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2020 DIGILAW 799 (JHR)

Jitendra Bhuiya v. State of Jharkhand

2020-08-24

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. In Sessions Trial No. 506 of 2006, the appellant has been convicted and sentenced for life and fine of Rs. 10,000/- for the offence under section 302 of the Indian Penal Code and RI for three years each under section 25(1-B) and section 27 of the Arms Act. 2. On 10.06.2006, Samsad Khan left home at about 9:30 PM to join his duty and on the way he found Jitendra Bhuiya standing near Bijali Ghar (power house). He was employed under Mr. Byas Jee who was an agent of Bansjora Colliery. Jitendra Bhuiya was an accused in a case of extortion in which he was a witness and he was threatening him not to depose in the Court. Jitendra Bhuiya followed him and threatened that he would kill him and at that time he noticed that Jitendra Bhuiya was carrying a pistol. Afraid, he started running but near Barhi godown Jitendra Bhuiya fired a shot at him and fled away. He fell on the ground and shouted whereafter Janmenjay Thakur who is residing nearby came running there. He asked him to call his son. Both carried him to BCCL Hospital, Loyabad where his statement was recorded by Binay Kumar Singh, officer-in-charge of Loyabad police station at about 22:15 PM. On the basis of the statement of Samsad Khan, Jogta (Loyabad) P.S. Case No. 69 of 2006 was registered under section 307 IPC and section 27 of the Arms Act against Jitendra Bhuiya. Samsad Khan was taken to different hospitals for treatment, but on 09.07.2006 at 16:55 PM he died. Accordingly, on 12.06.2006 the offence under section 25(1-B) (a) and section 26 of the Arms Act and under section 302 of the Indian Penal Code on 20.07.2006 were added in the report. 3. During the trial, the prosecution has examined seven witnesses and led in evidence Fardbeyan, formal FIR, post-mortem report, forensic report, seizure memo etc. 4. PW-3 and PW-4 are the seizure witnesses, however, in the Court they have stated that their signature was taken on plain paper. PW-5 is the Investigating Officer and PW-6 is the police officer who had recorded the statement of Samsad Khan at BCCL Hospital, Loyabad. PW-7, Dr. Debasish Sarkar has conducted autopsy on the dead body and found eight stitches on the abdomen of Samsad Khan and noticed one faecal fistula gunshot injury on him. 5. PW-5 is the Investigating Officer and PW-6 is the police officer who had recorded the statement of Samsad Khan at BCCL Hospital, Loyabad. PW-7, Dr. Debasish Sarkar has conducted autopsy on the dead body and found eight stitches on the abdomen of Samsad Khan and noticed one faecal fistula gunshot injury on him. 5. PW-5, the Investigating Officer has deposed in the Court that to north of the place of occurrence is the house of Babu Lal Thakur who is the father of PW-1. He was the first one who on hearing shouts of Samsad Khan had gone near him. He has deposed in the Court that he found firearm injury on Samsad Khan and called the son of Samsad Khan to the place of occurrence. PW-2, Chand Khan is the son of Samsad Khan. He has stated that PW-1 had informed him about the occurrence and they had taken Samsad Khan to BCCL Hospital where statement of his father was recorded by Binay Kumar Singh, officer-in-charge of Loyabad police station. PW-2 has put his signature on the statement of his father recorded by Binay Kumar Singh, PW-6. He has further stated that his father was referred to Central Hospital, Dhanbad and from there he was referred to Rabindranath Tagore Hospital, Kolkata for further treatment. 6. The learned Additional Sessions Judge, Fast Track Court No. IV, Dhanbad has held that testimony of PW-1 and PW-2 is sufficiently corroborated by the medical evidence and the prosecution has established that Jitendra Bhuiya has fired shot from the pistol which has caused serious injury to Samsad Khan. 7. Mr. Arwind Kumar, the learned counsel for the appellant contends that the so-called dying declaration of Samsad Khan is a manufactured document; there is no eye-witness to the occurrence; there are serious inconsistencies in testimony of PW-1 and PW-2 and; except PW-2, the son of the deceased, no one has said that Samsad Khan had revealed name of the appellant as the assailant. On these grounds the learned counsel for the appellant has contended that the appellant has been implicated in this case on suspicion only. On admissibility of dying declaration, the learned counsel for the appellant has relied on a decision in Munnu Raja vs. State of M.P. (1976) 3 SCC 104 . 8. On these grounds the learned counsel for the appellant has contended that the appellant has been implicated in this case on suspicion only. On admissibility of dying declaration, the learned counsel for the appellant has relied on a decision in Munnu Raja vs. State of M.P. (1976) 3 SCC 104 . 8. An accused can be convicted solely on the basis of dying declaration [Refer: Meesala Ramakrishan vs. State of A.P. (1994) 4 SCC 182 ] and it is not necessary that dying declaration must be corroborated by other evidence. The law is fairly settled that even on the basis of uncorroborated dying declaration conviction of an accused can be recorded [Refer: Jaswant Singh vs. State (Delhi Administration), (1978) 4 SCC 85 ]. The only requirement in law is that dying declaration should be free from blemishes and inspires confidence of the Court. 9. Section 32 of the Indian Evidence Act provides that statement of relevant fact by a person who is dead or cannot be found, etc., is relevant. The dying declaration can be written or oral and any statement made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, which relates to cause of death is a relevant fact and admissible in evidence. Sub-Section (1) to section 32 of the Indian Evidence Act explains that it is not necessary that at the time when statements considered relevant under section 32 of the Act are made the person who has made such statement was under the expectation of death. It further provides that not only the statement relating to the cause of death but also any of the circumstances of the transaction which resulted in the death is a relevant fact in a case in which the cause of that person’s death comes into question. 10. The statement of Samsad Khan was recorded on 10.06.2006 and he died on 09.07.2006. In his statement he has stated facts relating to his death and therefore his statement recorded on 10.06.2006 shall be treated as dying declaration. 10. The statement of Samsad Khan was recorded on 10.06.2006 and he died on 09.07.2006. In his statement he has stated facts relating to his death and therefore his statement recorded on 10.06.2006 shall be treated as dying declaration. He has suffered a pistol shot injury; the bullet had penetrated his body and, therefore, even if he had died about one month after he suffered the injury it can be safely assumed that he was fearing his death. PW-6 has admitted in the Court that when Samsad Khan gave his statement at BCCL Colliery Hospital, Loyabad the doctor was present there, however, he has not made inquiries from him and his signature was not taken on the statement of Samsad Khan, but, this infirmity would not cloud the statement of Samsad Khan with suspicion. The circumstances under which his statement was recorded by PW-6 are good reasons to dispense with the procedural requirements and safeguards which normally should be taken before recording dying declaration. PW-1 and PW-2 both have stated that Samsad Khan was in senses. PW-1 has stated that when he arrived at the place of occurrence Samsad Khan asked him to call his son. PW-6 has also stated that Samsad Khan was in full senses when he recorded his statement. The statement of Samsad Khan recorded by PW-6 has been endorsed by PW-2 and it is not in dispute that shortly after the occurrence statement of Samsad Khan was recorded by PW-6. According to the prosecution Samsad Khan had left home at about 9:30 PM and soon thereafter he was shot by the appellant. He was taken to the hospital where his statement was recorded at about 22:15 PM. An information was sent to the police station at 22:45 PM and the First Information Report was lodged at 23:30 PM the same day; the distance between the place of occurrence and the police station is about one kilometer. Another feature of this case is that the prosecution witnesses have stated that at the place of occurrence there was sufficient light and PW-2 has remain unshaken on this point during his cross-examination. PW-2 has further stated that his father told him that Jitendra Bhuiya had fired at him. Another feature of this case is that the prosecution witnesses have stated that at the place of occurrence there was sufficient light and PW-2 has remain unshaken on this point during his cross-examination. PW-2 has further stated that his father told him that Jitendra Bhuiya had fired at him. In these facts, we are of the opinion that the judgment in Munna Raja does not help the appellant and statement of Samsad Khan on the basis of which Jogta (Loyabad) P.S. Case No. 69 of 2006 was lodged is a reliable piece of evidence. The circumstances sought to be projected as suspicious by the learned counsel for the appellant are sufficiently explained through the evidence of PW-1, PW-2, PW-5 and PW-6 and the prosecution story that Samsad Khan suffered firearm injuries is corroborated by medical evidence. PW-3 and PW-4 have not supported the recovery of pistol from the house of the appellant and the bullet was not recovered from the place of occurrence and while so the forensic report that the pistol was found in working condition is of no avail to the prosecution because it cannot be established that the bullet which caused injury to Samsad Khan was fired from this pistol which was allegedly recovered from house of the appellant. However, in the light of medical evidence; the doctor has found one faecal fistula gunshot injury on Samsad Khan, which corroborates testimony of PW-1 and PW-2 the prosecution has proved that Samsad Khan had suffered firearm injury at the hands of the appellant. 11. However, we are of the opinion that conviction of the appellant under section 302 of the Indian Penal Code is not sustainable. 12. Under four clauses of section 300 of the Indian Penal Code four circumstances under which culpable homicide would amount to murder have been enumerated. Clause firstly provides that if the act which has caused death was done with an intention to cause death it would amount to murder. But, the circumstances in which the incident has happened do not establish that the appellant intended to cause death of Samad Khan. According to the prosecution after a chase the appellant has fired at Samsad Khan from behind. It is also not established that the direct and immediate cause of death of Samsad Khan was pistol shot injury caused by the appellant. According to the prosecution after a chase the appellant has fired at Samsad Khan from behind. It is also not established that the direct and immediate cause of death of Samsad Khan was pistol shot injury caused by the appellant. He was treated at three hospitals, however, none of the doctors who could have thrown light on his treatment and the nature of injury were examined by the prosecution. PW-7 has found abscess (pus) in the abdominal cavity and liver of Samsad Khan and according to him cause of death was defect of cardiomyopathy and secondary disease condition of liver and kidney. The act of the appellant would not fall under clause secondly and thirdly and it is also difficult to hold that the appellant knew that his act was so imminently dangerous that in all probability it must have caused death or such bodily injury as was likely to cause death, particularly, for the reason that he was chasing Samsad Khan and while chasing him fired on him. On such facts all that can be inferred is that he wanted to cause injury, grievous injury to Samsad Khan. He has not fired second shot at him and no circumstance has been pleaded by the prosecution which would show that he has taken undue advantage or acted in a cruel or unusual manner. In Raj Kishore Jha vs. State of Bihar, (2003) 11 SCC 519 , the Hon’ble Supreme Court has observed as under: “Taking into account the fact that the only shot was fired from a considerable distance in this case application of Section 302 IPC is ruled out, though there cannot be any rule that whenever one shot is fired from a distance, Section 302 IPC would not be applicable. It would depend upon the nature of the gun, the position of the assailant and the victim, obstructions from any intermediary object which may cause deflection of the shot and several other relevant factors. The appropriate applicable provision on the facts of the case is Section 304 Part II IPC so far as........” 13. In the aforesaid facts and circumstances of the case, we are of the opinion that the conviction of the appellant under section 302 of the Indian Penal Code is not proper and he is liable to be convicted under section 304 Part-I of the Indian Penal Code. 14. In the aforesaid facts and circumstances of the case, we are of the opinion that the conviction of the appellant under section 302 of the Indian Penal Code is not proper and he is liable to be convicted under section 304 Part-I of the Indian Penal Code. 14. Accordingly, the judgment of conviction of the appellant, namely, Jitendra Bhuiya under section 302 of the Indian Penal Code dated 27.08.2009 and the order of sentence of life imprisonment with fine of Rs. 10,000/- for the offence under section 302 of the Indian Penal Code dated 28.08.2009 passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Dhanbad in Sessions Trial No. 506 of 2006 are set-aside. 15. The appellant, above named, is convicted under section 304 Part-1 of the Indian Penal Code and sentenced to RI for ten years and fine of Rs. 10,000/-. 16. However, the judgment of conviction of the appellant, namely, Jitendra Bhuiya under sections 25(1-B) and 27 of the Arms Act dated 27.08.2009 passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Dhanbad in Sessions Trial No. 506 of 2006 is affirmed. 17. Mr. Ravi Prakash, the learned Spl. P.P. states that the appellant, namely, Jitendra Bhuiya, has served sentence of more than fourteen years, with remission, and presently he is lodged in Loknayak Jai Prakash Narayan Central Jail, Hazaribagh. 18. Accordingly, the appellant, named-above, shall be set free forthwith, if not required in connection to any other criminal case. 19. In the result, Criminal Appeal (D.B.) No. 1035 of 2009 is partly allowed, in the aforesaid terms. 20. In consequence thereof, I.A. No. 10510 of 2019 and I.A. No. 4080 of 2020 also stand disposed of. 21. We appreciate the assistance rendered by Mr. Amarendra Pradhan, the learned Amicus. 22. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. 23. Let lower court records be transmitted to the court concerned, forthwith. 24. Let a copy of the judgment be transmitted to the court concerned through “FAX.” Appeal allowed.