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SUDHIR SINGH and Dr. ANSHUMAN, JJ.
Criminal Appeal (DB) No.745 of 2015
(3.3.2023)
Hopna Murmu ... Appellant
vs.
State of Bihar ... Respondent
Criminal Law – Appreciation of evidence – Testimony of an eye witness must not be dangling – There should be no major inconsistency or contradiction and testimony must be free from blemish and devoid of any ambiguity, uncertainty and loopholes – In criminal law loose, contradictory and uncorroborated statements cannot be relied upon, much less than forming basis of conviction. (Para 8)
Indian Penal Code, 1860 – Section 302 – Murder – Life sentence and fine of Rs.10,000/- awarded – Prosecution has onus to establish not only mens rea and actus reus, but also causative link, that is, prosecution has to objectively establish by sufficient evidences that it was conduct of that particular accused only which resulted in death of deceased – In present case, there is no sufficient material on the record to establish causal connection between conduct of accused and actus reus – There are glaring inconsistencies in testimony of informant and same cannot be considered a cementing material to fill in missing gap – Evidence of prosecution is qualitatively and quantitatively insufficient to bring nexus between conduct of appellant and commission of offence alleged against him – Dying declaration can form sole basis of conviction – Nonetheless, establishing genuineness of dying declaration is a condition precedent to placing reliance and forming it sole basis of conviction – In present case, neither has I.O. taken doctor's certificate regarding deceased's fitness of orientation and deposition at relevant point of time nor has any person been made a witness to alleged recording of dying declaration, even though deceased was in custody of doctor and his daughter was present at that time – There are sufficient doubts as to credibility of alleged dying declaration – Injury report has not been collected by I.O. and same has not been brought on record – Such conduct on part of Investigating Officer, speaks volumes about laches on his part – There is sharp contradiction between testimony of prosecution witnesses and post-mortem report of deceased – Failure on part of prosecution to prove any source of identification, certainly casts dent on story of prosecution – Prosecution has failed to prove its case beyond all reasonable doubts – Judgment of conviction and order of sentence set aside – Appeal allowed. (Paras 8, 9, 10, 11, 12, 13 and 14)
Criminal Procedure Code, 1973 – Section 173 – Crime investigation – Investigating police are primarily guardians of liberty of individuals – Having been given duty to deal with investigation of a criminal case, they must act in accordance with equity, justice, good conscience, reasonableness, non-arbitrariness, fairness and in accordance with principles of natural justice – Diligence, truthfulness and honesty must be modus operandi – However, where default on part of investigating police is so flagrant that it speaks volumes of an irresponsible attitude with utter disregard to established cannons of criminal procedure, same cannot be brushed aside. (Para 10)
Criminal Law – Appreciation of evidence – In criminal law, onus on prosecution is to prove each allegation by cogent and reliable evidences – Degree of onus in criminal cases is not only to the extent of mere preponderance of probabilities, rather, degree of standard required to be met is that of 'beyond all reasonable doubts' – In a criminal trial, it is duty of Court to ensure that mere conjectures or suspicion do not take place of legal proof – Suspicion, howsoever strong or probable it may be, is not a substitute for legal proof required to substantiate charges against accused for commission of crime – It would be a travesty of justice to rely upon suspicion/conjectures in a criminal case. (Paras 11 and 12)
Sudhir Singh, J. – The present criminal appeal has been preferred against the judgment of conviction dated 04.07.2015 and order of sentence dated 06.07.2015 passed by Sri A.K. Tiwary, Additional District and Sessions Judge-I, Kishanganj in Sessions Trial No. 1184 of 2011 (arising out of Dighalbank P.S. Case No. 31 of 2011) whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’) and sentenced him to undergo rigorous imprisonment for life and also imposed fine of Rs. 10,000/- and in default of payment of fine, simple imprisonment for six months has also been awarded.
2. The prosecution case as per the fardbeyan of informant namely Joshana Murmu (P.W.4) recorded before the police officer of Dighal Bank Police Station on 13.07.2011 at about 11.30 p.m. is that on the same day i.e. 13.07.2011 at about 8.30 P.M., father of informant namely Sufal Murmu was sitting at his house at village Karuwamani and the informant was also present there when informant’s brother Hopna Murmu reached along with a dabia and stated that informant’s father only takes care of his daughter and spends his earning on her. Thereafter informant’s brother having enraged assaulted her father on his neck with dabia from behind as a result of which her father got badly injured. Thereafter, in a scuffle, both hands of informant’s father were cut by dabia and thereafter her father fell down and a lot of blood started oozing out. On noise, a number of villagers came and interfered because of which life of her father was saved. Thereafter, informant’s father was brought to Dighal Bank hospital for treatment. The informant further stated that her father was not in a position to give statement and further stated that the reason for the occurrence is that she is a widow and after death of her husband, she lives with her father and her father takes care of her which was not liked by the appellant and because of that reason, her brother, with an intention to kill her father, badly assaulted him due to which he got badly injured.
3. On the basis of fardbeyan of the informant (P.W. 4), Dighalbank P.S. Case No. 31 of 2011 was registered under Section 307 of I.P.C. and investigation was taken up. In course of treatment the victim died and therefore, Section 302 I.P.C. was also added. Charge-sheet under section 302 of the I.P.C. was submitted whereafter cognizance was taken by the jurisdictional Magistrate and thereafter the case was committed to the Court of Sessions. Charges were framed against the appellant to which the appellant pleaded not guilty and claimed to be tried.
4. During trial, the prosecution examined altogether eight witnesses, namely, P.W. 1 Md. Nijamuddin, P.W. 2 Dhuma Murmu, P.W.3 Robin Soren, P.W. 4 Joshna Murmu @ Hofni Murmu (informant), P.W.5 Kishun Soren, P.W.6 Samsul Haq, P.W. 7 Dr. Gadadhar Pd. Pandey (doctor who conducted post-mortem examination) and P.W.8 Nitesh Kr. Choudhary (I.O. of the case). Prosecution has also produced exhibits as Ext. 1 (post-mortem report), Ext. 2 and 2/1(writing and signature on the fardbeyan on 13.07.11) and Ext. 3 (writing and signature on the fardbeyan on 16.7.11). The defence has not produced any oral or documentary evidence in support of its case. After conclusion of the trial, the learned trial Court found the appellant guilty and convicted and sentenced the appellant in the manner indicated above.
5. Learned counsel for the appellant submitted that the judgment of conviction suffers from several infirmities that have been overlooked by the learned trial Court and therefore, the impugned judgment is not sustainable in the eyes of law. It has been submitted that the prosecution has miserably failed to prove the causative link between the accused and the offence alleged to be committed by him. There are material inconsistencies and contradiction between the statement of the informant made in the fardbeyan before the police and her testimony
Murder – Non-examination of Doctor who conducted autopsy on dead body of deceased and who prepared post-mortem report is not fatal to case of prosecution.
The court relied on oral and documentary evidence to establish the guilt of the accused under Section 302 IPC.
A dying declaration can serve as the sole basis for conviction if it is credible and corroborated, emphasizing its legal admissibility in murder cases.
Conviction under IPC 302/34 upheld on reliable sole eyewitness testimony corroborated by medical evidence and witnesses, despite minor discrepancies and non-examination of investigating officer/docto....
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