Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 297 (JHR)

Bishu Rajwar v. State Of Jharkhand

2020-02-13

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2020
JUDGMENT Shree Chandrashekhar, J. - The sole appellant has faced the trial on the charge under section 302 of the Indian Penal Code for committing murder of Balika Rajwar, his wife. 2. In Sessions Trial No.347 of 2008, the appellant has been convicted and sentenced to R.I for life and fine of Rs.10,000/- under section 302 of the Indian Penal Code. 3. On the basis of the fardbeyan of Pabia Rajwar which was recorded on 29.01.2008 by Sita Ram Prasad, Sub-Inspector of Police, Chas P.S, at Muskan Hospital, Chas and which was sent to the Officer-in-Charge of Chirkunda P.S through a requisition (daak), Chirkunda (Panchet) P.S. Case No.19 of 2008 has been lodged against the appellant on 01.02.2008. After the investigation a charge-sheet was filed against the appellant and he has faced the trial on the charge of committing murder of his wife. 4. During the trial, the prosecution has examined 7 witnesses; the informant is P.W.6. In his defence, the accused-appellant has examined his brother and father as the defence witnesses and produced computerized treatment bill from Muskan Hospital, Chas. 5. There is no eye-witness to the actual occurrence. The case set up by the prosecution against the appellant is primarily based on oral dying declaration of Balika Rajwar before her brother, sister and mother. In '' Arun Bhanudas Pawar Vs. State of Maharashtra'' reported in (2008) 11 SCC 232 , the Supreme Court has held that it is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination. In '' Arvind Singh Vs. State of Bihar'' reported in (2001) 6 SCC 407 , the Supreme Court has explained the law on oral dying declaration, thus: ''Dying declarations shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence.'' 6. The informant has stated in her fardbeyan that her daughter was married to the appellant about 8 years ago and since her daughter was not able to bear a child her husband was abusing and assaulting her. The informant has stated in her fardbeyan that her daughter was married to the appellant about 8 years ago and since her daughter was not able to bear a child her husband was abusing and assaulting her. In the night of 12.01.2008 her daughter was set on fire by the appellant and she was admitted at Dhanbad hospital and then she was admitted at Muskan Hospital, Chas. There she was called by the family members of the appellant. In the hospital, her daughter has narrated the entire story to her. In the court, the informant has reiterated that at Muskan Hospital after she regained conscious her daughter has told her that her husband has killed her because she was not able to bear a child. P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 have also deposed in the court that the appellant who used to abuse his wife because she was not able to bear a child has killed his wife by setting her on fire. 7. On such evidence, conviction of an accused can be recorded for committing murder of his wife but what has transpired during cross-examination of the prosecution witnesses leads us to take a different view of the matter. 8. In the present case, the doctor who has conducted the post-mortem examination has not been examined and since the post-mortem report has not been proved through any medical officer authorised on behalf of the doctor, the cause of death of Balika Rajwar is not proved by the prosecution. 9. Under section 45 of the Indian Evidence Act, 1872 opinions of the experts are relevant. Section 293 of the Code of Criminal Procedure provides that a report of a scientific expert may be used as evidence in any enquiry, trial or other proceeding but such report must be proved through the expert or if the expert is unable to attend personally through any responsible officer working with him. Chapter IV of the Indian Evidence Act, 1872 deals with oral evidence. Section 59 of the Indian Evidence Act, 1872 provides that all facts except (content of documents or electronic records), may be proved by oral evidence. Section 61 of the Indian Evidence Act, 1872 provides that contents of a document may be proved either by primary or by secondary evidence. Section 59 of the Indian Evidence Act, 1872 provides that all facts except (content of documents or electronic records), may be proved by oral evidence. Section 61 of the Indian Evidence Act, 1872 provides that contents of a document may be proved either by primary or by secondary evidence. A document in original if produced during the trial is a primary evidence, however, contents of a document unless the maker is examined cannot be read in evidence. In terms of section 293 of the Code of Criminal Procedure a post-mortem report needs to be proved by the doctor who has conducted the examination or a person who is conversant with the facts of the case and can satisfactorily depose in the court on behalf of the doctor. In '' Munna Kumar Vs. State of Bihar'' reported in (2005) 12 SCC 209 , finding that the post-mortem report was not proved in terms of section 293 of the Code of Criminal Procedure, the Supreme Court has observed that the appellant was entitled for the benefit of doubt. It has been held that the prosecution should have produced the best evidence by proving the post-mortem report by examining the doctor or any other person acquainted with the hand-writing of the doctor who had prepared post-mortem report. 10. By now, it is well-settled that conviction of an accused can be recorded on the basis of oral dying declaration and in a case of multiple dying declaration even though there is some inconsistency in the dying declarations, but if the court finds one of the dying declarations reliable on that basis alone conviction of an accused can be recorded. However, there are certain safeguards indicated in the judgments of the Supreme Court which have to be kept in mind before conviction of a person is recorded on the basis of the dying declaration. In '' Tapinder Singh Vs. State of Punjab'' reported in (1970) 2 SCC 113 , the Supreme Court has observed that the weak points of a dying declaration merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances. 11. According to the prosecution, the occurrence has taken place in the night of 12.01.2008 and an information to the police has been given on 29.01.2008. 11. According to the prosecution, the occurrence has taken place in the night of 12.01.2008 and an information to the police has been given on 29.01.2008. The prosecution witnesses have stated that Balika Rajwar has told them in the hospital that her husband has killed her by setting her on fire. From such evidence, it must be concluded that Balika Rajwar, when she was admitted in the hospital, was conscious but her statement was not recorded by the police there. It is also important to record that it is not a case set up by the prosecution that an information to the police was given when Balika Rajwar was admitted in the hospital. During the cross-examination the informant and her sister were confronted with their statement recorded before the police under which they have not stated that Balika Rajwar told them that her husband has killed her. In his cross-examination, the investigating officer has also admitted that the informant and Sushila Devi have not stated before him that Bishu Rajwar has killed his wife by setting her on fire. 12. In '' Atbir Vs. Govt. (NCT of Delhi)'' reported in (2010) 9 SCC 1 , the Supreme Court has observed as under: ''22. The analysis of the above decisions clearly shows that: (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction..'' 13. Apparently, the story of oral dying declaration of Balika Rajwar before the prosecution witnesses is not reliable. P.W.3 has admitted that his statement was not recorded by the police. P.W.4 who is sister of the deceased has stated during her cross-examination that she does not know who has admitted Balika Rajwar in the hospital but the mother of the deceased admits that in-laws of her daughter have admitted her at PMCH, Dhanbad and on her request she was taken to Muskan Hospital, Chas. She has also admitted that expenses for treatment of her daughter have been paid by her husband. The statement of P.W.5 who is another sister of the deceased reflects that the relationship between the appellant and his wife was good. 14. She has also admitted that expenses for treatment of her daughter have been paid by her husband. The statement of P.W.5 who is another sister of the deceased reflects that the relationship between the appellant and his wife was good. 14. The accused-appellant has set up a defence that in the night his wife caught fire due to fall of a dhibri (oil lamp) and at that time he was at a kirtan and when he received the information about the incident he has taken his wife to the hospital. During their cross-examination, the defence witnesses have remained unshaken and nothing material could be elicited from them so as to reject their evidence altogether. 15. In the aforesaid facts, a considerable doubt is created on the prosecution story. 16. In the final analysis, we find that the prosecution has failed to establish that the chain of circumstances is complete and that the appellant has committed the crime. 17. Therefore, the judgment of conviction dated 01.07.2013 and the order of sentence of R.I for life and fine of Rs. 10,000/- under section 302 of the Indian Penal Code dated 03.07.2013 passed by learned 3 rd Addl. Sessions Judge, Dhanbad in Sessions Trial No. 347 of 2008 against the appellant, namely, Bishu Rajwar are set-aside. 18. Mr. P.K. Choudhary, the learned APP, states that the appellant is in custody. 19. Accordingly, the appellant, namely, Bishu Rajwar shall be set free forthwith if not wanted in connection with any other criminal case. 20. In the result, Criminal Appeal (DB) No. 622 of 2013 is allowed. I.A. No. 8613 of 2019 is allowed. 21. Let the lower-court records be transmitted to the court concerned, forthwith.