Saurav Sharma @ Saurav Kumar Sharma @ Saurabha Kumar Sharma @ Mukul Sharma vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Pat) 780

IN THE HIGH COURT OF JUDICATURE AT PATNA
VIPUL M. PANCHOLI and RAMESH CHAND MALVIYA, JJ.
Criminal Appeal (DB) No.1271 of 2017
(13.8.2024)
Saurav Sharma @ Saurav Kumar Sharma @ Saurabha Kumar Sharma @ Mukul Sharma &
Anr. ... Appellant
vs.
State of Bihar ... Respondents

Advocates:
For the Appellants : M/s Ajay Kumar Thakur, Ritwik Thakur, Vaishnavi Singh, Kiran Kumari.
For the State : Mr. Sujit Kumar Singh, APP.
For the Informant : M/s Ramakant Sharma, Sr. Adv., Sangeet Deokuliar.

Headnote:
Indian Evidence Act, 1872 – Section 32 – Dying Declaration – Appreciation by courts – Each dying declaration must be scrutinized on its own merits – The Court has to examine upon which of the statements reliance can be placed in order for the case to proceed further – Medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as possibility of tutoring by relatives etc., if the court is satisfied that the dying declaration is true and trustworthy, it can base conviction upon it without corroboration – The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and the declarant was in a fit state to make the declaration – Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected – Where the prosecution version differs from the version as given in the dying declaration, the said dying declaration cannot be acted upon – The Court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration, look up to the medical opinion, but where eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail – The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested in fabricating a dying declaration, question of doubt in declaration recorded by the Magistrate does not arise. (Para 40)
Indian Penal Code, 1860 – Sections 436/34 and 302/34 – The deceased died of burn injuries – Conviction based on dying declaration – The dying declaration, in the form of fardbeyan, contains minute details, including the dispute with regard to land as well as the incident which took place 15-20 days prior to the incident – In the fardbeyan Kamala Devi (deceased) said that when she tries to save her husband, she also sustained burn injuries whereas the witnesses have stated a different story – Dying declaration given by Kamala Devi before the Executive Magistrate contains exactly similar details which is not possible when the person sustained serious burn injuries – From the deposition of the Executive Magistrate, it is revealed that when he reached to the hospital, the Investigating Officer narrated the entire story to him and while recording the dying declaration of the injured Kamla Devi, villagers were also present – Therefore also, there are all chances of tutoring – Further surprisingly, the dying declaration of the deceased was recorded by the I.O. and the Executive Magistrate has merely signed the same – Even there are two versions of the dying declaration – There are major contradictions, inconsistencies and improvements in the deposition of the prosecution-witnesses – Thus, the prosecution failed to prove its case beyond reasonable doubt – Conviction and sentence set aside – Appeal allowed. (Paras 41, 43, 46 & 48)
Abhishek Sharma Vs. State (Govt. of NCT of Delhi), AIR 2023 SC 5271; Uttam Vs. State of Maharashtra, (2022) 8 SCC 576; Naresh Kumar Vs. State of Delhi, 2024 SCC OnLine SC 1641; Sardar Vs. State of Uttar Pradesh, (1954) 2 SCC 214; Jan Mohammad Vs. State of Bihar, (1953) 1 SCC 5; Laxman Vs. State of Maharashtra, (2002) 6 SCC 710; Koli Chunilal Savji Vs. State of Gujarat, (1999) 9 SCC 562; P.V. Radhakrishna Vs. State of Karnataka, (2003) 6 SCC 443 – Relied.

Vipul M. Pancholi, J.—The present appeal has been filed under Section- 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the judgment of conviction dated 16.08.2017 and order of sentence dated 22.08.2017 passed by learned Sessions Judge, Purnea in Sessions Trial No. 16 of 2017, C.I.S. No. 16 of 2017 (arising out of Banmankhi P.S. Case No. 188 of 2016) whereby the appellants have been convicted for the offences punishable under Sections- 436/34 and 302/34 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- (Ten Thousand) each for the offence under Sections-436/34 of the I.P.C. and they have further been sentenced to undergo Imprisonment for life and to pay a fine of Rs. 10,000/- each for the offence under Sections- 302/34 of the I.P.C. and, in default of payment of both fine, the convicts will have further to undergo further S.I. for 6 months. Both the sentences have been directed to run concurrently.

2. Heard Mr. Ajay Kumar Thakur, learned counsel, assisted by Mr. Ritwik Thakur, Mrs. Vaishnavi Singh and Ms. Kiran Kumari for the appellants, Mr. Ramakant Sharma, learned Senior Counsel for the informant assisted by Mr. Sangeet Deokuliar and Mr. Sujeet Kumar Singh, learned A.P.P. for the respondent-State.

3. The brief facts leading to the filing of the present appeal are as under:—

“On 23.11.2016, deceased informant Kamala Devi gave her fardbeyan in injured condition that her two sons, namely Sanjay Kumar Sharma and Saurabh Kumar Sharma @ Mukul Sharma have been quarreling for ownership of the house and property at Purnea. Her husband Sarangdhar Singh tried to sort out the issue, but Saurabh Kumar Sharma @ Mukul Sharma was adamant not to give possession of the house. Sanjay Sharma lives at Patna with his family and is engaged in a medical pharmacy. He looks after the informant and her husband. Her younger son Saurabh Sharma had driven the informant and her husband out of his house at Purnea due to which they were living at village Mahadeopur. Saurabh Sharma used to come there with his family Mona Devi and put pressure to transfer the property at the village through registered deed and, in the event of not doing the same, used to threaten to kill. A fortnight before the date of incident, Saurabh Sharma @ Mukul Sharma had come to village Mahadeopur, Banmankhi with his wife Soni Devi, stayed in the house of Lalo @ Lalou, son of Madan Mohan Sharma. Four days before the date of incident Saurabh Sharma came to her house with his wife Soni Devi and said to get the land registered in his name, otherwise he would kill both by setting them afire. They abused both, husband and wife, and also assaulted them. Again on 22- 23/11/2016 at about 01:30 at night, Saurabh Sharma came to the house with his wife Soni Devi and unknown persons, abused them and with a view to kill them, set the house on fire in which her husband Sarangdhar Singh, son of Late Bal Govind Sharma was badly burnt and died due to burn injuries. During the course of saving him, she also got severely injured by burn injuries. She was brought to Sadar Hospital, Purnea for treatment by villager- Najo Yadav, Vijay Kumar and others for treatment where she was under treatment. She claims that due to the property dispute, her younger son Saurabh Sharma, in connivance with his wife Soni Devi and unknown set the house on fire in which incident her husband died and she also received severe burn injuries.”

4. After filing of the F.I.R., the investigating agency carried out the investigation and, during the course of investigation, the Investigating Officer recorded the statement of the witnesses and collected the relevant documents and thereafter filed the charge-sheet against the accused. As the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 16 of 2017.

5. Learned advocate Mr. Ajay Kumar Thakur appearing for the