Jharkhand High Court
Chhotu Kumar @Chhotu Prasad vs State Of Jharkhand on 17 April, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.1058 of 2003
(Against the Judgment of conviction dated 13.06.2003 and order of
sentence dated 17.06.2003, passed in S.T. No.55 of 2003 (T.R. No.157
of 2003) by the learned 3rd Addl. Sessions Judge, Bokaro).
Chhotu Kumar @Chhotu Prasad, S/o Shri Krishna Prasad,
Resident of Jodhadih More, Gurudwara Road, Chas, P.S.:-
Chas, District :- Bokaro. .... Appellant
Versus
State of Jharkhand. ..... Respondent
PRESENT HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellant : Mr. Ajit Kumar, Advocate For the State : Mrs. Lily Sahay, Addl. Public Prosecutor By Court:- Heard learned counsel for the appellant and learned counsel for the State.
2. The instant Criminal appeal is directed against the Judgment of conviction dated 13.06.2003 and order of sentence dated 17.06.2003, passed in S.T. No.55 of 2003 (T.R. No.157 of 2003) by the learned 3 rd Addl. Sessions Judge, Bokaro, whereby the sole appellant has been convicted for the charged under Sections 376/511 I.P.C. and under Section 306 of the Indian Penal Code and awarded rigorous imprisonment for a period of four years under Sections 376/511 of the Indian Penal Code and R.I. for five years and also a fine of Rs.1,000/- under Section 306 of the Indian Penal Code, in default in payment of fine amount, the appellant shall undergo simple imprisonment for a period of six months. Both the sentences are directed to run concurrently.
Against the aforesaid judgment of conviction and order of sentence, the instant appeal has been preferred before this Court.
3. The prosecution case as made out in the First Information Report is based on the basis of 'fardbeyan' of the informant, Nutan Kumari (deceased/victim) recorded by A.S.I., Satish Chandra Kumar, Sector IV Police Station, on 18.06.2002 at 15.45 hours at Bokaro General Hospital, Casualty Ward, Bed No.2. As per the 'fardbeyan' of the informant, she is permanent resident of P.S.:-Nagar Utari, in the District of Palamau and presently residing at Yodhadih, P.S.:- Chas, Distt :- Bokaro, in the house of her maternal uncle, Balram Prasad. She has stated, that when she returned to her house from college and at that time, she was alone in the house, which is the house of her maternal uncle. As her maternal grand- mother has gone to the flour mill, when her maternal brother, Chotu has tried to commit rape upon her and
-2- [Cr. Appeal (SJ) No.1058 of 2003] such anger, she has sprinkled kerosene oil on her entire body and set herself on fire. Thereafter some persons came there and they extinguished the fire and brought her to Hospital for treatment where she is under treatment.
On the basis of the aforesaid 'fardbeyan' of Nutan Kumari, informant, the Police instituted First Information Report being Chas P.S. Case No. 80 of 2002 (dated 18.06.2002) corresponding to G.R. No.591 of 2002 under Sections 376/511/306 of the Indian Penal Code.
4. After investigation, the Police submitted charge-sheet vide charge- sheet No.161 of 2002 dated 30.11.2002 under Sections 376, 511, 306 of the Indian Penal Code against the present appellant, Chotu Prasad.
5. The cognizance of the offence was taken and the case was committed to the Court of Sessions. The charge was framed against the appellant, Chotu Prasad under Sections 376/511 and 306 of the Indian Penal Code on 06.03.2003. To which appellant pleaded not guilty, thus appellant was put under trial.
6. The prosecution in order to prove its case has examined altogether 15 witnesses and also adduced 9 exhibits. Ext.1 is signature of Balram Prasad on carbon copy of the inquest report. Ext.2 is signature of Sonamati Devi on seizure list. Ext.2/a is signature of Savitri Devi on seizure list. Ext.3 is post-mortem report of Nutan Kumari. Ext.4 is Death Certificate of Nutan Kumari. Ext.5 is Pathological report of vaginal swab. Ext.6 is requisition of vaginal swab for semen analysis. Ext.2/b is signature of doctor, Uma Shankar Ram on 'fardbeyan'. Ext. 7 is Fardbeyan. Ext.8 is seizure list. Ext.9 is inquest report. All have been exhibited without any objection.
7. Vishal Kumar Jaiswal has been examined as P.W.1. He is a child witness, aged 10 and ½ years and a student of class-IV. This witness is maternal younger brother of the deceased. This witness h as not supported the prosecution case made out in the 'fardbeyan' rather his statement is that Nutan is his sister and after he returned from his school and Nutan Kumari came from college and as soon as she reached home, she made a telephonic call which was heard by Chotu bhaiya (brother of this witness) and thereafter his grand-mother and father were called upon, then the entire family members warned Nutan by saying, that if she will do same act, her parents will be called. This witness has not supported the prosecution case even the prosecution has not declared him hostile.
-3- [Cr. Appeal (SJ) No.1058 of 2003] During cross-examination by the defence, this witness has said that Nutan didi had affair with her friend in college and she used to talk on telephone regularly. Nutan was pacified and convinced several times, but nothing has happened and she used to talk with the same boy. This witness has further stated that while extinguishing the fire, his father, Sri Balram Prasad Jaiswal and his elder brother, Chotu Prasad (appellant) have also sustained burn injury on their hands. This witness has also submitted that before she was taken to Hospital, she was not in a condition to speak.
8. Sonamati Devi has been examined as P.W.2. She is maternal grand- mother of Nutan Kumari and has stated that since childhood, Nutan was residing with them and she was a student of B.A. at Sahjanand College. She has further stated that after returning from the college, she made a telephonic call and earlier she was making such call for which she was scolded by saying, that she will be sent to the house of her parents. This witness has stated, that on the fateful day, they witnessed Nutan was talking with some one on telephone which was snatched by them and thereafter, she entered into her room and all the inmates of the house including the witness, Balram, Chotu and Chotu's mother (Savitri Devi) went near the flour mill. After some time, they heard the voice ''bachao-bachao'' made by Nutan and thereafter they came there and saw that Nutan was under fire. This witness has also not been declared hostile by the prosecution.
This witness has also stated during cross-examination that before Nutan Kumari was taken to Hospital, she was not in a condition to speak. Balram and Chotu have also sustained injuries in their hands in rescuing Nutan.
9. Vikram Jaiswal, another son of Balram Prasad Jaiswal has been examined as P.W.3. This witness has been informed by Vishal (P.W.1), about the occurrence. This witness is a hearsay witness, who came to the house and his entire statements is based upon information disclosed by P.W.1 (Vishal Kumar).
During cross-examination, this witness, has stated that his sister, Nutan didi had affair with some boy, to whom she used to make phone calls, which was opposed by the entire family and such information was given to the parents of Nutan didi. This witness has said, that after getting the information, he came to his house at 3.00 p.m. By that time, his father (Balram Prasad Jaiswal), Chotu, grand-mother (Sonamati Devi) took her to Hospital. This witness has further stated, that his father and brother got burn injury while rescuing Nutan Kumari.
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10. Godawari Devi, has been examined as P.W.4. She is neighbour. During examination-in-chief, she has stated that, when she went near Nutan, she saw that Balram, Chotu and younger brother were extinguishing the fire and took her for treatment to Bokaro General Hospital by the family members of Nutan Kumari namely Chotu, Balram and maternal grand-mother of Nutan. Nutan was in a completely nervous stage and she was not in a position to speak. In the evening, she heard that Nutan died. This witness has also not been declared hostile by the prosecution.
During cross-examination, this witness has stated that Balram also sustained injury while extinguishing the fire. She saw that Chotu was also extinguishing fire. This witness has also stated, that some boy of his college used to call her on telephone for which she was counselled by the maternal-uncle and maternal aunt, but Nutan was not convinced. Thus, her parents were also given such information, who have said that after one month, the examination will be over and they will take her to their house.
11. Deepak Kumar, has been examined as P.W.5. This witness is a neighbour, working in a Hotel, who came at the place of occurrence and saw 15-20 persons at the house of Balram Prasad and saw Nutan Kumari in an injured condition. This witness has seen Balram, Chotu and youngest son of Balram, extinguishing the fire from the body of Nutan. This witness has stated, that Nutan was taken to Hospital in an auto- rickshaw by Balram, Chotu and maternal grand-mother of Nutan. This witness has also not been declared hostile by the prosecution.
This witness during cross-examination has said, that Balram and Chotu have sustained injuries on their hands while extinguishing the fire and Nutan was not in a condition to speak.
12. Balram Prasad, maternal uncle of the deceased and uncle of the appellant -Chotu Prasad, has been examined as P.W.6. This witness has identified his signature on the inquest report, which has been proved and marked as Exhibit-1 and has stated that at 1.30 -2.00 p.m., Nutan Kumari who is his maternal niece, came from College and made call to somebody, the phone was snatched by nephew, Chotu and Chotu informed them. Thereafter this witness and the other members of the family along with Chotu scolded Nutan, who went inside her room and put herself on fire. They heard the voice of Nutan and went there. Nutan put herself on fire after pouring kerosene oil and she was in a pathetic condition. This witness has further stated, that he along with his
-5- [Cr. Appeal (SJ) No.1058 of 2003] wife Savitri, mother and Chotu have extinguished fire from Nutan due to which, this witness and Chotu have sustained injuries and thereafter this witness along with his mother and Chotu took Nutan to Bokaro General Hospital in an auto-rickshaw. She was in unconscious condition and was not in a condition to speak and within 5-7 minutes at Hospital, she died. This witness has not been declared hostile by the prosecution.
During cross-examination, this witness has stated, that he along with Chotu, his mother, wife and Nutan were residing in the same house along with his brother and his family members jointly, in different rooms. In the same building, flour mill is also installed. This witness has stated that at the time of occurrence, he along with his wife, mother, Chotu and Vishal were in the house and the phone was snatched by Chotu as Nutan was talking with some boy having illicit relations and after 15-20 minutes of scolding of Nutan, they heard the voice raised by Nutan and thereafter Chotu came first along with this witness, his wife and mother. This witness has stated that Nutan had affair with some boy since long, whom she used to call on telephone, which was informed to her parents, who have said, that they will take her after one month when examination will be over.
13. Manjeet Singh has been examined as P.W.7. He is neighbour and being neighbour, he came to the place of occurrence after hearing the voice of Nutan and saw completely burn body of Nutan.
During cross-examination, this witness has stated, that Chotu and Balram Prasad were extinguishing fire from her body and thereafter Nutan was taken to Hospital by lady members, her maternal uncle and Chotu.
14. Savitri Devi, W/o Balram Prasad Jaiswal has been examined as P.W.8. This witness has also stated, that for making a phone call to some boy, Nutan was scolded and thereafter they went to their room and on hulla, when her husband, mother-in-law and Chotu came, they saw, that Nutan was under fire. She was rescued by putting some clothes. Nutan was not in a condition to speak and thereafter she was taken to Hospital by her mother-in-law, husband, Vishal and Chotu in an auto-rickshaw. This witness has proved signature on seizure list along with signatures of mother-in-law as Ext.2 and 2/a.
During cross-examination, this witness has categorically stated that on the alleged date of occurrence, Nutan was making call to her
-6- [Cr. Appeal (SJ) No.1058 of 2003] friend. Such information was given to her father, Raj Kumar Jaiswal and mother, Asha Devi, who are residing at Nagar Untari, Garhwa and thereafter her father came and said that after examination is over, she will taken to Garhwa, but no improvement was found in Nutan. She has categorically stated that Nutan was not in a condition to speak and she died at Hospital.
15. Satyendra Prasad Jaiswal, has been examined as P.W.9. He is another maternal uncle of the deceased. He has also not supported the prosecution case rather stated similar statements as the other witnesses have stated, that Nutan committed suicide as she was scolded for making call to her friend.
During cross-examination, this witness has stated that he has given similar statement during investigation.
16. Asha Devi, mother of the deceased, has been examined as P.W.10. She has also not supported the 'fardbeyan' of her daughter rather in para-3 of her examination-in-chief, she has stated, that prior to this occurrence, her mother, her brother and sister-in-law used to say that Nutan is making call to some boy and as such, she may be taken to Garhwa, but her daughter used to say, that until she completes her B.A., she will not go to Nagar Untari. This witness has not been declared hostile by the prosecution.
This witness has categorically stated, in Para-5 of her cross- examination, that she has no grievance against Chotu nor any complaint. She has further stated that her statement has not been recorded by the Police and she has no suspicion against Chotu nor she wants to file any case against Chotu.
17. Raj Kumar Jaiswal, father of the deceased, has been examined as P.W.11. This witness, during his examination-in-chief in para 3, has stated that he has been informed earlier by his in-laws, that Nutan has some affair with some boy and she used to make phone calls and as such, she may be taken to her house, upon which on request of Nutan, this witness has said that after 2 months, when her examination will be over, she will be taken to Nagar Untari. This witness has not been declared hostile by the prosecution.
This witness, during cross-examination in para-5, has stated, that he has no suspicion against Chotu Kumar or against any in-laws nor any complaint against them nor they want to file any case with respect to death of Nutan Kumari.
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18. Dr. R. P. Verma, Medical Officer has been examined as P.W.12. This witness had conducted the post-mortem examination of the deceased- Nutan Kumari. According to the injury report, Doctor has found almost 100% of the body surface area to be affected by epigermal and dermo-epigermal burn injury with black sooty colour of skin and odour of Kerosene oil. No external mark of injury or violence could be found out as the entire surface of the body was affected by burn injury. Doctor has given cause of death, due to cardio-respiratory failure due to hypo volaemic shock and extensive burn injury.
During cross-examination, this witness has stated that 100% burn patient may not be in position to speak.
19. Dr. Uma Shankar Ram, Senior Medical Officer, Bokaro General Hospital, has been examined as P.W.13. This witness has given initial treatment to the victim- Nutan Kumari on 18.06.2002. Doctor has further stated that at 3.30 p.m., Nutan Kumari was brought by her maternal uncle and aunt to the Hospital with 100% burn injury, who died during treatment. This witness has proved his signature and handwriting over the death certificate which has been proved and marked as Exhibit-4. The medical requisition of vaginal swab was taken at the time of post-mortem and the same was sent to laboratory. The same was proved and marked as Exhibit-5. The pathological report of vaginal swab, denying the presence of spermatozoa. This pathological report is in the handwriting and signature of Dr. Manju Ray and the same has proved and marked as Exhibit-6 and his signature on the 'fardbeyan' recorded by Assistant Sub Inspector, Satish Chandra Kumar has been proved and marked as Ext.2/b, but this witness has categorically stated that 'fardbeyan' of Nutan Kumari was not recorded in his presence nor he has heard, what she has stated to the Sub Inspector. This witness has categorically stated, that Nutan was admitted at Bokaro General Hospital as per the death certificate at 4.25 p.m. and died at 4.30 p.m. which will be apparent from the admission register. This witness (Doctor) has further stated at Para-7 of his cross-examination, that in case of unrecorded pulse rate, there is a great chance of the patient being unconscious and not fit to give any statement. During the five minutes, when Nutan was alive in the Hospital, I was attending her and treating her all along. During the interval of five minutes, the Police has not sought my permission to record the statement of Nutan Kumari. I had not given any certificate
-8- [Cr. Appeal (SJ) No.1058 of 2003] to the Police, to the effect, that Nutan Kumari is mentally and physically fit for giving her statement. The Doctor has further stated, that I had examined Nutan Kumari, and she was not in a condition to give any statement. The Doctor has further stated at Para-8 of his cross-examination, that during the interval of 5 minutes, when Nutan was alive under my treatment, I did not heard any word from her. At the time of admission, if the patient remains in speakable condition, cause of injury on his/her person is asked by the doctor and the reply is usually noted down.
This witness in Para-9 of his cross-examination, has further stated, that at the request of the Police officer, I put my signature on the 'fardbeyan' although it was not recorded within my knowledge and hearing.
20. Satish Chandra Kumar, Assistant Sub Inspector of Police, who has recorded the 'fardbeyan' of Nutan Kumari has been examined as P.W.14. This witness has stated, that on 18.06.2002, while he was posted at Sector IV Police Station Bokaro and after receipt of O.D. Slip, he went from Police Station to Hospital and entered Casualty Ward at Gate No.2 and saw a girl with burn injury, whose entire body was completely bandaged and Glucose sline was being given. This witness has further stated, that in presence of Dr. Uma Shankar Ram, he has recorded the 'fardbeyan' of Nutan Kumari. This witness has proved his handwriting and signature on the 'fardbeyan' as Exhibit-7 and has further stated that since both hands of Nutan Kumari were extensively burnt, he took impression of thumb of left leg. This witness has stated, in Para-5 of his cross-examination, that he has recorded the statement of Nutan Kumari in questionnaire form, in which approximately half an hour time was consumed. This witness has proved the death certificate as Exhibit-4 and has admitted in Para-7 of his cross-examination that half an hour has been taken in recording the statement of Nutan Kumari. But as per the death certificate of Nutan Kumari, she was only alive for 5 minutes.
This witness has further admitted, during cross-examination that for recording statement of Nutan Kumari, he has not taken permission from the Doctor nor any certificate was taken from the Doctor to the extent, that Nutan Kumari is mentally and physically fit and competent to give her statement. This witness has admitted that on 'fardbeyan' no such certificate has been given by Dr. Uma Shankar Ram.
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21. Uma Shankar Azad, Investigating Officer of the case, has been examined as P.W.15. This witness has proved the seizure list bearing signature of Sonamati Devi and Savitri Devi as Exhibit-8 and has stated that witnesses have disclosed that Nutan Kumari was residing in the house of her maternal uncle, Balram Prasad, as she was pursuing her B.A. Part-II.
This witness has stated during cross-examination, that Nutan Kumari died within 5 minutes, but from perusal of such long 'fardbeyan', it appears that same cannot be recorded within five minutes.
22. After closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C. on 19.05.2003, the appellant has denied the charge and the evidence against him.
23. Mr. Ajit Kumar, learned counsel appearing for the appellant has submitted, that conviction of the appellant is solely on the ground of one alleged dying declaration, which is not trustworthy and upon such alleged statement of Nutan Kumari which is not trustworthy, conviction of the appellant passed by the learned lower court is bad in law. He has further submitted, that dying-declaration has not been supported by P.W.13 (Dr. Uma Shankar Ram) as the Doctor has submitted that no such certificate has been issued by him and the lady died within 5 minutes of the treatment. From the perusal of the statement of the Doctor, it appears that on the request of the Police officer, the Doctor has put the signature, but he has not given any certificate with regard to statement made by the victim. He has further submitted that even in the statement of P.W.14 (Satish Chandra Kumar, A.S.I.) such admission is there and on proper scrutiny of the statement of the victim, it will be apparent that the dying-declaration is not fit to be relied upon.
24. Learned counsel for the appellant has further submitted, that as per the statement of P.W.14 (Satish Chand Kumar, A.S.I.) he has recorded the statement of victim in the questionnaire form, but it will be apparent from the face of the dying-declaration, that it is not in the questionnaire form rather in a lengthy way. Further the Police officer has stated that it took half an hour in recording the fardbeyan of the victim, as per the medical evidence, the lady (Nutan Kumari) survived only for 5 minutes. The fatal blow came to the prosecution case, when the Police officer has stated that he has not taken any
-10- [Cr. Appeal (SJ) No.1058 of 2003] permission from the Doctor before recording the statement of Nutan Kumari nor any certificate from the Doctor, that Nutan Kumari is mentally and physically fit and competent to give such statement. This witness being a Police officer has also admitted that in the 'fardbeyan' of Nutan Kumari no such certificate has been given by Dr. Uma Shankar Ram (P.W.13). Nutan Kumari was in unconscious condition and not in a condition to give her statement and as such, relying upon such statement for convicting the appellant will cause serious prejudice to the appellant as no corroborative material is available on record in support of the same.
25. Learned counsel has relied upon a judgment as reported in 1992(2) SCC 474, Paniben (Smt.) Vs. State of Gujarat and para-18 of the said decision reads as under :-
"18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying-declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This court has laid down in several judgments the principles governing dying-declaration, which could be summed up as under :
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted without corroboration. (Munnu Raja V. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, Ramawati Devi V. State of Bihar).
(iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration (K. Ramachandra Reddy V. Public Prosecutor).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected (Kake Singh V. State of M.P.).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.).
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(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar).
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)."
26. Learned counsel for the appellant has submitted, that under Para 18 (iv) where dying declaration is suspicious, it should not be acted upon without corroborative evidence and in the present case no such corroborative statement has been brought on record and Para (vi) a dying declaration which suffers from infirmity cannot form the basis of conviction and lastly (x) where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
27. Thus, relying on the aforesaid paragraphs, learned counsel for the appellant has submitted, that it is a fit case, where the impugned judgment of conviction and order of sentence is fit to be set aside.
28. Upon this, Mrs. Lily Sahay, learned Addl. Public Prosecutor has submitted that dying declaration has legal value under Section 32(1) of the Indian Evidence Act, 1872. If the dying declaration is found to be voluntary and credible as reported in 2003(4) JLJR (SC) 77 in the case of P.V. Radhakrishna V. State of Karnataka.
29. Mrs. Lily Sahay, learned Additional Public Prosecutor appearing for the State in support of her submission has placed one judgment of the Hon'ble Apex Court as reported in 2002(8) SCC 83, Rambai Vs. State of Chhatisgarh, wherein it has been held that the dying- declaration, which does not contain certificate of the Doctor, cannot be rejected on that sole ground, so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration, then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration.
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30. Heard Mr.Ajit Kumar, learned counsel for the appellant and Mrs. Lily Sahay, learned Additional Public Prosecutor appearing on behalf of the State and perused the entire case records.
31. From perusal of the evidence brought on record, none of the witnesses have supported the statements made in the 'fardbeyan' although the statements given by the witnesses are same as they have given the statements during investigation before the Police officer under Section 161 of the Criminal Procedure Code. As per the evidence, brought on record, the victim committed suicide, as she was scolded for calling her boy friend through telephone, which was within the knowledge of her parents, as they have admitted who have been examined as P.W.10 and P.W.11 and they have also said, that they do not have any suspicion and grievance against Chotu or any member of their in-laws. The only material which has been brought on record is the alleged 'fardbeyan' of Nutan Kumari recorded by P.W.14 (Satish Chandra Kumar). It appears that this 'fardbeyan' is not reliable for convicting the appellant as this fardbeyan contains serious infirmity. Learned counsel for the appellant has rightly submitted that the 'fardbeyan' cannot be relied upon as the said 'fardbeyan' is not in the questionnaire form as stated by P.W.14. Learned counsel has rightly submitted that as per the medical evidence of the Doctor, the deceased was alive for 5 minutes and the Dr. Uma Shankar Ram (P.W.13) has categorically stated, that no such certificate was given nor any statement was recorded in his presence nor he has heard any statement given by the victim to the Police and Police officer (P.W.14) has also admitted in his cross-examination, that he has not taken any certificate from Doctor.
32. From the evidence on record, all of the witnesses have stated, that after the occurrence, the deceased was not in a condition to speak. P.W.14 (Satish Chandra Kumar) has admitted that, he has not obtained any certificate nor any certificate from P.W.13 (Dr. Uma Shankar Ram) was given to him, to the effect that Nutan was in a condition and capable to speak. The judgment which has been cited by the learned counsel for the appellant in the case of Paniben (Smt.) Vs. State of Gujarat (supra) particularly Paras 18 (iv), (vi) and (x) clearly suggests that the dying-declaration is not fit to be relied upon for convicting the appellant, if not corroborated. The judgment which was placed by the learned counsel for the State is not appropriate in
-13- [Cr. Appeal (SJ) No.1058 of 2003] the facts and circumstances of the case, as no corroborative evidence has been brought on record by the prosecution and even the witnesses whose statement was recorded under Section 161 of the Criminal Procedure Code are same as adduced in the Court during trial. In absence of any such evidence, the judgment cited by the Additional Public Prosecutor cannot be relied upon, which are not applicable in the present facts and circumstances of the case.
33. Under the above facts and circumstances of the case, this Court is of the opinion that the impugned judgment of conviction and order of sentence is fit to be set aside.
34. Accordingly, the Judgment of conviction dated 13.06.2003 and order of sentence dated 17.06.2003, passed in S.T. No.55 of 2003 (T.R. No.157 of 2003) by the learned 3 rd Addl. Sessions Judge, Bokaro, is hereby set aside.
35. Consequently, the appellant, who is on bail, is discharged from the liability of bail bond.
36. In the result, this appeal stands allowed.
37. Let L.C.R. be sent to the court concerned and a copy of this judgment be sent to the court concerned.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi.
Dated 17th April, 2018 sandeep/