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2009 DIGILAW 108 (JHR)

Shib Ratan Kumhar v. State of Bihar

2009-01-22

PRASHANT KUMAR, R.K.MERATHIA

body2009
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 02.12.1999 passed by learned Sessions Judge, Singhbhum West at Chaibasa Camp at Seraikella in S.T. No. 224 of 1996 whereby and whereunder the appellants are convicted under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act and were sentenced to undergo life imprisonment under Section 302 of the lndian Penal Code. However no separate sentence has been passed under Section 27 of the Arms Act. 2. The case of the prosecution in short as per the F.I.R. is that on the date of occurrence at 5:00 P.M. while the informant P.W. 3 (wife of deceased) was cooking food in her house, P.W. 2 Gurua Munda came and informed that two persons had shot fire on her husband while he was returning from market. It is further alleged that informant alongwith other villagers went to the place of occurrence with food and water. It is further stated that the deceased after taking water, informed the informant and other villagers that the appellants had shot fire on his back and because of injury he would not survive. It is further stated that after aforesaid statement the deceased died. It appears that on the basis of aforesaid statement of the informant the present case was instituted by the police took up investigation. After completion of investigation, the police submitted charge sheet in the court of Additional Chief Judicial Magistrate, Seraikella, who took cognizance in the case. It further appears that since the case is exclusively triable by the court of Sessions, the same was committed to the court of Sessions. 3. After the commitment, the charges were framed against the appellants vide order dated 5th April, 1997 under Section 302/34 of the Indian Penal Code and also under Section 27 of the Arms Act. It then appears that the prosecution had examined altogether ten witnesses and also proved inquest report and post-mortem report in support of its case. It further appears that after closing of the evidence of the prosecution the accused-appellants were examined under Section 313 of the Code of Criminal Procedure in which their defence is of total denial. 4. It further appears that after hearing the parties, learned court below has convicted and sentenced the appellants as aforesaid against which the present appeal has been filed. 5. 4. It further appears that after hearing the parties, learned court below has convicted and sentenced the appellants as aforesaid against which the present appeal has been filed. 5. Learned counsel for the appellants submitted that the present case is based on oral dying declaration of the deceased. It is further submitted that the alleged dying declaration dose not found corroboration from the medical evidence and therefore the same can not be accepted. It is further submitted that the appellants have not been given adequate opportunity to explain the circumstances relied upon by the court below for convicting the appellants i.e. dying declaration. As the same is mandatory as per clause (1) (b) of Section 313 of the Cr.P.C. the same vitiates the trial. Accordingly it is submitted by the learned counsel for the appellants that the judgment of the court below can not be sustained in this appeal. 6. On the other hand Shri T.N. Verma, Additional P. P. submitted that it is true that in the instant case there is no eye witness to the occurrence but in view of the dying declaration of the deceased which remain unchallenged, the appellants have been rightly convicted by the court below. So far as the objection raised by the appellants under Section 313 of the Cr.P.C. is concerned, it is submitted by Shri Verma that on the ground of technicality, the judgment of conviction can not be set aside. Accordingly he submits that there is no illegality and irregularity in the judgment of court below which requires any interference by this court. 7. Having heard the contention of the parties, we have gone through the record of the case and evidence available on it. Admittedly there is no eye witness of the occurrence. From perusal of evidence available on record, we find that P.Ws. 3 & 4 had stated in their evidence that deceased had disclosed before them that these appellants had shot fire on his back but the statement of these two witnesses does not find corroboration from the evidence of the doctor (P.W. 10). P.W. 10 in his autopsy report had specifically stated that he found one entry wound on the chest of deceased which shows that the deceased received injury from the front whereas, dying declaration says that the fire was made from the back. Thus there is contradiction in the dying declaration and medical evidence. 8. P.W. 10 in his autopsy report had specifically stated that he found one entry wound on the chest of deceased which shows that the deceased received injury from the front whereas, dying declaration says that the fire was made from the back. Thus there is contradiction in the dying declaration and medical evidence. 8. So far the point of law is concerned; Section 313 of the Cr.P.C. makes it obligatory for the court to give opportunity to the accused to explain all circumstances which has come in evidence against him. In a decision reported in (2007) 12 SCC 341 in the case of Ajay Singh vs. State of Maharashtra their Lordships had held as follows: "The question must be framed in such a way so as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 Cr.P.C. was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.”. 9. From perusal of statement of the accused taken by the court below under Section 313 of the Cr.P.C. we find that the court below has not put any question on which it is going to convict the accused. Rather, it appears that the court below only explained the charges leveled against the appellants. Moreover the court below had not put any question relating to dying declaration. 10. Thus, we find that so far as the dying declaration is concerned, no question was put to the appellants and they have not been given any opportunity to explain the same. Thus in our view the aforesaid discrepancy gives fatal blow to the case of prosecution. 11. Considering the aforesaid facts and circumstances, we find that there is material illegality and irregularity in the impugned judgment of conviction and order of sentence passed by the court below and in that view of the matter, the same can not be sustained in this appeal.. 12. In the result, this appeal is allowed. 11. Considering the aforesaid facts and circumstances, we find that there is material illegality and irregularity in the impugned judgment of conviction and order of sentence passed by the court below and in that view of the matter, the same can not be sustained in this appeal.. 12. In the result, this appeal is allowed. The impugned judgement of conviction and order of sentence is set aside. The appellants are acquitted from the charges leveled against them. It is submitted by learned counsel for the appellants that the appellants are in custody and, therefore, they are directed to be released forthwith, if not wanted in any other case.