Jharkhand High Court
Bibhuti Rajbanshi vs The State Of Jharkhand on 19 November, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 678 of 2002
Bibhuti Rajbanshi, S/o Late Upendra Rajbanshi, R/o Gagagan Pahari, PS
Pakur (T), Distt. Pakur
... ... Appellant
-Versus-
The State of Jharkhand ... ... Respondent
(Arising out of Judgment of Conviction dated 16.09.2002 and
Order of Sentence dated 19.09.2002 passed by the Additional
Sessions Judge-I, Pakur in Sessions Case No. 35 of 1992)
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For the Appellant : M/s Rajeeva Sharma, Sr. Advocate
Rita Kumari & Kunj Bihari Prasad, Advocates
For the State : Mrs. Vandana Bharti, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Dated : 19.11.2024
By Court:
Heard learned senior counsel appearing for the appellant and learned A.P.P.
appearing for the State, at length.
1. The appellant has preferred this appeal against the judgment of conviction
dated 16.09.2002 and order of sentence dated 19.09.2002 passed by the
Additional Sessions Judge-I, Pakur in Sessions Case No. 35 of 1992, whereby
the appellant has been held guilty and convicted for the offence punishable
under Section 302 of Indian Penal Code and he has been sentenced to undergo
imprisonment for life.
2. This case is based on the fardbeyan of the informant-Kalu Rajbanshi. He states
that on 07.07.1991 his youngest son Lakhi Rajbanshi (deceased) had gone to
purchase sugar candy from the shop of Subodh Saha for his mother who was
ill. The accused Bibhuti Rajbanshi, Mantu Rajbanshi and Manik Ghosh
attacked him and these assailants chased him. Lakhi Rajbanshi in order to save
his life ran and tried to take shelter in the house of one Khoka Rajbanshi but the
accused caught hold of him in the courtyard of Khoka Rajbanshi and threw him
down on the earth and Bibhuti Rajbanshi stabbed him as a result of which, the
deceased died. The accused thereafter since there was hue and cry fled from the
place of occurrence. The informant along with his son Jaidev Rajbanshi went to
the courtyard of Khoka Rajbanshi and saw his son convulsing and after some
time he died. Khoka Rajbanshi and his wife Yogmaya Rajvanshi told the
informant that it is Bibhuti Rajbanshi, Mantu Rajbanshi and Manik Ghosh
came to his courtyard chasing Lakhi Rajbanshi and threw him on the ground
and assaulted him. Bibhuti Rajbanshi took out of knife and stabbed the
deceased on his belly.
3. Based on the aforesaid statement, F.I.R being Pakur (M) P. S. Case No. 113 of
1991 was registered under Section 302/34 of IPC.
4. Police after investigation filed charge sheet against the appellant under Section
302/34 of IPC and he was put on trial.
5. After the charge was framed, the prosecution, in order to prove the case has
examined eight witnesses. Relevant documents were also exhibited. After the
prosecution evidence, the statement of the accused under Section 313 of
Cr.P.C. was recorded. Defence is of innocence.
6. The Trial Court after hearing the parties and on going through the record and
evidences convicted the appellant for committing offence punishable under
Section 302/34 of IPC and sentenced as aforesaid.
7. After going through the entire evidence, we find that the informant has not
been examined in this case nor was the Investigating Officer. The conviction is
based on the statement of Jaidev Rajvanshi, who is PW 1. As per the F.I.R,
along with this informant, Jaidev Rajvanshi went to the house of Khoka
Rajbanshi. As per the deposition of Jaidev Rajvanshi, we find that he stated that
he went to the place of occurrence and saw these three appellants fleeing from
the place of occurrence when the deceased was writhing in pain. The deceased
gave dying declaration before him that it is these three accused who had
assaulted him and Bibhuti Rajbanshi had stabbed him. The Trial Court mainly
on this statement has convicted the appellant.
8. When a conviction is based upon oral dying declaration, the Court should be
very cautious to accept the same and if there is no corroboration, it would not
be wise to convict the accused based on oral dying declaration made before a
witness.
9. The prosecution has examined PWs 3 and 4 who are Yogmaya Sarkar and
Khoka Rajbanshi. These two witnesses would have been the best witnesses to
corroborate on the point of dying declaration which allegedly has been given
by the deceased before PW 1, but surprisingly, these two witnesses have been
declared hostile as they have not supported the prosecution case. Thus, we find
that there is no corroboration of the fact that the deceased had given any dying
declaration before PW 1. Further, if we go through the F.I.R also, we find that
there is no reference of any dying declaration given by the deceased before
Jaidev Rajvanshi. Be it noted that the informant and PW 1 Jaidev Rajvanshi
together went to the house of Khoka Rajbanshi where the deceased was
withering in pain. Thus, we come to the conclusion that the deposition of PW 1
so far as relates to dying declaration is nothing but exaggeration.
10. PW 6 in this case is Chowkidar who stated that he received an information that
a person has been murdered in a village in the house of Khoka. He states that
he went to the house of Khoka and had seen the dead-body but there was no
other person present there. There is no whisper by him that any persons came to
him to narrate about the incident and to name the assailants. He stated that one
Naren Rajvanshi -PW 5, another Chowkidar was with him and this Naren
Rajvanshi went to the police station to give information while he (PW 6)
remained with the dead-body whole night. When we go through the statement
of PW 5, we find that he has not stated about the presence of PW 6. PW 5
stated that PW 1 had narrated the incidence before him and disclosed the name
of the assailants. Thus, it is doubtful whether PWs. 5 and 6 were, at all, present
at the place of occurrence or not. If the statements of these two witnesses and
PWs. 2 and 3 are discarded, then the only witness which remains is Jaidev
Rajvanshi. As stated earlier, the informant has not been examined in this case
who is none but the father of the deceased. From the reasons stated above the
statement of Jaidev Rajvanshi so far as it relates to the dying declaration of the
deceased, is doubtful. If the dying declaration is discounted from his evidence,
we find that there is no other material to convict this appellant.
11. Under the circumstance the Judgment of conviction and sentence passed
by the learned Trial Court in this appeal is, accordingly, set aside and the
Criminal Appeal is allowed.
Since the appellant is already on bail, the sureties are discharged from
the liabilities of the bail bonds.
Pending I.A., if any, stands disposed of.
Let the Trial Court Records be sent back to the Court concerned
forthwith along with a copy of this judgment.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 19th November, 2024
AKT/Satendra
AFR
