Jharkhand High Court
Santosh Mahato @ Santosh Kumar Mahato ... vs The State Of Bihar(Now Jharkhand) on 1 July, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:17327-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.282 of 1998(R)
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Santosh Mahato @ Santosh Kumar Mahato son of Kartik Mahato,
resident of Chota Lapang, P.S. Ichagarh, District Singhbhum West
.... .... .... Appellant(s)
Versus
The State of Bihar(now Jharkhand) .... .... ....Respondent(s)
With
Cr. Appeal (D.B.) No.312 of 1998(R)
------
1. Koila Gope son of late Mahindar Gope
2. Kala Gope @ Pagla son of Srikanto Gope
3. Paltan Gope son of Sri Ananta Gope
4. Hem Kanto Gope son of Sri Ananta Gope
5. Meghnath Mahato son of Banku Mahato
All residents of village Chota Lapang, P.S. Ichagarh, District
Singhbhum West .... .... .... Appellant(s)
Versus
The State of Bihar(now Jharkhand) .... .... ....Respondent(s)
------
CORAM:HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. Shubham Sinha, Amicus Curiae (both cases)
For the State : Mrs. Shweta Singh, A.P.P
Mrs. Vandana Bharti, A.P.P.
------
JUDGMENT
C.A.V.On 25.03.2025 Pronounced On: 01.07.2025
Per, Arun Kumar Rai, J.
1. Both the appeals emanate from the same impugned Judgment
and order of conviction as such, same are being heard together
and decided by this common Judgment.
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2. Both the appeals are preferred against the impugned Judgment of
conviction and order of sentence dated 22.09.1998 passed by
learned Additional Sessions Judge, Singhbhum West at Seraikella
in S.T. No. 146 of 1992 whereby appellants have been found
guilty under Sections 302/148/149 of I.P.C. and sentenced to
undergo life imprisonment under Section 302/149 of I.P.C. and
further sentenced to undergo R.I. for two years under Section 148
of I.P.C.
3. In the present case, FIR being Seraikella P.S. Case No.39/91
dated 05.06.1991 under Section 147/148/149/302/307/326 of
I.P.C. came into existence on the basis of fardbeyan of Bikram
Gope S/o late Gobind Gope resident of Chota Lapang P.S.
Ichgarh, District-West Singhbhum recorded on 05.06.1991 i.e.
Wednesday at 13:45 Hrs. in injured condition at Seraikella Sub-
Divisional Hospital, who allegedly stated before Daroga ji of
Seraikella P.S. that on 05.06.1991 he came to look after his case
in Seraikella Court alongwith his father and after completion of
Court work at about 12.30 P.M., they went to Dogi Ghat river to
take bath and the moment they reached near the river, all of a
sudden his villagers Koila Gope son of late Mahindar Gope, Kala
Gope son of Srikanto Gope came from backside and started
giving bhujali blow on him as well as his father and in the
meanwhile, Hero Gope son of Sikandar Gope, Hemanto Gope
Son of Ananto Gope, Paltan Gope son of Ananto Gope all
residents of Chota Lapang, P.S. Ichagarh, District West
Singhbhum and Santosh Mahato son of Kartik Mahato resident
of Bada Lapang P.S. Ichagarh, District West Singhbhum also
came and all of them started giving bhujali blow on them and on
account of which, they could not save themselves and all the
above said persons caused number of injury on their persons
specially on their heads on account of which his father
succumbed to injury in the hospital. The reason for quarrel
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assigned by informant is that case under Section 145 Cr.P.C. is
going on at Seraikella Court between them.
4. Record reveals that the above said informant referred to M.G.M
Hospital, Jamshedpur on the same day and he succumbed to
injury on 07.06.1991, as such, the above said fardbeyan has
become dying declaration of the informant/deceased.
5. After due investigation chargesheet has been submitted and after
taking cognizance of the offence, case was committed to the
court of sessions and thereafter charge has been framed against
accused persons to which the appellants-accused persons pleaded
not guilty and claimed to be tried.
6. To prove its case, prosecution has examined as many as eleven
witnesses and they are P.W.-1, Dr. Muralidhar Das who examined
Bikram Gope, informant (since deceased) and also recorded
dying declaration. P.W.-2, Pradeep Kumar Acharya is witness to
seizure of articles near the place of occurrence. P.W.-3, Khudiram
Gope and P.W.-5, Tupa Gope are the real brothers of informant
Bikram Gope (since deceased) s/o deceased Govind Gope. P.W.-
4, Amulya Gope is the maternal uncle (mama) of informant
Bikram Gope (since deceased). P.W.-6, Dr. Radhika Kumari
Sinha who has conducted autopsy of deceased Govind Gope.
P.W.-7, Balram Prasad Saw and P.W.-9, Nilkamal Gope are
witnesses to inquest report. P.W-8, Aswani Kumar Pati has been
tendered by prosecution. P.W.-10, Dr. Yogendra Nath has
conducted post mortem examination of informant Bikram Gope
and P.W.-11, Raj Narayan Singh is the I.O. of the present case.
7. Before discussion and/or analyzing the evidence available on
record, it is required to be noted at this stage, that in the present
case there are three dying declarations of deceased Bikram Gope.
First dying declaration is said to be recorded by Dr. Murlidhar
Das (P.W.-1) at Sub-Divisional Hospital Seraikella at 1.00 P.M.
on 05.06.1991 second dying declarations is said to be fardbeyan
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of the informant which has been recorded by I.O. (P.W.-11) of the
case at Sub-Divisional Hospital Seraikella at 13.45 Hrs. on
05.06.1991, whereas third dying declaration is oral dying
declaration which has been said to be made before Khudiram
Gope (P.W.-3), Amulya Gope (P.W.-4) and Tupa Gope (P.W.-5) at
M.G.M. Hospital, Jamshedpur on 06.06.1991. Learned trial court
relied upon all the three dying declarations and therefore, held
guilty all the accused persons in the present case.
8. Submission has been made on behalf of defence that admittedly
there is no eye witness in the present case and it is also not a case
of circumstantial evidence. Three material witnesses who are
Khudiram Gope (P.W.-3), Amulya Gope (P.W.-4) and Tupa Gope
(P.W.-5) are close blood relatives of deceased persons. Except
alleged three dying declaration, there is no iota of evidence in the
present case. Learned counsel further pointed out the injury
report (Exhibit-1) and submitted that it is not believable that a
person who has received so many injuries on his head that too
incised wound and few wounds indicate cutting of bone in scalp
also, could speak in the manner as allegedly recorded in first and
second dying declaration. Further it is argued that it is the
statement of Dr. Muralidhar Das (P.W.-1) who has stated that
condition of informant was serious, as such, he was immediately
referred to M.G.M. Hospital at Jamshedpur. Therefore,
considering the statement of Doctor (P.W.-1) also, two dying
declarations allegedly recorded at Seraikella Hospital cannot and
should not be believed by this Court. As far as, third dying
declaration is concerned, it is submitted that it is brain child of
family members of deceased persons to implicate the appellants
in the present case because the medical condition of the injured
clearly indicate that he could not speak that too after getting such
injuries. Upon aforesaid premises, prayer has been made that at
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least appellants are entitled for benefit of doubt in the present
matters.
9. Learned APPs submitted that learned trial court after analyzing
all the three dying declarations found these as genuine one and,
nothing is available on record which could make any of the dying
declaration suspicious. Apart from above said submission, it has
also been pointed out that accused persons/appellants were
interested to get the Bhu-daan land which was given to informant
side and as the appellants side objecting the same and this
objection culminated in village of two persons who were none
other than a father and son.
10.Heard the arguments advanced by learned Counsel for the parties
and perused the material available on record.
11.It is apposite to mention herein the legal propositions attributed
involving multiple dying declarartions, before proceeding to
examine the facts in hand of the present matter. The dying
declaration is based on the maxim "nemo moriturus praesumitur
mentire", which means, "no one at the time of death is presumed
to lie and he will not meet his Maker with a lie in his mouth".
Though a dying declaration is not recorded in the court in the
presence of the accused nor is it put to strict proof of cross-
examination by the accused, still it is admitted in evidence
against the general rule that hearsay evidence is not admissible in
evidence. The dying declaration does not even require any
corroboration as long as it inspires confidence in the mind of the
court and that it is free from any form of tutoring. At the same
time, dying declaration has to be judged and appreciated in the
light of surrounding circumstances. The whole point in giving lot
of credence and importance to the piece of dying declaration,
deviating from the rule of evidence is that such declaration is
made by the victim when he/she is on the verge of death. In the
judgment rendered by the Hon'ble Supreme Court in the case of
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Abhishek Sharma v. State (NCT of Delhi), reported in 2023
SCC OnLine SC 1358 has laid down various principles with
regard to cases involving multiple dying declarations which is
appreciated hereunder. Relevant Paragraphs of the judgment
reads as follows :
"8. 81 .This Court in Kamla v. State of Punjab (1993) 1 SCC 1 has held:
"5. It is well settled that dying declaration can form the sole basis of
conviction provided that it is free from infirmities and satisfies various tests
(vide Khushal Rao v. State of Bombay [AIR 1958 SC 22 : 1958 SCR 552 : 1958
Cri LJ 106]). The ratio laid down in this case has been referred to in a number
of subsequent cases with approval. It is also settled in all those cases that the
statement should be consistent throughout if the deceased had several
opportunities of making such dying declarations, that is to say, if there are
more than one dying declaration, they should be consistent. If a dying
declaration is found to be voluntary, reliable and made in fit mental condition,
it can be relied upon without even any corroboration. In a case where there
are more than one dying declaration if some inconsistencies are noticed
between one and the other, the court has to examine the nature of the
inconsistencies namely whether they are material or not. In scrutinising the
contents of various dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding facts and
circumstances."
8.2. In State of Punjab v. Parveen Kumar(2005) 9 SCC 769 this court further
observed:
"10. .... The court must be satisfied that the dying declaration is truthful. If
there are two dying declarations giving two different versions, a serious doubt
is created about the truthfulness of the dying declarations. It may be that if
there was any other reliable evidence on record, this court could have
considered such corroborative evidence to test the truthfulness of the dying
declarations..."
8.3. In Amol Singh v. State of M.P. (2008) 5 SCC 468,
"13. ... However, if some inconsistencies are noticed between one dying
declaration and the other, the court has to examine the nature of the
inconsistencies, namely, whether they are material or not. While scrutinising
the contents of various dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding facts and
circumstances."
8.4. Faced with multiple dying declarations, this Court in Lakhan v. State of
M.P. (2008) 5 SCC 468observed-
"21. ... In case there are multiple dying declarations and there are
inconsistencies between them, generally, the dying declaration recorded by the
higher officer like a Magistrate can be relied upon, provided that there is no
circumstance giving rise to any suspicion about its truthfulness. In case there
are circumstances wherein the declaration had been made, not voluntarily and
even otherwise, it is not supported by the other evidence, the court has to
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scrutinise the facts of an individual case very carefully and take a decision as
to which of the declarations is worth reliance."
This judgment was also referred to by this court recently in Makhan
Singh v. State of Haryana 2022 SCC OnLine SC 1019.
8.5. In Ashabai v. State of Maharashtra,the court observed:--
"15. When there are multiple dying declarations, each dying declaration has to
be separately assessed and evaluated and assessed independently on its own
merit as to its evidentiary value and one cannot be rejected because of certain
variations in the other."
8.6. In Jagbir Singh v. State (NCT of Delhi), (2019) 8 SCC 779 the following
principles were observed:
31. A survey of the decisions would show that the principles of declarations
can be culled out as follows:
....
31.6. However, there may be cases where there are more than one dying
declaration. If there are more than one dying declaration, the dying
declarations may entirely agree with one another. There may be dying
declarations where inconsistencies between the declarations emerge. The
extent of the inconsistencies would then have to be considered by the court. The
inconsistencies may turn out to be reconcilable.
31.7. In such cases, where the inconsistencies go to some matter of detail or
description but is incriminatory in nature as far as the Accused is concerned,
the court would look to the material on record to conclude as to which dying
declaration is to be relied on unless it be shown that they are unreliable;
31.8. The third category of cases is that where there are more than one dying
declaration and inconsistencies between the declarations are absolute and the
dying declarations are irreconcilable being repugnant to one another. In a
dying declaration, the Accused may not be blamed at all and the cause of death
may be placed at the doorstep of an unfortunate accident. This may be followed
up by another dying declaration which is diametrically opposed to the first
dying declaration. In fact, in that scenario, it may not be a question of an
inconsistent dying declaration buta dying declaration which is completely
opposed to the dying declaration which is given earlier. There may be more
than two."
8.7. In Uttam v. State of Maharashtra, (2022) 8 SCC 576, this court observed:
"15. In cases involving multiple dying declarations made by the deceased, the
question that arises for consideration is as to which of the said dying
declarations ought to be believed by the court and what would be the guiding
factors for arriving at a just and lawful conclusion. The problem becomes all
the more knotty when the dying declarations made by the deceased are found
to be contradictory. Faced with such a situation, the court would be expected
to carefully scrutinise the evidence to find out as to which of the dying
declarations can be corroborated by other material evidence produced by the
prosecution. Of equal significance is the condition of the deceased at the
relevant point in time, the medical evidence brought on record that would
indicate the physical and mental fitness of the deceased, the scope of the close
relatives/family members having influenced/tutored the deceased and all the
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other attendant circumstances that would help the court in exercise of its
discretion."
9. Having considered various pronouncements of this court, the following
principles emerge, for a Court to consider when dealing with a case involving
multiple dying declarations:
9.1 The primary requirement for all dying declarations is that they should be
voluntary and reliable and that such statements should be in a fit state of mind;
9.2 All dying declarations should be consistent. In other words, inconsistencies
between such statements should be 'material' for its credibility to be shaken;
9.3 When inconsistencies are found between various dying declarations, other
evidence available on record may be considered for the purposes of
corroboration of the contents of dying declarations.
9.4 The statement treated as a dying declaration must be interpreted in light of
surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits. The court has to
examine upon which of the statements reliance can be placed in order for the
case to proceed further.
9.6 When there are inconsistencies, the statement that has been recorded by a
Magistrate or like higher officer can be relied on, subject to the indispensable
qualities of truthfulness and being free of suspicion.
9.7 In the presence of inconsistencies, the medical fitness of the person making
such declaration, at the relevant time, assumes importance along with other
factors such as the possibility of tutoring by relatives, etc
12. Having meditated on the above-extracted principles, we now
proceed to examine them in the facts in hand of the present cases.
As the case of prosecution has been unfolded by I.O., therefore
we would like to discuss the evidence of I.O. first and thereafter
other evidence available on record. I.O. (P.W.-11) who has stated
in his testimony that on 05.06.1991 he was at Seraikella Police
Station. He was under probation at Seraikella Police Station and
on the same day while he was in crime meeting in the office of
Dy.S.P. at about 12.35 P.M., he got rumor (udti khabar) that two
persons got injured by someone near mandir at Dogi Ghat and he
reached to Dogi Ghat at 12.45 P.M. and Dy.S.P as well as
Inspector of police also followed him and reached there by jeep
and both the injured were brought to Seraikella hospital by jeep
at about 12.55 P.M. and while the injured were being taken to the
hospital, one injured (Govind Gope) succumbed to injury prior to
treatment and second injured was being treated by the doctor.
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Death inquest report of died person was prepared by this witness
and same has been marked as Exhibit-5. I.O. has also stated that
second injured Bikram Gope made fardbeyan which is in his
hand writing and signature and it also bore the thumb impression
of Bikram Gope and signature of one compounder R.P. Thakur.
Said fardbeyan has been marked as Exhibit-6. Thereafter, I.O.
sent the dead body for post mortem and inspected the place of
occurrence where one umbrella and one bag containing some
articles got recovered and seizure list was made on which
witness, Aswani Kumar Pati (P.W.-8) and Pradeep Kumar
Acharya(P.W.-2) put their respective signatures and the said
seizure list has been marked as Exhibit-8. During course of
treatment, injured Bikram Gope succumbed to injury on
07.06.1991, thereafter I.O. came to know about the same on
09.06.1991 and death inquest report was prepared.
13.P.W.-1 is the Dr. Murlidhar Das who examined injured Bikram
Gope and found injuries as:-
(i) Incised wound on right side in back middle of the
scalp. There were eight injuries in number:-
(a) 3"x1/2"x bone deep
(b) 4"x1/2"x cutting of the scalp bone
(c) 2.1/2"x1/2" x bone deep
(d) 2"x1/2"x bone deep
(e) 2"x1/2"x bone deep
(f) 3"x1/2" bone deep
(g) 4"x1/2"x bone deep
(h) 2.1/2"x1"x cutting of the bone.
(ii) Incised wound on the right index finger
1/2"x1/4"x1/4"
(iii) Scratch on the right neck 3"x1/4" skin deep
(iv) Incised wound right back of the scapular region:-
(a) 1"x1/4"x1/4"
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(b) 1"x1/2"x1/4"
14.Injury report has been marked as Exhibit-1. He has stated that he
has examined the injured on the requisition of police and he also
recorded the dying declaration of the injured in his pen and under
his signature and injured has put LTI in his presence. The dying
declaration has been marked as Exhibit-2. The injured was,
thereafter referred to M.G.M Hospital, Jamshedpur. At Para 8 of
cross-examination, P.W. 1 has stated that as the condition of
injured was serious, therefore he considered to record his dying
declaration and prior to that for saving life of the injured, he had
given treatment and examined him. The dying declaration was
got recorded in operation theater and at that time 3-4 sub-ordinate
staffs were present but no police officer was there. He has stated
that he requested police for recording dying declaration, but no
one turned up and even telephonically he requested S.D.O. to get
the dying declaration of injured be recorded, but no magistrate
was present. At Para 9, he has stated that injured had given dying
declaration in hindi and he asked him about the assailant, weapon
which he has recorded in dying declaration. He very fairly
conceded that part of the conversation from his side (question)
was not recorded and only answer of injured is recorded in dying
declaration. He further stated that injured had not lost
consciousness in spite of injuries and he was always conscious.
15.P.W.-3 Khudiram Gope and P.W.-5 Tupa Gope are real brothers
of deceased Bikram Gope and son of deceased Govind Gope who
stated that on the next day of the incident at 06.30 A.M. they
came to know about the incident from P.W.-4, Amulya Gope
(maternal uncle of P.W.-3 and P.W.-5) and thereafter, P.W.-3,
P.W.-4 and P.W.-5 went to Seraikella and met their advocate and
thereafter they went to police station and alongwith police
official they visited to Seraikella Hospital where dead body of
father of P.W.-3 and P.W.-5 was handed over to them and they
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cremated the same and thereafter all the three i.e. P.W.-3, P.W.-4,
and P.W.-5 proceeded for M.G.M Hospital, Jamshedpur and
reached there after sun set. These three witnesses further stated
that they went into the hall/room of the hospital where injured
Bikram Gope was on bed apart from other three patients and
when P.W. 3, Khudiram Gope asked about the incident then
injured Bikram Gope stated that Koila Gope, Kalo Gope, Paltan
Gope, Hemkant Gope, Santosh Mahato, Meghnath Mahato had
given blows to him as well as father at Dogi Ghat and thereafter,
police came and they were taken to hospital and father
succumbed to injuries. P.W.-3 has also stated that injured spoken
to him that accused persons were demanding land of Bhu-daan
and they committed the occurrence on account of not giving the
said land.
16.From the above stated discussions, it is clear that when police
official took injured Bikram Gope and his father, Govind Gope to
the hospital at Seraikella, Govind Gope died in the hospital prior
to treatment, whereas Bikram Gope after getting treatment by
Doctor (P.W.-1) had given dying declaration to P.W.-1 and
thereafter, I.O. (P.W.-11) of the case has also recorded his
fardbeyan which has also become dying declaration on account
of death of informant on 07.06.1991. Thereafter, two brothers
and mama of informant Bikram Gope (since deceased) namely,
Khudiram Gope (P.W.-3), Tupa Gope (P.W.-5) and Amulya Gope
(P.W.-4), have also stated that they heard from the mouth of
Bikram Gope regarding commission of offence by the hands of
six convicts of the present case. Therefore, there are three dying
declarations in the present case, first dying declaration (vide
Exhibit 2) recorded by Dr. Murlidhar Das, i.e. (P.W.-1), second
dying declaration recorded by I.O. (P.W.-11) of the case as
fardbeyan (vide Exhibit-6) and third-one is oral dying
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declaration made before brothers (P.W.-3 & 5) and mama (P.W.-
4) of the deceased.
17. It is admitted case of prosecution that there is no eye witness to
the incident and only dying declarations and evidence of P.W. 3,
P.W.-4 and P.W.-5 are on record which speaks about the inimical
relation between accused persons and deceased side and also oral
dying declaration before them.
18.Now in the backdrop of above stated material, we would like to
examine three alleged dying declarations one by one to determine
whether they are worthy of reliance. The first dying declaration
is reproduced herein:-
foØe xksi] firk&xksfoUn xksi] xzke&NksVk ykiqax]
Fkkuk&bZpkd] ftyk&flagHkwe gSSA
ekjusokyk& dkspyk xksi] firk&esgUnh xksi] NksVk ykiqax] Hkqtkyh
ls ekjkA
dkyks xksi] firk&JhdkUr xksi] NksVk ykiqax] iyVu xksi]
firk&vuUr xksi] gkFk esa Hkqtkyh Fkk] ftlls ekFkk esa ihNs ls
nkfguk rjQ dkV fn;kA buyksxksa ds lkFk&¼1½ esgukFk egrks]
firk&ckadq egrks] ¼2½ larks"k ekLVj egrks] firk&dkfrZd egrks Hkh
Fkk] gkFk esa Hkqtkyh FkkA
19. As far as first dying declaration is concerned, Dr. Murlidhar
Das (P.W.-1) has stated that injured was brought to hospital and
requisition was made by police official for the treatment of
injured Bikram Gope. Firstly, he examined and given treatment
and thereafter considering his serious condition, he recorded
above stated dying declaration of injured. He clearly stated in his
testimony that he put question to the informant and he answered
but he has only recorded the answer given by injured. P.W.-1 has
categorically stated that injured was conscious. There is no iota
of material available on record which could even remotely
suggest that any of the family members of the injured were
present at the hospital when the dying declaration was recorded
by doctor because I.O. (P.W.-11) of the case in his testimony has
stated that he heard the rumor about the incident while he was
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attending crime meeting in the office of Dy.S.P., then he
immediately rushed to place of occurrence and removed both the
injured and one of the injured (Govind Gope) immediately died
after reaching hospital and Bikram Gope was given treatment by
the doctor (P.W-1). Further P.W.-1 has stated that he requested
police for recording dying declaration but none turned up. He
also telephonically requested S.D.O. to get dying declaration
recorded but no Magistrate was present before him and
considering the serious condition of injured he recorded the
dying declaration. The said dying declaration is Exhibit-2 in the
present case.
20. At this stage testimony, of I.O. (P.W.-11) is required to be noted
wherein he has stated that he came across the fact that one dying
declaration has also been recorded by Dr. Murlidhar Das (P.W.-1)
while, he was inspecting the case file of the present case in court
on 12.06.1991. He has also stated that on 09.06.1991 he received
information from M.G.M. Hospital, Jamshedpur that informant
has died on 07.06.1991 and on 09.06.1991 he visited to M.G.M.
Hospital, Jamshedpur and has recorded the statement of
Khudiram Gope (P.W.-3), Amulya Gope (P.W.-5) and Tupa Gope
@ Tribhuvan Gope (P.W.-4). Definitely, it is very unusual
situation where the I.O. (P.W.-11) who brought injured to hospital
at Seraikella is unaware about recording of dying declaration by
the doctor (P.W.-1) who had given the first aid to the injured and
referred him to M.G.M. Hospital, Jamshedpur. Further I.O. (P.W.-
11) recorded the fardbeyan of the injured after elapse of 45
minutes on the same day in the same hospital and was unaware
about the dying declaration made by injured to the doctor (P.W.-
1). From perusal of above said dying declaration (first dying
declaration recorded by P.W.-1) it transpires that it has been seen
by A.C.J.M., on 11.06.1991. There is no corresponding order
sheet in the case record regarding placing the first dying
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declaration before learned A.C.J.M. Seraikella on 11.06.1991.
Even after going through the entire case record, we could not find
that how this dying declaration delivered to the court of learned
A.C.J.M. Seraikella, as I.O. (P.W.-11) was unaware about the
existence of the first dying declaration till 12.06.1991. Further
there is no material on record which could reveal that by whom it
was delivered to the court concerned and prior to delivery who
was the custodian. Ideally after recording the above said dying
declaration the doctor (P.W.-1) ought to have given it to the I.O.
(P.W.-11) of the concerned case who would have sent it to court
concerned, but same has not been done in the present case. As we
know, that accused is having no opportunity to cross examine the
maker of dying declaration, therefore dying declaration ought to
be believed by the Court which is beyond the smoke of suspicion
from any corner but as in the present case there is no explanation
on record that where the above said dying declaration was kept
and by whom it was kept and who had taken this to court
concerned as it was seen by learned Court (A.C.J.M., Seraikella)
on 11.06.1991 but same has been recorded on 05.06.1991 at
01.00 P.M. Further, in first dying declaration, it is said that
deceased has taken name of five persons as assailants and out of
five, allegedly three had stated to be given bhujali blows and
remaining two were also having bhujali in their hands. I.O. (P.W.-
11) has not recorded statement of Doctor (P.W.-1) under Section
161 Cr.P.C. who had recorded first dying declaration of the
deceased. In view of the aforesaid discussion, it is difficult for us
to place reliance on the above said first dying declaration.
21. Now, coming to second dying declaration, which is in the form
of fardbeyan recorded by I.O. (P.W.-11) at 13.45 P.M on
05.06.1991. I.O. has stated categorically in his testimony before
the Court that he was not aware about the recording of dying
declaration by the Doctor (P.W.-1). In view of such statement of
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I.O. (P.W.-11), it is clear that before recording fardbeyan I.O. was
not at all aware about the name of assailants and other particulars
regarding identity of injured as well as accused persons. Of
course, this fardbeyan does not find certificate from any doctor
that injured was in a fit state of mind to make statement.
However, this fardbeyan bore the signature of one compounder
R.P. Tiwary. It needs to refer herein the Judgment rendered by the
Hon'ble Apex court in the case of Sher Singh v. State of Punjab
reported in (2008) 4 SCC 265 wherein it has reiterated the legal
proposition laid by the constitution bench in Laxman v. State of
Maharashtra reported in (2002) 6 SCC 710 and held that in the
absence of medical certificate regarding the fitness of a person,
satisfaction of person recording the statement that the said
person being fit negate the doubt regarding veracity of such
statement. Relevant paragraph of the judgment reads as follows:
"15. In Laxman v. State of Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri)
1491 : AIR 2002 SC 2973] a Constitution Bench of this Court had an
occasion to consider similar aspects regarding veracity of dying declaration
where the doctor's certificate regarding the fitness of a person had not been
taken. This Court held that if the person recording the statement is satisfied
that the person was fit then the veracity of the declaration will not be
questioned".
22. Recapitulating the factual matrix of the present case, it transpires
that in the fardbeyan injured has stated that after completing
court work when both of them i.e. father and son at about 12.30
P.M visited to Dogi Ghat then all of a sudden his villagers Koila
Gope son of late Mahindar Gope, Kala Gope son of Srikanto
Gope came from backside and started giving bhujali blow on him
as well as his father and in the meanwhile, Hero Gope son of
Sikandar Gope, Hemkant Gope Son of Ananto Gope, Paltan
Gope son of Ananto Gope all residents of Chota Lapang, P.S.
Ichagarh, District West Singhbhum and Santosh Mahato son of
Kartik Mahato resident of Bada Lapang P.S. Ichagarh, District
West Singhbhum also came and all of them started giving bhujali
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blow on them and on account of which they could not save
themselves and all the above said persons caused number of
injury on their persons specially on their heads on account of
which his father succumbed to injury in the hospital and son was
given treatment and thereafter, he was referred to M.G.M.
Hospital, Jamshedpur and on the same date he was sent to
M.G.M. Hospital at Jamshedpur. I.O.(P.W.-11) of the case has
stated in his testimony that at 12.55 P.M. injured and his father
(who died in the hospital itself) brought to Seraikella Hospital.
I.O. (P.W.-11) has recorded the fardbeyan of the injured Bikram
Gope at 13:45 Hrs at Seraikella state dispensary. Testimony of
I.O. (P.W.-11) further reveals that after recording of fardbeyan, he
visited to the place of occurrence and seized the articles. That
articles include one bag and umbrella and bag was containing
few documents related to land and court case paper.
23. At this juncture, it is required to be noted that, at the time of
recording of fardbeyan none of the family members and/or
acquainted person(s) of the injured/informant were present in the
hospital because P.W.-3, P.W.-4 and P.W.-5 have categorically
stated in their respective testimony that they came to Seraikella a
day after the incident and met their advocate. Even the material
available on record including the cross examination of witnesses,
we do not find any iota of material which could suggest that
before recording of fardbeyan, injured was tutored or prompted
by any of the family members or any acquainted persons(s) of the
informant. It is also clear that when the fardbeyan of Bikram
Gope was being recorded, I.O. was having no piece of paper
related to injured and deceased which could give some inkling
towards the contents of fardbeyan. Then, one question which
cropped up in our mind is that, if injured Bikram Gope had not
stated the content of fardbeyan which contains the entire incident
including the name of the culprits, then how I.O. (P.W.-11) could
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know the same in absence of either family member(s) or any
acquainted person(s) of the injured. Entire cross examination of
all the witnesses is silent on this point that at the time of
recording of fardbeyan injured was prompted or tutored by any of
the family member(s) or acquainted person(s) rather defence has
chosen to give suggestion that injured was not in a position to
speak. In this fardbeyan, informant has taken the name of
assailant as Koila Gope s/o late Mahindar Gope, Kala Gope s/o
Srikanto Gope, Hiro Gope, Hemant Gope, Paltan Gope, Santosh
Mahato.
24. Incident is said to have occurred at 12.30 P.M. on 05.06.1991 and
fardbeyan got recorded by I.O. (P.W.-11) at 13.45 Hrs. on the
same day and this fardbeyan is the basis of FIR of present case
and perusal of fardbeyan reveals that it bore signature of learned
A.C.J.M dated 06.06.1991. It appears that there is no unnecessary
time lag between incident and lodging of FIR on the basis of
fardbeyan of injured and even sending the said FIR to court
concerned, so we are having no doubt from above angle also.
Learned Trial court record reveals that Kala Gope and Hiro Gope
are the same and one person. In alleged first dying declaration,
informant has allegedly taken name of five persons as assailants.
Four names of assailants are common in second dying
declaration but in second dying declaration name of Hemanto
Gope is taken as fifth assailant whereas in first alleged dying
declaration name of Meghnath Mahato was taken as fifth
assailant. Two brothers of informant (P.W.-3 and P.W.-5) in their
respective testimony have stated that there is animosity between
informant side and accused side on account of land (Bhu-
daan).Therefore, we come to the conclusion that second dying
declaration (fardbeyan of Bikram Gope) is voluntary, truthful
and is worth of reliance.
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25. As far as third dying declaration is concerned, it has come in
the testimony of P.W.-3, P.W.-4 and P.W.-5 that they came to
Seraikella on 06.06.1991 and met an advocate and alongwith
advocate they visited to Police Station and thereafter the hospital
and took the dead body of Govind Gope father of P.W.3 and
P.W.5 and cremated at Seraikella and thereafter they rushed to
M.G.M. Hospital, Jamshedpur and reached there after dusk,
where they found Bikram Gope admitted in the hospital and on
query by P.W.-3, injured Bikram Gope divulged the name of six
accused persons (five persons whose name was taken in
fardbeyan and one name of Meghnath Mahato whose name found
mentioned in alleged (first dying declaration) as the assailant and
on account of non-returning of Bhu-daan land, such occurrence is
said to be committed by those persons.
26. All the three witnesses have stated in their respective testimony
that doctors and sisters were present in the hall of the hospital
where apart from injured Bikram Gope other three patients were
also lying on the bed and two saline drips were being
administered in both the hands of injured and when P.W.-3 asked
about the incident then injured stated so and it was being heard
by P.W.-4 as well as P.W.-5. There is no medical paper brought
on record by the prosecution which could show that what sort of
medicines were administered to injured at M.G.M Hospital,
Jamshedpur but undoubtedly painkillers would have been
administered to him. P.W.-4 has stated that a bit less than half
hour taken by injured in disclosing the incident to them and
during this period, one nurse had also given injection to the
injured. All these three witnesses have said in the respective
testimony that the injured told them that Koila Gope, Kali Gope,
Paltan Gope, Hemkant Gope, Santosh Mahato and Meghnath
Mahato were the assailants. Conjoint reading of testimonies of
P.W.-3, P.W.-4 & P.W.-5 suggest that alleged incident said to be
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narrated by injured to his two brothers (P.W.-3 and P.W.-5) and
Mama (P.W.-4), appears to be improbable. This Court is having
hesitation to accept the versions of these three witnesses even on
account of fact that prior to coming to M.G.M Hospital,
Jamshedpur, they met with an advocate and I.O. also and by that
time, fardbeyan of injured had already been recorded. Possibility
of concoction by these three witnesses by saying that injured had
narrated the incident to them and took name of six assailants
cannot be ruled out. Therefore, we are of considered view that
alleged third oral dying declaration made before P.W.-3, P.W.-4
and P.W.-5 is not worthy of reliance.
27. In view of aforesaid discussion, we may conclude now that first
alleged dying declaration recorded by P.W.-1 and third alleged
oral dying declaration made before P.W.-3, P.W.-4 and P.W.-5
are not worthy of reliance and that's why we are discarding them.
But, as far as second dying declaration, which is in the form of
fardbeyan is concerned, we are of the considered view that it is
voluntary, truthful and worthy of reliance. Above stated aspect
has not been considered by learned trial court while passing
Judgment of conviction and order of sentence dated 22.09.1998
as it relied upon all the three dying declaration.
28.We, therefore, on the basis of discussion made hereinabove, are
of considered view that as the names of the five appellants have
been taken by the informant (since deceased) in the fardbeyan
(second dying declaration) excluding the name of the appellant
Meghnath Mahato, therefore, he is entitled for exoneration from
the charges.
29.Consequently, the Judgment of conviction and order of sentence
dated 22.09.1998, passed by learned Additional Sessions Judge,
Singhbhum West at Seraikella in S.T. No. 146 of 1992 is hereby
affirmed against all the appellants, except Appellant no.-5,
Meghnath Mahato.
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30. As a result, Cr. Appeal (D.B.) No. 282 of 1998(R) is dismissed
and as far as Cr. Appeal (D.B.) No. 312 of 1998(R) is concerned,
Appellant no.5, Meghnath Mahato s/o Banku Mahato is
acquitted, therefore, Cr. Appeal (D.B.) No. 312 of 1998 (R) is
partly allowed.
31. Since, the appellant, Meghnath Mahato is on bail, he is
discharged from the liability of his bail bond.
32. The remaining appellants are directed to surrender forthwith
before the learned trial court to serve the remainder of their
sentence.
33.We appreciate the assistance rendered by Mr. Shubham Sinha,
learned Amicus Curiae and consequently direct the Member
Secretary, High Court Legal Services Committee to extend the
stipulated fees to Mr. Shubham Sinha, learned Amicus Curiae
within a period of three weeks from the date of
receipt/production of a copy of this order.
34.Let trial court record be sent back to the court concerned.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
Jharkhand High Court, at Ranchi
Dated :- 01/ 07 /2025
Rajnish/-N.A.F.R
