Ram Bachan Tiwary vs The State Of Jharkhand
2024 Latest Caselaw 9269 Jhar

Jharkhand High Court

Ram Bachan Tiwary vs The State Of Jharkhand on 17 September, 2024

Author: Ananda Sen

Bench: Ananda Sen

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Criminal Appeal (DB) No. 999 of 2018

       AGAINST THE JUDGMENT OF CONVICTION DATED 13.07.2018 AND
       ORDER OF SENTENCE DATED 19.07.2018 PASSED BY LEARNED
       DISTRICT AND ADDITIONAL SESSIONS JUDGE-II, GIRIDIH, IN SESSION
       TRIAL NO.63 OF 2012.
     Ram Bachan Tiwary, son of late Kashi Tiwary, resident of Bishanpur, P.O. And P.S.
     Dhanbwar, District- Giridih, Jharkhand.                        .........APPELLANT(S)
                                           -Versus-
          The State of Jharkhand                                  ..........RESPONDENT
                                           ......
         For the Appellant(s)       : Mr. A.K. Kashyap, Sr. Advocate.
                                      Ms. Leena Skhakti, Advocate.
         For the State              : Mr. Sanjay Kumar Srivastava, A.P.P.

                                     PRESENT
                                 SRI ANANDA SEN, J.
                                 SRI GAUTAM KUMAR CHOUDHARY, J.
                                      .........
                                   JUDGMENT

C.A.V. On: 10.09.2024 Pronounced On: 17/09/2024.

Ananda Sen, J. This Criminal Appeal is directed against the judgment of conviction dated 13.07.2018 and order of sentence dated 19.07.2018 passed by learned District and Additional Sessions Judge-II, Giridih in Sessions Trial No.63 of 2012, whereby, the appellant has been convicted under Section 302/34 of the Indian Penal Code and sentenced for imprisonment for life and fine of Rs.30,000/-.

2. Learned senior counsel appearing on behalf of the appellant submitted that in the instant case, the charge was framed under Sections 304/34 and 302/34 of the Indian Penal Code alternatively, but from the evidence adduced, the appellant has only been convicted under Section 302 / 34 IPC, but surprisingly, in separate trial, other co-convicts have been acquitted, thus this appellant deserves the same treatment. He also contended that the fardbeyan cannot be treated to be a dying declaration as there is no certification by Doctor, nor there any endorsement to that effect that the deceased was in a fit state of mind to give the aforesaid statement. Only on the basis of evidence of P.Ws 1 and 2, who were the child witnesses at the time of occurrence as they were aged about 06 years and 04 years, this appellant has

Page/1 been convicted. He also contended that P.W. 3 (Yudhisthir Tiwary) had not seen the occurrence. Neither the I.O. who had investigated this case, nor the scribe, who had recorded the fardbeyan, has been examined, which caused great prejudice to this appellant. He further contended that as there was land dispute between this appellant and the husband of the deceased (P.W.3), this appellant has falsely been implicated in this case.

3. Counsel appearing on behalf of the State submitted that P.Ws. 1 and 2 are the eye witnesses, who had narrated the entire incident as to how the appellant had committed the crime and their statements corroborate from the fardbeyan, which is of the deceased. He further submitted that when there is corroboration of facts by the eye witnesses, the appellant has been rightly convicted. The allegation against this appellant is specific that he had burnt the deceased to death. He lastly submitted that on this ground, the prosecution prays for dismissal of this appeal.

4. The prosecution case is based on the fardbeyan of Shushma Devi (the deceased), whose statement was recorded on 29.09.2007 at about 22:00 hours at Referral Hospital, Rajdhanwar in which, she stated that she along with her children went to bed after dinner at about 7 p.m, in the meantime, this appellant and other family members came and asked her to open the door. They started banging the door when she opened. Duryodhan Tiwary instigated the other to kill her when this appellant told that she should be mercilessly killed, on which all the accused caught hold of her, when Shushila Tiwary brought kerosene oil and sprinkled the same upon the deceased and this appellant lit the fire, as a result of which, she sustained burn injury. She stated that the accused were saying for non-payment of Rs.30,000 as dowry, this treatment was meted upon her.

On the basis of the aforesaid fardbeyan, this case for the offence under Sections 143, 341, 324 and 307 IPC along with Sections 3/4 of the Dowry Prohibition Act was instituted. Later on, as the informant died during investigation Section 304-B IPC was added and cognizance was taken by the Court.

5. This appellant was only facing the trial as due to non-appearance of the other accused, their case was split up. In the trial, charge under Section 304B/34 IPC and in alternative, Section 302/34 IPC was framed. This appellant separately was put on trial as the other accused did not appear. The other

Page/2 accused were tried separately.

6. Prosecution in support of its case has produced five witnesses i.e. P.W.1-Romi Kumar, P.W.2- Alok Kumar Tiwary, P.W. 3- Yudhisthir Tiwary, P.W. 4- Prashun Kumar (I.O. of this case) and P.W.5-Dr. Shailendra Kumar. P.W.-1 (Romi Kumar) and P.W.2 (Alok Kumar Tiwary) are the child witnesses and the Court found them to be competent to depose. P.W. 1 stated that he was in the house along with his mother and sister. At night, this appellant including other family members tried to break open the door and others were abusing the deceased. When his mother opened the door, all accused persons entered the room and started assaulting her. Duryodhan Tiwary instigated others to kill her mother when Ram Bachan Tiwary (this appellant) told to kill the deceased mercilessly. Sushila Devi (mother in-law of the deceased) sprinkled kerosene oil on her mother and this appellant (Ram Bachan Tiwary) with match stick lit her. When her mother was burning, he started screaming for help. The villagers came and took the deceased to Rajdhanwar Hospital, thereafter to Giridih and after 1-2 days, they took the deceased to Dhanbad, but after 4-5 days, during treatment her mother died. He stated that he had got his statement recorded before the Magistrate and put his thumb impression. He identified this appellant. He stated that he went to record his statement before police station. The police recorded the statement of his sister and father also. He stated that he could not remember what statement he had given before the police. He stated that what he had seen is being narrated before the Court. He further stated that all the accused were residing together, but they were made to live separate. His father worked as priest and he had come along to depose. He further deposed that accused are his relative like uncle, grand-mother etc. He further stated that at the time of occurrence, his father was not in the house. He further deposed that kerosene oil was brought by his grand mother- Shushila Devi.

P.W.2- Alok Kumar Tiwary, who is also a child witness, deposed that he was in the house and all the appellant came and tried to break open the door. His mother opened the door and all entered his mother's room and killed his mother. He narrated in the same line as that of P.W.1 stating that it is this appellant who had burnt his mother. His grand mother had poured kerosene oil upon his mother. He stated that he was four years at the time of occurrence. In cross-examination, he stated that he did not sleep at the time of occurrence.

Page/3 P.W.-3 Yudhisthir Tiwary is the husband of deceased, who stated that he was at in-laws house on the date of occurrence and was returning at night and when he reached Dhanwar, he heard that his wife was killed. On the way, he saw that his wife was being taken in cart and his children were there in police station. He further deposed that his wife was badly burnt and his wife stated in her fardbeyan how she was tortured and this appellant burnt her. He exhibited the fardbeyan as the same was given in his presence. Thereafter the deceased was taken to the government hospital from where she was referred to Giridih and thereafter, Dhanbad, where she died after 5-6 days. He denied that there was any case against him. He further stated that he has given his statement before the police. He denied all the suggestions.

P.W.-4- Prashun Kumar (the I.O. of this case) deposed that at a later stage he took over the charge of investigation. He stated that he had gone through the report of investigation which was done by the earlier I.O. He had also gone through the injury report, post-mortem report and inquest report. He filed the chargesheet. He admitted that he did not recorded the statement of any other witnesses.

P.W.-5, Dr. Shailendera Kumar: deposed that he conducted the postmortem on the person of the deceased. He found extensive burn mark on the person of the deceased and foul smell was coming out. Her hair was also burn from the side. The burn was 10-12 days old. The cause of death was 85% of the burn injury as well as infection and shock and septicemia.

7. Several documents were also produced and exhibited by the prosecution to prove its case, which are Written report (Ext.1) and Postmortem report (Ext.2).

8. After closure of evidence, the statement of the appellant was recorded u/s 313 Cr.P.C and after hearing the parties, the trial court convicted the appellant under Section 302/34 IPC and sentenced him as aforesaid.

9. After going through the evidences of this case specially from the medical report, we find that the death was caused due to extensive burn injury of 85%. It is not the case of the defence that the deceased died an accidental death. This clearly proves that the death is homicidal. Ext.1 is the written report, which was written by the police at the instance of the deceased, but the scribe was not examined. The husband of the deceased (P.W.3) stated that the said statement was given in his presence at Referral Hospital, Rajdhanwar. The

Page/4 defence has taken a plea that the said statement cannot be taken to be a dying declaration as there is no endorsement to the effect that the deceased was not in a fit state of mind to give the aforesaid statement. It is well settled principle that if a dying declaration inspires confidence and there is no ambiguity, the conviction can be solely based on the said dying declaration without any corroboration. But if there is some element of doubt, the aforesaid dying declaration needs corroboration. [Purshottam Chopra & Anr. Vs. State (Govt. of NCT of Delhi) reported in (2020) 11 SCC 489].

10. In this case, even if there is doubt as to whether the deceased could have made the statement or not, we observed that the facts stated in the dying declaration is duly corroborated by the evidence of P.Ws. 1 and 2. P.Ws. 1 and 2 are none but the sons of the deceased and they were present in the house at the time of occurrence. Though they were minor at the time of occurrence i.e. six years and four years, yet if a act like this is committed by close relative upon their mother, imprint of the crime remains in the mind of the children. It cannot be said that the imprint gets washed away. From the evidence of P.Ws. 1 and 2, we find that they have stated what happened on the fateful night of occurrence. They stated that it was Shushila Devi who poured kerosene oil on the person of the deceased and this appellant lit the fire, resulting the burn injury on the person of the deceased. The Doctor also found burn injury. The child witnesses stated that their father was not at home on the date of occurrence, which is also gets corroborated by P.W.3 as while he was returning, he came to know about the incident and he went to police station where the deceased was brought in burnt condition. His wife has stated as to how the entire incident had taken place and how this appellant burnt the deceased. Thus P.W.3 also supports the case of the prosecution. The recording of fardbeyan of the deceased by the police in Referral Hospital, Rajdhanwar is also a corroborative evidence. In view of the corroborative evidence, non-examination of the scribe is not fatal for the prosecution. The defence has not brought any material to suggest that the appellant is prejudiced due to non-examination of the I.O., who conducted the investigation. The evidences of the witnesses are consistent.

11. Under the facts and circumstances and in view of the evidence adduced, this Court finds that the Trial Court was absolutely justified in recording the judgment of conviction and order of sentence, as the guilt of the

Page/5 appellant has been proved by the prosecution beyond all reasonable doubt. Accordingly, the judgment of conviction dated 13.07.2018 and order of sentence dated 19.07.2018 passed by learned District and Additional Sessions Judge-II, Giridih in Sessions Trial No.63 of 2012 does not warrant any interference by this Court and, hence, it is affirmed.

12. In the result, this appeal is dismissed. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment.

13. In view of the dismissal of the present criminal appeal, I.A. No.11674 of 2022 stands dismissed.

(ANANDA SEN, J.)

GAUTAM KUMAR CHOUDHARY, J. - I agree.

(GAUTAM KUMAR CHOUDHARY, J.) Jharkhand High Court, Ranchi.

Dated: 17/09/2024.

NAFR/Anu-Cp3.

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