Jharkhand High Court
Sarita Devi vs The State Of Jharkhand on 30 June, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 928 of 2012
1. Sarita Devi, w/o-Anil Ram
2. Girija Devi, w/o-Makharu Ram
All are r/o village-Adhoura, PO&PS-Nagar Untari, District-Garhwa,
State-Jharkhand .... Appellants
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. Jitendra S. Singh, Advocate
Mr. Randhir Kumar, Advocate
Ms. Pinki Kumari, Advocate
For the State : Mr. Vineet Kumar Vashistha, APP
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Order No.08/ Dated: 30th June 2022
I.A. No. 6399 of 2021
This application is for suspension of sentence awarded to the
appellants in ST Case No. 337 of 2007.
2. In ST Case No. 337 of 2007, the appellants have been convicted
and sentenced to RI for life and fine of Rs. 5,000/- each under section
302/34 of the Indian Penal Code with a default stipulation to undergo further
RI for six months.
3. On the basis of the statement of Indu Devi which was recorded
by S.I. Mohan Lal Yadav of Nagar Untari PS at 9:00 a.m on 22 nd May 2007
at Referral Hospital, Nagar Untari, Nagar Untari PS Case No. 86 of 2007
was lodged against Sarita Devi who is the sister-in-law and Girija Devi who
is the mother-in-law of Indu Devi under sections 341, 323, 307/34 of the
Indian Penal Code. Subsequently, after the death of Indu Devi, section
302/34 was added in the report vide order dated 11th June 2007.
4. After the investigation a charge-sheet was submitted and the
accused were sent-up for trial.
5. During the trial the prosecution examined 13 witnesses to
establish charge under section 302/34 of the Indian Penal Code which was
framed against the accused vide order dated 7th January 2008.
6. The learned trial Judge referred to section 32 of the Indian
Evidence Act to come to a conclusion that dying declaration of the victim
lady must be accepted true by the Court.
7. The learned trial Judge on appreciation of the materials on
record observed as under:
"......I find that in this case dying declaration of the deceased,
which marked as Ext.2 (fardbeyan of the deceased) is fully
supported and corroborated by the postmortem report (Ext.1),
evidence of the Investigating Officer, Mohan Lal Yadav (PW13)
and evidence of the Dr. Ram Naresh Singh Divakar (PW12) and
therefore there is no reason to disbelieve the truthfulness of the
dying declaration of the deceased (Ext. 2), and therefore, I find
that the above named accused persons, namely, Sarita Devi and
Girija Devi are liable for death of deceased Indu Devi in
furtherance of their common intention. Therefore they are hereby
convicted for the same under section 302/34 of the IPC. Their
bail bonds are hereby cancelled and they are taken into
custody......"
8. Mr. Jitendra S. Singh, the learned counsel for the appellants
would urge that if the dying declaration is surrounded by suspicious
circumstances the same cannot form basis for conviction and, more so, when
the medical evidence does not conclusively establish homicidal death.
9. It is submitted that there is no evidence on record to show that
Indu Devi was conscious and in a fit state of mind to make statement which
was allegedly recorded by the Investigating Officer-PW13. It is further
submitted that there is no iota of evidence that the appellants poured
kerosene oil and set Indu Devi on fire as the postmortem examination report
does not record any finding in this regard.
10. Mr. Vineet Kumar Vashistha, the learned APP would however
oppose this application for suspension of sentence primarily on the ground
that once conviction has been recorded after a full fledged trial the
presumption of innocence of the accused stands diluted and while so on
minor inconsistency the prosecution case should not be doubted so as to
extend benefit of suspension of sentence to the convict.
11. Except under certain circumstances which are indicated under
sections 6, 8 and 32 of the Evidence Act, the rule against hearsay evidence is
absolute. In the present case, the statement of Indu Devi has been admitted
in evidence under section 32 of the Evidence Act which provides when the
statement of a person who is dead or cannot be found would be relevant,
more particularly, when it relates to cause of death. The statement made by
Indu Devi before the Investigating Officer at 9:00 a.m on 22 nd May 2007 is
definitely relevant because it relates to cause of her death. The Latin phrase
'nemo moriturus praesumitur mentine' which means no one would meet the
Maker with a lie in his mouth is the fundamental rule underlying section 32
of the Evidence Act under which the statement of a person in anticipation of
his death is admitted in evidence. But before statement under section 32 is
admitted in evidence the prosecution must establish that this piece of
evidence is not surrounded by any suspicious circumstance. Over a period of
time there are judicially evolved rules to test veracity and reliability of the
dying declaration which is admitted in evidence under section 32 of the
Evidence Act. No doubt it is not necessary in every case that there must be
certification by a doctor that the victim was in a fit state of mind to make a
statement, but then, if there are circumstances which raise suspicion as
regards making of the dying declaration the Court must approach the dying
declaration with great care and caution. What is challenged by the appellants
in the present case is very making of the dying declaration by Indu Devi -
reliability of the dying declaration can be examined only when it is
established that the same was made by the victim.
12. Out of 13 witnesses 4 related witnesses have turned hostile and
PW7 who is the husband of Indu Devi deposed in the Court that Indu Devi
set herself on fire. The evidence tendered by PW12 does not establish, and
that is not so recorded in the postmortem examination, that Indu Devi died a
homicidal death.
13. We are informed that the appellants are in custody for more
than 9 years and 11 months and there is no reasonable possibility of hearing
of Cr. Appeal (DB) No. 928 of 2012 in near future.
14. Having regard to the aforesaid facts and circumstances in the
case, we are inclined to suspend the sentence inflicted upon the appellants in
S.T. Case No. 337 of 2007.
15. Accordingly, the appellants, namely, Sarita Devi and Girija
Devi are directed to be released on bail during pendency of the appeal on
furnishing bail bond of Rs. 10,000/- (rupees ten thousand) each with two
sureties of the like amount each to the satisfaction of the learned Sessions
Judge, Garhwa in connection with S.T. Case No. 337 of 2007.
16. We have indicated the aforesaid circumstances which one can
gather at a glance on the judgment in ST Case No. 337 of 2007 and we
would add that these observations are prima-facie opinion of the Court and
that shall not prejudice either party at the time of final hearing of Cr. Appeal
(DB) No. 928 of 2012.
17. I.A. No. 6399 of 2021 stands allowed.
18. Let a copy of this order be transmitted to the Court concerned
and the concerned Jail Superintendent through "Fax".
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Tanuj/-
