Jharkhand High Court
Umesh Kumar vs The State Of Jharkhand on 30 October, 2018
Equivalent citations: AIRONLINE 2018 JHA 683, 2019 (1) AJR 303
Author: H.C. Mishra
Bench: H.C. Mishra, Ratnaker Bhengra
Criminal Appeal (D.B.) No. 1078 of 2012
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 1078 of 2012
with
(I.A. Nos. 5629 of 2016, 8722 of 2017 & 1660 of 2018.)
(Against the Judgment of conviction dated 26th of June, 2012 and Order of
sentence dated 30th of June, 2012, passed by the Additional Sessions
Judge-II, Dhanbad, in Sessions Trial No. 23 of 2009).
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1. Umesh Kumar
2. Akhilesh Kushwaha ..... ... Appellants Versus The State of Jharkhand ..... .... Respondent
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For the Appellants : M/s. Rajeev Ranjan Tiwary,
Nilesh Kumar & Avishek Prasad, Advocates.
For the Respondent-State : M/s Gouri Shanker Prasad &
Vijay Kumar Gupta, A.P.Ps.
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PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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By Court.:- Heard learned counsel for the appellants and learned counsels for
the State.
2. The appellants are aggrieved by the impugned Judgment of conviction dated 26th of June, 2012 and Order of sentence dated 30th of June, 2012, passed by the learned Additional Sessions Judge-II, Dhanbad, in Sessions Trial No. 23 of 2009, whereby, both the appellants have been found guilty and convicted for the offences under Sections 394, 302 / 34 and 412 of the Indian Penal Code. Upon hearing on the point of sentence, both the appellants have been sentenced to undergo R.I. for life and fine of Rs. 20,000/- each for the offence under Sections 302 / 34 of the Indian Penal Code, R.I. for 10 years and fine of Rs. 10,000/- each for each of the offences under Sections 394 and 412 of the Indian Penal Code, and all the sentences were directed to run concurrently.
3. The prosecution case was instituted on the basis of the fardbeyan of the deceased Ashraf Khan himself, while he was alive and undergoing Criminal Appeal (D.B.) No. 1078 of 2012 -2- treatment at PMCH, Dhanbad, on 4.1.2008 at about 1.00 hours. The deceased was the driver of the truck, bearing registration No. WB-23-A-9324 and he had proceeded from Kolkata to Delhi with the truck loaded with tea leaves. While he was starting from Kolkata, the appellant Umesh Kumar, who was also a driver of the truck bearing registration No. WB-11-A-1050, came with his loaded truck and stated that he would also go to Delhi, and so they would go together. The appellant Akhilesh Kushwaha and one another person were also there in the truck of Umesh Kumar. In the way, after crossing the Maithan Check Post, they stopped at a line hotel, where they took meal and when they started from the said line hotel, the appellants Umesh Kumar and Akhilesh Kushwaha came in the truck of the informant and the truck of Umesh Kumar was being driven by the third person. The appellant Umesh Kuamr started driving the truck of the informant, and when they proceeded further to about 2 Kms., accused Umesh Kumar took out a pistol from his waist and fired the pistol, aiming at the head of the informant. The informant tried to save himself and, accordingly, the bullet passed away touching his left ear. When the informant tried to apprehend him, Akhilesh Kushwaha caught hold the informant, and asked Umesh Kumar to fire the pistol, whereupon, Umesh fired another shot from the pistol, injuring him in his stomach. By that time, the truck had reached near Govindpur, and the informant with his full strength jumped out from the truck and fell down, from where, he was taken to hospital by the police, where his fardbeyan was recorded, wherein the informant stated that in order to loot away the truck, he was assaulted by the accused persons and they fled away with the truck loaded with tea leaves. On the basis of his fardbeyan, Govindpur P.S. Case No. 1 of 2008, corresponding to G.R. No. 32 of 2008, was instituted for the offence under Section 394 of the Indian Penal Code, and investigation was taken up. It may be stated that upon the information given by the police to the relatives of the informant, he was taken to a private nursing home at Kolkata for his better treatment. In course of treatment, he died on the next day. The accused persons had also been apprehended with the loaded truck, and accordingly, Sections 396 and 412 of the Indian Penal Code were also added. After investigation the police submitted the charge sheet in this case.
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4. After commitment of the case to the Court of Session, charge was framed against both the accused persons under Sections 394, 302 / 34 and 412 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial.
5. In course of trial, 11 witnesses were examined by the prosecution, including the Doctor, in whose presence, the fardbeyan of the informant was recorded and had treated the deceased informant, and the Doctor who had conducted the post-mortem examination on the dead body of the deceased, as also the I.O. of the case. Out of the material witnesses examined, P.W.-3 Damodar Giri, a line hotel owner, near whose hotel the deceased had jumped out of truck, and who had informed the police on telephone, has turned hostile and has not supported the prosecution case. P.W.-1 Raja Das and P.W.-2 Pankaj Thakur @ Pankaj Kumar are the witnesses to the seizure list and they have proved their signatures on the seizure list, which were marked Exhibits-1 and 1/2 respectively, though, they have stated in their cross-examinations that their signatures were obtained by the police on plain paper. These signatures have been proved on the seizure list relating to the seizure of the truck, bearing registration No. WB-23-A-9324, which was loaded with tea leaves, of which, the deceased was the driver.
6. P.W.-4 Imtiyaz Ahmed Khan and P.W.-5 Sarfraz Ahmed Khan are the cousins of the deceased and P.W.-6 Sayeda Bano is the wife of the deceased, and all these witnesses, came to the Police Station, upon getting the telephonic information from the police about the occurrence, from where, they had gone to the hospital at Dhanbad, where the informant was admitted. P.W.-4 Imtiyaz Ahmed Khan and P.W.-5 Sarfraz Ahmed Khan have stated that when they reached to the hospital, they found their cousin in injured condition and he informed them that Umesh and Akhilesh, who were also the truck drivers, had assaulted him by firearm and had taken away the truck. They have stated that for better treatment of the informant, they took him to Kolkata in a private nursing home, where on the next day, he died. They had also seen the truck parked at the Police Station and the accused persons were also apprehended by the police.
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7. P.W.-6 Sayeda Bano has also stated that her husband, who was a truck driver had proceeded for Delhi from Kolkata on the truck loaded with tea leaves on 3.1.2008, and in the night she was informed by the Govindpur Police on telephone that her husband was assaulted by firearm. She was called by the police and she also came to the Police Station. She met her husband, who informed her that Umesh and Akhilesh had assaulted him by firearm and had taken away the truck. She has identified the accused persons in the Court. She has also stated that her husband was taken to a private nursing home at Kolkata for treatment, where he died on 5.1.2008. In her cross-examination, she has stated that she had given the statement before the police that her husband had informed her that Umesh and Akhilesh had assaulted him by firearm and her husband got her identified to the accused persons. She has also stated that her husband was badly injured, due to which, he was having some difficulty in speaking. She was also informed about the firearms and cartridges seized by the police. She has denied the suggestion of giving false evidence.
8. P.W.-7 is Dr. Ruben Hembrom, who has stated that the fardbeyan was recorded in his presence and he has proved his signature on the fardbeyan, which was marked Exhibit-2. He had also examined the informant on that date and had found the following injures on the informant:-
(i) Petetrating wound on the left side of epigastric region about 1" x 1" with bleeding and abrasion surrounding the wound.
(ii) Exit wound at right side of upper renal area about ½" x 1/3".
(iii) Wound at left ear with loss of part of pinna with a hole of 1"x2".
(iv) Bruise & lacerate wound left dorsal surface of hand. Three in number.
This witness has stated that the nature of injuries were grievous, caused by firearm. He has also proved the injury report to be in his pen and signature, which was marked Exhibit-3. In his cross-examination this witness has stated that the deceased was shot from the close distance and he has also stated that the patient with such injuries is capable of giving the statement.
9. P.W.-9 Dr. Tapan Kanti Roy had conducted the post-mortem examination on the dead body of the deceased on 5.1.2008 at Kolkata, and Criminal Appeal (D.B.) No. 1078 of 2012 -5- had found the following injuries on the dead body of the deceased:-
(i) At left side of fronto parietal region sustained numerous pillet injuries on the scalp tissues resulting kinburn and bluised at the area.
(ii) There was an entry of gunshot wound at the front of abdomen situated 8" from the zipboid process and situated 5 ½" about the umbilicus. On tracing a probe could be introduced through the entry point up to the lever where injury to liver sustained due to gunshot injury. Peritonium was filled with blood. There was evidence of vital reaction at the site of injuries and there was evidence of gun power at the entry points.
He has stated that death was due to the effect of gunshot injury, which was ante-mortem and homicidal in nature. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-8. In his cross-examination, this witness stated that he did not find any pellet in the body of the deceased and only the injuries were found. Gun powder burn was found in the injury, but no gun power was found outside the skin. He has also stated that as per the medical jurisprudence, if there is a close short injury there would be sign of blackening. He has also stated that the deceased was first operated clinically before the post-mortem examination, as he received treatment in a nursing home at Kolkata.
10. P.W.-8 Samsul Haq Khan is the I.O. of the case. This witness has stated that on 4.1.2008 he was posted as S.I. in Govindpur Police Station, and on 3.1.2008 at about 21.50 hours some hotel owner gave an information on telephone that one truck driver was assaulted by firearm and the truck was looted away by the culprits. On getting this information, the officer-in-charge directed that the injured driver be taken to hospital in ambulance and this witness was sent with armed force for apprehending the looted truck. He went to Bhitiya More and started checking the trucks and he saw the looted truck coming. When the truck was intercepted, the truck driver and one another person tried to flee away from the said truck, but they were apprehended and upon being interrogated, they disclosed their names as Umesh Kumar and Akhilesh Kushwaha. Firearm and mobile phones were also recovered from them. The seizure list was also prepared, which he has proved, and the same was marked Exhibit-4. This witness has stated that for recovery of firearm, a Criminal Appeal (D.B.) No. 1078 of 2012 -6- separate case was instituted for the offences under Sections 25 (1-B) (a) and 26 of the Arms Act. On 4.1.2008 at about 1 A.M. in the night, he reached at PMCH, Dhanbad, and recorded the fardbeyan of the injured informant, which he has proved, and the same was marked Exhibit-6, which also bore the signature of Dr. Ruben Hembram. He took over the charge of investigation and from the injured, he took the telephone numbers of his family members and informed the family members. He recorded the re-statement of the informant and prepared the memo for injury report. He also recorded the statements of the witnesses and the apprehended accused persons. He inspected the place of occurrence, which according to this witness, was on Nirsa-Govindpur Road, near a line hotel, where some blood stains were also found, but as the said place was busy place, the blood stains had become faint. On 5.1.2008, he got the information from the Officer-Incharge of Ekbalpur Police Station, Kolkata, that the injured had died. He took permission for getting the firearm and cartridges examined by the forensic expert and he got them examined by Sergeant Major of Police Line, Dhanbad. He received the report from the Sergeant Major. He got the inquest report and the post-mortem report of the deceased from Kolkata. He has proved the inquest report, which was marked Exhibit-7 with objection. After completing the investigation, he submitted the charge-sheet. He has stated that he had apprehended both the accused persons. In his cross-examination he has stated that in the seizure list, it is not mentioned that there was blood stains in the truck, but it is mentioned in para-56 of the case diary that there were blood stains in the truck. He has stated that he met the injured informant for the first time in the PMCH, Dhanabd, where he was brought for treatment, and he recorded the statements of Imtiyaz Ahmed Khan, Sarfraz Ahmed Khan and Sayeda Bano, on 4.1.2008 in succession, as their statements are mentioned in paragraphs 12, 13 and 14 of the case diary. He has denied the suggestion of making faulty investigation.
11. P.W.-10 is Rajendra Kumar Chaudhary, who at the relevant time, was posted as Sergeant Major and had examined the seized firearm, which he has proved to be in working condition. He has also stated about the examination of the seized live cartridges and one fired cartridge, stating that the they could be fired from the said firearm, which could cause loss of life. There were burnt gun powder particles in the barrel, which showed that the Criminal Appeal (D.B.) No. 1078 of 2012 -7- gun was fired. Since only the photocopy of the report was available, the same was marked 'X' for identification.
12. P.W.-11 Sewak Murmu had produced the seized firearm, live cartridges, fired cartridge and mobile phone in the Court, which were marked material Exhibits-I to V.
13. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No witness has been examined by the defence. On the basis of the evidence on record, the appellants were convicted and sentenced as aforesaid, by the Trial Court below.
14. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and order of sentence, passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as there is no eyewitness to the occurrence, and the F.I.R cannot be treated as dying declaration of the deceased, as the same does not bear the endorsement of the Doctor that the informant was in a fit mental condition to give the statement. Learned counsel submitted that in absence of this endorsement, the fardbeyan cannot be treated as dying declaration of the deceased. In support of his contention, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in Laxman Vs. State of Maharashtra, reported in (2002) 6 SCC 710. Learned counsel has further submitted that the prosecution case appears to be absolutely doubtful, inasmuch as, it cannot be believed that the accused shall introduce himself, if he intended to commit the offence. It is further submitted by the learned counsel that while the appellants were apprehended, another F.I.R was lodged, which has not been brought on record and has not been proved, as is apparent from the evidence of the I.O. Learned counsel accordingly, submitted that these facts make the prosecution case absolutely doubtful and it is a fit case, in which, the appellants ought to have been given the benefits of doubt.
15. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that in the present case, the fardbeyan of the deceased was recorded, while he was alive and was in an injured condition, which was recorded in presence of the Doctor, examined in the Court as P.W.-7, who Criminal Appeal (D.B.) No. 1078 of 2012 -8- has proved his signature on the fardbeyan, and it has come in his cross-examination that the patient was capable of giving the statement. Learned counsel submitted that accordingly, the fardbeyan has to be treated as dying declaration of the deceased and once it is treated as dying declaration, no other evidence is required to be looked into for conviction of the appellants. Learned counsel for the State has further submitted that P.W.-4 Imtiyaz Ahmed Khan, P.W.-5 Sarfraz Ahmed Khan and P.W.-6 Sayeda Bano, who are the cousins and the wife of the deceased, upon getting information about the occurrence, came to the hospital at Dhanbad and saw the deceased, who was still in injured condition and who also informed them that both these accused persons had assaulted him by firearm. Thereafter, looking into the serious condition of the deceased, he was taken to Kolkata in a private nursing home, where he died during treatment on the next day. Learned counsel submitted that the ocular evidence of the witnesses and the dying declaration of the deceased were fully corroborated by the medical evidence of P.W.-7 Dr. Ruben Hembram, who had examined the deceased while he was injured and alive, and P.W.-9 Dr. Tapan Kanti Roy, who had conducted the post-mortem examination on the dead body of the deceased. The injury report and the post-mortem report have been proved as Exhibits- 3 and 8 respectively. Learned counsel, pointed out that both these appellants were apprehended along with the looted truck, and firearm and live as well as fired cartridges were also seized from them, which were also produced in the Court and were marked material Exhibits. P.W.-10 Rajendra Kumar Roy, the Sargent Major has proved the fact that the firearm was in working condition and it was also fired, since there were burn particles in the barrel of the gun. Learned counsel, accordingly, submitted that the prosecution has been able to bring home the charges against both the appellants beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and order of sentence, passed by the Trial Court below.
16. Having heard learned counsels for both sides and upon going through the record, we find that the fardbeyan of the deceased informant is actually the dying declaration of the deceased. Even though the fardbeyan does not bear the endorsement of the Doctor that the deceased was in a fit mental condition to give his statement, but it is a well settled principle of law Criminal Appeal (D.B.) No. 1078 of 2012 -9- that such certification by the Doctor is essentially a rule of caution, and voluntary and truthful nature of the declaration can even be established otherwise. The law in this regard is well settled in Laxman's case (supra), relied upon by the learned counsel for the appellants, in which, the law has been laid down as follows :-
"3. ------------------. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." (Emphasis supplied).
17. In the present case, we find that the fardbeyan was recorded in presence of the Doctor, P.W.-7 Dr. Ruben Hembram, who has proved his signature on the fardbeyan, and has stated that in such injury, the patient was capable of giving the statement. The evidences of P.W.-4 Imtiyaz Ahmed Khan, P.W.-5 Sarfraz Ahmed Khan and P.W.-6 Sayeda Bano, the cousins and the wife of the deceased, show that they were informed telephonically by the police about the occurrence, and the evidence of P.W.-8 Samsul Haq Khan, the I.O of the case, shows that he had obtained the telephone numbers of the family members from the deceased informant himself, and had informed the family members. This clearly shows that the deceased was in a fit mental condition, not only to give the fardbeyan, rather Criminal Appeal (D.B.) No. 1078 of 2012
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he was in such a mental condition that he gave the telephone numbers of family members also, on the basis of which, the family members were informed by the police. As such even if the dying declaration of the deceased was not recorded in the presence of the Magistrate, or that, it does not bear the endorsement of the Doctor that the injured was in fit state, physically and mentally, to give that statement, but form the evidence on record it gets established that the injured was in fit state, physically and mentally, to give his fardbeyan. We are of the considered view that the fardbeyan of the deceased informant in the present case gives a true story of the occurrence and it is absolutely reliable and trustworthy.
18. Not only that the present case rests upon the dying declaration of the deceased in form of his fardbeyan, rather it also rests upon the evidence of three witnesses, P.W.-4 Imtiyaz Ahmed Khan and P.W.-5 Sarfraz Ahmad Khan and P.W.-6 Sayeda Bano, the cousins and the wife of the deceased. All of them had visited the deceased in the hospital and they were informed by the deceased himself that both these appellants had assaulted him by firearm. This information given to the witnesses has also to be treated as the oral dying declaration of the deceased. Both these written and oral dying declarations are fully corroborated by the medical evidence of P.W.-7 Dr. Ruben Hembrom, who had examined the injuries of the deceased and P.W.-9 Dr. Tapan Kanti Roy, who had conducted the post-mortem examination on the dead body of the deceased, and the injury report and the post-mortem report proved by them as Exhibits-3 and 8 respectively. P.W.-10 Rajendra Kumar Chaudhary had tested the firearm, being the Ballistic Expert, and found the firearm seized from the appellants to be in working condition and had also found burnt gun powder particles in the barrel of the gun, which showed that the gun was fired. The firearm and the live cartridges as well as the fired cartridges seized from the appellants have been produced in the Court also and were marked material exhibits.
19. We are also of the considered view that the F.I.R. relating to the case under the Arms Act, that was lodged upon the apprehension of the accused persons, was not required to be proved in this case, and non-proving of the said FIR cannot be said to be fatal to the prosecution case. Even the Criminal Appeal (D.B.) No. 1078 of 2012
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submission of learned counsel for the appellants that it cannot be believed that the accused shall introduce himself, if he intended to commit the offence, is only fit to be rejected, as it is nobody's case that the accused persons had introduced themselves to the informant for the first time, when they started from Kolkata. Rather, the FIR clearly gives the impression that the informant and the appellants were known to each other from before, all of them being the truck drivers. The evidence of the I.O. also shows that the looted truck was recovered from these appellants. In the present case, we find that on the basis of the materials brought on record, the prosecution has been able to bring home the charges against both the appellants beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and order of sentence passed by the Trial Court below, worth any interference by this Court.
20. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 26th of June, 2012, and Order of sentence dated 30th of June, 2012, passed by the learned Additional Sessions Judge-II, Dhanbad, in Sessions Trial No. 23 of 2009, convicting and sentencing the appellants Umesh Kumar and Akhilesh Kushwaha, for the offences under Sections 394, 302 / 34 and 412 of the Indian Penal Code, which, we hereby, affirm. Both these appellants are already in custody undergoing the sentence.
21. There is no merit in this appeal and the same is accordingly, dismissed. Consequently, all the three pending interlocutory applications also stand disposed of. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi.
Dated the 30th of October, 2018.
NAFR/Amitesh/-