Jharkhand High Court
Sunil Yadav @ Sunil Kumar Yadav vs The State Of Jharkhand on 18 October, 2022
Cr. Appeal (DB) No. 600 of 2015
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[Against the judgment of conviction dated 6.7.2015 and order of sentence dated
13.7.2015, passed by Shri Vishnu Kant Sahay, learned Sessions Judge,
Hazaribag in S.T. No. 18 of 2014.
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Sunil Yadav @ Sunil Kumar Yadav. .......Appellant
Versus
The State of Jharkhand. ....Respondent
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For the Appellant : Mr. Arwind Kumar, Advocate
For the Respondent : Mr. P.K. Appu, A.P.P.
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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C.A.V. On 13.09.2022 Pronounced on _18/10/2022
Heard Mr. Arwind Kumar, learned counsel for the appellant and Mr. P.K.
Appu, learned A.P.P.
2. This appeal is directed against the judgment of conviction dated 6.7.2015
and order of sentence dated 13.7.2015, passed by Shri Vishnu Kant Sahay,
learned Sessions Judge, Hazaribag in S.T. No. 18 of 2014, whereby and
whereunder the appellant has been convicted for the offence punishable under
section 302 of the Indian Penal Code and has been sentenced to undergo
rigorous imprisonment for life along with a fine of Rs.10,000/- and in default of
payment of fine, he is to further undergo simple imprisonment for six months.
3. The fardbeyan of Lalita Devi was recorded on 17.6.2013, in which it has
been stated that her marriage was solemnized about three months back. After
her marriage, she had gone to her matrimonial house and about 15 days back
she had come back to her parents' house and she is staying there. She has
alleged that today i.e. 17.06.2013, her father had gone to the market while her
mother had gone to bring firewood and she was alone in the house busy in
stitching cloths when at about 3 P.M. her brother in law Sunil Yadav had come
on a Sumo vehicle with her parents and others. She has further alleged that
Sunil Yadav had slapped her and when she protested he had poured acid over
her, as a result of which she suffered grievous injuries. When she started crying
2 Cr. Appeal ( DB) No. 600 of 2015
out loud on account of the immense pain, the accused persons fled away in their
Sumo vehicle.
4. Based on the aforesaid allegations, Katkamsandi P.S. Case No. 132 of
2013 was instituted against eight accused persons for the offences punishable
under sections 307, 326/34 IPC. After the death of the informant-Lalita Devi,
Section 302 IPC was added. On completion of investigation, chargesheet was
submitted against Sunil Kumar Yadav and Anil Kumar Yadav while investigation
continued against the rest six accused persons. After cognizance was taken, the
case was committed to the court of sessions where it was registered as S.T. No.
18 of 2014. Charge was framed under sections 302/34 IPC, which was read over
and explained to the accused in Hindi, to which they pleaded not guilty and
claimed to be tried.
5. The prosecution has examined as many as eleven witnesses in support
of its case.
P.W-1-Pooja Kumari has stated that her sister died due to acid burns.
Her sister had disclosed that the person who had thrown acid upon her had
covered his face. This witness has been declared hostile by the prosecution.
P.W-2-Nayana Kumari is the younger sister of the deceased-Lalita Devi.
She has stated that acid was thrown at her sister who was admitted to the
hospital, where she died. Sunil Yadav is the husband of her elder sister-Kanchan
Devi. She has stated that Lalita Devi had told her that acid was thrown upon her.
In cross-examination, she has stated that she does not know as to who
had thrown acid upon her sister.
P.W-3-Shivlal Yadav is the father of deceased who has deposed that he
does not know as to who had thrown acid upon Lalita Devi. This witness has
been declared hostile by the prosecution.
P.W-4-Ashok Kumar Ram @ Ritik did not support the case of the
prosecution and he has also been declared hostile by the prosecution.
P.W-5-Rita Devi @ Gita Devi is the mother of the deceased who has
stated that she does not know as to who had thrown acid upon her daughter.
This witness has been declared hostile by the prosecution.
P.W-6-Prabil Yadav has stated that the deceased was his niece. He has
also showed his ignorance regarding the person who had thrown acid upon Lalita
Devi. This witness has been declared hostile by the prosecution.
3 Cr. Appeal ( DB) No. 600 of 2015
P.W-7-Bhuneshwar Yadav and P.W-8-Rajan Kumar Yadav have not
supported the case of the prosecution and they have also been declared hostile
by the prosecution.
P.W-9-Devnandan Murari was posted as a Sub Inspector of Police in
Sadar Police Station, Hazaribagh. On 17.06.2013, he had recorded the
fardbeyan of Lalita Devi in Bed No. 10 of Female Ward of Sadar Hospital,
Hazaribagh. At the time of recording of the fardbeyan, Lalita Devi was in a
conscious state. He has stated that at the time of recording of the fardbeyan, the
family members of Lalita Devi were present. Upon writing down the fardbeyan,
the same was read over to Lalita Devi who on finding it to be in order had signed
on the same. The father and brother of Lalita Devi namely Shiv Lal Yadav and
Pintu respectively had signed on the fardbeyan. He has proved the fardbeyan,
which has been marked as Ext-2. The fardbeyan of Shiv Lal Yadav was written
down by A.S.I. Surendra Prasad and he has identified the writing and signature
of Surendra Prasad, which has been marked as Ext-3. The seizure list is in the
writing of the Officer in charge Madan Sharma and which bears his signature
and which has been marked as Ext-4.
In cross-examination, he has deposed that the fardbeyan of Shiv Lal
Yadav and the seizure list were not prepared in his presence. He has stated that
Lalita Devi was fully burnt. When he had recorded the fardbeyan of Lalita Devi,
no doctor was present. Before he had recorded the fardbeyan of Lalita Devi, he
had not taken the opinion of the doctor regarding the mental and physical state
of Lalita Devi.
P.W-10-Dr.Ajay Kumar Singh was posted as a Medical Officer at Sadar
Hospital, Hazaribagh and on 31.7.2013, he had conducted autopsy on the dead
body of Lalita Devi and had found the following injuries:-
External Injuries:-Eyes close, mouth closed, Rigor mortise present in
upper limbs.
(i) Burn injuries over upper part of chest black charred size 8"x5".
(ii) Burn injury over anterior part of upper limbs left sider. Black in colour
charred.
The above injuries are ante mortem in nature caused by chemical
(corrosive in nature)
Internal Injuries:-Lungs congested. Heart right chamber full, left chamber
empty. Stomach contains mucoid fluid 2 onz in amount with normal
mucosa. Liver-spleen-both kidneys were congested. Urinary bladder
empty.
The cause of death was opined to be septisemia and shock due to
burn injury. He has proved the postmortem report, which has been
marked as Ext-5.
4 Cr. Appeal ( DB) No. 600 of 2015
P.W-11- Madan Kumar Sharma was posted as an Officer In Charge of
Katkamsandi P.S. He had taken over the investigation of Katkamsandi P.S.
Case No. 132 of 2013. He has proved the formal FIR, which has been marked
as Ext-3. He had recorded the statements of Bhushan Yadav and Pooja Kumari.
He had inspected the place of occurrence, which is at a distance of about 11
kilometers from Katkamsandi P.S. in the house of Shiv Lal Yadav. It has been
told that at the time of the occurrence, she was involved in stitching in the
verandah when Sunil Kumar Yadav had arrived on a motorcycle while the others
had arrived in a Tata Sumo Vehicle and Sunil Kumar Yadav had slapped her
and poured acid over her. After inspecting the place of occurrence, he had
recorded the restatement of the informant and had also recorded the statement
of Shiv Lal Yadav. He has stated that Sunil Kumar Yadav was arrested and he
was got treated at Primary Health Centre, Katkamsandi and had also obtained
the injury report. The confessional statement of Sunil Kumar Yadav was
recorded which is in the writing of this witness and bears the signature of Sunil
Kumar Yadav and which has been marked as Ext-7. In course of investigation,
he had recorded the statements of Nayana Kumari, Raja Kumar Yadav, Ashok
Ram, Kanchan Devi and Jagdeo Rana and all had stated that it was Sunil Kumar
Yadav, who had thrown acid upon Lalita Devi. On 1.8.2013, the fardbeyan of
Shiv Lal Yadav was received, which has been marked as Ext-3. He has also
proved the inquest report, which has been marked as Ext-4. He had thereafter
recorded the statement of Geeta Devi, Akhilesh Yadav and Prabil Yadav and all
had supported the occurrence. He had also obtained the postmortem report. He
had thereafter submitted chargesheet under section 302/34 IPC. The witnesses
Puja Kumari, Shiv Lal Yadav, Geeta Devi, Prabil Yadav, Bhuneshwar Yadav and
Rajan Kumar had stated before him that Sunil Kumar Yadav had thrown acid
upon Lalita Devi. He has proved his signature upon the seizure list, which has
been marked as Ext-4/1.
In cross-examination, he has deposed that in course of investigation, he
had not tried to find out the doctors and nurses who were posted on 17.6.2013.
He had reached the place of occurrence on 18.06.2013 and had recorded the
restatement. The statement of S.I. D.N. Murari did not make it clear as to whether
any doctor or nurse were present at the time of recording of the fardbeyan. He
had not recorded the statement of Lalita Devi in presence of any staff or
authority. No articles were recovered from the place of occurrence.
6. The statement of the accused was recorded under section 313 Cr.P.C., in
which he has denied his involvement in the occurrence.
5 Cr. Appeal ( DB) No. 600 of 2015
7. It has been submitted by Mr. Arwind Kumar, learned counsel for the
appellant, that all the witnesses barring the official witnesses have not supported
the case of the prosecution. It has been submitted that the purported dying
declaration of the informant has been taken to be the basis of conviction of the
appellant. Learned counsel has also referred to the fardbeyan of Shiv Lal Yadav
( Ext-3) and which contained no specific allegation against the appellant. He has
also submitted that the opinion of the doctor was not taken to ascertain as to
whether the deceased was in a fit mental state to give such statement.
8. Mr. P.K. Appu, learned A.P.P., has submitted that the evidence of P.W-7
who had written down the statement of Lalita Devi reveals that she was in a
conscious state of mind at the time of recording her statement. The satisfaction
of P.W-7 was paramount and such dying declaration cannot be discarded simply
because the opinion of the doctor was not taken and/or the doctor was not
examined.
9. We have heard the rival submissions and have also perused the Lower
Court Records.
10. The fardbeyan of Lalita Devi, which has been treated to be a dying
declaration, reveals that on 17.6.2013 she was alone in her house stitching when
the accused persons including the appellant had come on a Sumo Vehicle and
the appellant after having slapped her had poured acid over her leading to
severe burn injuries suffered by her. During trial, the relatives of the deceased
and some others were examined as P.W-1 to P.W-8 but none have supported
the case of the prosecution. The prosecution has therefore primarily relied upon
the evidence of P.W-9, P.W-10 and P.W-11. Before considering the admissibility
or otherwise of the purported dying declaration we must also glance at the
fardbeyan of Shiv Lal Yadav, who is the father of the deceased. The said
fardbeyan has been marked as Ext-3. In his fardbeyan, Shiv Lal has stated that
all the accused persons had poured acid over Lalita Devi and had fled away.
She was brought for treatment to Sadar Hospital and on 1.7.2013, she was
referred to Ranchi. On 17.7.2013, she was brought back to her house and when
her condition started deteriorating she was once again admitted to Sadar
Hospital on 29.7.2013 and on 31.7.2013 in the morning, she expired. It would
therefore reveal that her condition had improved on treatment and she stayed at
her house for twelve days before being once again admitted to Sadar Hospital
but it appears that no attempt was made to record her statement during the
intervening period.
6 Cr. Appeal ( DB) No. 600 of 2015
11. Adverting back to the dying declaration, we may refer to the case of
Purshottam Chopra and Anr. Vs. State (Government of NCT of Delhi)
reported in (2020) 11 SCC 489 wherein the principles relating to recording of
dying declaration and its admissibility and reliability have been summed up in
the following manner:-
"21.1. A dying declaration could be the sole basis of conviction even without
corroboration, if it inspires confidence of the court.
21.2. The court should be satisfied that the declarant was in a fit state of mind at
the time of making the statement; and that it was a voluntary statement, which was
not the result of tutoring, prompting or imagination.
21.3. Where a dying declaration is suspicious or is suffering from any infirmity such
as want of fit state of mind of the declarant or of like nature, it should not be acted
upon without corroborative evidence.
21.4. When the eyewitnesses affirm that the deceased was not in a fit and
conscious state to make the statement, the medical opinion cannot prevail.
21.5. The law does not provide as to who could record dying declaration nor there
is any prescribed format or procedure for the same but the person recording dying
declaration must be satisfied that the maker is in a fit state of mind and is capable
of making the statement.
21.6. Although presence of a Magistrate is not absolutely necessary for recording
of a dying declaration but to ensure authenticity and credibility, it is expected that
a Magistrate be requested to record such dying declaration and/or attestation be
obtained from other persons present at the time of recording the dying declaration.
21.7. As regards a burns case, the percentage and degree of burns would not, by
itself, be decisive of the credibility of dying declaration; and the decisive factor
would be the quality of evidence about the fit and conscious state of the declarant
to make the statement.
21.8. If after careful scrutiny, the court finds the statement placed as dying
declaration to be voluntary and also finds it coherent and consistent, there is no
legal impediment in recording conviction on its basis even without corroboration."
12. Reference is also made to the case of Jayamma and another Vs. State
of Karnataka reported in (2021) 6 SCC 213 wherein it has been held as follows:-
"14. Before we advert to the actual admissibility and credibility of the dying
declaration (Ext. P-5), it will be beneficial to brace ourselves of the case law on the
evidentiary value of a dying declaration and the sustenance of conviction solely
based thereupon. We may hasten to add that while there is huge wealth of case
law, and incredible jurisprudential contribution by this Court on this subject, we are
consciously referring to only a few decisions WHICH are closer to the facts of the
case in hand. We may briefly notice these judgments.
14.1. In P.V. Radhakrishna v. State of Karnataka, this Court considered the
residuary question whether the percentage of burns suffered is a determinative
factor to affect the credibility of a dying declaration and the probability of its
recording. It was held that there is no hard-and-fast rule of universal application in
this regard and much would depend upon the nature of the burns, part of the body
affected, impact of burns on the faculties to think and other relevant factor.
14.2. In Chacko v. State of Kerala, this Court declined to accept the prosecution
case based on the dying declaration where the deceased was about 70 years old
and had suffered 80 per cent burns. It was held that it would be difficult to accept
that the injured could make a detailed dying declaration after a lapse of about 8 to
9 hours of the burning, giving minute details as to the motive and the manner in
which he had suffered the injuries. That was of course a case where there was no
certification by the doctor regarding the mental and physical condition of the
deceased to make dying declaration. Nevertheless, this Court opined that the
manner in which the incident was recorded in the dying declaration created grave
doubts to the genuineness of the document. The Court went on to opine that even
7 Cr. Appeal ( DB) No. 600 of 2015
though the doctor therein had recorded "patient conscious, talking" in the wound
certificate, that fact by itself would not further the case of the prosecution as to the
condition of the patient making the dying declaration, nor would the oral evidence
of the doctor or the investigating officer, made before the court for the first time, in
any manner improve the prosecution case.
14.3. In Sham Shankar Kankaria v. State of Maharashtra, it was restated that the
dying declaration is only a piece of untested evidence and must like any other
evidence satisfy the Court that what is stated therein is the unalloyed truth and that
it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v.
State of Gujarat wherein this Court (at SCC pp. 480-81, para 18) summed up
several previous judgments governing dying declaration, the Court in Sham
Shankar Kankaria reiterated: (Sham Shankar Kankaria, SCC pp. 172-73, para 11)
"11. ... (i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration. (See 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. (See State of U.P. v. Ram Sagar Yadav
and Ramawati Devi v. State of Bihar.);
(iii) The Court has to scrutinise the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify the assailants and was in a fit
state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor.);
(iv) Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence. (See 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. (See Kake Singh v. State
of M.P.);
(vi) A dying declaration which suffers from infirmity cannot form the basis of
conviction. (See Ram Manorath v. State of U.P);
(vii) Merely because a dying declaration does not contain the details as to the
occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti
Laxmipati Naidu.);
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo
Ojha v. State of Bihar.);
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But where the
eyewitness has said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail. (See Nanhau 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. (See State of U.P. v. Madan
Mohan.);
(xi) Where there are more than one statement in the nature of dying declaration,
one first in point of time must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable, it has to be accepted. (See
Mohanlal Gangaram Gehani v. State of Maharashtra.)"
15. It goes without saying that when the dying declaration has been recorded in
accordance with law, and it gives a cogent and plausible explanation of the
occurrence, the Court can rely upon it as the solitary piece of evidence to convict the
accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception
to the general rule against the admissibility of hearsay evidence and its Clause (1)
makes the statement of the deceased admissible. Such statement, classified as a
"dying declaration" is made by a person as to the cause of his death or as to the injuries
which culminated to his death or the circumstances under which injuries were inflicted.
A dying declaration is thus admitted in evidence on the premise that the anticipation
of brewing death breeds the same human feelings as that of a conscientious and
guiltless person under oath. It is a statement comprising of last words of a person
before his death which are presumed to be truthful, and not infected by any motive or
malice. The dying declaration is therefore admissible in evidence on the principle of
8 Cr. Appeal ( DB) No. 600 of 2015
necessity as there is very little hope of survival of the maker, and if found reliable, it
can certainly form the basis for conviction.
16. We may also take note of the decision of this Court in Surinder Kumar. In the
said case, the victim was admitted in hospital with burn injuries and her dying
declaration was recorded by an Executive Magistrate. This Court, first doubted
whether the victim could put a thumb impression on the purported dying declaration
when she had suffered 95-97% burn injuries. Thereafter, it was noted that "at the time
of recording the statement of the deceased ... no endorsement of the doctor was made
about her position to make such statement", and only after the recording of the
statement did the doctor state that the patient was conscious while answering the
questions, and was "fit to give statement". This Court lastly noticed that before the
alleged dying declaration was recorded, the victim in the course of her treatment had
been administered Fortwin and Pethidine injections, and therefore she could not have
possessed normal alertness. It was hence held that although there is neither a rule of
law nor of prudence that the dying declaration cannot be acted upon without
corroboration, the Court must nonetheless be satisfied that the dying declaration is
true and voluntary, and only then could it be the sole basis for conviction without
corroboration.
17. Consistent with the cited principles, this Court refused to uphold the conviction
in Sampat Babso Kale v. State of Maharashtra. The dying declaration in that case was
made by a victim who had suffered 98% burn injuries, and the statement was recorded
after the victim was injected with painkillers. This Court adopted a cautious approach,
and opined that there were serious doubts as to whether the victim was in a fit state of
mind to make the statement. Given the extent of burn injuries, it was observed that the
victim must have been in great agony, and once a sedative had been injected, the
possibility of her being in a state of delusion could not be completely ruled out. Further,
it was specifically noted that: (SCC p. 744, para 14)
"14. ... the endorsement made by the doctor that the victim was in a fit state of
mind to make the statement has been made not before the statement but after the
statement was recorded. Normally it should be the other way around."
(emphasis supplied)
13. The dying declaration was recorded by P.W-9, in which he had stated that
Lalita Devi was in a conscious state. However, in his cross-examination, he has
testified that neither any doctor was present nor he had sought the opinion of a
doctor regarding the mental and physical state of Lalita Devi. The dying
declaration was recorded in the presence of Shiv Lal Yadav and other family
members of Lalita Devi but two of the signatories to the fardbeyan namely Shiv
Lal Yadav and Pintu Kumar were either declared hostile or were not examined
by the prosecution.
14. As we have noted earlier, the incident is of 17.6.2013 and death
occurred on 31.7.2013, which means that Lalita Devi remained alive for six
weeks and during the intervening period stayed at her house for twelve days. A
dying declaration is admissible in evidence on the principle " a man will not meet
his maker with a lie in his mouth". In the case of Jayamma (supra) such principle
has been succinctly explained in the following manner:-
" a dying declaration is thus admitted in evidence on the premise
that the anticipation of brewing death breeds the same human feelings as
that of a conscientious and guiltless person under oath. It is a statement
comprising of last words of a person before his death which are presumed
to be truthful and not infected by any motive or malice".
9 Cr. Appeal ( DB) No. 600 of 2015
15. We say this because the confidence of the court would have been reposed
had such declaration been given before the doctor or a magistrate considering
the fact that the victim had remained alive for six weeks. The silence on the part
of the prosecution in that respect reflects on the dying declaration of Lalita Devi.
She was immediately admitted in Sadar Hospital, was referred to Ranchi and
was once again admitted to Sadar Hospital but no efforts were made to record
her statement before the competent authority. Even the treating doctors were
also not examined by the prosecution. The evidence of P.W-9 when pitted
against all the adversial circumstances puts the sanctity of the dying declaration
in grave doubt. The benefit of doubt in such circumstances therefore has to be
extended to the appellant.
16. As a consequence to the aforesaid discussions, we hereby set aside the
judgment of conviction dated 6.7.2015 and order of sentence dated 13.7.2015,
passed by Shri Vishnu Kant Sahay, learned Sessions Judge, Hazaribagh in S.T.
No. 18 of 2014, whereby and whereunder the appellant has been convicted for
the offence punishable under section 302 of the Indian Penal Code and has been
sentenced to undergo rigorous imprisonment for life along with a fine of
Rs.10,000/- and in default of payment of fine, he is to further undergo simple
imprisonment for six months.
17. Since the appellant is in custody, he is directed to be released forthwith if
not wanted in any other case.
Pending I.As, if any, stand disposed of.
(Rongon Mukhopadhyay,J)
(Ambuj Nath, J)
Jharkhand High Court, Ranchi
Dated 18th October, 2022
Rakesh/NAFR
