used to subject her to harassment and pass barb on her. Further allegation is that three days back when her husband had gone to attend the marriage of his niece in village Sadhari, P.S. Meenapur, District Muzaffarpur and the parents of the first wife of her husband had stepped out of the house then finding her alone in the house and being peeved up with the aforesaid harassment and torture meted out to her at the hands of the aforesaid persons, she locked the door of the courtyard and set her ablaze by dousing kerosene oil on her. She made hulla. Responding the hulla several neighbours entered into the courtyard by scaling the wall and rushed her to the hospital where her condition is precarious.
4. The aforesaid case was investigated by the police Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 3 / 10 and on conclusion of the investigation and finding the case true, I.O. submitted chargesheet under Section 306 of the Indian Penal Code against the accused Jagdish Raut, Fulo Devi and Bharat Raut.
5. On receiving the chargesheet & case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions and on transfer the case finally came in seisin of learned 4th Additional Sessions Judge, Sitamarhi for trial.
6. The charge against the aforesaid accused persons was framed under Section 306/34 of the Indian Penal Code. Charge was read over and explained to them, to which they pleaded not guilty and claimed to be tried.
7. To substantiate its case, in ocular evidence the prosecution has examined altogether six prosecution witnesses, namely, Ram Karan Singh as P.W.1, Hari Narain Thakur as P.W.2, Chauthi Mandal as P.W.3, Raj Kumar Mandal as P.W.4, Ram Baboo Mandal as P.W.5 and Nandlal Raut as P.W.6. All the aforesaid witnesses turned hostile. In documentary evidence, the prosecution has filed and got exhibited four documents including fardbeyan under Section 294 Cr.P.C. on admission of the defence.
8. The statement of the accused persons was recorded under Section 313 Cr.P.C. The case of the defence is Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 4 / 10 complete denial of the occurrence claiming themselves to be innocent. In buttress of their case in documentary evidence, the accused persons have filed order-sheet of Trial No.282/97 dated 17.05.1996 marked as Ext.A.
9. After hearing the parties and perusing the record, the learned trial Court passed the impugned judgment and order of conviction and sentence as detailed in earlier paragraph.
10. Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence, the convicts have preferred this present appeal.
11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubt or not.
12. It has been submitted by learned amicus curiae that as per the fardbeyan itself the condition of the victim was precarious and as per the postmortem report, the deceased was badly injured. There was 90% burn injury and the deceased was burnt from neck to head so he was not in a position to give graphical details of the entire incident in her fardbeyan. Moreover, the fardbeyan of the deceased was recorded at PHC, Bela but no certificate has been granted by the doctor to the effect that the deceased was mentally fit to give the aforesaid fardbeyan. The aforesaid fardbeyan is said to Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 5 / 10 have been recorded in presence of P.W.2, Hari Narain Thakur but he has not supported the prosecution case rather turned hostile. Thus, recording of the aforesaid fardbeyan of the victim in the PHC, Bela also does not stand corroborated by the said witness. Though the said fardbeyan has been marked as exhibit under Section 294 Cr.P.C. but as the said fardbeyan is shrouded with doubt indicating that the deceased was not mentally fit to give such fardbeyan, the conviction of the appellants cannot be made on the basis of the said fardbeyan as dying declaration. The learned lower Court has wrongly convicted the appellants on the basis of said dying declaration of the deceased hence impugned judgment and order is liable to be set aside.
13. On the other hand, learned A.P.P. appearing for the State, advocating the correctness and validity of the impugned judgment and order of conviction and sentence, has submitted that though all the material witnesses have turned hostile but as the accused have themselves admitted the genuineness and correctness of the aforesaid fardbeyan under Section 294 Cr.P.C. and on the basis of her admission the fardbeyan has been marked as Ext.2 and the deceased had died just on the following day of recording of the fardbeyan, the aforesaid fardbeyan happens to be dying declaration of the deceased and it does not require any corroboration at all. The learned trial Court relying upon the said dying declaration of the Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 6 / 10 deceased has rightly convicted the appellant under Section 306 of the Indian Penal Code, which is liable to be upheld.
14. From perusal of the record, it appears that to substantiate its case in ocular evidence the prosecution has examined altogether six prosecution witnesses but all the aforesaid prosecution witnesses turned hostile. Thus, the only material to be considered in the case against the appellants and is the basis for the conviction of the appellants by the learned trial Court is the fardbeyan of the deceased recorded by S.I. I.S. Choudhary at PHC, Bela a day preceding to the death of the deceased. From perusal of the aforesaid fardbeyan, it appears that the deceased was burnt in the fire and her condition was precarious. She was rushed to the hospital by the locals. The postmortem report of the deceased which has also been admitted by the defence under Section 294 Cr.P.C. indicates that doctor has found 90% burn injury on the person of the deceased and her whole body was burnt except scalp hairs. The said fardbeyan was recorded at the PHC, Bela but the doctor has not given any certificate to the effect that the deceased was fit to give fardbeyan at that time. Said fardbeyan was recorded in presence of Hari Narain Thakur and the said Hari Narain Thakur has been examined as P.W.2 but he has turned hostile and has not corroborated recording of the fardbeyan of the deceased at PHC, Bela before him. But, notwithstanding the Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 7 / 10 aforesaid facts and circumstances and laches on the part of the prosecution, the said fardbeyn has been exhibited on the basis of admission of the defence under Section 294 Cr.P.C. As per Section 294 Cr.P.C. where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. It is the settled principle of law that if the genuineness and correctness of any document is admitted by any party in the case under Section 294 Cr.P.C., he/she cannot challenge its genuineness & correctness and its contents at the later stage and such document may be used as a substantive evidence against the person admitting the same. If the prosecution or accused does not dispute genuineness of a document filed by the opposite party under Section 294 (1) Cr.P.C. it amounts to an admission that the entire document is true or correct. It means that the document has been signed by the person by whom it purports to be signed and its contents are correct. It does not only amount to admission of it being signed by the person purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under Section 294 (3) Cr.P.C. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 8 / 10 or correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue.The Hon'ble Apex Court in the case of Sonu alias Amar Vs. State of Harayana reported in AIR 2017 Supreme Court at page 3441 has been pleased to rule that Section 294 of Cr.P.C. provides a procedure for filing documents in a Court by prosecution or accused. The documents have to be included in a list and other side shall be given an opportunity to admit or deny genuineness of each document. In case genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with Evidence Act. A Full Bench of Bombay High Court in Shaikh Fand Hussinsab Vs. State of Maharashtra reported in 1983 Cr.L.J. at page 487 has been pleased to take the view that a document becomes both relevant and authentic evidence of its contents without the proof of its authenticity by the author or anybody else by force of Section 294 Cr.P.C. A Division Bench of Andhra Pradesh High Court in K. Pratap Reddy Vs. State of A.P. reported in 1985 Cr.L.J. at page 1446 has been pleased to observe that Section 293 & 294 Cr.P.C. are obviously intended to slim the proceedings by dispensing with by elaborate and sometimes longdrawn procedure of examining the concerned persons when the genuineness of document is not in dispute. The trial Court is justified in admitting the report of Deputy Controller of Explosives Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 9 / 10 and postmortem report as evidence without insisting upon the evidence of expert or doctor. This High Court in Surya Nath Upadhyaya Vs. State of Bihar reported in 2003 (1) PLJR at page 620 has ruled that non-examination of doctor may not cause prejudice to the accused in a case if the postmortem report has been proved without objection under Section 294 Cr.P.C. It is open to the Court to read the postmortem report in evidence without formal proof where genuineness of postmortem report is not disputed.
15. In view of the aforesaid facts, in my considered opinion, the fardbeyan of the deceased recorded on a day preceding to her death and whose genuineness and correctness has been admitted by the defence under Section 294 Cr.P.C. happens to be a dying declaration of the deceased. It does not require any corroboration of any sort and is a substantive evidence and has potential to substantiate the case of prosecution. Thus the aforesaid case of prosecution stood established by said substantive evidence. Learned Lower Court is justified to hold conviction of the appellants relying upon the said dying declaration of the deceased. Hence, the impugned judgment and order of conviction and sentence passed by the learned lower Court does not warrant any interference by this Court. Hence, the impugned judgment and order of conviction and sentence passed by the learned lower Court is upheld. As the appellants are on bail, their bail bonds Patna High Court CR. APP (SJ) No.507 of 2002 dt.16-10-2017 10 / 10 are cancelled and they are directed to surrender before the learned Court below forthwith.
16. Accordingly, this appeal is dismissed.
17. Let a copy of the first and last page of this judgment be handed over to the learned Amicus Curiae, Mr. Animesh Kumar Mishra. Learned Amicus Curiae be paid prescribed fee by the Patna High Court Legal Services Committee.
(Prakash Chandra Jaiswal, J.) Trivedi/-
AFR/NAFR AFR CAV DATE NA Uploading Date 18.10.2017 Transmission 18.10.2017 Date