Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 59 (JHR)

Dular Pandit v. State of Jharkhand

2016-01-07

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT By Court : This appeal has been directed against the judgment of conviction and sentence dated 29.08.2005 and 31.08.2005 respectively, passed by Sri Sajjan Kumar Dubey, Addl. District and Sessions Judge, Fast Track Court-IV, Giridih in connection with Sessions Trial No.148 of 1990, corresponding to Rail (Gomo) P.S. Case No.02 of 1990, G.R. Case No.101 of 1990 whereby the learned Addl. Sessions Judge has held the appellants guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced them to undergo R.I. for life and also to pay fine of Rs.1000/- each and in default of making payment of fine, further R.I. for six months. 2. The prosecution case, as it appears from the fardbeyan of Murat Pandit recorded on 09.01.1990 at about 7.30 p.m. at referral hospital Dumari (Giridih), in brief, is that on 09.01.1990 informant had gone to Giridih court to know about the development of a case which was lodged against murder of his daughter Bishuni. In course of returning, at about 5.00 p.m. he boarded Dhanbad-Gaya passenger at Parasnath railway station. The informant noticed that appellants Dular Pandit, Kiti Pandit and Deglal Pandit were also present in the said compartment. As soon as the train proceeded, appellant Dular Pandit, who happens to be son-in-law of Murat Pandit, pushed Murat Pandit from the train as a result he fell down and sustained injuries on his person. Murat Pandit was removed to hospital for treatment where his fardbeyan was recorded and a case being Rail (Gomo) P.S. Case No.02 of 1990 under Section 326 and 307/34 of the Indian Penal Code was registered. After few minutes of recording of fardbeyan Murat Pandit died. Since Murat Pandit died, Section 302 of the Indian Penal Code was requested to be added and for that requisition was filed by the I.O. before the Court below. It is also disclosed in the fardbeyan that appellant Dular Pandit is none-else but son-in-law of Murat Pandit. The daughter of Murat Pandit has been done to death for which a case was lodged by Murat Pandit against Dular Pandit and Others and that case was pending at Giridih court and Murat Pandit had gone to know above development of that very case. After due investigation chargesheet under Section 302/34 of the Indian Penal Code against all the appellants was filed. After due investigation chargesheet under Section 302/34 of the Indian Penal Code against all the appellants was filed. Accordingly, cognizance was taken and the case was committed to the court of Sessions and registered as S.T. No.148 of 1990. The charge under Section 302/34 of the Indian Penal Code against all the appellants was framed on 02.01.1996 and they were put on trial. The prosecution has examined altogether five witnesses to substantiate the charge. The learned Additional Sessions Judge, after considering the evidence and documents on record, held the appellants guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced them as indicated above, hence this appeal. 3. Learned counsel appearing for the appellants have assailed the impugned judgment mainly on the ground that it was a case of an accident but the informant has given it a colour of murder. As a matter of fact, it was a coincidence that the appellants and the deceased boarded in the same compartment of same train. The statement given by the informant clearly indicates that there was crowd in the compartment and the informant was compelled to stand on the door. As soon as the train moved from Parasnath railway station, due to jostling he fell down from the running train and sustained injuries on his person. The informant was removed to hospital for treatment but under vengeance he has named the appellants and levelled allegation that push was given by appellant Dular Pandit as a result he fell down and sustained injuries. Learned counsel has submitted that appellant Dular Pandit had been facing consequence of a case which was lodged by his wife for grant of maintenance and for the offence punishable under Section 498A of the Indian Penal Code. Taking advantage of that situation and the coincidence that the appellants were also present in the same compartment, the informant has levelled allegation to take revenge. The contention of the informant does not find support from any other witness though admitted case of the prosecution is that occurrence took place at Parasnath railway station where passengers were present. No copassenger has been examined to corroborate the prosecution case. The learned Addl. Sessions Judge, placing reliance on the fardbeyan of the informant and considering it to be a dying declaration, has held the appellants guilty. No copassenger has been examined to corroborate the prosecution case. The learned Addl. Sessions Judge, placing reliance on the fardbeyan of the informant and considering it to be a dying declaration, has held the appellants guilty. The findings of trial Court is highly erroneous and based on misappreciation of facts. The fardbeyan could not be considered as dying declaration because certificate from the doctor has not been taken, it bears L.T.I. of Murat Pandit. From the statement of PW1 Chulham Ram it appears that within 57 minutes after recording of fardbeyan Murat Pandit died. Had it been so, it can well be said that Murat Pandit was not in position to give any statement. 4. Learned counsel appearing for appellant nos.2 and 3 namely Kiti Pandit and Deglal Pandit has submitted that conviction is recorded relying on the fardbeyan which has been considered as dying declaration. In the fardbeyan, the deceased has not levelled any allegation against these two appellants. They have been made accused and held guilty with the aid of Section 34 of the Indian Penal Code and the findings of the trial court is erroneous on this account. Traveling in the same compartment could not be an offence. No overt act was committed by any of them. In the circumstances, the judgment of conviction and sentence recorded against appellant nos.2 and 3 namely Kiti Pandit and Deglal Pandit is liable to be set aside. 5. Learned A.P.P. Sri Ravi Prakash has opposed the argument and submitted that learned Addl. Sessions Judge has rightly considered the fardbeyan as dying declaration. The fardbeyan of deceased was recorded in presence of staff of the hospital namely Chulahan Ram and he has also signed the fardbeyan. Said Chulahan Ram has been examined as PW1 and he has fully corroborated the statement given by the deceased. He supports this fact that fardbeyan of Murat Pandit was recorded by the police in his presence. He has further stated that Murat Pandit died within few minutes of recording of the fardbeyan. The Investigating Officer PW4 has fully supported the investigation done by him and he has proved fardbeyan Exhibit-3/1, forwarding note on fardbeyan Exhibit-3/2. Injury slip was issued and that has been proved as Exhibit-4. The injury report has been proved as Exhibit-5 and Inquest Report has been proved as Exhibit-1. The Investigating Officer PW4 has fully supported the investigation done by him and he has proved fardbeyan Exhibit-3/1, forwarding note on fardbeyan Exhibit-3/2. Injury slip was issued and that has been proved as Exhibit-4. The injury report has been proved as Exhibit-5 and Inquest Report has been proved as Exhibit-1. Therefore, the prosecution case finds support from the investigation done by the I.O. 6. We have examined the impugned judgment and perused the deposition of witnesses and the documents proved and marked as exhibit. Murat Pandit after giving his fardbeyan died in the referral hospital, Dumari and therefore, said fardbeyan has been considered as dying declaration by the trial court. It reveals from the fardbeyan that relation between Dular Pandit and Murat Pandit was not cordial. Daughter of Murat Pandit was married with Dular Pandit and she was not happy with her conjugal life and she had lodged a case against her husband Dular Pandit for grant of maintenance and a criminal case was also lodged for the offence punishable under Section 498-A with allied sections of the Indian Penal Code. It is further disclosed that Murat Pandit had gone to Giridih Court to know about development in the case which was lodged by his daughter against appellant Dular Pandit. In course of returning Murat Pandit boarded in the same compartment of Dhanbad-Gaya passenger train in which the appellants were present from before. Of course, it was a coincidence but overt act alleged to have been committed by appellant Dular Pandit is not a coincidence, rather it was intentional and this fact finds support from the fardbeyan of Murat Pandit which has now been considered as dying declaration. We do not feel inclined to disbelieve the story narrated by Murat Pandit in his fardbeyan because it finds support from the evidence of independent witness Chulahan Ram who is none-else but staff of referral hospital, Dumari and he was present in the ward where Murat Pandit was admitted for his treatment. It is not that PW-1 Chulahan Ram has simply supported the recording of fardbeyan but he has also supported the contention made in the fardbeyan too. Needless to mention that Chulahan Ram was not at all acquainted with the litigation prevailing between the appellant and the deceased. Furthermore, the Investigating Officer has also proved the fardbeyan which was recorded in the referral hospital, Dumari. Needless to mention that Chulahan Ram was not at all acquainted with the litigation prevailing between the appellant and the deceased. Furthermore, the Investigating Officer has also proved the fardbeyan which was recorded in the referral hospital, Dumari. Subsequent investigation done by the I.O. finds support from the documents proved. We have also examined statement of appellant Dular Pandit recorded under Section 313 Cr.P.C. He did not say that Murat Pandit had fallen from the train accidentally. He has simply denied the question put to him. The injuries sustained find support from the post mortem report which has been proved by Dr. Ajit Kumar Sahay, PW5. There appears nothing against appellant Kiti Pandit and Deglal Pandit in the fardbeyan of Murat Pandit which has now been considered as dying declaration. Only because they were also present in the compartment of said train, they could not be held liable for the offence of murder with the aid of Section 34 of the Indian Penal Code. It is nowhere stated by any of the witnesses, even in fardbeyan that they had committed any overt act or participated in any manner for committing the offence. In that view of the matter, we are of the considered opinion that appellants Kiti Pandit and Deglal Pandit deserve acquittal. In the result, judgment of conviction and sentence recorded by learned Addl. Sessions Judge in connection with Sessions Trial No.148 of 1990 as against appellants Kiti Pandit and Deglal Pandit stands set aside. They are discharged from the liability of their respective bail bonds and set at liberty. So far appellant Dular Pandit is concerned, there is nothing on record to disbelieve fardbeyan of Murat Pandit which has now been considered as dying declaration. Therefore, we do not intend to make interference in the findings of learned Addl. Sessions Judge as against appellant Dular Pandit and the appeal preferred by him stands dismissed. Learned counsel Sri Pradeep Kumar has been appointed from Jharkhand State Legal Services Authority to assist the Court on behalf of appellant Dular Pandit and therefore, he is entitled to receive required fee from JHALSA. Let a copy of this judgment be communicated to appellant Dular Pandit in jail. Appeal dismissed.