Jharkhand High Court
Shivan Sah @ Shivan Sao vs The State Of Bihar (Now Jharkhand) on 1 November, 2023
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra, Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 182 of 1997(P)
(Against the judgment of conviction dated 29.03.1997 and order of
sentence dated 31.03.1997 passed by Sri R.P. Verma, learned
Sessions Judge, Godda in Sessions Trial No. 25 of 1996)
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Shivan Sah @ Shivan Sao, Son of Niro Sah @ Niro Sao, resident of
Village - Ekdara, Police Station - Kahalgaon, District - Bhagalpur
... ... ... ... ... Appellant
-Versus-
The State of Bihar (now Jharkhand) ... ... ... Respondent
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CORAM: SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Appellant: Ms. Anjana Prakash, Sr. Advocate
Md. Jalisur Rahman, Advocate
For the State: Mr. Manoj Kumar Mishra, A.P.P.
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Reserved on: 14.09.2023 Pronounced on: 01.11.2023
Upon hearing the learned counsel for the parties, this Court
passed the following, (Per, Sanjaya Kumar Mishra, C.J.)
JUDGMENT
1) In this appeal, the sole appellant Shivan Sah @ Shivan Sao has challenged the judgment of conviction dated 29.03.1997 and order of sentence dated 31.03.1997 passed by the Sessions Judge, Godda in Sessions Trial No. 25 of 1996, whereby he has convicted the appellant for the offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the 'Penal Code' for brevity) and sentenced him to undergo imprisonment for life thereunder without any fine.
2) The case of the prosecution, shorn of unnecessary details, is that on 3rd of January, 1991 at about 8.30 p.m., an F.I.R. was lodged before the ASI Kedar Mandal at the Health Centre, Panjwara. It was informed by the informant Bateshwar Sharma that he was at the tea-betel shop at Khatnai Chowk, PS- Muffasil, District Godda. At about 6.30 pm, he heard a hulla that near the Boring House situated south to the said Chowk, Krishna Kumar Sah (deceased) was assaulted. The informant rushed to the Boring House where he saw the deceased Krishna Kumar -2- Sah lying with dragger injury over his person and there were bloodstains all over his body. He also noticed that a part of his intestine has protruded out from the injury. The informant then with the help of others shifted the injured to the hospital where later on he died because of the injuries sustained by him. There he was given first-aid treatment and was referred to a higher centre. In the meantime, when he was present before the deceased, the deceased informed that the appellant has inflicted injuries on him by means of a Chhura because of previous enmity. Such declaration was made in presence of the other witnesses also.
3) It is further evident from the record that the deceased died in the hospital and on the basis of the F.I.R. lodged by the informant, a case was initiated against the appellant bearing Godda (Muffasil) P.S. Case No.02 of 1991 for the offence under Sections 307 and 326 of the Penal Code. Later on, after completion of investigation, the same was converted into Section 302 of the Penal Code. The Investigating Officer in course of investigation took all necessary steps like holding inquest on the dead body of the deceased, holding spot visit, seizure of material objects, sending the dead body for the post-mortem examination, recording of statement of witnesses and the informant after examination and finally upon completion of investigation, he submitted charge-sheet under Section 302 of the Penal Code, against the appellant.
4) The defence in the case took the plea of simple denial and false accusation.
5) In order to prove the case, the prosecution examined eight witnesses on its behalf. PW.1 happens to be the informant of this case. The other two important witnesses are PW.2 Nand Lal Sah and PW.2 Foto Mali. PW.4 Anant Ram Sah has also stated about the dying declaration made before them by the deceased on the date of -3- occurrence. PW.5 Dinkar Mandal has been declared hostile by the prosecution. PW.6 Dr. Ajay Kumar Jha conducted post-mortem examination of the dead body of the deceased. PW.7 is the Investigating Officer of this case. PW.8 is the Police Officer who recorded fardbeyan of the informant.
6) After taking into consideration the dying declaration made by the deceased before the witnesses, namely, PW.1, PW.3 and PW.4 and the evidence of PW.6 (Doctor), the learned Sessions Judge has come to the conclusion that the prosecution has proved its case beyond all reasonable doubts and, therefore, proceeded to convict the appellant under Section 302 of the Penal Code.
7) The learned Senior Counsel Ms. Anjana Prakash appearing for the appellant would submit that the material evidence namely in this case runs contrary to the evidence of the medical expert who has conducted the post-mortem examination and, therefore, basing on such uncorroborated oral dying declaration, in the absence of any expert's opinion regarding the mental capacity of the injured who later on died of the same injury, the learned Sessions Judge committed a serious error on record by convicting the appellant and, therefore, he should be acquitted. The learned Senior Counsel relied upon the reported case of Irfan alias Naka Vs. State of Uttar Pradesh, 2023 SCC OnLine SC 1060, wherein the Hon'ble Supreme Court has held that oral dying declaration should be carefully examined before relying on it to record a conviction, especially in a grievous case like murder.
8) At this stage, there is no dispute that the prosecution relies upon the dying declaration made by the deceased before the aforesaid witnesses, the alleged motive regarding the marriage of the sister of the appellant with the deceased and her re-marriage is also resorted to by the prosecution and has been relied upon by the learned Sessions -4- Judge in coming to conclusion about the guilt of the appellant. Lastly, the prosecution relies upon the medical evidence.
9) It is apparent from the record that PW.6 has conducted post- mortem examination on the dead body of the deceased on 04.01.1991. He would state that on 04.01.1991 he held autopsy on the dead body of Krishna Kumar and found him to be aged 28 years old male, S/o. Late Ram Charan Sah of Village Ranipur, PS- Kahalgaon, District Bhagalpur. His body was identified by Constable No.99 Madhyam Ram, Nand Lal Sah and Bateshwar Sharma of Khatnai Village. In course of post-mortem examination, he found the following ante-mortem injuries:-
(i) Incised injury over left temporal region extending to left external ear with incision of outer table of temporal bone, size 2½" x ½" x ½".
(ii) Incised injury of the size 3" x ½" x ½" over front of right palm.
(iii) Incised injury 3" x ½" leading to interior of abdominal cavity transversely placed over the right iliac fossa with intestine protruding through the wound.
(iv) Incised injury 2½" x ¼" x ¼" transversely placed on back of chest over left scapular region.
(v) Incised injury on front of right thigh 3" x ¼" x 1/8".
(vi) Lacerated injury with blackening of margins ½" x ½" leading upwards, forwards and medially into interior of abdomen from left lateral side of abdomen just below the coastal margins (ribs).
(vii) Lacerated wound 3" x 2½" roughly circular overlying sternum and left 2nd and 3rd ribs with blackened enerted margins.
On dissection the Doctor (PW.6) found that the left lung was grossly lacerated and clotted blood was present over the left pleural cavity. Blood clot was present in mediastrum behind sternum. One foreign material was found present. Left dome of diaphragm was -5- perforated at its top. Incised injury was ileum at three places each of ½"
size was noticed. Stomach contained undigested rice. He opined that death was due to hemorrhage and shock due to the aforesaid injuries. He further opined that Injuries no.(vi) and (iv) were caused by fire arms. Injury no.(iv) was wound of exit and the injury no.(vi) was the entry wound. Other injuries were caused by sharp-cutting weapon. He fixed the post-mortem examination from the death to be 24 hours. His report has been marked as Exhibit 2. In the cross-examination, he has stated that all the injuries combined together were responsible for death. A few of the injuries could cause death independent of other, viz., injuries no.(iii), (iv) and (vi) combined. He could not state what was the foreign material recovered from the body; he handed over the same to the police; he cannot say from the record as to when the post-mortem report was handed over to the police.
10) Thus, it is clear that the deceased Krishna Kumar Sah sustained two kinds of injuries. The first kid is incised wounds which could be caused by a sharp-cutting weapon, whereas injuries nos.(vi) and (iv) were caused by fire-arms. It is not the case of the prosecution that the appellant inflicted injuries on the deceased by means of a sharp-cutting weapon as well as by firing a gun-shot. It is the consistent case of the prosecution from the time of lodging of the F.I.R., till the very end, i.e., the trial of the case, that the deceased was inflicted with blows by means of a Chhura. So, there is no mention of any gun-shot injury by any of the witnesses. The learned Sessions Judge has taken into consideration this aspect of the case and has recorded that the Doctor has inadvertently stated that the injury nos.(iv) and (vi) are caused by gun-shot and, therefore, he has proceeded to convict the appellant for the offence as stated above. The approach adopted by the learned Sessions Judge is wholly uncalled for, as we have examined the -6- evidence of PW.6 Dr. Ajay Kumar Jha and we find from the record that neither the prosecution nor the defence suggested that the Medical Officer made any error in the post-mortem report after conducting the post-mortem examination on the dead body of the deceased that the two of the injuries found on the deceased were gun-shot injuries. In such view of the matter, it was not appropriate on the part of the learned Sessions Judge to come to conclusion that the evidence of PW.6 with regard to gun-shot injury has been made inadvertently.
11) The learned Sessions Judge has also held that it is admitted by the defence that the sister of the appellant was married to the deceased and the appellant got her married for the second time with some other person. We did not find any admission on the part of the defence. Even in the statement recorded under Section 313 of the Code of Criminal Procedure, 1973, no question has been asked by the learned Sessions Judge on this issue so that he could have come to the conclusion that the appellant admitted that there was some enmity between the appellant and the deceased. Moreover, it is seen that the statement of the accused as recorded by the learned Sessions Judge is very perfunctory. Only 3-4 questions have been put to him. Even the details of the medical evidence and details of the dying declaration have not been put affording him an opportunity of explaining the same. In that view of the matter, this Court is of the opinion that whatever materials are available regarding the alleged re-marriage of the sister of the appellant with another person as the motive, those are based on hearsay materials which are not admissible in evidence. Thus, this Court is of the opinion that this motive has not been established by cogent admissible evidence by the prosecution.
12) The only material evidence is to be seen is that that the deceased Krishna Kumar made declaration before the witnesses that the -7- appellant inflicted injuries on him. PW.1 informant Bateshwar Sharma has stated on oath that the incident took place on a Thursday on 03.01.1991. It was about 6.30 p.m. He was sitting in his shop. Then a hulla took place in the southern side of his shop that Krishna Sharma @ Sao has been murdered and, therefore, he went to the spot. At the spot, he found that Krishna Sharma, who is also known as Bhikhan, has sustained stab injuries. He had sustained injuries on his left hand, ribs, chest and belly. A part of the intestine had come out of the injury situated on the belly of the deceased. This witness has further stated that when he asked the injured Krishna Sharma, then he stated that Shivan had inflicted knife-blow on him and had absconded. When this witness was there, others like Nand Lal Sao, Foto Mali, Dinkar Mandal, Anant Ram Sah came there. The deceased, at that time was in injured condition, was shifted to a Doctor at Panjwara where the Doctor gave him first-aid and asked to shift the injured to Godda. Thereafter, police was informed and the case was initiated. He proved the F.I.R. lodged by him. In cross-examination, this witness has stated that the deceased was residing with him and was earning his livelihood as a Tailor. On the date of occurrence, some pedestrians reached the spot at first. They were Dinkar Mandal, Foto Mali and Anant Ram Sah. Anant Ram Sah is the brother of this witness. Similarly, PW.2 Nand Lal Sah and PW.4 Anant Ram Sah have stated that the deceased told that the appellant inflicted knife-blow on his person.
13) In course of hearing, the learned counsel for the State would submit that no Doctor has been examined to certify that the deceased before his death was in a fit mental state to give a dying declaration.
Thus, the oral dying declaration stated to PWs.1, 2 and 4 is not supported by any Expert's opinion that the deceased was in a fit mental state at that time to give a coherent, truthful, voluntary and untutored -8- declaration regarding the complicity of the appellant. Moreover, the Doctor's evidence runs contrary to the dying declaration made orally by the deceased before PWs.1, 2 and 4 in the sense that the Doctor not only found injuries that could have been caused on the person of the deceased by means of a sharp-cutting weapon, but he also found two gun-shot injuries, one is entry wound and the other is exit wound, viz., injury nos.(iv) and (vi). It is not the case of any of the witnesses that the deceased stated before them that the appellant stabbed the deceased by means of a Chhura and also shot him by means of a gun. In that view of the matter, this Court is of the opinion that the oral testimony appears to be shaky and it is very unsafe to come to the conclusion that the declaration is free from any blemishes and could be relied upon by the Court to come to the conclusion that it is a sterling piece of evidence basing on the same, though not corroborated by any other circumstances available on the record and to somewhat contrary to the objective medical evidence, to come to the conclusion that the prosecution has proved its case beyond all reasonable doubts.
14) In the case of Khusal Rao Vs. State of Bombay, (1958) S.C.R. 552 : AIR 1958 SC 22, the Hon'ble Supreme Court held as under:-
"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 of the Madras High Court, (Guruswami Tevar, I.L.R. (1940) MAD 158), (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 -9- 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 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.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, -10- the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
15) In the case of Panibet (Smt) Vs. State of Gujurat, (1992) 2 SCC 474, the Hon'ble Supreme Court held as follows:-
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, -11- undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(Mannu Raja v. State of M.P; 1976 (3) SCC 104).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of M. P. v. Ram Sagar Yadav, Ramavati Devi v. State of Bihar; 1985 (1) SCC 552).
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Ram Chandra Reddy v. Public Prosecutor; 1976 AIR SC 1994).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh; 1974 (4)SCC-264)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P.; 1981 (Supp)SCC 25)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.; 1981 (2) SCC 654) -12-
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu; 1980 (Supp) SCC - 455).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar; 1980(Supp) SCC 769)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and another v. State of M.P.AIR 1988 SC 912).
(x)) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. V. Madan Mohan; 1989 (3) SCC
390)."
16) In a recent decision of Irfan alias Naka (supra), the Hon'ble Supreme Court as observed as under:-
"43. The juristic theory regarding the acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on -13- the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, should always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. [See : Laxman v. State of Maharashtra, (2002) 6 SCC 710]"
17) Thus, it is clear from the aforesaid authoritative pronouncements by the Hon'ble Supreme Court that the dying declaration, in order to be taken as basis for conviction, should be of such a nature so as to inspire full confidence of the Court in its truthfulness and correctness. The Court should always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.
18) We have consistently held that in a case based only on the oral dying declaration, without the same having been certified to be made by a person who was in a fit state of mental health condition to make a cogent and reliable statement regarding his death, certain corroborations from the objective circumstances available on the case should be forthcoming to lend credence to the same. In this case, we see that no such sterling quality of evidences is available regarding the oral dying declaration made by the deceased. It is also not supported by any Expert's opinion that at that time he was in a fit mental condition to make a clear, cogent and clinching statement implicating the appellant in the commission of the crime. The medical evidence having -14- not fully corroborating the case of the prosecution, it was an error on the part of the learned Sessions Judge to come to the conclusion that the appellant has committed murder of the deceased and, therefore, the judgment of conviction and order of sentence are not sustainable.
19) In the result, this appeal is allowed. The conviction of appellant by learned Sessions Judge under Section 302 of the Penal Code and the consequent sentence of imprisonment for the life are hereby set aside. The appellant is acquitted of the charge under Section 302 of the Penal Code Since the appellant is on bail, he be set at liberty forthwith by cancelling his bail bond executed before the learned Trial Judge.
20) Records of the Trial Court be transmitted to it, forthwith, along with a copy of this judgment.
21) Pending Interlocutory Applications, if any, stand disposed of.
22) Urgent Certified copies as per Rules.
(Sanjaya Kumar Mishra, C.J.) I agree.
(Ananda Sen, J.) High Court of Jharkhand at Ranchi Dated 01st day of November, 2023 N.A.F.R./Manoj