Jharkhand High Court
Yashoda Devi vs The State Of Jharkhand on 8 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (D.B.) No.649 of 2013
with
Criminal Appeal (D.B.) No.769 of 2013
(Against the judgment of conviction dated 05.08.2013 and the order of sentence
dated 12.08.2013 passed by the learned District and Additional Sessions Judge III,
Dumka in Sessions Trial No. 104 of 2010)
--------
In Cr. Appeal (DB) No.649 of 2013:
Yashoda Devi, w/o Tigna Mistry, r/o village-Nonihat, P.O and P.S- Hansdiha,
District-Dumka ...... Appellant
AND
In Cr. Appeal (DB) No.769 of 2013:
Tigna Mistry @ Tiganmisry, s/o Phool Kumar Mistry, r/o village-Nonihat, P.O and
P.S-Hansdiha, District-Dumka ...... Appellant
Versus
The State of Jharkhand ...... Respondent
---------
(Heard through V.C on 08.02.2021)
-------
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mrs. J. Mazumdar, Advocate
Mr. Rohan Mazumdar, Advocate
(in both the cases)
For the State : Mr. Ravi Prakash, Spl. PP
-------
Oral Judgment
8th February, 2021
Per, Shree Chandrashekhar, J.
In Sessions Trial No.104 of 2010, Tigna Mistry and Yashoda
Devi were convicted and sentenced to R.I for life and a fine of Rs.5000/-
each under section 302/34 of the Indian Penal Code with a default
stipulation to undergo S.I for two months.
2. Jarmundi (Hansdiha) PS Case No.15 of 2010 was lodged on
24.01.2010 under sections 342/307/326/323 read with section 34 of the
Indian Penal Code, on an allegation that Tigna Mistry and his wife poured
kerosene on Jayanti Devi and set her ablaze. The statement of Jayanti Devi
2 Cr. Appeal (DB) No. 649 of 2013
with
Cr. Appeal (DB) No. 769 of 2013
was recorded at 02:00 PM on 24.01.2010 at Female Burn Ward, Sadar
Hospital, Dumka by SI L.N. Ram, Dumka (Town) PS. She succumbed to
the burn injuries the same day and accordingly the offence under
section 302 of the Indian Penal Code was added in the report vide order
dated 28.01.2010. The statement of PW1, PW2 and PW3 was recorded
under section 164 of the Code of Criminal Procedure and the Judicial
Magistrate, who has recorded their statements affirmed this in the Court. On
completion of the investigation, a charge-sheet was laid against Tigna
Mistry and Yashoda Devi for committing murder of Jayanti Devi in
furtherance of their common intention, and also for committing allied
offences. Over the dead body of Jayanti Devi, post-mortem examination was
conducted by Dr. Chandeshwar Prasad Sinha who found deep extensive
burn injuries on all over her dead body except scalp. The extent of burn
injury was 90 per cent and smell of kerosene oil was emanating from the
dead body. In the opinion of doctor, cause of death was shock as a result of
burn injuries and time elapsed since death was 24 hours. In the trial
prosecution has examined 13 witnesses - PW1, PW2, PW3 and PW4 are
closely related to Jayanti Devi. The other witnesses are the co-villagers
some of whom turned hostile and the evidence of others is of very little use
for the prosecution.
3. The learned trial Judge has referred to several judgments of the
Hon'ble Apex Court and observed that this is not a universally accepted rule
that certification of doctor that the victim was capable to speak is necessary;
recording of statement of victim under section 164 of the Code of Criminal
Procedure is not mandatory; whether a victim with 90 per cent burn injuries
can speak or not can be discerned from the medical evidence, and; the dying
declaration of Jayanti Devi which is corroborated by PW1, PW2 and PW3
inspires confidence.
4. The learned District and Additional Sessions Judge-III, Dumka
has held as under:
"Insofar as the fact stated in medical evidence that the
deceased was 90 degree burnt which is deposed by the
doctor (PW11) and postmortem report (Exhibit 3), the
learned defence Advocate submitted that a 90 degree burnt
lady cannot be supposed to be in a position to speak
3 Cr. Appeal (DB) No. 649 of 2013
with
Cr. Appeal (DB) No. 769 of 2013
properly and give her statement like fardbeyan Exhibit 7
thus the same cannot be accepted. This court finds that she
may or may not be in a position to speak or not to speak
properly, depends upon the opinion of the medical finding
which is lacking in this case and in such case the oral
evidence shall prevail. The fardbeyan Exhibit 7 have
another entity also because it is first information report
and in a Criminal case it is an extremely vital and
valuable piece of evidence for the purposes of
corroboration or contradictions of the oral evidence
adduced in trial. The illiterate and rustic witnesses PW1 to
3 in many clear words and in very faithful and reliable
manner stated before this Court that "when they visited
the Hospital, they found the deceased with burn injury on
her body and her treatment going on, saline water given to
her by the doctor and the deceased informant making her
statement fardbeyan Exhibit 7 to the police officer at
Hospital and in her statement deceased stated to police
officer that 'accused Tigna and his wife (accused Yashoda
Devi) made some quarrel with her about some grain eaten
by goat and both of them took her to their house and by
putting Kerosene Oil set fire on her body' which was
recorded in their presence and they also put their thumb
impression and signature on the same as witness, they
remain with deceased till evening then return home." Not
only had that the PW1 to 3 in their statement before
Magistrate recorded U/s 164 Cr.P.Code also stated same
corroborative fact that 'the deceased stated before them to
the police officer that accused Tigna and his wife made
some quarrel with deceased about grain eaten by goat and
both of them took her to their house and by putting
Kerosene Oil set fire on her body'. The witnesses PW1 to
3 are the rustic and illiterate villagers and related as
parents and sister of deceased, there appears some minor
discrepancies regarding timing and manner of their
arrival to hospital but nothing serious embellishment or
improvements appears in their evidence on their statement
recorded U/s 164 Cr.P.Code (Exhibit 8 series), to
disbelieve them. The PW3 who is a old deaf man having
difficulty to hear any voice but able to read Hindi and he
also very fairly deposed before this Court that he has not
hear the voice of his deceased daughter and had only seen
the movement of her lips at the time when she was making
her statement to the police officer, which he has also read
himself (although not read complete statement) and signed
as witness. The Investigating Officer also arrived at 03
PM found nothing alarming suspecting death of deceased
only recorded restatement of deceased. Medical evidence
shows that the head of deceased was not burnt seriously.
Those facts established with conformity that the deceased
informant Jayanti Devi although having 90% burn on her
body, was in conscious condition while making her
fardbeyan (Exhibit-7) and remain in such fit condition not
only till conclusion of recording of her fardbeyan (Exhibit-
7), but also till 03 PM when Investigating Officer visited
and recorded her restatement without noticing anything
abnormal anticipating death and till evening also she
remain alive when PW1 to 3 left Hospital."
4 Cr. Appeal (DB) No. 649 of 2013
with
Cr. Appeal (DB) No. 769 of 2013
5. Mr. Rohan Mazumdar, the learned counsel for the appellants
contends that there is no evidence particularly in the form of certification
of a doctor that Jayanti Devi was in a fit condition to speak; the doctor
and nurse who could have thrown light on her condition were not
examined; Jayanti Devi who had suffered 90 per cent burn injuries cannot
be reasonably expected to give her statement to the police, and; there are
serious contradictions and inconsistencies in the evidence of PW1, PW2
and PW3 who are not supported by other witnesses so as to believe the
prosecution story. On the above plea, it is submitted that the appellants
deserve benefit of doubt.
6. The case of the prosecution is based on the statement of Jayanti
Devi recorded by L.N. Ram, Dumka (Town) PS, who was not produced
during the trial. 'Nemo Moriturus praesumitur mentire' which means "No
one would meet the maker with a lie in his mouth" is the underlying
principle for admitting a dying declaration against the rule of hearsay. A
dying declaration is admitted in evidence under section 32(1) of the
Indian Evidence Act which provides that statement by a person who is
dead or cannot be found etc. is relevant. A statement of a dead person
written or oral which relates to cause of death is a relevant fact and
admissible in evidence. Section 32(1) further provides that not only the
statement relating to the cause of death but also any of the circumstances
of the transaction which resulted in the death is a relevant fact in a case in
which the cause of that person's death comes into question. In her
statement, Jayanti Devi stated about the cause of her death and the
circumstances relating to her death and, therefore, it may be admitted in
evidence. A dying declaration if found trustworthy and inspires
confidence can be the basis for conviction and there is no rule of law
which requires corroboration to a dying declaration. In "P. Mani v. State
of T.N." (2006) 3 SCC 161 the Hon'ble Supreme Court has held that
conviction can be recorded on the basis of the dying declaration alone but
the same must be wholly reliable. However, the Hon'ble Supreme Court
has also observed that in a case where suspicion can be raised as regards
5 Cr. Appeal (DB) No. 649 of 2013
with
Cr. Appeal (DB) No. 769 of 2013
the correctness of the dying declaration the Court before convicting an
accused on the basis thereof would look for some corroborative evidence.
7. In her statement before L.N. Ram, Dumka (Town) PS, Jayanti
Devi has stated as under:
gekjk uke t;Urh nsoh mez djhc 40 o"kZ] ifr&'k'kh feL=h]
lk0&uksuhgkV] Fkkuk&g¡lMhgk] ftyk&nqedk gSA ge vkt fnukad ukekywe
¼fn0&[email protected]@2010½] fnu jfookj dks le; djhc nks cts fnu esa vki
uxj Fkkuk nqedk ds njksxk th ds le{k viuk c;ku lnj vLirky]
nqedk esa bykt ds Øe esa ns jgh gw¡ fd vkt ge vius ?kj ij FkhA lqcg
esa vkt gh gekjh cdjh gekjs Hkrhtk Vhaxuk feL=h ds vk¡xu esa j[kk
pkoy FkksM+k [kk fy;kA bl ckr dks ysdj djhc lqcg 10 cts ls gh
gekjk vyx dk Hkrhtk Vhaxuk feL=h firk&Qwy dqekj feL=h rFkk
Vhaxuk feL=h dh vkSjr xkyh&xykSt ,oa >xM+k djuk 'kq: dj fn;kA
ge nksuksa dk ?kj vxy&cxy gh lVs gSA dqN nsj ckn gh Vhaxuk feL=h
rFkk Vhaxuk feL=h dh vkSjr ftldk ge uke ugha tkurh gSa] us feydj
gedks ekjihV djus yxkA cpkvks dh vkokt ij gekjs ifr gedks cpkus
vk;s rks mUgas Hkh Vhaxuk feL=h rFkk Vhaxuk feL=h dh vkSjr us ekjihV
dj gekjs ifr dks ckgj vk¡xu lsa fudky fn;k vkSj gedks [khapdj mDr
nksuksa idM+ dj ?klhVrs gq, vius ?kj ds vk¡xu esa ys tkdj tku ekjus
dh fu;r ls ge ij Vhaxuk feL=h rFkk Vhaxuk dh vkSjr us fdjklu rsy
fNM+ddj gekjs 'kjhj esa eSfpl ls vkx yxk fn;kA ge tyrs gq, ckgj
Hkkxh gw¡A gekjs ifr rFkk vxy&cxy ds yksx vkx cq>k;s vkSj bykt
gsrq ;gk¡ yk;s gSaA
esjk nkok gS fd Vhaxuk feL=h rFkk mldh vkSjr us tku ekjus ds fu;r
ls gekjs 'kjhj esa vkx yxk fn;k ftlls ge cqjh rjg t[eh gks x;sA
;gh gekjk c;ku gS] ge viuk c;ku vius ifr] lklq ¼ek¡½ ,oa vius
firk ds le{k i<+ oks i<+okdj lqu oks le> fy;k rFkk lgh fy[kk ikdj
vius nkghuk iSj ds vaxqBk dk fu'kku cuk fn;k pw¡fd nksuksa gkFk dk
vaxqyh ty x;k gSA
English Translation:
My name is Jayanti Devi, aged about 40 years,
w/o Shashi Mistri r/o Nonihat P.S.-Hansdiha at
District-Dumka. Today, do not know the date
(24.01.2010), on Sunday at about 02:00 O'clock, I am
giving my statement while under treatment at Sadar
Hospital, Dumka before (you), the sub-Inspector of Town
P.S., Dumka that today I was in my house. In the morning,
my goat ate some rice of my nephew Tingna Mistri in the
courtyard. Due to this, since 10:00 O'clock in the
morning my nephew Tingna Mistri s/o Phool Kumar
Mistry (separated from us) and wife of Tingna Mistri
started abusing and quarreling. Our houses are adjoining.
After some time, Tingna Mistri and wife of Tingna Mistri,
whose name is not known to me, both started beating me.
On hearing my cries "save me", when my husband came
to save me Tingna Mistri and wife of Tingna Mistri
thrashed and forced him out from the courtyard. Both of
them caught and dragged me to the courtyard and with
intent to kill me Tingna Mistri and wife of Tingna Mistri
sprinkled kerosene oil over me and set me on fire. I ran
out caught on fire and my husband and neighbours came
6 Cr. Appeal (DB) No. 649 of 2013
with
Cr. Appeal (DB) No. 769 of 2013
and extinguished fire and brought me here for the
treatment.
It is my claim that Tingna Mistri and his wife set
me on fire with intent to kill me and as a result I was
severely injured.
This is my statement read over to me in the
presence of my husband, mother-in-law and my father and
having understood it and finding it correct, I put
impression of toe of the right leg because fingers of both
hands have been burnt.
8. The prosecution case is that there was quarrel between Jayanti
Devi and the appellants. Jayanti Devi has stated that in the morning her goat
munched on some rice in the courtyard of the appellants whereupon they
started abusing her. After some time they started assaulting her and on her
cries her husband came to save her but the accused committed maarpit with
him also and forced him out. The accused dragged her to their house, poured
kerosene over her in their courtyard and set her ablaze. To save herself she
ran outside and then her husband and the neighbors put off the fire and
brought her to the hospital. PW1 has stated that her statement was not
recorded by the police, but she says that when she had gone to the police
station her "name" was also introduced. She has stated thus; "The
Sub-inspector/police did not record my statement. When I went to the police
station, my name was also recorded" (nkjksxk iqfyl ds ikl esjk C;ku ugh afy;kA
Fkkuk ij xbZ Fkh rks esjk Hkh uke fy[k fy;kA). She has further stated that she does
not know what Jayanti Devi had said in her statement nor can she say
whether any doctor put his signature over her statement. From the statement
of PW1 in paragraph no.5, it transpires that at Nonihat Hospital a lady
doctor told her to take her sister to Sadar Hospital and then she was brought
at Sadar Hospital, Dumka on a carriage. However, her further statement in
the same paragraph gives an impression that she reached the hospital after
Jayanti Devi was admitted there. PW1 has said that her sister was admitted
in the hospital and saline was being administered to her (vLirky esa cgu dk
bZykt py jgk FkkA ikuh p<+ jgk FkkA). From the statement of PW2 who is mother
of Jayanti Devi, it appears that Jayanti Devi was already shifted to Dumka
by the time she had reached Nonihat Hospital. In her cross-examination, she
has stated that at about 09:00-10:00 AM she got an information that a
woman got burnt at Nonihat. She had gone to Nonihat Hospital by bus and
7 Cr. Appeal (DB) No. 649 of 2013
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Cr. Appeal (DB) No. 769 of 2013
reached there around 11:00 AM. She has admitted that she is illiterate and
at Sadar Hospital when the police asked her, she put her LTI. She further
says that she has put her thumb impression in the office. PW3 who is father
of Jayanti Devi is a deaf person. A person can be a witness not only by
giving oral evidence but also by producing document or making gestures.
The only requirement in law is provided under section 119 of the Evidence
Act. In "State of Rajasthan v. Darshan Singh" (2012) 5 SCC 789 the
Hon'ble Supreme Court has observed that when a deaf and dumb person is
examined in the Court due care and caution must be exercised to ascertain
whether he possesses the requisite amount of intelligence and understands
nature of an oath. PW3 has stated in the Court that he came to Nonihat
Hospital but did not find his daughter there. Then he went to her
matrimonial home and from there he had gone to Sadar Hospital, Dumka.
He has stated that he did not speak to his daughter (esjh viuh csVh ls dksbZ ckr
ugha gqbZA). He has further stated that he put signature on the statement of his
daughter which was recorded by the police, however, next he has stated that
he did not read the statement. In the Court, he has admitted that his ears and
eyes are weak. The trial Court has recorded that in course of his examination
he told the Court that he was feeling difficulty in speaking and reading. The
Court has accordingly provided time to him to relax. This witness has
indicated through gestures that he has seen the movement of lips of his
daughter - he is a deaf person. From the demeanor of this witness recorded
by the Court in his deposition it appears that he does not know anything
about statement of his daughter recorded by L.N. Ram. PW5 has stated that
there was a quarrel between Tigna Mistry and the deceased, however, he has
denied any knowledge how Jayanti Devi caught fire. PW6 who owned a
sweet shop in front of the house of Tigna Mistry has also said that he does
not know how wife of Shashi Mistry has died. PW7 and PW8 are seizure
witnesses. PW7 has stated that after about 1½ months of the occurrence the
police came and took his signature and PW8 has stated that his statement
was not recorded by the police. In the cross-examination by the prosecution,
PW8 has said that the seizure-memo was not prepared in his presence and
his signature was obtained after about one month. PW9 and PW10 have
8 Cr. Appeal (DB) No. 649 of 2013
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Cr. Appeal (DB) No. 769 of 2013
stated that their statements were not recorded by the police. They have
stated in the Court that they have seen Jayanti Devi coming out from her
house caught on fire.
9. From the aforesaid evidence, we find it highly suspicious
whether statement of Jayanti Devi was recorded by the investigating officer.
10. A dying declaration is required to be examined very carefully
and if it is found surrounded by suspicious circumstances the Court may
not act upon it.
11. In "Panchanand Mandal v. State of Jharkhand" (2013) 9 SCC
800 the Hon'ble Supreme Court has observed as under:
"15. Ext.4, the dying declaration also suffers from
infirmities.The author who recorded the dying
declaration C. Paswan, ASI was not produced by the
prosecution for examination orcross-examination. The
explanation given by the prosecution in this matter was
that the attendance of the ASI could not be secured in
spite of summons issued against him and the letters
written to the Superintendent of Police, Deoghar and
Giridih. The trial court wrongly held that this was a
convincing explanation. In fact, non-appearance of
ASI has prejudicially affected the defendant's interest
as they were denied the opportunity to cross-examine
him. It is admitted that dying declaration (Ext. 4) was
not certified by any medical expert stating that the
deceased was in a medically fit condition for giving the
statement. Though such certificate is not mandatory, it
was the duty of the officer who recorded the same to
mention whether the deceased was in mentally and
medically fit condition for making such statement,
particularly when the case was of a third-degree burn
which could lead to death."
12. There are several circumstances which have surrounded the
dying declaration of Jayanti Devi with suspicion. The dying declaration
of Jayanti Devi was recorded at Sadar Hospital, Dumka at 02:00 PM by
L.N. Ram, Dumka (Town) PS. The distance between Hansdhia police
station and the place of occurrence was 15 kilometers, between Hansdhia
police station and Sadar Hospital, Dumka the distance was 40 to
45 kilometers, from village Nonihat to Hansdhia police station the
distance was 15 kilometers, and from village Nonihat to Sadar Hospital,
Dumka the distance was about 30 kilometers. In the Court, PW1 has
stated that one person told her that a woman has caught fire (,d vkneh cksyk
9 Cr. Appeal (DB) No. 649 of 2013
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Cr. Appeal (DB) No. 769 of 2013
fd dksbZ vkSjr ty xbZ gSA). PW2 has stated that she came to know that at
Nonihat a woman has caught fire (eq>s ekywe gqvk fd uksuhgkV esa dksbZ vkSjr ty xbZ
gSA). PW3 who is deaf has stated that one person told him that my daughter
was put on fire (,d nwljs O;fDr us crk;k fd esjh csVh dks tyk fn;k gSA ). How the
information about Jayanti Devi has reached the police station is a
mystery. The investigating officer has stated in the Court that an
information was received in the police station at 12:05 noon and then he
started from Hansdiha to the hospital at Nonihat and thereafter proceeded
for Sadar Hospital, Dumka. It is highly improbable that a witness on
receiving an information that a lady was set on fire would go to the hospital
at the distance of about 10-15 kilometers from his house. Not only that,
when the person was informed that the victim was shifted to Sadar Hospital,
Dumka and by that time it is not known who that victim was he would travel
about 30-35 kilometers from there to find out who was the victim. PW1 and
PW2 do not say in the Court that they received an information from PW4 or
any other person that Jayanti Devi was caught fire and she was admitted at
Nonihat Hospital, rather their statement is that they heard rumor about a
lady being set on fire whereafter they have gone to the hospital.
Furthermore, PW1 has stated in the Court that she cannot say when she
arrived at the hospital, PW2 says that she reached Sadar Hospital, Dumka
at about 03:00-03:30 PM and PW3 says that he reached Dumka Hospital
at 02:00-02:30 PM. If we have to believe the evidence of the prosecution
witnesses, particularly PW1 who has stated that she had gone to Nonihat
as well as Dumka Hospital along with her parents, the aforesaid
inconsistencies in the evidence of PW1, PW2 and PW3 which are sought
to be explained by Mr. Ravi Prakash, the learned Spl. PP by saying that
these witnesses are rustic villagers, create serious doubt regarding
veracity of their evidence. These witnesses have begun on a slippery
foundation and they have failed to satisfactorily establish that when
statement of Jayanti Devi was recorded by L.N. Ram they were present in
the hospital. The learned trial Judge has noted in the judgment that the
latches and negligence on the part of the police is best left for
consideration to the prosecution. There is no clear finding recorded by the
10 Cr. Appeal (DB) No. 649 of 2013
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Cr. Appeal (DB) No. 769 of 2013
learned trial Judge on this issue but what appears to us is that there are
several gaping holes in the prosecution evidence which have remained
unanswered.
13. The accused are closely related to Jayanti Devi and they were
residing almost together - their houses were separated by just a thin wall.
However, in her statement before L.N. Ram she has failed to name
Yashoda Devi - she has simply said wife of Tigana Mistry. This omission
in the fardbeyan assumes significance for the reason that from the
evidence of PW1, PW2 and PW3 a considerable doubt is created whether
they were present in the hospital when the statement of Jayanti Devi was
recorded by L.N. Ram. Who brought Jayanti Devi to Nonihat Hospital and
admitted her at Sadar Hospital, Dumka is not known. PW1, PW2 and PW3
who have stated that they came to Sadar Hospital, Dumka and in their
presence statement of Jayanti Devi was recorded by L.N. Ram, Dumka
(Town) PS did not state about presence of the husband of Jayanti Devi in the
hospital. In the evidence of these witnesses, there is no reference about
presence of the husband of Jayanti Devi, though in her statement recorded
by L.N. Ram she has stated that her statement was recorded in presence of
her husband. In the Court, the husband of Jayanti Devi who was examined
as PW4 has turned hostile and did not support the prosecution. One way of
viewing his evidence may be that to save his own nephew he did not support
the prosecution, but there are circumstances which indicate otherwise, or,
atleast that, the prosecution has suppressed the true manner of occurrence.
14. Another remarkable feature of this case is that PW1, PW2 and
PW3 who have deposed in the Court that Jayanti Devi gave her statement
before L.N. Ram have not given any description about burn injuries of
Jayanti Devi. PW11 has observed deep extensive burn all over the body of
Jayanti Devi except scalp. He has said that multiple black and burnt skins
were scattered all over the body. It is also important to mention here that the
statement of Jayanti Devi bears her right foot's thumb impression.
The defence set-up by the accused is that there was a quarrel between
husband and wife and either Jayanti Devi has set herself on fire or her
husband has set her ablaze. The prosecution evidence is that Jayanti Devi
11 Cr. Appeal (DB) No. 649 of 2013
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Cr. Appeal (DB) No. 769 of 2013
was married about 20-22 years back and she was issueless. From the
materials on record it appears that she caught fire inside her house (as stated
by PW9 and PW10) and was seen coming out from the house whereas in her
statement recorded by L.N. Ram Jayanti Devi has stated that the accused
persons assaulted her and set her ablaze in the courtyard. The evidence of
PW4, the husband of Jayanti Devi, in the Court indicates that he wanted to
suggest that Jayanti Devi who was a woman of little intellect set herself on
fire. The statement of Jayanti Devi recorded by L.N. Ram does not bear
signature of her husband and he is not the person who has informed her
parents about the occurrence. His absence from the scene is disquieting. The
statement of Jayanti Devi recorded by L.N. Ram appears to be a tutored or
concocted statement, may be at the instance of the husband or L.N. Ram
who perhaps out of suspicion incorporated allegations against the
appellants. The conduct of PW1, PW2 and PW3 is also highly unnatural.
They have deposed in the Court that by the evening they had left hospital
and gone home. PW2 has stated that she remained in the hospital for about
half an hour - all three had gone to the hospital together and returned home
together. It is quite difficult to accept that a father, or a mother, or even
a sister would leave victim of a serious burn injury in the hospital
unattended.
15. In the aforesaid facts and circumstances in the case, we hold
that dying declaration of Jayanti Devi is surrounded by suspicious
circumstances. Not only veracity of the fardbeyan, making of a statement by
Jayanti Devi before L.N. Ram is also under serious doubts and it cannot be
made the basis for conviction of the appellants for murder. We hold that
the prosecution has failed to establish the charge under section 302/34 of
the Indian Penal Code and, therefore, the judgment of conviction of
the appellants, namely, Yashoda Devi and Tigna Mistry @ Tiganmisry
for the offence under section 302 read with section 34 of the Indian Penal
Code passed by the learned District and Additional Sessions Judge III,
Dumka in Sessions Trial No. 104 of 2010, are set-aside.
16. Mr. Ravi Prakash, the learned Spl. PP states that the
appellants, namely, Yashoda Devi [in Cr. Appeal (D.B) No.649 of 2013] and
12 Cr. Appeal (DB) No. 649 of 2013
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Cr. Appeal (DB) No. 769 of 2013
Tigna Mistry @ Tiganmisry [in Cr. Appeal (D.B) No.769 of 2013] are in
custody.
17. Accordingly, the appellants above-named who are in custody
shall be released forthwith, if not wanted in connection to any other criminal
case.
18. In the result, Criminal Appeal (D.B) No.649 of 2013 and
Criminal Appeal (D.B) No.769 of 2013 are allowed.
19. Let a copy of the judgment be transmitted to the Court
concerned and the concerned Jail Superintendent through 'Fax'.
20. Let the lower Court records be sent to the Court concerned
forthwith.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 08.02. 2021
sudhir/
A.F.R
