Jharkhand High Court

Case No. 303 Af 207 vs Unknown on 18 February, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)

Cr. Appeal (DB) No. 365 of 2015
with
Cr Appeal (DB) No, 349 of 2018
with
tr. Appeal (DB) No. 380 of 2015
with
Cr Appeal (DB) No. 366 of 2015
(Against ine fudgment of conviction dated 06.04 2078 and the order of sentence dated

BS.0¢, 2013 passed the learned Additional Sessions Judge -X. Hazy tbagh in Sessions Thal

Case No. 303 af 207
Yogendra Mahto, son of late Kalla Mahto, resident of Village - Barkagaon, PO
and PS Burkagaon, Dis Sttiet-h Tazaribagh. .. Appellant
fin Cr. A: (DB) No. 365 of 2018]
Sadama Mahto, sor 'of Yogendra Mahto, resident of Vil lage- Barkagaon, PO and
PS Barkazaon, District- ~Hazaribagh. . Appellant
fin Cras (DB) No. 349 of 2015]
santosht Devi, wife of Yogendra_ Mahto, resident of Village- Barkagaon, PO and
PS 'Barkagaon, District- Hazaribagh. , « Appellant
(in Cr ADB) No, 350 of 2015]
i. Budhan Mahto, son of Puran Mehta.
=. Puran Mahto, son of laie Birja Mahto
Both residents of Village- Barkagaon, PQ and PS Barkagaon,
District-Hagaribagh. _-- Appellants
fin Cr, A{DR) No. +23 56 of 2015]
bersus
The State of Iharkhand nas yee acsponden
[in all cases}

"(Heard through V.C. on 17.02.2021 and 18.02.2021)
PRESENT .

HON' BLE MR. JUSTICE SHREE CHA NDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellani(s) : Mr. Indrajit Sinha, Advocate
Mr. Awinash Kumar, Advocate
iin all cases]
Por the State > Mrs. Nehala Sharmin, APP
iin afl cases]

ee a

Per Shree Chandrashekhar J

In Sessions Trial Case No. 303 of 2010, the appellants, namely,

Sadama Mahto, Santoshi Devi, Budhan Mahto, Puran Mahto and Yogendra

 

 

 

 

 
 

 

2 Cx Agpeal TOR} Ne RES OP TAS wird BHweoONS Carey

Manto who were put on trial on the charge under sections 147, 148, 302
read with section 149 of the Indian Penal Code have been convicted and
sentenced to RI for two years under section 147 of the Indian Penal Code,
Ri for three years under section 148 of the Indian Penal Code and RI for fi
with a fine of Rs, 10,000/ each under section 302 of the Indian Penal Code.
in default of payment of the fine amount of Rs. id /000/- each they are lighle
to undergo further ST for six months,
2 The case of the prosecution js that Bhola Mahto had a land
dispute with the accused who in the afternoon of 20.01.2010 assaulted him
and caused grievous injuries. He was admitted in the clinio of Dr RC.
Prasad where he gave his fardbevan at about 08:10 PM before Raj Kumar
Singh, AST of Barkagaon police station, Looking at the serious condition of
Bhola Mahto, he was referred for better treatment to. 'RIMS, Ranch
however, he succumbed to the j injuries within few hours. On the f basis of his
fardhevan, Barkagaon PS Case No. H1 af 2010 was registered under
sections 147, 148, LAS. 341, 323, 324, 325, 307 and 379 of the Indian Penal
Code, against Sudama Mahto, Santashi Devi, Budhan Mahto, Puran Mahto,
Yogendra Mahto. Later an, the offence under section 302 of the Indian Penal
Code was added in the report vide order dated 25.01.2010. After the
investigation a ch arge-sheet was submitted against the appellanis while
investigation against dura Mahto and Rajkeshar Mahto was pending. Vide
order dated 26.04, 2010, the leamed Chief Judicial Magistrate, Hazaribagh
took cognizance of the of rence under sections 147, 148, 149 and 362 of the
indian Penal Code and as noticed above the appellants have faced the trial
on the charge of causing death of Bhola Mahto in furtherance of coramon
object of the unlawful assembly ~ a common charge under sections 147, 148
and 302/149 of the Indian Pena! Cade was framed vide order dated
S1.08.2010. In course of the invest gation, brother, nephew, son and wife of
Bhola Mahto were examined } oy the Investigating Officer and the YY spoke
about involvement of the accused in causing death of Bhola Mahto. The
fHQuUesT Was conducted at RIMS, Ranchi around 10:30 AM on 21.0) 2010 by
one Tulsi, AST of Bariaty u palice station, and the dead body of Bhola Mahio
was received for postmartem at 11-00 AM.

"

3, The postmortem was conducted by De Tulsi Mahta and

 

 

 
 

 

hed

Cy, Appead {D8} Me. 385 af MIS wich RUSS OOK

Dr. Sawan Mundri who did net come to the witness box and their report was
sought to be proved through Dr. Ajit Kumar Choudhary who has proved
their signatures on the postmortem report,

4, (he postmortem repert mentions the following injuries on the

dead body of Bhola Mahto:

 
 
 
 

2 on the right scapular region,
fet thigh upper part.

~ 2 ? , : > ? ay eye
BRE INA LX "Ie € me right t Nigh upper part.
@ 3x 2 om right les wmer part.

ix ®

A ep fre My of Py ote flegy NDDOP PAPE
i om fat feral side a 'Tejt lee.
CA, 3x 4 om left trigh lateral side upper part.
eg guy fg) AR thigh ia eral side middle Pure
feh wound:
phe x vd om suff tissue and feo stitches front of lef knee upper

   
 
  
 

 

om soft issue two stitches left knee medial side.
Cs om bone deap three sittches left leg medial side lower
part fracture of leff téle and i fbuba bone lower part.

cmt $0 Ht fissue two stiches right knee medial side.
fe3x ep hone deep three stitc hes right lee medial side
lower peri with fracture of right Ghia and fibula bone.
3. dafernal:
Phere was fracture of lef ibia and Nbula bone upper part."

5. in the trial, the presecution has examined eleven witnesses out
of whom PW1-Dugar Mahto, PW2-Khaleshwar Mah uta, PW6-Suresh Prasad,
PWS8-Bajrang! Kumar, PW10-Vijay Mahto and PW11-Most, Basmati have

vlaimed that Bhola Mahto made oral dying declaration before them. The

learned trial Judge has treated the statement of Bhola Mahto recorded by Kaj

Kumar Singh a dying declaration and proceeded to examine whether the

dying declaration is reliable and inspires confidence of the Court.
&. The leamed Additional Sessions Judge-X, Hazaribagh has

appreciated the materials laid during the trial in the following manner:
"25. Piest f would like ti focus on the Fardbayan which we

made by the deceased afler few hows of fhe occurrence. Phe

aeceared had stufed that when he was returning afier sprinklin

pesticide at his tamate field Yogendra Mahto, Sudama A Mahte

Budhan Mahto, Puran Mahto and Santoshi Devi were ready
aad standing with arms. Youendra Mahio is the husband af

s
at
tat

Se %&

tae

Sunfosh! Devi and Sudan Mahto is father of Yovendra Meheo.
Paether Sudhun Makie ix the son of Paran Mahto and latter is

used? an accused Ont of five persons three Belongs: io ORE
fare ily and fe Aelomes to ane shes » fonuly Hf is zatd thar the
deceased noticed these five persons, he rushed and ther eater h Re
was overpowered by Sudama Mahto and dashed on the or ound
and Santoshi Devt gages ed his mouth and thereaficr Yorendra

*

Mania axsaulfed with Tanei inflicting assault upon kis both

a Ch Appest OOdy Nig. 38S af 2U7 3 wil anwlogias caves

i vy

lees, He was crying for Melp. it is further added that Budkan and Puran Slindly inflicted lathi assauit and he lost his sense. Ae Bas fiken mame af pwo persons Ravindra Kumar Mehta cod Rakesh Kumar who carried him ta the clinic of Dr RC. Prasad. fhe deceased had not taken the same of Khiru and Ramkeshar the cause of cecurrence has heen stated as land dispute and aid enndty Jhe sald Fardbayan fas been identifled by PRS, Fowever ne Exivbii musther Aas Seen accorded 13 ine Fardbavan, The status ef Fardbuvan sas been reduced te ons Paves 320) of the indian Evidence Act, The deceased died

ROVEFER Ft on fe same night when he was referred ta Ranchi. The palice official wito recarded the dying declaration aid rot eet vertificat @ re doz ay RC. Prasad about physical and mental eanditien of the deceased. The defence lawyer questioned thai status af Fan "bay yan and said that itis developed story since 1 Aas some EY bust infiraniies and tere is ae corroboration of the dying declaration. Jn several verdicts of the Hen'ble Apex Court, & has heen held that dyires declaration may he Aasis of comviction if same is rustworthy, Aawever if Here Is xo suapician corroboration is required. °

ad & :

onaf

. Mix, Indrayit Sinha, the learned counsel for the appellants would submit that the dying declaration of Bhola Mahto was surrounded by SUSPICIOUS circumstances and there is no evidence on record ta show that Bhola Mahto was in a fit condition to make a dying declaration, ft is contended that the inquest and pastmortem reports were not proved sevording to law and since cause of death of Bhola Mahto was not established the dying declaration recorded by Raj Kumar Singh at 08:10 PM at the clinic of Dr, RvC. Prasad an 20.01.2010 cannot be looked into, The learned counsel would further contend that once a doubt arises or making of a dying declaration the Court must look for corroboration and on the basis of a doubthul dying declaration conviction of an accused cannot be recorded,

B. There is no eyewitness to the occurrence and during the trial PWS who is son of Bhola Mahto and PW11 who is wife of Bhola Mahto tried to project thernselves as eyewitnesses but during the cross-examination they seem to concede that they are not the eyewitnesses. The case of the prosecution hinges on the dying declaration of Bhola Mahto. An accused ean be convicted solely on the basis of a dying declaration and as held in 'Jaswant Singh vo State (Delhi ddvin.}" (978) 4 SCC 83 even on the basis of uncorraborated dying declaration conviction of an accused can he maintained. From the judgments cited at Bar, we gather that the only requirement in law is that the dying declaration should be free from

embellishment and inspire confidence of the Court. In the present case not

Lake

Ch Appeal (DID Sa. 365 af 2084 wich anulogony oases

only rellability and truthfulness of the dying declaration of Bhola Mahto are under severe attack by the appellants the very making of the dying declaration is also challenged.

Q, The circumstances under which dying declaration of Bhola Mahto was recorded at 08:10 PM on 26.01.2010 at the clinic of De RC. Prasad raise serious apprehensions. According to the prosecution, Bhola Mahto was assaulted in his tomate field at around 03:00 PM and PW-2 has stated In the Court that it takes about 15-20 minutes to reach the elinie from his village. The postmortem report mentions five stitched wounds on the dead bedy of Bhola Mahto and on that basis H can be reasonably inferred that he remained at the clinic of Dr. R.C. Prasad for sometime where he was treated, however, statement of Dr. B.C. Prasad or a nurse ar any other doctor who might have attended Bhola Mahta was not recorded in course of investigation, In his cross-examination, Raj Kumar Singh whe has recorded dying declaration of Bhela 4s Mahto has admitted that he did not try to record statement of Dr. R.C. Prasad. The witnesses who could have thrown considerable light on the physical and mental state of Bhola Mahto whet! her be was ina fit condition te speak were not produced during the tal, We would assume that there was litle time for the family members of Bhola Mahto and the Investigating Officer to call a Magistrate to record the Statement of Bhola Mahto, however, absence of statement of Dr B.C. Prasad or any other doctor/nurse who attended Bhola Mahto at the clinic where he was treated is a circumstance which we would keep in mind in the context of the fudgments of Hon'ble Supreme Court in "Leeman v State of Maharashtra" (00D) BSC 710 and "Purshottam Chapra v. State (NCT af Dethy" (2020) 17 SCC 489, which are referred to by the learned counsel for the appellants, that certification by a dector about condition of a victim of crime that he was in a fit condition to make a statement is not an absolute necessity if there are materials on record te show that the victim has made a vying declaration before the police. We would also keep in mind the prosecution evidence which varies in large extent on the manner of gecurrence and whether Bhola Mahto whe if at all was conscious was in 4 it condition to make a statement revealing complicity of the persons whe

had usswulted him. [t has also remained a kind of mystery who brought

6 Cx Appeal (OH) Ne. 68 ef 207% weak omsbagauy cares

Bhola Mahto in the clinic of Dr. R.C. Prasad for his treatment. This also needs to be kept in mind that some of the prosecution witnesses have stated that when an outery was raised in the village they came to know about assault upon Bhola Malte and came to the clinic of Dr RC. Prasad and itis

evidence of the prosecution of a definite character that a large crowd had gathered outside the clinic of Dr, RC. Prasad.

iQ. Tn the aforesaid background, we would now examine testimony of the prosecution witnesses keeping in mind that all the material witnesses

are intimately related to Bhola Mahto and in their cross-examination PWR

and PW have adnitt itted that there was a land dispute with the accused. i, In "Ramanand Yudev vu Prabhu Nath Jha' 2003) 12 SCC 608

it has been observed that the Court has a duty to silyse the evidence of an interested witness with deeper scrutiny and then come to a conchision as to whether 1 has a ring af truth In "Sarwar Mined v. Stare of Punjab' (1976) 4 SCO 369 the Hon'ble Supreme Court has observed that the evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as x rule of prudence, not ag a rule of law, that the evidence of such witnesses should be scrutinised with a little care. i2. PW who is brother of Bhola Mahto has admitted in the Court

that he is not an eyvewliness and his statement in the examination-in-chief is

based am the information given by his brother. He has stated that five persons carrying tanel, lash ete. chased his brother and when he ran wards canal (sahar) Kairu Mahto and Rajkeshar Mahto apprehended him, thrashed hirn on the ground and = struck his chest with violent forces. The other accused who had also by then reached there assaulted him ~ Yogencira

Manto inflicted indiscriminate fang? blows on his both legs. In his

craseexamination, PW has stated that he was at home and he could know about the occurrence on Auiico. He has further stated that at around 06:00-07:00 PM he had reached the clinic of Dr R.C. Prasad and the police rived there about S-10 minutes thereafter. Two things are important in his evidence; first, Bhole Mahto put his LTT on the fandbevar and on plain paper, and im his presence no one had put signature on the fardbevan. PW2, whe is nephew of Bhola Mahto has depased in the Court that he on hearing

fudia had gone to the clinic of Dr R.C. Prasad at around 06:00 PM. His

Cx, Appeal (B8} No, 65 af 2828 wht AROS SAIES

uncie tald him that the accused six in number chased him and assaulted him. Ne admits that he is not an evewltness and his statement was recorded by the police at his house about twenty days afier the occurrence. His evidence if important for the reason that he has indicated distance of the clinic af Dr BUC. Prasad from his village ~ he has said that it takes about {a-20 minutes to reach the clinio of Dr RUC. Prasad, PW3 who is the INGUeSt witness has stated that he saw Bhola Mahto in injured condition, he was

? iy

erying 'bauchao-bachae' and at that time no other person was around the held where Bhola Mahto was lying injured. He is the person who with help ofthe villagers brought Bhola Mahto to the clinic of Dr. R.C. Prasad, but he

does not claim that Bhola Mahto informed him name of the assaulters rather his definite stand in the Court is that he heard from the others that Yogendra Mahto, Sudama Mahto, Puran Mahto and others had assaulted him. PW4 is a neighbour who has stated in the Court that wife of Bhola Mahto asked him io take her to the tomato field where a marpir had occurred. He dropped her at Karnpura college where he has seen Bhola Mahto injured, drenched in blood with broken legs. Thereafter the Principal of Karnpura college brought Bhola Mabto at the clinic of Dr. B.C. Prasad, PWS is the frst investigating Officer who has recorded statement of Bhola Mahto at the

clinic of Dr RC. Prasad and PW? is the second Investigating Officer who has stated in the: Court that he recorded statement of the witnesses on 11.04.2010 at the police station. PW6 is cousin brother of Bhola Mahto. He

iS a signatory to the fardhbevan. He has stated in the Court that the fardbevar of Bhola Mahto was recorded in his presence and it was read over to Bhala Mahto who having found i correctly recorded put his thumb impression en his statement, In his cross-examination he has stated that Bhola Mahto in his statement before the police has stated about complicity of only three persons, namely, Yogendra Mahto, Sudama Mahto and Santoshi Devi. He has further stated that in the clinic, Bhola Mahto was speaking to him only

and he had accompanied him from Barkagaan to Ranchi where he was being taken for further treatment, however, on the way he succumbed to the miuries, His further evidence is that a large crowd had gathered at the clinic of Dr RAC, Prasad and there was huge commotion around there, PW is son

f Bhala Mahto who has affirmed in the Court that the fardbeyan of his

& Cr Appeal (DS) Ne. 365 af 2078 sith analogany exces

father was recorded at the clinic of Dr RC. Prasad and on the way to Ranchi be had died, At the time of occurrence he was at home and when fis father did not come back home by the evening in course of search he foun him lying injured near the canal faakar) about half kilometer away from his tomato field. Ne says that his family members carried his father to the clinic Dr, RC. Prasad and in his presence his fardbeyan was recorded, From his testimony if is quite clear that aller the assault Bhola Mahto had become unconscious and his mother and the villagers had brought his father in the hospital (clmic of Dr RAC. Prasad) in injured condition. In his crose- examination he admits that his father is Iferate bat he has put his thamb impression on his statement {fardhéyan}. On this point the defence had suggested that the thumb impression on the fardhepan is not of Bhole Mahto rather some other person put his thumb impression on the statement recorded by Raj Kumar Singh, but as expected he has denied the suggestion. PWIO has stated that when Bhola Mahto was brought to the clinic of Dr RC. Prasad he was unconscious with several injuries on his chest, legs and private parts, But surprisingly he claims that on inquiry Bhola Mahto informed him about the incident and complicity of the accused. In his cross- examination he says that Bhola Mahto told him about the cecurrence in presence of Dr. R.C. Prasad and at that dime police was also present there. He says that his statement was not recorded by the police and he is not the person who had brought Bhola Mahto for treatment. PW11 whe is wife of Bhala Mahto has deposed in the Court that in the afternoon of 20.01.2016 she was accompanying her husband to sprinkle pesticide in the tomato fleld and Sudama Mahto, Santoshi Devi, Budhan Mahto, Puran Mahto and Yogendra Mahto waylaid him. Her husband trying to save himself ran towards camal (nahur) where Khir Mahto and Rajkeshar Mahto caught hold of him and started assaulting him. She further says that on Audla she in course of search found her husband lying injured near the Karmpura college and she brought him to the clinic of Dr. R.C. Prasad. On her own account she is nat a witness who can say who have assaulted her husband and how he was assaulted. In her cross-examination she says that when the jardbeyan of her husband was recorded he was conselous and she cannot say

who were the other persons present there when his statement was recorded.

Cr Sppsat LaBy No, Add af 2875 38h aaedosay CaIey

In paragraph No. 11 of her cross-examination she admits that at the time of oceurrence she was at home and therefore her admission demolishes her claim that she had accornpanied her hushand tc the tomato field and saw the appellants, namely, Sudama Mahto, Santoshi Devi, Budhan Mahto, Puren

Mahto and Yogendra Mahto chasing her husband.

3. A dying declaration is a valuable piece of evidence and it is accorded a special place in a criminal trial The Latin phrase 'nemo

moriturus praesumitur nientine' which means no one would meet the Maker with a He In his mouth is the underlying thought for admilling a dying declaration against the rule of hearsay, A dying declaration can be written or oral but the truthfulness and accuracy of staternent of a person whose words were reduced in writing or spoken by another witness cannot be tested by cross-examination and, therefore, it is not considered the best evidence. But, there are certain carefully carved out exceptions to the rule of hearsay, for exarnple, sections 6, 8 and 32 of the Evidence Act. The statement of a vietim can be admitted ag part of rey gestae on account of its spontaneity and a lve link between the cause of occurrence. It is admitted in evidence also under section 323())}afthe Indian Evidence Act as a relevant fact. Section 321) of the Indian Evidence Act provides that statement of a person who is fund

dead or cannot be found ete. is relevant and as indicated therein net only the

statement relating to the cause of death but also any ofthe 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. The statement of

Bhola Mahto which has been admitted in evidence as dying declaration was preved and marked as Exhibit-3 during the tal, The witnesses have affirmed in the Court that the statement of Bhola Mahto was recorded by Raj Kumar Singh at the clinic of Dr R.C. Prasad and on such facts it may be accepted that Bhola Mahto gave his statement to Ra} Kumar Singh,

id, There is no dispute that Bhola Mahto was admitted in the clinic of Dr R.C. Prasad and we would assume that the prosecution witnesses had sdsa arrived in the clinic, but what needs to be examined is whether the dying declaration of Bhola Mahto is a result of tutormg, prompting or his

imagination, and whether there are circumstances indicating that dying

devlaration of Bhola Mabto is a concocted story. To begin, we find serious

} 0 Ch Appeal (8) No, JES of POL 3 wath analoyans Kayes

discrepancies in the testimony of the prosecution witnesses as to their time of arrival in the clinic and how they could get information about the occurrence. PWS, the first Investigating Officer who has recorded statement af Bhola Mahto has stated that he received a call from the clinic of Dr. B.C. Prasad. No one has come forward to support him that an information was sent to the police station from the « clinic of Dr, RUC. Prasad, Me admits in the Court that he did not reduce in writing (Atation Diary Entey) the information received from the clinic of Dr. R.C. Prasad. He is not oficer-in-charge of the police station and, therefore, on his own he could not have proceeded to the clinic of Dr. R.C. Prasad te verify the information. He does net even say what information he received telephonically from the clinic of Dr RC. Prasad and be has also not stated that officer-in-charge of Barkagaon police station directed him to visit the clinic and verify the information. He does not say anything about death of Bhola Mahio -- when, where and how he had died; he did not visit RIMS, Ranchi where inquest was prepared and he is not the person who has sent the dead body for postmortem examination, PW7, the second Investigating Officer has stated in the Court that he took over charge of Investigation on 22. O23. 2010 because PWS was put to suspension. Mr. Indrajit Sinha, the learned counsel for the appellants has submitted that evidence of PWS ix full of inc ngistencies and he was a delinguent officer whose testimony should not be trusted by the Cour. PWS has stated that on a call from the family of Bhola Mahto he had gone to the clinic of Dr. R.C, Prasad ~ he does not specify name of the mily member of Bhola Mahto. The prosecun jon witnesses who are family members of Bhola Mahto have not stated in the Court that on their call PWS came to the clinic. The prosecution evidence is that the w itnesses had gone to the clinic when they heard Audie, PW6 has stated that Bhola Mahto wa speaking to him only; PW10 has stated that Dr. R.C. Prasad and the police were present there when Bhola Mahto told him about complicity of the secused in murderous attack on him, and; PW1 has stated that thumb impression of Bhala Mahto was taken on a plain. paper. Tf their evidences

have ta be believed the stand taken by them and other witnesses that Bhola

Mahto informed them the name of his assaulters becomes so Inconsistent

and doubtful to rely upon their testimony,

it Op Appeal (8) No. AGS of 2044 with analagous caver

i. Furthermore, in the evidence tendered by the prosecution witnesses, serious inconsistencies regarding the place of occurrence, manner of oesurrence and state of consclousness of Bhala Mahto have appeared. According ta same witnesses Bhola Mahto whe was admitted in the clinic of Dr. R.C. Prasad for treatment was found unconscivus while others have stated that he was speaking after assault at the place of occurrence, and he was brought unconscious in the clinic is the evidence of PW10. This is the prosecution evidence that within 15-20 minutes Bhola Mahto could have been brought to the clinic and there is no doubt that he was treated there by the doctors, hawever, there is a delay of about five hours In recording his

statement,

18. In "Mehara? Singh (INK G v State of ULE" (1994) 3 SOC ISS he Hon'ble Supreme Court has observed as under:

"22 FIR a: @ criminal caze and | particularly ing mnarder cese is @ vitaf and valuable mlece af evidence for the purpose af appreciating the evidence fed at the irial. The object af insisting upon pronyy fodzings of f the FIR is fo obtain the earliest

information f prarding the circumstance In which ihe crime was coppnitted, including f he names af the actual culprits and the pars played Ay them, fhe weapons, iP amy ased, as aise the runes of the evewtresses, YF any. Delay ie fledging the FIR afien results in embellishrnent, which Is a crecatyure of ¢ a afterthought. Cn aceaunt ef delay the FIR not only gets eres of the advantage of spontaneity danger alsa creeps in of fhe

nerPodycdian fe coloured version or exaggerated Mary. .

wood

A delay in registration of a First Information Report is

necessarily a question of fact and whether the delay is fatal for the prosecution has to be decided in the facts and circumstances of the case. The prosecution is not required to explain each hour's delay and use of the first Information Report in a criminal trial is very limited. But in a case where the First Information Report is based on a dying declaration which was recorded about five hours afler the incident, delay in recording the statement of the victim should have been explained by the prosecution. The prosecuilon evidence is that a large crowd had gathered at the clinic of Dr. B.C. Prasad and PW says that about § to [0 minutes after he reached the clinic between 6:00-7:00 PM the police arrived there. PW1 and PW10 both have stated that when Bhola Mahto made oral dying declaration before

them the police was present there, still, the dying declaration was recorded

penal ih

iy Appoad (Bs se, S83 of FRE S wRE Manda DiKee CHES

at 8:10 PM. In these facts the defence set up by the appellants that dying declaration of Bhola Mahto is a concocted document cannot be brushed aside summarily, ts, PW3 whe has stated in the Court that with help of the villagers he brought Bhola Mahte in the clinic does not clairn that Bhola Mahto made a siatement before hum narrating the Incident and involvement of the appellants in the occurrence. Bhola Mahto was In a precarious condition and he had died within few hours. A person who was brutally assaulted, suffered

as marty as eight Injuries (vaguely termed by doctor as abrasions) of varying dimensions all aver his body and at least five deep cut bone injuries must have been in severe pain and, therefore, administered painkillers and anesthesia which definitely would cause delusion ~ the dying declaration of Bhola Mahto records that he was administered injection in the right hand. In these facts which create a doubt on the condition of Bhola Mahto whether hs was conscious and i so whether he was in a fit state to make statement, absence of a certification by the doctor on the condition of Bhola Mahto would be another suspicious circumstance which surrounds the dying declaration,

1g, in the context of medical certification about condition of the victim fo make a statement, we would refer to the judgment in "Panchanand Mandal « State of Jharkhand" (2013) 8 SCC 800 wherein the Hon'ble Supreme Court has made the following observations:

"EO. Ext ¥. the alvine declaration also suffers fram liflreities.

The author w hos recepded te dying deelar afion C Paswan, ASi fe pros jor examination or

cross-exgsanation. (he explanation given by fhe praxece Hon in Pf s that Me attendance of the AST could nor de secured { He of simmons issued against hile and the lecers written to fhe Superintendent of Police, Deaghar and Giridih. fhe trial court wrongly held tear this War a caRPPcdag

a Fe.

explanation, in fact, nOR-cappedrance af AST has prefudiciatiy a i ie defendam's interest as they were denied fhe ify $9 CPOSS-eXaNURE Pi a is aduuned that dying . ation (Ext 4} way aot certified by ary medical expert

Agog ss Seay? tee geet oh oye Ey a.

stafig fal ty cd was In a | medically Re condition for Pas sEeeRogeie pre FS giedxs peers fo por saree ts

giviig fie stateawin. Though such certificate is not mandatary

i wears the duty of the affcer win recorded the same to mention

wats in mentally and medically fit i Statement, particularly when (he case

sly i wn fic J ? ote rde ret de lh! Ree Aura whiek could lead ta decth

~ adaned > Wey af 'a PRG a-de

ou. There is onc judicially evolved rule that whenever a dying

Oe Appeal LOR) Ne 38S of HS wih analovone onses

declaration is found doubtful the Court must look for corroberation. In "P Mant vo State of TNL? (2006) 3 SCC Jé! the Hon'ble 8: upreme Court has observed that in a case where suspicion can be raised as regards the correctness of the dying declaration the Court before convicting am accused on the basis thereof would look for some corroborative evidence, In the present case, the ocular evidence is so inconsistent and the version of the securrence givert by the witnesses is so discrepant that it is hard to find any corroboration t the dying declaration of Bhole Mahto. The medical evidence can be a corroborative material to lend support to a dying declaration, but cause of death of Bhola Mahto is net proved and it is not known whe has inflicted which injury upon Bhola Mahto ~ PW6 is quite

caleguric and specific in his cross-examination that Bhola Mahto named nly three persons in his statement before the police.

eh, A dying declaration is admitted in evidence cut of necessity.

The impheit faith in truthfulness of the dying declaration ~ to quote the expression used by the Hon'ble Supreme Court in "Jolshree Anant Khandexar vo State ef Maharashtra' (2009) 17 SOC 647 "at the dying moments of one's His", is considered the overwhelming evidence to convict an accused. The judicial pronouncements on the subject would indicate that before a dying declaration is accepted in evidence ft must be found that (2) 1! was voluntary ~ thal is fo say not a result of tutoring, prompting or

imagination; (4) coherent and consistent and, (41) not surrounded by any

SUSPICIOUS Circumstance ee, The statement of Bhola Mahto recorded by Raj Kumar Singh at

S10 PM on 204 2010 reads as under:

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hold of him. Bhola Mahto does not say in his fardbevan that near the canal (uahar) he was apprehended by Khira Mahto and Rajkeshar Mahto rather

fram bis statement it appears that somewhere around his tumate fleld he was apprehended and assaulted by the appellants. PW4 says that wile of Bhola

Mahto requested him to take her to the tomate field and he dropped her near the Karnpura college. He finther says he found Bhola Mahto there in infured condition, PW4 has also stated in the Court that Bhola Mahto was brought to the clinic af Dr R.C. Prasad by the Principal of the Karnpura college. PW has claimed that with help of the villagers he had brought Bhola Mahte to the clinic: PWS has stated that his family members brought his father to

the clinic, and the wife says that she brought him to the clinic. The

of Bhola Mahto in his fandbevan ~ in his Jfardbevan Bhola Mahto has stated thet Ravindra Kumar Mahto and Rakesh Kumar ete. brought bin te the clinic of Dr R.C. Prasad. We further find that the truthfulness of the statement of Bhola Mahto recorded by Raj Kumar Singh on the bask sis af which the First Information Report was lodged is seriously dented by the statement of PW6 who has stated in the ocross-examination that in his Statement before the police Bhola Mahto had disclosed complicity of only three persons, namely, Yogendra Mahto, Sudama Mahto-a and Santosh' Devi. 24, In the aforesaid state of affairs, we find that dying declaration of Bhola Mahto was recorded under SUSPICIOUS ciroumstances, there is no definite and clinching material except the contradictary statements of prosecution witnesses that Bhola Mahto was conscious and in a At state to spexk, the prosecution has failed to prove the place of occurrence and involvement of the appellants in making murderous assault on Bhola Mahto. Fram the prosecution evidence, we gather that the prosecution witnesses who are closely and intimately related to Bhola Mahto had arrived in the clinic of Dr R.C. Prasad on hearing fudla. They had sufficient Ume te deliberate amangst themselves and out of suspicion primarily because there was a land dispute between the parties and Santoshi Devi lodged a First Infurmation Report against the accused, at their instance Ra} Kumar Singh has suspiciously entered the seene and recorded the so-called dying

declaration of Bhola Mahto. The dying declaration of Bhola Mahto which is

OD fo Appeal (OR) Na, 363 af ES with REO OMENS

surrounded by suspicious clrcurmstances is so full of contradictions and inconsistent with ocular evidence -- and, without corroboration: that it would

be highly dangerous and against all canons of law to admit it in eviderne to

record conviction of the appellants for cammi iting murder of Bhola Mahto,

28. We are surprised that the learned trial Judge has written about

twenty ane pages and referred to several judgments of Hon'ble Apex Court, but he has not returned a finding whether dying declaration of Bhala Mahto is tree from suspicion and inspires confidence -- the learned trial J udge has ignored the statutory mandate under section 353 read with section 354 of the

Code of Criminal Procedure. On doty of the trial Pudge, 8 we intend to refer to

udgment in "State of Punjab v Jagir Singh" C1994) 3 SCC 277 wherein

the Hon'ble Supreme Court has observed as under:

"23.4 orfeinal ried is not Hike a Jairy tale wherein one ie free ght ta one's Imagination and phantasy Jt camcerns ih ike guestion as fo whether the accused arraigned at ike irk is gu ilt iy of the crtne with which he ix char geal. Crime is ant event in real life ands ihe pradset of interplay of different human emotions. fa arriving at the conc lusion ahaut the gutit ve the accused charge ds with the copynission af a crime, the Mes to fudge the evidence by ike verdstic® af pr obabilitios, s, 1s ingriHsie worth ¢ and the animus of witnesses. Everv case vin re

faa sire. flis

SS Ss

* on,

Pinal analysiy would fave fo depend xpan Hs awe frets afthough the bene "Al of very reasonable doubi should bee given fo ihe aceused, the ceurts should not at the same time refect evidguee which is ex fale TPusns vorthy iL RPG NAGS water are

fanctfid or in the n PRUNPE OF COMSECKERS.

28. To conclude, we hold that the prosecution has failed to establish complicity of the appellants by producing cogent and consistent raaterials, Therefore, conviction of the appellants in Sessions Trial Case No. 3Q3 of 2010 for committing murder of Bhola Mahto in furtherance of common objection of the unlawful assembly is held unsustainable and accord: magly set-aside, een The judgment of conviction under sections 147, 148, 302 read With section 149 of the Indian Penal Code dated 06.04.2015 and the order of sentence dated 08.04.2018 against the appellants, namely, Yogendra Mahto n Cr Appeal (DB} No. 365 of 2015, Sudama Mahto in Cr Appeal (DB) Na. 349 of 2015, Santeshi Devi in Cr. Appeal (DB} Nea. 380 of 2015, and Sudhan Malhto and Puran Mahto in Cr. Appeal (DB) No. 366 of 2015 passed

by the learned Additional Sessions Judge-X, Hazaribagh in Sessions Trial

we jen i Ce dppead (38) No. 363 af 302 3 wie aaalognns Cases

Case No. 303 of 2010 are set-aside.

28. Mrs, Nehala Sharmin, the learned APP states that the appellant, namely, Yogendra Mahto in Cr. Appeal (DB) No. 365 of 2015 who has served the sentence for more than thirteen years, with remission, is in custody while the appellants, namely, Sudama Mahto, Santoshi Devi, Budhan Mahto and PFuran Mahto are on bail.

29, Aecordingly, it is ordered that Yogendra Mahto who is the appellant in Cr. Appeal (DB) No. 365 of 2015 shall be set free forthwith if not wartted In connection to any other case.

30, The appellants, namely, Sudama Mahto in Cr. Appeal (DB) No. 344 of 2015, Santoshi Devi in Cr Appeal (DB) No. 350 of 2015, Budhan Mahto and Puran Mahto in Cr Appeal (DB) No.366 of 2013 whe are on bail are discharged of liability of the bail bonds furnished by them.

At. In the result, Cr. Appeal (DB) No. 365 of 2015, Cr. Appeal (DB) No. 349 of 2015, Cr Appeal (DB) No.350 of 2015 and Cr Appeal (DB) No, 366 of 2015 are allowed.

"n Ra

Ze Let lower Court records be transmitted to the Court concerned,

Lad

forthwith.

33, Let a copy of the Judgment be transmitted to the Court

concerned through FAX'. ey"

net jn

(Shree Chandrashekhar, J.) S d fe (Ratnaker Bhengra, J)

g . i: os , Dated (8° February 2020 a epens terug Shera Sonnac Mbaa- AAPA