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IN THE HIGH COURT OF JUDICATURE AT PATNA
Hemant Kumar Srivastava, Prabhat Kumar Singh, JJ.
Munna Shukla - Appellant
Versus
State Of Bihar - Respondent
Criminal Appeal No. 301 of 1994
Decided On : 18-01-2020
Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – Dying declaration which is not recorded by a Magistrate has to be scrutinized closely but if Court is satisfied on a close scrutiny of dying declaration that it is truthful, it is open to court to convict accused on its basis without any independent corroboration – Before relying upon a dying declaration, court must decide that declarant was in a fit state of mind to make declaration but where eye witnesses' evidence to that effect was available, mere absence of doctor's certification as to fitness of declarant's state of mind would not ipso facto render dying declaration unacceptable – Dying declaration can form sole basis for conviction but at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect truth. (Paras 24, 25 and 26)
Indian Penal Code, 1860 – Section 302 – Arms Act, 1959 – Section 27 – Murder – Life sentence – Doctor, who gave permission to ASI to record the fard-e-beyan of deceased, was not examined by prosecution before trial court and non-examination of doctor by prosecution appears to be fatal for prosecution case because it was said doctor, who was competent to say as to whether deceased was in fit state of mind to made statement or not – Doctor, who had permitted ASI to record statement of deceased, was not examined and, as such, fard-e-beyan of deceased appears to be doubtful and it would not be safe to place reliance upon so-called fard-e-beyan of deceased – When prosecution failed to put so-called dying declaration of deceased before appellant at the time of recording his statement under Section 313 of Code of Criminal Procedure, a serious prejudice was caused to appellant – Impugned judgment of conviction and sentence order set aside and appellant acquitted of charges framed against him giving benefit of doubt. (Paras 30 to 35)
AIR 1979 SC 190; (2002)6 SCC 710; (2007) 15 SCC 465 – Relied.
JUDGMENT
Hemant Kumar Srivastava, J. - The above stated sole appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and 27 of the Arms Act and has been sentenced to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and rigorous imprisonment for a term of seven years for the offence punishable under Section 27 of the Arms Act by learned 1st Additional Sessions Judge, Bhagalpur in Sessions Trial No. 437 of 1992 / 31 of 1992 vide judgment of conviction and sentence order dated 13.5.1994. However, both the sentences were ordered to run concurrently.
2. Mojahidpur P.S. Case No. 158 of 1988 under Sections 307 and 326 of the Indian Penal Code and 27 of the Arms Act was registered on 19.11.1988 on the basis of fard-e-beyan of Jayant Kumar, who made his statement before Ram Chandra Prasad (P.W. 10), the then A.S.I. of Kotwali Police Station, on 19.11.1988 at about 9.30 P.M. at B.M.C.H. Emergency Ward, to this effect, that on the same day, he along with P.W. 1 Pappu @ Pradip Sah and P.W. 5 Sadanand Lall Chaurasia was going to the house of Sadanand Modi to take Prasad and at about 9 P.M., when he as well as above stated two persons reached near Sikandarpur Panhatta Chowk, appellant shot fire of his pistol on him from his back, which hit to him. He, further, claimed that one Shyam Krishna Modi and one unknown persons was also along with appellant, when appellant opened fire on him. He, further, claimed that having sustained injury, he as well as P.W. 1 and P.W. 5 saw the appellant and his associates and identified them and after that he as well as P.W. 1 and P.W. 5 ran towards the house of Sadanand and they entered inside the house of Sadanand and bolted the room from inside but appellant and the above stated two persons followed them and they started pushing the door and also hurled abuses. He, further, claimed that after sometime, the door was opened but in the meantime, appellant and his associates had already fled away from there. He, further, claimed that P.W. 1, P.W. 5 and P.W. 8 (Ratneshwar Vishwakarma) and P.W. 9 (Arun Kumar Sah) witnessed the occurrence and with the help of some other people, they brought him to B.M.C.H. on a rickshaw for treatment where his treatment was going on. However, he expressed his inability to say the motive behind the alleged occurrence. The formal first information report was drawn up on the same day and was sent to Court through special messenger but the formal first information report and fard-e-beyan of the Jayant Kumar informant were produced before the Chief Judicial Magistrate, Bhagalpur on 21.11.1988. It is pertinent to note here that in course of treatment, informant Jayant Kumar died and Section 302 of the Indian Penal Code was added.
3. P.W. 13 Sitaram Singh took charge of investigation and recorded the further statement of informant Jayant Kumar and also recorded the statements of other witnesses. He inspected the place of occurrence but before completion of investigation, he handed over charge of investigation to P.W. 11 Raj Shekhar Prasad by the order of Superintendent of Police, Bhagalpur.
4. P.W. 11 Raj Shekhar Prasad after completion of investigation submitted charge-sheet against appellant and two others.
5. The cognizance of the offence was taken and case was committed to the court of Sessions.
6. The appellant was put on trial before Additional Sessions Judge, Bhagalpur in Sessions Trial No. 437 of 1992 / 31 of 1992 as the two charge-sheeted accused, namely, Shyam Kishore Modi and Pradip Kumar Verma died before commencement of trial.
7. The appellant stood charged for the offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act for causing the death of Jayant Kumar and using firearm for committing the murder of said Jayant Kumar. The appellant denied the charges and claimed to be tried.
8. In order to prove the charges, prosecution examined, altogether, 1
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