Jharkhand High Court
(Against The Judgment Of ... vs Sumant Masat on 5 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal (DB) No. 16 of 2012
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(Against the judgment of acquittal dated 23rd February 2012 passed by the
learned District & Sessions Judge-II, Dumka in Sessions Case No. 246 of
2008)
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The State of Jharkhand ...... Appellant
Versus
1. Sumant Masat, son of Ramesh Masat,
2. Diwakar Rana, son of Uttam Rana,
3. Sunil Manjhi, son of Anant Lal Manjhi,
4. Bikram Manjhi, son of Radha Kant Manjhi,
5. Santosh Masat, son of Kishori Masat,
All residents of village- Bathar, PS Jarmundi, District Dumka.
..... Respondents
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Bhola Nath Ojha, APP
For the Respondents : Mr. Manoj Tandon, Advocate;
Mr. Rajesh Kumar, Advocate
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Oral Order
th
5 April 2023
Per, Shree Chandrashekhar,J.
This Acquittal Appeal has been filed by the State of Jharkhand
challenging the judgment dated 23rd February 2012 passed in Sessions Case
No. 246 of 2008.
2. Jarmundi PS Case No. 114 of 2008 was lodged against seven
persons on the basis of the fardbeyan of Sikandar Manjhi which was
recorded at Jarmundi Referral Hospital.
3. According to Sikandar Manjhi, the accused persons, namely,
Sumant Masat, Diwakar Rana, Bikram Manjhi, Sunil Manjhi, Santosh
Masat, Binod Masat and Ramesh Masat attacked him in the evening of 4th
June 2008 when he was proceeding towards his house. In course of the
treatment, Sikandar Manjhi succumbed to the injuries caused to him and the
postmortem examination was conducted by Dr. Suresh Kumar on 5th June
2008 at around 11:30 AM.
2 Acquittal Appeal (DB) No.16 of 2012
4. After the investigation, a charge-sheet was laid against Sumant
Masat, Diwakar Rana, Bikram Manjhi, Sunil Manjhi and Santosh Masat
who faced the trial on the charge framed against them under sections
147,148,149 and 302 of the Indian Penal Code.
5. During the trial, the prosecution has examined nine witnesses
out of whom PW2, PW3 and PW4 are the related witnesses.
6. According to the prosecution, PW5 Sita Ram Masat is the
eyewitness who on hearing cries of Sikandar Manjhi rushed to the place of
occurrence and saw assault upon him by the aforementioned accused
persons. PW6 and PW7 are hearsay witnesses and PW9 is the Investigating
Officer of this case.
7. The learned trial Judge has held that the statement of Sikandar
Manjhi is in sharp contradiction to the injury report proved by PW8 and the
postmortem report proved by PW1. The learned trial Judge has further held
that related witnesses have tendered contradictory evidence and they are not
reliable witnesses.
8. The learned trial Judge has held as under:
"20) After hearing of both sides at length and after perusal of
decisions filed by both sides and considering all aspect and
surrounding facts of the case, it appears that it is alleged that the
informant was assaulted by the accused persons. He sustained
injuries, police has recorded his fardbeyan thereafter next morning,
the informant had died. The learned Addl.P.P. has argued that the
said fardbeyan may be treated as dying declaration, on the basis of
said dying declaration they can be held responsible for the offence
of murder. From perusal of the record, it appears that soon after
the occurrence, the son and other villagers took the informant to
the Jarmundi Referal Hospital where one doctor attended him and
given primary treatment. But when the doctor is available in the
hospital, police has not taken any certificate from the doctor
regarding mental status and fitness of the injured person. Even
many rullings says that the certificate of doctor is not necessary for
the treating the fardbeyan as dying declaration, but when the
doctor is available in the hospital, even then not obtaining any
certificate from the doctor, it creates a doubt. It is further apparent
from the perusal of the record that there is vital contradictions in
between ocular evidence and medical evidence, because from very
beginning, the informant and almost all the witnesses have clearly
stated that the Accused persons have assaulted to the informant
which inflicted on the left ear and left side of the neck on the body
of injured, but soon after the occurrence, the injured was examined
by the doctor at Jarmandi Referal Hospital, the said doctor has
found no injury left side of the body of the injured rather, moreover
the above doctor has appeared before this court as P.W.8 who
clearly stated that there was no head injury. Next morning, injured
had died and same morning his postmortem was conducted where
the another doctor who conducted the postmortem on the deadbody
3 Acquittal Appeal (DB) No.16 of 2012
of the informant has found one stitch wound and he clearly stated,
the caused of death is due to head injury, causing to shock and
hemorrhage which was sufficient to cause to death in normal
course of nature. At present, there was three types of injuries is
available before me, 1) as per oral version of the witness including
the informant (deceased), himself, that the accused persons have
assaulted him on the left ear and left side of neck, but the doctor
who attended the first injured in alive condition has not found such
injuries rather he has clearly stated that there is no head injury at
all. The next morning after the death of the injured, the postmortem
was conducted on the deadbody of the informant, the doctor who
conducted the postmortem has found one stitch injury and also
found fracture in right leg. It is clear from the perusal of careful
reading of the record that the witnesses have not stated about any
injury on right leg of the injured(deceased). Now a question raised
how and where the injured has sustained the head injury and the
same head injury was caused the death of the deceased, as per
finding of the P.W.1., Dr.Suresh Kumar. One more thing that where
the patient was treated and who gave stitch to the informant
(deceased). The prosecution has to stand on his own leg and he has
to explain about the stitch injury, head injury and right side of the
injury, but the prosecution is absolutely mum in this regard.
Though it is duty of prosecution to explain such injury. Moreover,
there is vital contradictions in the evidences of the prosecution
witnesses, as per fardbeyan on hulla only one witness namely Sita
Ram Masat came and informed to the family members of the
injured but the said Sita Ram has appeared before the court as
P.W.5 and he has been declared hostile by the prosecution.
Moreover, the prosecution has not been able to establish the place
of occurrence too as per fardbeyan, the occurrence had taken place
near Mahuwa Tree in Dhamna forest. I.O. of this case has
described the place of occurrence in Bari of Sushil Kisku at village
Barathal Santhal Tola. On the basis of above all the facts and
circumstances of the case, considering different in between ocular
evidence and medical evidence, contradictions in his statements,
different in medical evidence and place of occurrence of this case a
great cloud of doubt caste on the truthfulness of the prosecution
story. It is settled principle of law, whenever doubt is created on the
truthfulness of the prosecution story, benefit of doubt will go in
favour of defence."
9. Mr. Bhola Nath Ojha, the learned APP has contended that
merely on the ground that a certification as regards fitness of the injured as
to give statement was not produced, the judgment of acquittal could not have
been rendered by the learned Sessions Judge. The learned APP would submit
that fardbeyan of Sikandar Manjhi is admissible in evidence under section
32 of the Indian Evidence Act and has higher evidentiary value for a man on
the deathbed would not lie.
10. Mr. Manoj Tandon, the learned counsel who appears for the
respondents has vehemently argued that there is no compelling circumstance
to interfere with the judgment of acquittal passed in Sessions Case No. 246
of 2008.
4 Acquittal Appeal (DB) No.16 of 2012
11. "A man will not meet his maker with a lie in his mouth" is the
underlying principle why the dying declaration of a person is considered
sufficient to record conviction of the accused. Under section 32 of the Indian
Evidence Act, the statement of a dead person or the one who cannot be
found is relevant. Section 32 provides that statements, written or verbal
made by a person who is dead, or who cannot be found, or who has become
incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which under the circumstances of the
case appears to the Court unreasonable, are relevant facts when such
statements relate to the cause of death.
12. However, whether or not a person has given statement before
his death is a question of fact which must be established by the prosecution
beyond reasonable doubt. A glance at the dying declaration of Sikandar
Manjhi reveals that he has put his signature over the dying declaration. Now
in this situation it was incumbent upon the prosecution to produce some
admitted signature of Sikandar Manjhi so as to lend and corroborate the
prosecution story that he made statement at Jarmundi Referral Hospital.
13. No doubt in absence of medical certificate regarding mental
condition and fitness of the injured to give statement is not a ground to
disbelieve the dying declaration. However, in a case where the injured has
suffered serious injuries around occipital region, over his chest, neck, nose,
thigh and knee joint and according to PW1 the cause of death was head
injury, failure of the prosecution to produce evidence to establish that
Sikandar Manjhi had in fact given statement before Ram Awadesh Singh
who was posted as Sub Inspector of Police at Jarmundi police station would
create serious doubt on the prosecution story.
14. PW1 has observed the following injuries on the person of
Sikandar Manjhi:
"i) Drooling of mouth-stitch (one) applied on the right side of
skull (Head) Red ecchymosis on the left side of chest found 2 c.m.
X 1 c.m.
ii) Swelling of right thigh- On dissection fracture of right femur
middle part.
iii) Swelling left leg-On dissection fracture of tibia lower part
found."
15. But before that, PW8 has administered first aid to him and has
found that Sikandar Manjhi had suffered the following injuries:
5 Acquittal Appeal (DB) No.16 of 2012
"i.) One lacerated cut wound 1/2" X 1/4" X 1/4" red in colour with
bleeding on right side face below, right ear pinna.
ii) One abrasion 2" X 1/8" on right side neck radish in colour.
iii) One abrasion 1/4" X 1/4" red in colour on right side of nose.
iv) One lacerated wound 1/4" X 1/6" X 1/6" red in colour on left
side of lower lip.
v) One defuse swelling with tenderness present over left knee joint.
vi) Complain of chest pain with no mark external injury but
tenderness present."
16. Apparently, there is marked difference in both the medical
reports which the prosecution has failed to explain. Furthermore, if the
injured Sikandar Manjhi was immediately rushed to hospital, this remained
a mystry how stitched wound was found on his head. As noticed above,
there are serious inconsistencies also in the testimony of the prosecution
witnesses. PW5 who is the only eyewitness has turned hostile and did not
support the prosecution in the Court. The story of the prosecution that the
deceased had revealed name of the assailants to them in the hospital does
not inspire confidence of the Court. This has also come on record that the
medical man who had examined the injured was not produced in the Court.
17. The powers of the Appellate Court while dealing with an appeal
against acquittal are same as that of an appeal against conviction and the
Appellate Court can very well re-appreciate the evidence and record
disagree with the judgment of acquittal. However, there are certain judicially
evolved parameters one of which is that there must be compelling
circumstances to interfere with the judgment of acquittal and, that, the
Appellate Court shall not interfere with the acquittal order merely on minor
mistakes in the judgment of acquittal.
18. In "Jaswant Singh v. State of Haryana" (2000) 4 SCC 484 the
Hon'ble Supreme Court has observed as under:
"21. The principle to be followed by appellate courts considering
an appeal against an order of acquittal is to interfere only when
there are "compelling and substantial reasons" for doing so. If the
order is "clearly unreasonable" it is a compelling reason for
interference (see Shivaji Sahabrao Bobade v. State of
Maharashtra). The principle was elucidated in Ramesh Babulal
Doshi v. State of Gujarat : (SCC p. 229, para 7)
"While sitting in judgment over an acquittal the appellate
court is first required to seek an answer to the question
whether the findings of the trial court are palpably wrong,
manifestly erroneous or demonstrably unsustainable. If the
appellate court answers the above question in the negative
the order of acquittal is not to be disturbed. Conversely, if
the appellate court holds, for reasons to be recorded, that the
order of acquittal cannot at all be sustained in view of any of
6 Acquittal Appeal (DB) No.16 of 2012
the above infirmities it can then -- and then only --
reappraise the evidence to arrive at its own conclusions."
(See also George v. State of Kerala)."
19. Having regard to the aforesaid facts and circumstances in the
case, we do not find any reason to interfere with the judgment of acquittal
passed in Sessions Case No. 246 of 2008 and, accordingly, Acquittal Appeal
(DB) No.16 of 2012 is dismissed.
20. Let the lower Court records be sent to the Court concerned
forthwith.
21. Let a copy of the judgment be transmitted to the Court
concerned through 'FAX'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 5th April, 2023
S.B./Nibha-N.A.F.R
