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2024 DIGILAW 645 (PAT)

Ram Janki Devi, w/o Laldeo Rai v. State of Bihar

2024-07-15

CHANDRA SHEKHAR JHA

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JUDGMENT : (Chandra Shekhar Jha, J.) This appeal has been preferred by the appellant/convict under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the impugned judgment of conviction and order of sentence dated 28.11.2003 passed by learned Presiding Officer, Additional Court No.2, Patna in Sessions Trial Case No.26(A) of 1990/360 of 2001, whereby the concerned Trial Court has convicted the appellant/convict for the offence punishable under Section 304 Part-II read with 34 of the Indian Penal Code (for short ‘IPC’) and sentenced to undergo rigorous imprisonment for three years. 2. The case of prosecution is based upon fardbeyan of the informant/deceased, Jadunandan Rai, recorded by A.S.I. Subedar Singh on 30.08.1986 at 1.30 pm. in which the informant stated that on 30.08.1986 at 7.00 am, co-accused, namely (i) Suresh Rai (ii) Harami Rai, both sons of Laldeo Rai, (iii) Indradeo Rai brother of Laldeo Rai (iv) Laladeo Rai and (v) the appellant, namely, Ram Janki Devi, wife of Laldeo Rai, who were neighbours of the informant came at the door of the informant, where the accused Suresh Rai, Harami Rai were armed with bhalaand the remaining three accused persons were armed with lathi, accused Suresh Rai said as the informant is not giving them passage in the gali,therefore asked other accused to uproot the Khambha(poles), and upon so, accused persons started uprooting the poles. The informant protested it, whereupon accused Suresh Rai gave a bahlablow, which hit him on his right leg, accused Harami Rai also gave a bhalablow, which hit him on his left hand and the remaining three accused including the appellant started assaulting him with lathi saying that he is still alive. It is said that the informant raised alarm, upon so, people from the neighbourhood gathered, resultantly, accused persons fled away and then Shankar Thakur and Krishna Rai brought him on cot to Nalanda Medical College and Hospital (for short ‘NMCH’), where he was admitted for treatment and subsequently died. 3. On the basis of aforesaid fardbeyan, the police registered Didarganj P.S. Case No.52 of 1986 dated 31.08.1986 for the offences punishable under Sections 447, 323 and 324 read with 34 of the IPC against the appellant and four other co-accused persons, where after the investigation, the police submitted charge-sheet, accordingly. 4. 3. On the basis of aforesaid fardbeyan, the police registered Didarganj P.S. Case No.52 of 1986 dated 31.08.1986 for the offences punishable under Sections 447, 323 and 324 read with 34 of the IPC against the appellant and four other co-accused persons, where after the investigation, the police submitted charge-sheet, accordingly. 4. The learned trial court on the basis of materials collected during investigation, framed charge against the appellant/convict 28.09.1994 for the offence under Sections 302 read with 34 of the IPC against the appellant/convict, which she pleaded “not guilty” and claimed trial. 5. To substantiate its case, the prosecution has examined altogether four witnesses. They are:-(i) PW-1 Shankar Thakur; (ii) PW-2 Damanti Devi, (iii) PW-3 Krishna Rai and (iv) PW-4 Dr. Rajesh Sinha. 6. Apart from the oral evidence, the prosecution has also relied upon postmortem report, which is Exhibit No.1. 7. On the basis of evidence as surfaced during the trial, the learned trial court has examined the appellant/accused under Section 313 of the Code, where she completely denied her involvement by denying the incriminating evidences surfaced during the trial and stated that she was implicated with this case falsely and claimed her innocence. 8. No witness was examined by appellant/convict during the trial in her defence and further no documents were also exhibited in support. 9. Taking note of the evidence as surfaced during the trial and the arguments as advanced by the parties, the learned Trial Court has convicted the appellant/convict/accused for the offences under Sections 304 Part-II read with 34 of the IPC and sentenced her in the manner as stated above. 10. Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant/convict has preferred the present appeal. 11. Hence, the present appeal. 12. Learned counsel appearing on behalf of the appellant/convict submitted that there are material contradictions surfaced out of deposition of prosecution witnesses during the trial on the basis of which the conviction as recorded by learned trial court against the appellant/convict is bad in the eyes of law and same is fit to be quashed and set aside. It is submitted by learned counsel that PW-1, namely, Shankar Thakur during trial failed to depose that the appellant/convict was equipped with lathi. It is submitted by learned counsel that PW-1, namely, Shankar Thakur during trial failed to depose that the appellant/convict was equipped with lathi. It is also submitted that PWs-2 and 3 are not appearing the eye-witnesses of the occurrence and, therefore, their testimonies are not appearing so much relevant as to arrive on the conclusion of conviction as recorded by the learned trial court. It is pointed out that PW-4 is doctor, who conducted autopsy upon deceased/informant. The prosecution has failed to examine the Investigating Officer of this case during the trial and, as such, formal FIR, fardbeyan and place of occurrence etc. not appears to be proved during trial by the prosecution. It is also submitted that due to non-examination of the Investigating Officer, the contradictions as drawn towards the earlier statement of prosecution witnesses as recorded under Section 161 of the CrPC was not taken, which is amounting to defying the valuable defence right of the appellant/convict. 13. Learned APP while opposing the present appeal submitted that in view of deposition of prosecution witnesses, it cannot be said that non-examination of Investigating Officer of this case is fatal for prosecution. It is also pointed out that informant of this case, namely, Jadunandan Rai, who himself was injured and died after two days of the occurrence and, therefore, he could not be examined. It is further submitted by learned APP that the legal position is now well settled that the FIR lodged by the deceased, attained the character and legal status of dying declaration, if the victim/deceased died before examination in the court. In support of his submission, learned APP relied upon the legal report of Hon’ble Supreme Court as passed in the matter of Dharampal vs. State of Uttar Pradesh [ (2008) 17 SCC 337 ]. 14. Taking note of aforesaid submission of learned APP, it is further submitted by learned counsel for the appellant/convict that no doubt a dying declaration can be the sole basis of conviction but, it must be trustworthy, voluntary, blemishes and reliable. It is submitted that conviction can only be secured on the basis of close scrutiny, as maker of the dying declaration cannot be called to cross-examine. It is submitted that conviction can only be secured on the basis of close scrutiny, as maker of the dying declaration cannot be called to cross-examine. It is pointed out that in present case, FIR could not be taken as dying declaration for the reason that the statement of informant/injured/deceased, which was recorded by A.S.I., Subedar Singh of Alamganj Police Station was not examined during the trial. In support of his submission, learned counsel for the appellant/convict relied upon the legal report of Hon’ble Supreme Court as passed in the matter of Poonam Bai vs. State of Chhattisgarh [ AIR 2019 SC 2130 ]. 15. I have perused the trial court records carefully and gone through the evidences available on record as also considered the rival submissions as canvassed by learned counsel appearing on behalf of the parties. 16. PW-1 Shankar Thakur, who is an independent witness being neighbour of informant/deceased. He is a witness of assembling of accused persons including appellant/convict. From his deposition, it appears that the cause of occurrence was land dispute. He specifically stated regarding co-accused persons i.e. Laldev Rai, Suresh and co-accused Harami Rai assaulted deceased by means of dangerous weapon like Bhala, whereas he deposed in very general and omnibus manner against the appellant/convict even without naming her as to involve in physical assault, which was alleged to caused by lathi along with other co-accused persons. During cross-examination, he stated that he remains at his door, which was about 20 steps ahead of actual place of occurrence. 17. PW-2 & 3, namely, Damanti Devi and Krishna Rai, who were not appearing as eye-witness of the real occurrence because from the opening deposition of PW-2 during her examination-in-chief, it appears that at the time of occurrence, she was busy with cooking and she came to the place of occurrence only upon alarm and cry. She further stated that before she reached at place of occurrence, by that time, her husband received injuries and was already fell down to the ground. These two specific deposition is sufficient to suggest that PW-2 is not the eye-witness of the occurrence and, therefore, her specific deposition that appellant/convict was equipped with lathi is not appears to be convincing. She further stated that before she reached at place of occurrence, by that time, her husband received injuries and was already fell down to the ground. These two specific deposition is sufficient to suggest that PW-2 is not the eye-witness of the occurrence and, therefore, her specific deposition that appellant/convict was equipped with lathi is not appears to be convincing. Similarly, PW-3 Krishna Rai deposed in his examination-in-chief that by the time of occurrence he was busy with field work and when he came to his courtyard, he found that his brother Yadunandan Rai was lying over there in injured condition. He clearly stated during cross-examination that he was not the eye-witness of the occurrence. 18. From the deposition of PW-4 Dr. Rajesh Sinha, who is the doctor and a formal witness, who conducted autopsy upon informant/deceased. It appears from his deposition that he could not ascertain the cause of death and for that purpose viscera was preserved, whereas as per his opinion, it was due to “respiratory failure”. He categorically deposed that he did not examine injuries before postmortem. 19. As far submission regarding acceptance of formal FIR as dying declaration is concerned, as raised by learned APP while arguing on behalf of the State, it cannot be safe to accept it as dying declaration for the simple reason that the person who recorded it, i.e. A.S.I. Subedar Singh, could not examined during trial and, therefore, on the basis of FIR alone, where injured/deceased alleged specifically that this appellant/convict assaulted him with lathi cannot be accepted. Moreover, prosecution also failed to examine Investigating Officer (I.O.) of this case. 20. Accordingly, appeal is allowed. 21. The impugned judgment of conviction and order of sentence dated 28.11.2003 passed by learned Presiding Officer, Additional Court No.2, Patna in Sessions Trial Case No.26(A) of 1990/360 of 2001 is quashed and set aside. The appellant, Ram Janki Devi is acquitted from the aforesaid charge levelled against her. 22. The appellant namely Ram Janki Devi is on bail, she is being discharged from her liabilities of bail bonds. 23. Office is directed to send back the trial court records along with a copy of the judgment to the learned trial court forthwith.