Patna High Court
Jai Prakash Sah & Anr vs State on 5 April, 2013
Author: Shivaji Pandey
Bench: Navin Sinha, Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.13 of 1990
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Against the judgment and order dated 8.12.1989 passed by Shri Jag Mohan Bir, 8th
Additional Sessions Judge, Munger in Sessions Case No.82 of 1989.
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1. Jai Prakash Sah, son of Jogendra Sah.
2. Indrabati Devi, wife of Jogendra Sah, both residents of Mohalla Dalhatta,
P.S.Kotwali, District- Munger.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellant/s : Mr. Rajeev Kumar Verma, Sr. Advocate.
Ms. Karuna Nath Sahay, Advocate.
For the State : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY)
Date: 05.04.2013
This appeal arises out of judgment of conviction and
sentence dated 8.12.1989 passed by the learned 8th Additional
Sessions Judge, Munger in Sessions Case No.82 of 1989
whereby both the appellants, namely, Jai Prakash Sah and
Indrabati Devi have been convicted under Sections 302/34 and
342 of the Indian Penal Code and also under Section ¾ of the
Dowry Prohibition Act and appellant, Jai Prakash Sah, has been
sentenced to undergo rigorous imprisonment for life for offence
under Section 302/34 of the Indian Penal Code and appellant
Indrabati Devi has been sentenced to undergo rigorous
Patna High Court CR. APP (DB) No.13 of 1990
2
imprisonment for 10 years for offence under Section 302/34 of
the Indian Penal Code. Both the appellants have further been
sentenced to undergo rigorous imprisonment of one year for
offence under Section 342 of the Indian Penal Code and rigorous
imprisonment for six months each under Section ¾ of the Dowry
Prohibition Act. All the sentences were ordered to run
concurrently.
2. From the record it appears that appellant no. 2, namely,
Indrabati Devi had died during pendency of this appeal on
10.7.1993and as such the appeal against her abates and as such the present appeal is confined to Jai Prakash Sah (Appellant no.1).
3. One Jamuna Sah (P.W.7) lodged a Fardbeyan alleging therein that his daughter Ranju Devi (deceased) was married with accused/appellant Jai Prakash Sah three and half years before the date of alleged occurrence. It has been alleged that on 8.6.1988 at about 9 P.M. accused Om Prakash Sah alias Chutul Sah Younger brother of Jai Prakash Sah came to the house of the informant and told him, his elder brother was calling him. When he asked the reason, he could not give any satisfactory reply. The informant and his nephew Sanjiv Kumar went to the house of Jai Prakash Sah where they heard Patna High Court CR. APP (DB) No.13 of 1990 3 screaming and crying sound of Ranju Devi (deceased). They entered into the house, went up-stairs, there all the three, namely, Jai Prakash Sah, Chutul Sah and Indrabati Devi alleged them to have burnt his daughter, pushed both persons, namely, the informant and his nephew Sanjiv Kumar in a room and locked them from outside and they remained inside the room for half an hour, later rescued by Havildar of Lal Darwaja Out-Post then they could know that the daughter of the informant was shifted to Sadar Hospital, Munger. After release from confinement they went to the Sadar Hospital where they found his daughter was in a burnt condition and lying unconscious, claimed the accused persons made an effort to kill the daughter of the informant by setting her on fire. It has further been alleged that earlier the accused persons used to assault his daughter who used to inform him through letter about the assault perpetrated on her as they were demanding motorcycle and used to hurl threatening for killing the victim lady. The informant was not in a position to give the motorcycle on account of his poverty. On the basis of the aforesaid Fardbeyan Kotwali P.S. Case No.211 of 1988 was registered for offences under Sections 342 and 307/34 of the Indian Penal Code and Sections ¾ of the Dowry Prohibition Act.
Patna High Court CR. APP (DB) No.13 of 1990 4
4. As the victim lady, Ranju Devi died on 14.6.1988 and after her death charge under section 302/34 of the Indian Penal Code was added.
5. The police after investigation found the material evidence against accused persons, submitted charge sheet. After commitment, the trial court framed charge for offences under Sections 302/34 and 342 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. As it appears that allegation has been made of burning of Ranju Devi by the accused persons on account of not giving the motor cycle as demanded by the accused persons in dowry. The trial of Chutul Sah was separated on 16.1.1989 under the Juvenile Justice Act, 1986.
6. The prosecution examined altogether 14 witnesses. P.W.1 is Dr. D. K. Sinha who conducted the post-mortem of the victim lady. P.W.2 Jagdish Prasad was tendered for cross- examination. P.W. 3 is Laxmi Rajak who turned hostile. P.W.4, Sanjiv Kumar Gupta is nephew of the informant who had gone along with the informant at the house of Jai Prakash Sah at Dalhatta, Munger. P.W.5, Lakhan Ram, is a hearsay witness who has stated about burning of the victim lady. P.W.6 is Havildar Lal Mohan Rai of police station Lal Darwaja who had Patna High Court CR. APP (DB) No.13 of 1990 5 gone to the place of occurrence on secret information and rescued the informant, Jamuna Sah, and his nephew, namely, Sanjiv Kumar Gupta and set them free from the confinement of the room. P.W.7, Jamuna Sah, is the informant. P.W.8, Bishwanath Gupta, has proved recording of dying declaration by the Magistrate in whose presence dying declaration of the victim lady was recorded. P.W.9, Awadh Bihari Ranjan Verma is a Judicial Magistrate who recorded dying declaration. P.W.10. Umesh Kumar Choudhary is A.S.I. who has proved O.D. slip about the death of Ranju Devi. He has prepared the inquest report in presence of Om Prakash Sah and Bhola Sah which was marked as Ext.5. P.W.11 Sanjay Kumar Sharma is a hearsay witness of the alleged occurrence who has confirmed burning of the victim lady, Ranju Devi. He has stated that the statement of the victim lady was recorded. P.W.12 is Dr. Sudhir Kumar in whose presence and certification of good condition of the victim lady the Magistrate (P.W.9) recorded the statement of the victim lady. P.W.13, Masih Charan Murmu, is Investigating Officer who has investigated the case and also recorded the statement of Ranju Devi. P.W.14, Arjun Kumar, is a formal witness.
7. The prosecution in support of its case has exhibited the following documents:
Patna High Court CR. APP (DB) No.13 of 1990 6 Exhibit-1- Post-mortem Report Exhibit-2- Written report of the informant. Exhibit-2/1- Signature of the informant on Fardbeyan. Exhibit-2/2- Endorsement of A.S.I. on Fardbeyan. Exhibit-3- Signature of Bishwanath Gupta (P.W.8) on dying declaration recorded by Awadh Bihari Ranjan Verma (P.W.9). Exhibit-4- Dying declaration.
Exhibit-5- Inquest Report.
Exhibit-6- Signature of A.S.I. on the format of the First Information Report.
Exhibit-7- Paragraph 15 of the case diary i.e. place of occurrence i.e. 11.4.1989.
Exhibit-8- Sanction order dated 27.4.1989.
8. The defence in support of his case, examined four witnesses. D.W.1 is Banarsi Prasad. D.W.2, Chandra Kant Prasad, hand writing and finger print expert who has given his report on Exhibit A vis-à-vis on Exhibit-4. D.W.3, Jadunandan Ram is a photographer. D.W.4 is Ashok Kumar Singh who has proved the bed head ticket and its endorsement as Exhibits D, D/1 and D/2.
9. From the side of defence some documents were also exhibited which are as follows:
Patna High Court CR. APP (DB) No.13 of 1990 7 Exhibit-A- Writing of Awadh Bihari Ranjan Verma (P.W.9) who had transcripted contents of Exhibit-4 in the court room in a standing position.
Exhibit-B- Report of hand writing expert. Exhibit-C to C/5- Signatures of photographer on Exhibit 4 and exhibit-A. Exhibit D to D/2- Bed Head Tickets and signatures on the same. Material exhibits have been brought as Exhibit I series, photographs of Exhibit-A and Exhibit-4.
10. The trial court framed the charge against the appellant under Sections 302/34 and 342 of the Indian Penal Code and ¾ Dowry Prohibition Act on 13.2.1989. On 25.2.1982 Section 302 of the Indian Penal Code was added, which was read over and explained to him but he denied the same and accordingly the trial proceeded. It will be relevant to mention that appellant was examined under Section 313 of the Code where the trial court put relevant questions which were replied by the appellant that will be considered at later stage.
11. In this case before going to examine the evidences it will be relevant to state that some facts are undisputed. The victim lady was married to appellant no.1, Jai Prakash Sah. It is also an admitted fact she (victim lady) received burn injury in Patna High Court CR. APP (DB) No.13 of 1990 8 the house of Jai Prakash Sah and after that she was brought to Sadar Hospital where she died.
12. Learned counsel for the appellant during course of argument has taken the plea that the incident was not witnessed by any person and it is not expected that he would inform and invite P.Ws. 4 and 7 to be a witness of committing the crime. He has taken the plea of alibi that on the fateful day they were not in the house rather they had gone to Deoghar, incident took place due to burst of Kerosene Stove. He has also taken the plea that dying declaration is completely a fabricated document as the victim lady had received a third degree burn and she was not in conscious state to give any statement before the Magistrate witnessed by the Doctor. He has further submitted that the bed head ticket shows that she was all along in unconscious state, she never recovered consciousness to give her dying declaration. He has further submitted that the hand writing of the Magistrate, namely, Awadh Bihari Ranjan Verma (P.W.9) who had allegedly recorded dying declaration i.e. Ext.4 does not tally his hand writing which was recorded during his examination in the court. So much so the signature was disowned by Dr. Sudhir Kumar (P.W.12) and as such the whole story of pouring kerosene oil over the body of the victim lady and thereafter Patna High Court CR. APP (DB) No.13 of 1990 9 setting her in fire is completely a fabricated story is substantiated from the condition in which the victim lady was there in the hospital, so much so the story that has been given by the informant is completely unbelievable.
13. Learned counsel for the State has argued that as some facts are admitted because the victim lady received burnt injury inside the house. It is not expected any person apart from the inmates could have witnessed the cause of burning. He has further submitted that the lady after burnt injury was admitted in the Hospital and there dying declaration of the victim lady was recorded by the Magistrate, namely, Awadh Bihari Ranjan Verma (P.W.9) ultimately she died. The cause of burn injury is in the special knowledge of the inmates of the house and they were required to give explanation for the burn injury of the victim lady. He has further submitted that as the crime was not committed in a public view and as such there cannot be any direct witness to the incident. He has further submitted that during investigation the Investigating Officer went to the place of occurrence and did not find any stove which is said to have burst and caused burnt injury to the victim lady. He has further submitted that evidences of P.Ws. 4 and 7 show that the motive behind burning of victim lady was that the accused persons were Patna High Court CR. APP (DB) No.13 of 1990 10 demanding the motorcycle but due to the financial constraint he could not have given the motorcycle. The factum of recording of dying declaration is proved by the Judicial Magistrate and the same was corroborated by Dr. Sudhir Kumar (P.W.12) as he was in emergency duty and was called to witness of recording of dying declaration.
14. In this view of the matter, this Court will have to test it as to whether the prosecution has proved the charge against the appellant beyond all reasonable doubt, so much so, as to whether prosecution could have proved about the genuineness of dying declaration which is very important piece of evidence to prove the offence committed by the appellant with the assistance of other family members. It has to be tested as to whether the defence could have proved the alibi and value of evidence of defence witnesses specially the evidence of hand writing expert. This Court will have to test also as to whether the victim lady was in full state of consciousness to give her statement to the Magistrate in presence of the Doctor.
15. For coming to a right conclusion it will be required to examine the evidence of the following witnesses: (i) Dr. D.K. Sinha (P.W.1) who has conducted the post-mortem of the victim lady. (ii) Sanjiv Kumar Gupta (P.W.4), cousin brother of the Patna High Court CR. APP (DB) No.13 of 1990 11 victim lady who had gone along with the informant at the house of Jai Prakash Sah at Dalhatta, Munger. (iii) Havildar Lal Mohan, Rai (P.W.6) who had gone to the place of occurrence and rescued, Jamuna Sah (P.W.7) and Sanjiv Kumar Gupta (P.W.4). (iv) Jamuna Sah (P.W.7), the informant and father of the victim lady. (v) Bishwanath Gupta (P.W.8) witness of dying declaration. (vi) Awadh Bihari Ranjan Verma (P.W.9) Magistrate who has recorded the dying declaration. (vi) Dr. Sudhir Kumar (P.W.12) who witnessed recording of dying declaration(vii) Umesh Kumar Choudhary (P.W.10) and (viii) Masih Charan Murmu (P.W.13), Investigating Officer.
16. P.W.1 Dr. D. K. Sinha has stated in paragraph no.2 of his deposition that on 15.6.1988 at 10.30 A.M. he had conducted the post-mortem examination of the victim lady, Ranju Devi. The details will be explained at appropriate stage. According to him all the injuries were found to have been caused by burn. He has proved the post-mortem report. In his cross-examination he has stated that in such injuries the patient might have been in sense or she might have been senseless.
17. P.W.4 is Sanjiv Kumar Gupta, has stated, on the day of occurrence i.e. on 8.6.1988 at 9 O‟clock in the night Chutul Sah came to his house and told his brother, namely, Jai Patna High Court CR. APP (DB) No.13 of 1990 12 Prakash Sah, was calling them. He along with his uncle, Jamuna Sah, went to Dalhatta. As they reached there he heard scream, whereupon he asked his uncle, namely, Jamuna Sah (P.W.7) that some one was assaulting at up stair. He along with his Uncle entered into the house along with 2-3 persons. As they reached up stair Chutual Sah, Jai Prakash Sah, appellant and his mother told, they caused burn to victim and pushed them in a room and locked from outside. After half an hour the police guard reached, they were rescued, thereafter both were brought to Kotwali. After long waiting, police Inspector came, told, in wrong impression it is P.W.4 with P.W.7 had burnt the wife of Jai Prakash Sah, victim lady, Ranju Devi. Uncle explained, the victim lady was his daughter and thereafter Fardbeyan of Jamuna Sah (P.W.7) was recorded and at the end uncle put his signature which has been marked as Ext.2. It has further been stated by this witness that they went to the Hospital where Ranju Devi was found in a burn condition. He has also identified the signature of Bishwanath Gupta (P.W.8) on the dying declaration and identified him as one of the member of his Muhalla.
In his cross-examination he has stated that Chutal Sah had come to his house situated at Kasim Bazar on Hero Majestic. He has further stated that he along with his uncle Patna High Court CR. APP (DB) No.13 of 1990 13 (informant) proceeded for Dalhatta on Hero Magestice motorcycle and reached after one and half hour. The motorcycle left there which was seized by police, later on, the police released the same. He further stated, his uncle is semi literate and he could write some words, according to the dictation of his uncle he had written the written Fardbeyan. He has further stated in paragraph 13 that he was brought to the police station on the Police Van, the police personnel handed over them to the Inspector. He gave description of the house of Jai Prakash Sah, stated stair ascend from inside after crossing of the bathroom. He also gave narration of size of the room and also told they were locked in the last room whose window was opening on the road side. He further stated, he raised alarm whereupon police rescued them and took them to the police station. He further stated that he reached to the Hospital at 5 o‟clock in the morning but did not find any person from Dalhatta. Nurse and compounder were present and drip was going on. At 6 o‟clock, Ranju Devi, was not in full sense, was demanding water. He has denied the suggestion that they were not locked in the room by the accused persons. He has also denied that on the information given by Chutul Sah that the victim lady had received burn injury they straight way went to the Hospital. He also denied Patna High Court CR. APP (DB) No.13 of 1990 14 that when the victim lady Ranju Devi regained sense she was tutored to give the name of husband, mother-in-law and brother- in-law. He also denied, he recorded the wrong statement in the Fardbeyan with the connivance of his Uncle. He stated, when he heard cry, stated to his Uncle that some one was assaulting. This fact he had stated to the police. He also stated, the police had gone to inside house and he denied the suggestion of alibi that the appellant along with his mother had gone to Deoghar.
18. P.W.6, Havildar Lal Mohan Rai, is a very important witness as it is said that on information he had gone to the place of occurrence and rescued Jamuna Sah (P.W.7) and Sanjiv Kumar Gupta (P.W.4) from the room. In paragraph 1 of his deposition he stated, he received secret information on 6.8.1988 at 10 or after 10 in the night that one lady had received burn injury. He went to Dalhatta at the house where he could know, lady had received the injury and corroborated the illegal confinement and release from the room. This witness confirmed the handing over of rescued persons to patrolling party who brought them to police station. He further stated one moter-cycle was standing which was brought by him to the police station and the said motorcycle was released in favour of the father and cousin brother of victim lady. He had identified both persons. Patna High Court CR. APP (DB) No.13 of 1990 15 In his cross-examination he has given full description of the house, confirmed rescue of both petitioner and handing over to patrolling party. He remained at the place of occurrence up to 12 o‟clock where few persons had told, lady had received injury while cooking the food. The motorcycle was seized, standing on the road, was brought to the police station. The Inspector of the police station had released the motorcycle in favour of Jamuna Sah (P.W.7) and Sanjiv Kumar Gupta (P.W.4) on Jimenama. He met the victim lady while she was going to Hospital who was crying in pain. She was mumbling but did not pay any attention. In his personal diary he recorded about the victim lady who met him on way while he was going to Dalhatta. He denied the suggestion that he had not seized the motorcycle and also denied the suggestion that he had not brought the motorcycle to the police station. During his cross-examination he replied in way to Dalhatta he, met the victim lady and rescued two persons, namely, Sanjiv Kumar Gupta (P.W.4) and Jamuna Sah (P.W.7) and brought the motorcycle to the police station.
19. P.W.7, Jamuna Sah, is the informant of this case has stated that while he was sitting in his house on 8.6.1988 at 9 o‟clock in the night Dewar of his daughter, namely, Chutul Sah came and said his brother was calling whereupon, he asked the Patna High Court CR. APP (DB) No.13 of 1990 16 reason for calling in such late hour replied he did not know Chutul Sah and returned. He along with his nephew, Sanjiv Kumar Gupta(P.W.4) had gone to Dalhatta on Hero Majestic. When they reached, there they heard the sound of cry, "Bachau Bachau" whereupon his nephew said, Ranju Devi was being assaulted. Both of them went to first floor, as they reached, Jai Prakash Sah, appellant, his mother, namely, Indrabati Devi (died during pendency of this appeal) and Chutul Sah caught hold his Collar and said that they were the persons, who after putting his daughter on fire were trying to escape and pushed them in a room and bolted from the outside. After half an hour Havildar Lal Mohan Rai came and rescued them from the room. One police Jeep came they were asked to sit, Jeep went to the hospital, police constable went inside to enquire about arrival of the victim lady, on request he was allowed to see his daughter where he found the victim lady was lying on the ground and later on brought them to the police station where the Inspector blamed, they had set the victim lady on fire, when relationship was explained whereupon Inspector asked to give the written complaint. His nephew Sanjiv Kumar Gupta (P.W.4) wrote down his version on confirmation put his signature. He stated, there was demand of motorcycle which he could not give due to Patna High Court CR. APP (DB) No.13 of 1990 17 financial constraint for that reason his daughter used to be assaulted. After release from the police station they had gone to the Hospital where they found his daughter was lying.
In his cross-examination he stated, whatever he stated his nephew recorded on paper. He has given description of the house and stated that the stair for the first floor ascends through bathroom gave details of number of rooms of first floor, narrated about confinement. He affirmed, he was rescued from the room by Havildar Lal Mohan Rai (P.W.6) and further corroborated the statement of Sanjiv Kumar Gupta (P.W.4) that Chutul Sah had come to his house at 9 o‟clock and after 10-15 minutes they left for Dalhatta and there was demand of motorcycle from his son-in-law. Appellant no.1, Jai Prakash Sah, was running a small shop for breakfast and other miscellaneous. The informant was poor person known to Jai Prakash Sah (appellant) and that was the reason for the informant had married his daughter to Jai Prakash Sah though it was his second marriage. He further stated after rescue from the room he was brought to the police station on jeep. He was released from the police station at 5 or 5.30 in the morning he went to the Hospital. He also disputed that he had ever said about cause of burn of his daughter by Stove. In the hospital he found his daughter in unconscious state. He used Patna High Court CR. APP (DB) No.13 of 1990 18 to visit the Hospital where he found the drip was going on and denied the suggestion of tutoring his daughter to implicate the appellant and his family members. He has stated when she was in unconscious state where was the question to tutor her and reiterated the same thing what he had stated about his visit to the Hospital while coming to the police station where he saw his daughter was lying.
20. P.W. 8, Bishwanath Gupta, is a witness to recording of dying declaration by the Magistrate in presence of the Doctor. On 9.6.1988 at about 12 o‟clock in the day he reached to the Hospital where he found victim lady, Ranju Devi, was lying in burn condition, about 3.15 the Magistrate came there and at that time he and Dr. Sudhir Kumar (P.W.12) were present there. Dr Sudhir Kumar (P.W.12) and he identified the victim lady to Magistrate who asked her as to how she received burnt injury whereupon she replied, she herself not burnt but had been made to burn. Magistrate asked her as to who were the persons to caused her injuries and later on she explained, her husband caught her, mother-in-law poured Kerosene oil and Dewar (brother-in-law) set her on fire. She gave the name of her husband and the name of her Dewar but she could not know the name of her mother-in-law. She had stated, she was hungry for Patna High Court CR. APP (DB) No.13 of 1990 19 two days as she was not given any meal, further stated her husband and other family members used to assault her for trifle matters. Whatever the lady replied, was recorded by the Magistrate in his presence and in presence of the Doctor. The Doctor had also put his signature. The victim lady put her thumb impression which was endorsed by him and also put his signature and also replied the name of the Magistrate, namely, Awadh Bihar Ranjan Verma.
In his cross-examination he stated when he came to the Hospital he did not find the informant, Jamuna Sah, there. On 9.6.1988 the police came to the Hospital after midnight. At the time of recording the statement of the victim lady two nurses were present and drip was going on at that time. The victim lady had given reply to the question put up by the Magistrate which was recorded by him. After recording the statement he left the place. He gave description of Dr. Sudhir Kumar (P.W.12) as well as of the Magistrate. The Doctor after reading the statement put his signature, denied the suggestion, dying declaration was a forged and concocted document. On recall he stated, the police had recorded the statement of the victim lady where she had stated about putting her on fire by mother-in-law, husband and Dewar (brother-in-law), stated what were the statement given Patna High Court CR. APP (DB) No.13 of 1990 20 before the Magistrate same type of statement was given before the police.
In his cross-examination he corroborated earlier statement of recording of the statement by the police. At the time of recording of statement by the police neither the Doctor was present nor nurse was present nor the family members were present.
21. P.W.9, Awadh Bihar Ranjan Verma is a Magistrate who had recorded the statement of the victim lady, Ranju Devi, at 3.15 P.M stated that the victim lady was in serious burn condition. Dr. Sudhir Kumar (P.W.12) was in-charge of emergency ward, identified the victim lady. He stated at the time of giving her statement the victim lady was completely in conscious condition and he had explained to her about recording of her statement. She voluntarily gave her statement about the incident which was recorded. She has stated that she was put on fire by mother-in-law, Dewar (brother-in-law) and husband. She has stated that mother-in-law poured Kerosene oil and Dewar lit fire and husband had caught her. She stated she had been hungry for last two days. She gave the name of her husband and Dewar, further stated, for trifle matters the husband and family members used to assault her. He identified his hand writing and signature. Patna High Court CR. APP (DB) No.13 of 1990 21 He has further stated that Dr. Sudhir Kumar (P.W.12) had put signature, Ranju Devi put her thumb impression which was identified by Bishwanath Gupta (P.W.8). He affirmed and certified the statement recorded by him and that this was done on the direction of the Chief Judicial Magistrate.
In his cross-examination he stated on requisition he came to the Hospital on foot on the basis of details provided by the Sub Inspector. At the time of recording of the statement the Police Inspector was not present. The in-charge doctor of the emergency duty was called who identified her and in his presence he recorded voluntary statement made by the victim lady, after recording the statement he read out and explained to her. As her both hands were in burnt condition, with the help of nurse she put her thumb impression. At the time of recording the statement the Doctor and nurse were present and he identified his signature as Ext.A. The doctor also put his signature and denied the suggestion that recording of the statement is forged and fabricated.
22. P.W. 10 is Umesh Kumar Choudhary. He was posted at the police station and he has prepared inquest report on 14.6.1988 found ante-mortem injuries on the body of victim.
23. P.W.11 Sanjay Kumar Sharma is a hearsay witness Patna High Court CR. APP (DB) No.13 of 1990 22 who has stated that sister of Kamta was set on fire, gave the name of the victim girl. He stated Sub Inspector who had come on Scooter recorded her statement and she gave the name of her husband, mother-in-law and Dewar (brother-in-law) who were responsible for the cause of her death.
In his cross-examination he stated, the victim lady had taken the name of her husband, mother-in-law and Dewar in presence of the police inspector who jointly put her on fire. He is a hearsay witness but stated, at the time of recording of her statement by the police no family member was present.
24. P.W.12 is Dr. Sudhir Kumar posted at Munger Sadar Hospital on 9.6.1988, stated, on 9.6.1988 Awadh Bihari Ranjan Verma had recorded the statement of Ranju Devi and at the time of recording the statement she was in conscious state. After recording of her statement she put her thumb impression he also put his signature. He stated that he did not put his signature in the style what was there in the dying declaration but said it might have happened in hurry. He has further stated that he had identified the victim girl.
In his cross-examination he has stated that he does not sign in the manner what was there in dying declaration but said that the dying declaration was recorded by the Magistrate. He Patna High Court CR. APP (DB) No.13 of 1990 23 also stated, whatever the Magistrate had recorded he had put his signature as a witness. The lady was in his ward but was in serious condition, after recording the statement the Magistrate asked him to go whereupon he left the ward. As he was in of emergency duty and as such he was called. The Magistrate recorded her statement and he had denied the suggestion that statement was not recorded in his presence.
25. P.W.13 is Masih Charan Murmu who investigated the case identified the First Information Report same was marked as Ext.2, identified the signature of Manendra Kumar Singh on Fardbeyan which was marked as Ext.2/2 and on that basis formal F.I.R. was drawn up by Vijoy Kumar, Munshi bore the signature of Inspector Manendra Kumar Singh which was marked as Ext.6. He visited the place of occurrence i.e. house of appellant no.1 at Dalhatta, examined the room where sewing machine, Chair, table and two Stools were found. He found one bed and table at cemented rack and also found the sign of burn. He very fairly stated he did not find any Stove and recorded the statement of the witnesses. The Kitchen was separate which he did not inspect. He searched the accused persons but were not available as they were absconding from the place. He has further stated that he recorded the statement of Ranju Devi in presence Patna High Court CR. APP (DB) No.13 of 1990 24 of Bishwanath Gupta, Surendra Prasad, Duli Chand Sah and Sanjay Kumar and also identified paragraph of the case diary which was marked as Ext.7. He has further stated that he filed requisition before the Chief Judicial Magistrate for recording of dying declaration and on that basis Awadh Bihari Ranjan Verma (P.W.9) was deputed for recording dying declaration. He has stated that dying declaration was not recorded in his presence but the Magistrate had recorded the dying declaration on 9.6.1988.
In his cross-examination he mentioned at what time he reached the place of occurrence and he disputed that case diary was recorded in his house. He stated that he did not find the container of Kerosene oil nor any half burnt match stick nor he found any garment. He has further stated that he did not find the smell of Kerosene oil and he could not say about Kitchen. He further stated, he had recorded the statement of victim lady in presence of witnesses. He also stated that he had not seized the burn garment of Ranju Devi. He obtained the order of the Chief Judicial Magistrate and accordingly the Magistrate recorded the statement of Ranju Devi. He also stated that he met the Magistrate in the Hospital, as he had reached earlier to the Hospital by motorcycle. In the case diary he had recorded the Patna High Court CR. APP (DB) No.13 of 1990 25 dying declaration and rejected the claim of fabrication of Ext.4 i.e. dying declaration.
26. P.W. 14, Arjun Kumar, is a formal witness who has proved the signature of the District Magistrate on sanction order which was marked as Ext.8.
27. At the stage of Section 313 of the Code the court asked relevant question to the appellant and same was answered are as follows:
On question with marriage of Ranju Devi he replied in affirmative and next question was asked that on 8.6.1988 his brother Chutul Sah had gone to the house of Jamuna Sah to call them whereupon Jamuna Sah and his nephew Sanjiv Kumar Gupta had come to his residence at Dalhatta. On reaching there they heard the cry of Ranju Devi whereupon they went to up stair, he along with his mother and brother told them that they were the persons who had burnt the victim lady and pushed them in a room and bolted from outside which he denied. He has not given any reply either in negative and positive about the question that Lal Mohan Rai had come and rescued them from the closed room. Next question was very important that he along with his brother with the help of his mother set the victim lady on fire, he replied that he did not know. He denied that on trifle Patna High Court CR. APP (DB) No.13 of 1990 26 matter they used to tease and assault the victim lady. A question was asked, when the police party came he fled away, which he replied that he did not know. In defence he has stated that on 8.6.1988 at 4 o‟clock in the morning he had gone to Deoghar through Sultanganj and returned to native place on 10.6.1988. It will be very relevant D.W.1 in his evidence said that they had gone Deoghar through Sultangaj, started their journey at 7.30 to 8 whereas this appellant has said that they have started journey at 4 o‟clock in the morning.
28. Let us examine the documentary evidence which has been brought by the prosecution. Exhibit 1 is the post-mortem report. Dr. had conducted the post-mortem examination of the victim lady, Ranju Devi and recorded the following injuries and cause of death are as follows:
(i) Extensive burn injury up to muscle layer deep from face to waist region in front including the front of the face and neck.
(ii) Extensive burn injury muscle deep on the back of the chest up to shoulder region including nape of neck.
(iii) Extensive burn injury from pubic symphasis to knee joint in front both sides. The injury was Patna High Court CR. APP (DB) No.13 of 1990 27 muscle deep.
(iv) Extensive burn injury from lip to knee joint in the back.
According to him all the injuries were found to have been caused by burn. In his opinion the cause of death was due to shock septi calmia and toxaemia. It appears that burn was very severe to the victim lady. Ext.2 is the Fardbeyan. Ext.3 is signature of Bishwanath Gupta (P.W.8) on dying declaration. Ext.2/1 is signature of the informant on Fardbeyan and Ext.2/2 is signature of A.S.I. on Fardbeyan. Ext.4 is dying declaration which is a very important piece of evidence. On examination of P.W.4 it appears that the condition of victim lady was recorded in the first part, time and date has been given and the place where the lady was hospitalized and also stated that the statement was recorded in presence of Dr. Sudhir Kumar (P.W.12), orthopedic surgeon and statement is there that the victim lady was in conscious state. In Ext.4 it has been stated that she was burnt by mother-in-law, Dewar (brother-in-law) and husband gave full manner of occurrence and perpetrator. She had stated that mother-in-law poured kerosene oil against her. This document bears signature of Awadh Bihari Ranjan Verma, date and his designation. The signature of Dr. Sudhir Kumar, Patna High Court CR. APP (DB) No.13 of 1990 28 date, designation and his posting is also mentioned. It also appears that thumb impression which has been identified by Bishwanath Gupta and the statement of the upper part and at the lower part Bishwanath Gupta put his signature. Ext.5 is inquest report. It states that whole body was in burn condition and belly was in a swelling condition. Ext.6 is signature of A.S.I. on the First Information Report. Ext.7 is paragraph 15 of the case diary which has been proved by the Investigating Officer. Ext.7 is the part of the case diary where Investigating Officer had recorded the statement of Ranju Devi, victim lady and recorded that she was killed by her mother-in-law, Debar and husband. It is very important statement that no family member from her in-laws house was present at the Hospital where she was being treated. Ext.8 is the sanction order passed by the District Magistrate under Sections ¾ of the Dowry Prohibition Act.
29. Banarsi Prasad has been examined as D.W.1 who has stated that at Dalhatta Chowk he had small shop of Chat nearyby house of Jai Prakash Sah in western side. On 8.6.1988 he along with Jai Prakash Sah and his mother had gone to Babadham on 8.6.1988 at 7.30 to 8 A.M. and that was Wednesday. From the motor stand they caught tracker, went to Sultanganj, picked up holy water and about one to half an hour Patna High Court CR. APP (DB) No.13 of 1990 29 they left Sultanganj for Babadham and at 8 or 8.30 P.M. they reached to Babadham, performed the Puja and on 10.8.1988 they returned to their native place. This evidence has been brought to prove the alibi that on the day of occurrence appellant was not present.
In his cross-examination he stated when he returned from Munger they could not know about the incident. He stated that Chutul Sah had not gone along with them. He further stated that he has not given any statement before the police and he accepted that for the first time he was making this statement.
30. D.W.2, Chandra Kant Prasad, is a hand writing and finger print expert. He explained how hand writing recorded in Ext.4 differed with hand writing in Ext.A written by Awadh Bihari Ranjan Verma (P.W.9). The statement of Ext.4 was written by P.W.9 in the hospital and before the court in the dock at the standing position statements made in Ext.4 was transcripted was marked Ext.A. He stated which words of the statements differ with each other. He stated that letters V, W, O, F, J. S. K, I, H, g, l are different in ext.4 vis-à-vis Ext.A. similarly the letters d] 'k] r] i] 'k] Hk] [k were also different in Ext.4 with Ext.A. In his cross-examination he has stated that he does not Patna High Court CR. APP (DB) No.13 of 1990 30 hold any degree or diploma from any recognized institute of the Government. He did not hold any certificate of correspondrnce course from any institute in the Indian or Foreign and had taken training from his father. He stated that he was a private expert and was at present a law student of final part which he was in graduation in 1994, became interested in the subject and after graduation became signature and hand writing expert. He had appeared ten times in court and could not remember the number of cases in which he had deposed in the court. This witnesses is a private expert having no qualification nor have any degree from an institute and as such it would very dangerous to rely on his report. A person having no qualification can not inspire confidence and sanctity to rely on any expert report of a untrained person having no qualification and it will be a very difficult for this Court to accept the same.
31. D.W.3, Jadunandan Ram is a photographer who has taken photograph of Ext. 4 and Ext.A which were marked as material exhibit (i) series.
32. D.W.4 is Ashok Kumar Singh proved the bed head ticket and its endorsement as Exhibits D, D/1 and D/2. As has been explained hereinabove Ext. B is the report of hand writing expert where he found hand writing written in Ext.4 vis-à-vis Patna High Court CR. APP (DB) No.13 of 1990 31 Ext.A which do not tally to each other. Next important document is Ext.C series which are signatures of photographer on Ext.4 and Ext.A. Ext. D series are very important piece of evidence for the purpose of this case as this document will explain the condition of Ranju Devi at the relevant time while her statement was recorded by the Magistrate. As has been argued by learned counsel for the appellant she was every time in unconscious condition as she was always being given heavy doze of calmpose. Dying declaration was recorded on 9.6.1988 at 3.15 but in Ext. D series it has been disclosed at 8.15 A.M. drugs were given to her. There is no recording about the condition of the lady but on 9.6.1988 it appears that she was given dose of drugs. So it is very difficult to infer that she was all along in a sedative condition and not in a position at the relevant time to give her statement. Material exhibits are photographs. It is not required to deal the same very much as it includes negative and positive. This Court does not know the posture at the time of recording of Ext.4 i.e. dying declaration but from the evidence it is apparent from the evidence of P.W.9 that Ext.A was written by him in standing position in the dock and as such there is always possibility of a person writing in a dock while standing will certainly differ in a different condition Patna High Court CR. APP (DB) No.13 of 1990 32 while recording the dying declaration (Ext.4) in the Hospital that too a report which has been given by a person having no qualification was not qualified and competent to examine and give such report.
33. In this case some undisputed fact is that Ranju Devi received burn injury in her matrimonial house. She was shifted to the Hospital for her treatment where she died and before death she gave her dying declaration. According to the prosecution she had given her statement in her full conscious state of mind whereas the defence has taken the plea that the injury was such a degree where she could not have given her dying declaration and the said dying declaration is a manufactured and concocted document and the same cannot be the basis for conviction.
34. The presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act. It empowers the court to presume of existence of any fact which it thinks likely to have happened. In that process the courts shall have regard to the common course of natural Patna High Court CR. APP (DB) No.13 of 1990 33 events, human conduct etc. in addition to the fact of the case. In these circumstances, the principle embodied in Section 106 of the Evidence Act can also be utilized. Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
35. Whether the prosecution has proved the charge against the appellant beyond reasonable doubt:
In this context it will be relevant to examine the evidence of Sanjiv Kumar Gupta (P.W.4), Lal Mohan Rai (P.W.6), Jamuna Sah (P.W.7), Bishwanath Gupta (P.W.8), Awadh Bihari Ranjan Verma (P.W.9), Dr. Sudhir Kumar (P.W.12) and Masih Charan Murmu (P.W.13). P.Ws. 4 and 7 have consistently stated of coming of Chutul Sah and both had gone place of occurrence heard shrill of victim and corroborated each other of confinement in room and rescued by police constable namely Lal Mohan Rai (P.W.6). Lal Mohan Rai Patna High Court CR. APP (DB) No.13 of 1990 34 (P.W.6) in his evidence has stated that on secret information about the burning of some lady at Dalhatta he had proceeded and corroborated the story of release from confinement and bring them to police station by patrolling party. This witness confirmed the seizure of motorcycle and release of the same in favour of informant. The facts are not in dispute the lady was burnt in the house of the appellant and from there she was brought to the Hospital. In the hospital at the initial stage she was not in a conscious state but later on she regained and the Police Inspector, namely, Masih Charan Murmu (P.W.13) approached the Chief Judicial Magistrate who deputed Awadh Bihari Ranjan Verma (P.W.9) to take evidence of late Ranju Devi at the Hospital. Awadh Bihari Ranjan Verma (P.W.9) came to the Hospital. Investigating Officer and Bishwanath Gupta (P.W.8) identified the victim lady and Dr. Sudhir Kumar (P.W.12) who certified that the lady was in a conscious state. In presence of Dr. Sudhir Kumar (P.W.12) and Bishwanath Gupta (P.W.8), the statement of Ranju Devi was recorded by Awadh Biahri Ranjan Verma (P.W.9), the same was endorsed by Dr. Sudhir Kumar (P.W.12) and Bishwanath Gupta (P.W.8) identified the thumb impression of deceased and thereafter Ranju Devi succumbed to burnt injuries. In the dying declaration Patna High Court CR. APP (DB) No.13 of 1990 35 (Ext.4) clearly and specifically mentioned the perpetrator of crime and manner she was burnt. These are chain of facts shows that the victim lady was burnt by appellant and his family members. In this connection it will apt to quote paragraph 23 of the judgment of the Hon‟ble Supreme Court in the case of Tulshiram Sahadu Suryawanshi and another Vs. State of Maharashtra, reported in (2012) 10 S.C. 373.
"23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in section 106 of the Evidence Act can also be utilized. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. Vs. Mir Mohammad Omar (SCCp.393, para 38) Patna High Court CR. APP (DB) No.13 of 1990 36 "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v.State of Ajmer the learned Judge has stated the legal principle thus: (AIR p.406, para 11) ‟11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are „especially‟ within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.‟"
36. It will be relevant to mention, the death had taken place in the house of the appellant and that too by burn injury and Masih Charan Murmu (P.W.13) went to the place of occurrence and he did not find any stove but there was mark of burn. In this view of the matter, onus is upon the accused to explain the cause of burn injury of the victim lady. They have taken the plea that the victim lady received burn injury while cooking food but the Investigating Officer did not find any such Stove which does not support the contention of the appellant. One thing is very Patna High Court CR. APP (DB) No.13 of 1990 37 markable in the present case. According to defence, appellant no.1 and his mother late Indrabati Devi had gone to Deoghar on 8.6.1988 i.e. the day of occurrence in the morning at 4.30 A.M. and returned to Munger on 10.8.1988 but the victim lady had died on 14.6.1988 which is apparent from the inquest report (Ext.5) and the post-mortem report of that lady was conducted on 15.6.1988. It will be a natural human conduct when the husband and mother-in-law returned to Munger and could know about the incident they would have straight way went to the Hospital and would have remained there during her treatment but from the evidence of the prosecution it shows that after return from the Deoghar they did not even care to visit and to see his wife who was under severe pain and was fighting for her life in the Hospital. This human conduct shows that the plea of alibi of course it is very weak plea even then they could not explain this conduct and which goes against them rather it fortified the strong presumption that lady was burnt by the accused persons. It is also very peculiar, admittedly Chutul Sah had not gone to Deoghar along with the present appellant and he remained in Munger but he too was not there in the Hospital and when the police went to the place of occurrence they were found absconding. These are the circumstances which completely goes Patna High Court CR. APP (DB) No.13 of 1990 38 against them and so much so that when the lady had made dying declaration and also they could not explain the cause of her burn and presumption goes against the accused persons as lady had received burn injuries inside the house which could not have been witnessed by outsiders. This Court is completely in agreement with the court below that prosecution has been able to prove the charge against the appellant.
37. Whether the prosecution could have proved about the genuineness of dying declaration:
In this case dying declaration is very important piece of evidence against the accused persons. The appellant has taken the plea the burn of third degree of severe nature victim was never in conscious state as because of sedative used to be administered from time to time and as such there was no possibility of giving dying declaration by the deceased lady Ranju Devi and the document is forged and fabricated document and after the death of the victim lady her thumb impression was obtained in so called dying declaration (Ext.4) and there cannot be any occasion for the lady to give thumb impression when she was literate and she could put her signature. In this regard it will be relevant to consider the evidence of Masih Charan Murmu (P.W.13), Bishwanath Gupta (P.W.8), Awadh Bihari Ranjan Patna High Court CR. APP (DB) No.13 of 1990 39 Verma (P.W.9) and Dr. Sudhir Kumar (P.W.12). Masih Charan murmur (P.W.13) in his statement has stated that he approached to the Chief Judicial Magistrate for taking dying declaration of Ranju Devi whereupon the Chief Judicial Magistrate has deputed Awadh Bihar Ranjan Verma (P.W.9). He came to hospital earlier by his motorcycle. Later on Awadh Bihari Ranjan Verma (P.W.9) had come and this Inspector identified Ranju Devi whose evidence was to be recorded by Magistrate. The Investigating Officer himself recorded the statement of victim lady. Bishwanath Gupta (P.W.8) has specifically stated that he was present in the Hospital at the place where lady was lying. He too identified Ranju Devi. Dr. Sudhir Kumar (P.W.12) who was posted in the emergency duty was called and at 3.15 Awadh Bihari Ranjan Verma had asked Ranju Devi (victim) the cause of her burn injury. She completely explained as to how she was burnt by her husband, mother-in-law and Dewar and after recording of the evidence thumb impression of victim lady was taken. The thumb impression of the victim lady was identified by Bishwanath Gutpa (P.W.8). Magistrate has corroborated the statement of Masih Charan Murmu (P.W.13) and statement of Bishwanath Gupta (P.W.8) He has stated that after reaching to the Hospital he had recorded dying declaration Patna High Court CR. APP (DB) No.13 of 1990 40 in presence of Dr. Sudhir Kumar (P.W.12). Dr. Sudhir Kumar (P.w.12) has stated that in his presence dying declaration of Ranju Devi was recorded. In his examination-in-chief he has stated that he does not put his signature in the manner which was there in Ext.4 i.e. dying declaration but in next breath stated, might have put his signature in this manner in hurry. Defence has taken the plea of re-writing of ext.4 of Awadh Bihari Ranjan Verma (P.W.9) does not tally, writing in court in standing position which was marked as Ext.A. Exts. 4 and A were examined by hand writing expert by Chandra Kant Prasad (D.W.2) who after examination of Ext.4 and A has filed his report found that the hand writing in Ext.A was different with ext.4 and the plea has been taken that it is a manufactured document. In this connection it will be relevant to consider two important facets. Ext.A was written while witness was in a dock in standing position where as he has written same very statement as in Ext.4 in different situation and condition. It is always possible to have slight difference while in sitting posture as well as in standing posture in a court room and another in the hospital so both situations are quite different. Both cannot be said to have been same situation. It is also relevant to consider Chandra Kant Prasad (D.W.2) in his cross examination has stated that he has Patna High Court CR. APP (DB) No.13 of 1990 41 not taken any training from any recognized institute nor did have any certificate of hand writing expert but while he was in studying the law he picked up profession of hand writing expert. Every person cannot be a hand writing expert unless he get appropriate training in a proper institute and it will be very improper to rely on the report of a person who has no qualification or training from a recognized institute merely because he received training from father, was doing the job of hand writing expert will not have credence to such report, especially when all the witnesses came forward and have corroborated the evidence to each other.
38. In this connection it will be relevant to rely on the recent judgment of the Supreme Court passed in the case of Hiraman Vs. State of Maharashtra in Criminal Appeal No.1288 of 2008 on 31.1.2013. In this case also the Hon‟ble Supreme Court was considering issue of dying declaration which was under
challenge and was also considering as to whether it will be justified to convict an accused on dying declaration. The Court has considered the judgment of the Hon‟ble Supreme Court in the case of P. Mani Vs. State of Tamil Nadu, reported in 2006(3) SCC 161 where the court has said that indisputably conviction can be recorded on the basis of the dying declaration alone but, Patna High Court CR. APP (DB) No.13 of 1990 42 therefore, the same must be wholly reliable and in that case dying declaration was not found to be wholly reliable but the court did not in any way deviate from the well settled proposition that a dying declaration can be the sole basis for conviction. The Court has considered the earlier judgment in the case of Khushal Rao Vs. State of Bombay, reported in A.I.R. 1958 SC 22 and quoted the said judgment in approval which are as follows:
"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 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 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 Patna High Court CR. APP (DB) No.13 of 1990 43 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.
9. In this behalf we may as well profitably refer to paragraph 11 of this very judgment with respect to the rationale in accepting the version contained in the dying declaration. This court (per B.P. Sinha, J. as he then was) observed in this para 11 as follows:
11. The legislature in its wisdom has enacted in section 32(1) of the Evidence Act that "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person‟s death comes into question", such a statement written or verbal made by a person who is dead (omitting the unnecessary words) is itself a relevant fact. This provision has been made by the legislature advisedly, as a mater of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross- examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and Patna High Court CR. APP (DB) No.13 of 1990 44 solemn moment, that person is not expected to tell lies: and secondly, the test of cross- examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death, has been accorded by the legislature, a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight. It may also be shown why evidenced that a dying declaration is reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away; or because the statement has not been properly recorded, for example, the statement had been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circumstances which can be said to detract from the value of a dying declaration. But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction." (Emphasis supplied)
39. In the same judgment the Court has considered the earlier judgment of the Hon‟ble Supreme Court in the case of Mannu Raja Vs. State of Madhya Pradesh, reported in 1976(3) SCC 104 and quoted in approval paragraph 7 of the judgment Patna High Court CR. APP (DB) No.13 of 1990 45 which is as follows:
"7. It was contended by the learned Counsel for the Appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death. There is no substance in this contention because in order that the Court may be in a position to Assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring." (Emphasis supplied)
40. The Hon‟ble Supreme Court has further considered the judgment in the case of Kanaksingh Raisingh Vs. State of Gujarat, reported in A.I.R. 2003 SC 691 and in the case of Babu Lal Vs. State of Madhya Pradesh, reported in A.I.R. 2004 SC 846 where Hon‟ble Supreme Court has considered what credence should be given to the dying declaration. The Hon‟ble Supreme Court has held, a person who is facing imminent death, with even a shadow of continuing in this world practically non- Patna High Court CR. APP (DB) No.13 of 1990 46 existent, every motive of falsehood is obliterated and has also quoted in approval that the maxim is " a man will not meet his maker with a lie in his mouth. Truth sits on the lips of a dying man". The Hon‟ble Supreme Court has held that when the party is at the point of death, and when every hope of this world has gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.
41. In this case also the victim lady has narrated the cause of death and tormenter who were behind the severe burn. A plea has been taken that the victim lady was tutored by her father and another family members but it appears from the evidence of Bishwanath Gupta (P.W.8), Awadh Bihari Ranjan Verma (P.W.9) and Dr. Sudhir Kumar (P.w.12) that family members were not present and the doubt of tutoring by the family members evaporates.
42. Another point is with regard to dying declaration that she was in sedative condition as she was loaded with calmpose and as such there was no occasion for her to regain consciousness and to give evidence. On examination of the bed Patna High Court CR. APP (DB) No.13 of 1990 47 head ticket i.e. Ext. D series it discloses that in the morning the dose of sedative was given to her but dying declaration was recorded at 3.15 on 9.6.1988, the Doctor had declared her in full conscious state and she gave reply to the questions put by Awadh Bihari Ranjan Verma (P.W.9) and as such it does not create any doubt about genuinety of the dying declaration. The Hon‟ble Supreme Court has considered the para-meters of doubt in the case of Hiraman (supra) where it has been held that a doubt sought to be raised has to be a credible and consistent one and must be one which will appeal to a reasonable mind and relied on the judgment of the Hon‟ble Supreme Court in the case of Shivaji Sahebrao Bobade Vs. State of Maharashtra, reported in A.I.R. 1973 SC 2622 and quoted observation of Krishna Iyer, J:
"6. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary contest of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.....
....The Evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in „Proof of Guilt‟ has sapiently Patna High Court CR. APP (DB) No.13 of 1990 48 observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated „persons‟ and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless....
...a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...."
43. The Hon‟ble Supreme Court has also considered the judgment in the case of State of U.P. Vs. Krishna Gopal, reported in A.I.R. 1988 SC 2154 and quoted paragraph 13 of the said judgment:
"13.... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case ...."
44. The Hon‟ble Supreme Court has also considered the standard in number of criminal cases and civil cases. The Court has said that there is no absolute standard in either of the cases and quoted in approval the observation of Lord Denning in Patna High Court CR. APP (DB) No.13 of 1990 49 paragraph 4 of the judgment in the case of Gurbachan Singh Vs. Satpal Singh, reported in A.I.R. 1990 SC 209 which is as follows:
"4..... There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. See the observations of Lord Denning in Bater v. Bater (1950) 2 All ER 458 at p.459, but the doubt must be of a reasonable man. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent.
Letting guilty escape is not doing justice, according to law."
45. In this case also it is very important that Awadh Biahri Ranjan Verma (P.W.9) was deputed by the Chief Judicial Magistrate and he had nothing to do either with the appellant or with the deceased or the informant. Learned counsel for the appellant has not even argued or placed any evidence on record to show Awadh Bihari Ranjan Verma (P.W.9) was inimical against him.
46. In view of the aforesaid facts and circumstances, it is very well said, there is no doubt, Awadh Bihari Ranjan Verma (P.w.9) recorded the statement of Ranju Devi in full conscious Patna High Court CR. APP (DB) No.13 of 1990 50 state of mind in presence of Bishwanath Gupta (P.W.8) and Dr. Sudhir Kumar (P.W.12) and in view of the discussions as aforesaid this Court comes to a conclusion that the statement recorded by the Magistrate (P.W.9) is voluntary statement of the victim lady and this Court cannot doubt genuineness of her statement and this Court holds that dying declaration is a genuine and corroborated by other witnesses.
47. Whether the defence could prove his alibi: Defence has taken two pleas that the lady had died because of accidental burn while cooking food. Masih Charan Murmu (P.W.13) went to the place of occurrence and did not find any Stove there but there was a sign of burn and as such this story of accidental burn is completely excluded. Appellant has also taken plea that on 8.6.1988 he along with his mother had gone to Babadham in the morning and returned to Munger on 10.8.1988. In this regard Banarsi Prasad (D.W.1) has stated in his evidence that they had gone to Baidyanath Dham in the morning at about 7.30 to 8 whereas the present appellant has stated that they had gone at 4 o‟clock in the morning. So it appears that there is quite variance in the statement of D.W.1 and statement of appellant no.1. It is also relevant to state that neither D.W.1 nor the appellant under section 313 statements could say or bring any material to show Patna High Court CR. APP (DB) No.13 of 1990 51 that they have traveled by motor and had gone to Babadham on the day of occurrence. They have not brought any material to show they stayed in Babadham during the period 8.6.1988 and 9.6.1988. It is also relevant to consider that Banarsi Prasad (D.W.1) was not examined before the police but for the first time he came to dock and made this statement. These are factors which can safely be said that stand of alibi being absent from the place of occurrence has completely failed and as such explanation of their absence from the place of occurrence is rejected.
48. Value of evidence of hand writing expert: As has been explained hereinabove Chandra Kant Prasad (D.W.2) is not a hand writing expert. In his evidence he has accepted that he did not have any qualification or training from any recognized institute and at that time he was student of law College and as such it is not possible to attach any importance to his report. So much so in a situation when writing of Awadh Bihari Ranjan Verma (P.W.9) was taken at dock in standing position (Ext.A) whereas dying declaration (Ext.4) was recorded in different posture. So there is natural phenomenon to have some difference in the hand writing in Ext.A vis-à-vis Ext.4 and as such plea, that Ext.4 differs in hand writing with Ext.A re-writing of Ext.4 Patna High Court CR. APP (DB) No.13 of 1990 52 is rejected.
49. In view of the aforesaid facts, circumstance and discussions this appeal is dismissed and impugned judgment is hereby up-held. From the record it appears that appellant no.1, Jai Prakash Sah, is on bail. His bail bond is cancelled. He is directed to surrender before the trial court forthwith for serving the remaining period of sentence.
(Shivaji Pandey, J) Navin Sinha, J. I agree.
(Navin Sinha, J) Patna High Court, The 5 April, 2013 Vinay/- N.A.F.R.