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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RONGON MUKHOPADHYAY, RATNAKER BHENGRA, JJ.
Kamakhya Gour alias Ajay Gaur @ Kamakhya Gope @ Fadku Gope - Appellant
Versus
The State of Jharkhand - Respondent
Cr. Appeal (DB) No. 778 of 2010
Decided On : 11-06-2018
Indian Penal Code - Sections 302 and 498-A - First Information Report – Offence of murder – Injury - Demand of dowry - Investigation resulted in submission of charge-sheet against the named accused persons under Sections 302/120-B and 304-B of the Indian Penal Code pursuant to which cognizance was taken under Sections 302/120-B. 304-B and 302/34 of Indian Penal Code - Case was committed to Court of Sessions on 8 thereafter charge was framed under Sections 498-A and 302/34 of Indian Penal Code to which the accused persons pleaded not guilty and claimed to be tried - In course of trial, 14 witnesses were examined on behalf of prosecution - Has stated that the marriage between the appellant and Anita was solemnized - He has stated about a demand of dowry having been made by the accused persons and the deceased was subjected to cruelty on non-fulfillment of demand of dowry - This witness has also stated about a case in which a compromise was subsequently entered into - He has also deposed that he had visited house of the appellant along with the informant on one occasion when the appellant had told that he was keeping his wife properly and there was no necessity in calling the Police – Held, contentions advanced by the learned A.P.P. that the dying declaration of the deceased is wholly reliable and does not require corroboration from any other sources is negated on the ground that apart from the deceased having not directly alleged against the appellant the contents seems to be an effort made either by prompting or by tutoring to build up the case in a crescendo so as to engulf the appellant as the prime accused - Circumstances which have been elaborately considered by this Court does not reveal corroboration regarding participation of the appellant or that it was the appellant who was responsible for the gas knob being kept open. In fact on the same set of allegations other accused persons have already been acquitted by the learned trial Court. The averment made by the deceased in her dying declaration that someone had hit in her back with a rod whom she could not recognize for certain has also led this Court to visit the post-mortem report once again where an injury was found on the back side of the head but which is also possible on account of fall - Dying declaration therefore seems to have built an edifice which appears to be imaginative and which cannot be solely relied upon for the purposes of conviction of appellant - Circumstantial evidence as discussed above therefore having been considered by this Court also does not put faith on dying declaration given by the deceased and since prosecution has not been able to prove its case either under Section 498-A or under Section 302 of Indian Penal Code beyond all reasonable doubt and chain of circumstances which would entail conviction more so in a case of circumstantial evidence having not been complete conviction of appellant therefore in such fact situation becomes unsustainable - As has been pointed out by while referring to the case and others length of dying declaration is immaterial but the fact remains that on close scrutiny of the dying declaration it is to be seen as to whether it meets standard set forth by Supreme Court in the various references given above and whether the contents of the dying declaration does suggest that same was given in a conscious state of mind -Appeal allowed
RONGON MUKHOPADHYAY, J.
1. Heard Mr. M.A. Niyazi, learned counsel appealing for the appellant and Mr. Arun Kr. Pandey, learned A.P.P. for the respondent-State as well as Mr. Prakash Chandra, learned counsel for the informant.
2. This application is directed against the judgment dated 28.08.2010 and order of sentence dated 01.09.2010 passed by Sri Brajesh Kumar Goutam, learned Additional Sessions Judge, FTC-III, Jamshedpur in Sessions Trial Case No.46/2008. whereby and whereunder the appellant has been convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code and sentenced to R.I. for life under Section 302 of the Indian Penal Code.
3. The First Information Report reveals an allegation that the daughter of the informant namely Anita Gope was married with the appellant in the year, 2001 and after marriage she was subjected to torture and cruelty by the appellant and her in-laws. It has been alleged that a case was filed before the Family Court which ended in a compromise and the deceased Anita Gope started living in her matrimonial house. A female child namely Pushpa was also born of the wedlock of the appellant and Anita Gape. The daughter was admitted in Blue Bell School in Mango, Jamshedpur. It has been alleged that on 06.09.2007 Pushpa had brought a letter purportedly authored by the daughter of the informant wherein she had mentioned about a threat to her life. On 14.09.2007 a First Information Report was instituted on the basis of the said letter being Mango (MGM) P.S. Case No. 300/2007. Further allegation has been levelled that on 17.09.2007 the son of the informant received a call on his mobile that Anita Gope has been admitted in Tata Main Hospital (hereinafter referred to as T.M.H.) in a burnt condition. The informant on receiving such information reached T.M.H. where he found his daughter admitted in the Burn Unit. The informant could subsequently come to know that his daughter was put on fire by the appellant and her in-laws.
4. Based on the aforesaid allegations Mango (MGM) P.S. Case No. 306/2007 was instituted for the offences punishable under Sections 498-A/307/34 of the Indian Penal Code. Subsequently Anita Gope died and Section 302/34 of the Indian Penal Code was added on 15.11.2007 and on 26.09.2007 Section 304-B of the Indian Penal Code was also added.
5. Investigation resulted in submission of charge-sheet against the named accused persons under Sections 302/120-B and 304-B of the Indian Penal Code pursuant to which cognizance was taken under Sections 302/120-B. 304-B and 302/34 of the Indian Penal Code. The case was committed to the Court of Sessions on 8.1.2008 and thereafter charge was framed under Sections 498-A and 302/34 of the Indian Penal Code to which the accused persons pleaded not guilty and claimed to be tried.
6. In course of trial, 14 witnesses were examined on behalf of the prosecution.
7. PW 1 (Narayan Goswami) has stated that the marriage between the appellant and Anita Gope was solemnized in the year, 2000. He has stated about a demand of dowry having been made by the accused persons and the deceased was subjected to cruelty on non-fulfilment of the demand of dowry. This witness has also stated about a case in which a compromise was subsequently entered into. He has also deposed that he had visited the house of the appellant along with the informant on one occasion when the appellant had told that he was keeping his wife properly and there was no necessity in calling the Police. This witness has also disclosed about the letter given by the deceased through her daughter Pushpa.
8. PW 2 (Anand Gope) is the brother of the deceased who has stated about the cruelty committed upon his sister by the accused persons. This witness has also stated about the letter written by his sister sent through his niece. He has disclosed that the letter had expressed danger to the life of his sister. He has further stated that on 17.09.2007 he had received a telephonic informati
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