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2018 DIGILAW 883 (JHR)

Dijan Mandal v. State of Bihar (Now Jharkhand)

2018-04-19

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction and Order of sentence dated 20th of January, 1996, passed by the learned Additional Sessions Judge, Sahebganj, camp at Rajmahal, in S.T. No. 723 of 1993, whereby, the accused Dijan Mandal has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code, on the allegation that he had committed the murder of his own father. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the said offence. 3. The prosecution case was instituted on the basis of fardbeyan of the deceased Ranjit Mandal himself, recorded while he was alive and undergoing treatment at Rajmahal Hospital, on 24.10.1987 at about 11.20 hours. The deceased Ranjit Mandal had stated in the fardebyan that on the same day at about 7.00 A.M. in the morning, his son Dijan Mandal was going to the mill with all the paddy available in the house, i.e., about 20 KG of paddy, for getting it thrashed, whereupon the informant told him to leave some paddy for him also, whereupon his son became furious and he threw down the paddy, brought a sword from the house and assaulted him by sword with the intention to cause his death and stating that he would finish him, causing injuries on his head and hand. When his wife came to his rescue, she was also abused in filthy languages. Upon the noise, the persons nearby reached and the accused fled away. The informant was brought for treatment to the hospital, where his fardbeyan was recorded. On the basis of the fardbeyan of the informant, Rajmahal P.S. Case No. 192 of 1987, corresponding to G.R. No. 377 of 1987, was instituted, for the offence under Sections 307/324 of the Indian Penal Code, against the accused Dijan Mandal and investigation was taken up. It may be stated that in course of treatment, the informant died on 27.10.1987, and accordingly, Section 302 of the Indian Penal Code was added in the case. After investigation, the police submitted the charge-sheet in the case. 4. It may be stated that in course of treatment, the informant died on 27.10.1987, and accordingly, Section 302 of the Indian Penal Code was added in the case. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the sole accused for the offence under Section 302 of the Indian Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, the prosecution has examined eight witnesses in the case, including the I.O. and the Doctor, who had examined the deceased, while he was alive, and had also conducted the post-mortem examination upon the dead body. 5. This is a case, in which, all the material witnesses, examined by the prosecution, i.e., P.W.-1 Subol Mandal, P.W.-2 Koeli Devi, the mother of the accused and the wife of the deceased, and P.W.-3 Salik Mandal, have turned hostile and have not supported the prosecution case at all. The prosecution case solely depends upon the dying declaration of the deceased, which was recorded in the presence of the treating Doctor, by the Judicial Magistrate. 6. P.W.-5 is Md. Numan Ali, the Judicial Magistrate, who had recorded the dying declaration of the deceased. He has stated that on 24.10.1987 he was posted as Judicial Magistrate, 1st Class, at Rajmahal, on which date, he had recorded the dying declaration of Ranjit Mandal at Referral Hospital, Rajmahal, in the presence of the In-charge Medical Officer, Dr. P.K. Singh. He has stated that Ranjit Mandal was in position to give statement and he recorded the statement, which he has proved to be in his handwriting and signature, on which, the endorsement was also made by Dr. P.K. Singh. He has proved the dying declaration, which was marked Exhibit-3. This witness was put to cross-examination, wherein he has stated that at the time of recording the statement, the deceased was in the position to give his statement and he has also stated that though there was no endorsement below the thumb impression of the deceased, but he had written in the dying declaration that the statement of Ranjit Mandal was recorded. 7. P.W.-6 is Dr. P.K. Singh, who had examined the deceased while he was alive and he had also conducted the post-mortem examination on the dead body of the deceased. 7. P.W.-6 is Dr. P.K. Singh, who had examined the deceased while he was alive and he had also conducted the post-mortem examination on the dead body of the deceased. This witness has stated that on 24.10.1987, he had examined Ranjit Mandal and found the following injuries on his person:- “(i) Sharp cut 9”x ½” x 2” extending from right maxillary area, cutting maxillary bone, right eyeball and socket, frontal bone, temporo-parietal bone and extending up to last of parietal bone. (ii) Sharp cut 1” x ½” x ¼ " on dorsum of left forearm. He has stated that the weapon used was sharp cutting weapon and nature of the injury No. (i) was grievous and injury No. (ii) was simple, and they could be caused by sword. He has identified the injury report to be in his pen and signature, which was marked Exhibit-4. This witness has again stated that on the same day, he had sent the requisition to the Police Station for recording the dying declaration of the injured, as he was critically serious. He has proved the requisition, which was marked Exhibit-5. He has stated that on the same day, the dying declaration of Ranjit Mandal had been recorded by Md. Numan Ali, Judicial Magistrate, in his presence and the statement recorded also bears his endorsement and signature, which he has also identified and was marked Exhibit-3/1. This witness further stated that on 27.10.1987, he informed the Police Station that Ranjit Mandal expired at 7.25 A.M., on the same day, and he has also proved the said document, which was marked Exhibit-6. He had conducted the post-mortem examination on the dead body of the deceased on 27.10.1987 itself. He has also proved the post-mortem report to be in his pen and signature, which was marked Exhibit-7. Though this witness was put to lengthy cross-examination, but there is nothing of much importance in his cross-examination. 8. P.W.-4 is Harbeshwar Prasad Singh, the I.O. of the case. This witness has stated that on 24.10.1987 he was posted at Rajmahal Police Station as officer-Incharge. On that day he recorded the fardbeyan of Ranjit Mandal, on the basis of which, the case was instituted under Sections 307, 324 of the Indian Penal Code. He has proved the fardbeyan recorded in the case diary and the same was marked Exhibit-1. This witness has stated that on 24.10.1987 he was posted at Rajmahal Police Station as officer-Incharge. On that day he recorded the fardbeyan of Ranjit Mandal, on the basis of which, the case was instituted under Sections 307, 324 of the Indian Penal Code. He has proved the fardbeyan recorded in the case diary and the same was marked Exhibit-1. Thereafter he proceeded for the place of occurrence and he inspected the same, which is the house of the deceased, where he had found a lot of blood, which he had seized before the witnesses. He recorded the statements of the witnesses. This witness has stated that as the condition of the deceased was serious, on the recommendation of the treating Doctor, the dying declaration of the deceased was recorded by Md. Numan Ali, Judicial Magistrate, in presence of the Doctor. His attention was drawn towards the statements of the hostile witnesses, which he has properly answered. This witnesses has further stated that on 27.10.1987, he was informed by the treating Doctor that the deceased had died, whereupon, he reached the hospital and prepared the inquest report. He has proved the inquest report, which was marked Exhibit-2. He tried to arrest the accused, but he was absconding and as such, he submitted the charge-sheet in the case. In his cross-examination, he has admitted that he had not sent the seized blood for forensic examination and the seizure list was also not proved in the Court. He has also admitted that he had not seized the paddy from the place of occurrence. 9. P.W.-7 Ajit Kumar Das is formal witness, who has proved the fardbeyan and the formal FIR, to be in the writing and signature of P.W.-4 Harbeshwar Prasad Singh, which were marked Exhibits-8 and 9 respectively. P.W.-8 Sudhir Chandra Saha is also a formal witness, who has only proved one explanation submitted by Sheristedar-cum-G.R. Clerk, Rajmahal, which was marked Exhibit-10. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein, the accused has denied the evidence against him and his attention was also drawn towards the dying declaration of his father, which was denied by him. No defence evidence was adduced in the case. Relying upon the dying declaration of the deceased, the Trial Court below has convicted and sentenced the appellant for the offence as aforesaid. 11. No defence evidence was adduced in the case. Relying upon the dying declaration of the deceased, the Trial Court below has convicted and sentenced the appellant for the offence as aforesaid. 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, all the material witnesses examined in the case, including the wife of the deceased, had turned hostile and had not supported the prosecution case. It has been submitted that the prosecution case rests only on the alleged dying declaration of the deceased father of the accused. Since there is no corroboration of the dying declaration by any witnesses, the same cannot be used against him. Learned counsel further submitted that in any event, only one injury was found on the head of the deceased and in that view of the matter, it cannot be said that the assault was made with the intention to cause the death. As such, the offence is not made out under Section 302 of the Indian Penal Code, rather the offence, if any, is made out only under Section 304 of the Indian Penal Code. Learned counsel accordingly, submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below are fit to be set-aside. 12. Learned counsel for the State on the other hand has submitted that the entire prosecution case rests upon the dying declaration of the deceased. The Judicial Magistrate recording the dying declaration, P.W.-5 Md. Numan Ali, has fully proved the dying declaration as Exhibit-3, stating that the deceased was in a position to give his dying declaration and the same had been recorded in the presence of treating Doctor, who also made his endorsement and signature thereon. It is submitted by the learned counsel for the State that even if this dying declaration had not been recorded, it is a fit case, in which, the FIR itself could be treated as a dying declaration of the deceased, and the conviction of the accused could be based on the basis of the FIR itself. The statement given in the dying declaration, is fully corroborated by P.W.-6 Dr. P.K. Singh and the injury report and the post mortem report proved by him as Exhibits-4 and 7 respectively. The statement given in the dying declaration, is fully corroborated by P.W.-6 Dr. P.K. Singh and the injury report and the post mortem report proved by him as Exhibits-4 and 7 respectively. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the record, we find that the case rests only on the dying declaration of the deceased father of the accused. The first statement was made by the deceased, which was recorded in the form of fardbeyan by the Police Officer, in which, he had given in detail the manner of the occurrence, stating that his son had assaulted him by sword with the intention to cause his death. The assaults were made on the head and the forearm. The dying declaration, which has been proved as Exhibit-3, was recorded by P.W.-5 Md. Numan Ali, the Judicial Magistrate, in the presence of the treating Doctor, P.W.-6 Dr. P.K. Singh, which also shows that in the said dying declaration also, the deceased had stated that his son Dijan Mandal had assaulted him by sword. The statement of the deceased is fully corroborated by the medical evidence of P.W.-6 Dr. P.K. Singh, who had found the sharp cut injury on the head of the deceased extending from right maxillary area, cutting maxillary bone, right eyeball and socket, frontal bone, temporo-parietal bone and extending up to last of parietal bone. The magnitude of the force by which the assault was made by the sword causing such injury, clearly shows that it was made with the intention to cause death of the deceased, and the injury was sufficient in ordinary course of nature to cause the death of the deceased. Indeed, the FIR clearly shows that the assault was not only made with the intention to cause the death, rather while making the assault the accused was even uttering that he would finish the deceased. There was even repetition of the blow on the deceased, though, the said blow had hit the forearm of the deceased. Indeed, the FIR clearly shows that the assault was not only made with the intention to cause the death, rather while making the assault the accused was even uttering that he would finish the deceased. There was even repetition of the blow on the deceased, though, the said blow had hit the forearm of the deceased. In that view of the matter, the submission of the learned counsel for the appellant that the offence is not made out under Section 302 of the Indian Penal Code, rather the offence is made out only under Section 304 of the Indian Penal Code, cannot be entertained. 14. In the present case we find force in the submission of the learned counsel for the State that even the fardbeyan of the deceased could be treated as his dying declaration. However, the dying declaration of the deceased was also recorded separately by the Judicial Magistrate in presence of the treating Doctor, and it is testified that the deceased was in the position to give his dying declaration. Even though the dying declaration is not corroborated by any witness, as all of them had turned hostile, but the fact remains that the dying declaration of the deceased inspires confidence and there is no contradiction in his fardbeyan and the dying declaration. We are of the considered view that in the facts of this case the conviction of the accused can safely be based on the dying declaration of the deceased, who is none else than the own father of the accused, and there appears to be no reason as to why the deceased would falsely implicate his own son. In our considered view, the prosecution has been able to bring home charge against the appellant beyond all reasonable doubts on the basis of the dying declaration of the deceased, and there is no illegality in the impugned Judgment of conviction and order of sentence passed by the learned Trial Court below. 15. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 20th of January, 1996, passed by the learned Additional Sessions Judge, Sahebganj, camp at Rajmahal, in S.T. No. 723 of 1993, convicting and sentencing the sole appellant Dijan Mandal, for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. The appellant Dijan Mandal is on bail. The appellant Dijan Mandal is on bail. His bail is cancelled and he is directed to surrender in the Court below forthwith to serve out the sentence passed by the Trial Court below. The Trial Court below is also directed to issue process forthwith compelling the surrender/production of the appellant Dijan Mandal for serving out the sentence. 16. We find no merit in this appeal, and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.