Jagdish Raut & Anr vs State Of Bihar on 16 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.507 of 2002
Arising Out of PS.Case No. -null Year- null Thana -null District- SITAMARHI

1. Jagdish Raut, son of Late Tilak Raut.

2. Fulo Devi, wife of Jagdish Raut.

Both resident of village-Kanhma, P.S. Bela, District Sitamarhi.

…. …. Appellants.

Versus
The State of Bihar. …. …. Respondent.

Appearance :

For the Appellants : Mr. Animesh Kumar Mishra, Amicus Curiae
For the Respondent : Mr. Binod Bihari Singh-I, A.P.P.

CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
ORAL JUDGMENT
Date: 16-10-2017

Heard Mr. Animesh Kumar Mishra, Amicus Curiae,

for the appellants and learned A.P.P. for the State.

2. This criminal appeal has been preferred against

the judgment and order of conviction and sentence dated 03.09.2002

passed by the 4thAdditional Sessions Judge, Sitamarhi in Sessions

Trial No.223/98, arising out of Bela P.S. Case No.21/96, whereby the

learned trial Court acquitted the accused Bharath Raut and convicted

the accused Jagdish Raut and Fulo Devi for the offence punishable

under Section 306 of the Indian Penal Code and sentenced them to

undergo rigorous imprisonment for seven years each and also slapped

them with a fine of Rs.2000/- each and in default of payment of fine

to further undergo rigorous imprisonment for one year under Section

306 of the Indian Penal Code.

3. The factual matrix of the case is that Bela P.S.
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Case No.21/96 was instituted under Sections 324/307/306/498A/34 of

the Indian Penal Code against the accused Jagdish Raut and Fulo Devi

on the basis of fardbeyan of Urmial Devi, wife of Bharat Raut resident

of village Kanwa, P.S. Bela District Sitamarhi recorded by S.I. I.S.

Choudhary Officer-in-Charge P.S. Bela on 15.05.1996 at 21:45 hours

at the Primary Health Centre, Bela with the allegation in succinct that

after demise of first wife of her husband, her husband has performed

marriage with her 3-4 months back. After marriage, he started living

in her marital house. The father and mother of the first wife of her

husband, namely, Jagdish Raut and Fulo Devi respectively were also

living with her in the marital house. They used to subject her to

harassment and pass barb on her. Further allegation is that three days

back when her husband had gone to attend the marriage of his niece in

village Sadhari, P.S. Meenapur, District Muzaffarpur and the parents

of the first wife of her husband had stepped out of the house then

finding her alone in the house and being peeved up with the aforesaid

harassment and torture meted out to her at the hands of the aforesaid

persons, she locked the door of the courtyard and set her ablaze by

dousing kerosene oil on her. She made hulla. Responding the hulla

several neighbours entered into the courtyard by scaling the wall and

rushed her to the hospital where her condition is precarious.

4. The aforesaid case was investigated by the police
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and on conclusion of the investigation and finding the case true, I.O.

submitted chargesheet under Section 306 of the Indian Penal Code

against the accused Jagdish Raut, Fulo Devi and Bharat Raut.

5. On receiving the chargesheet case diary and

perusing the same, the learned Magistrate took cognizance of the

offence and committed the case to the Court of Sessions and on

transfer the case finally came in seisin of learned 4th Additional

Sessions Judge, Sitamarhi for trial.

6. The charge against the aforesaid accused persons

was framed under Section 306/34 of the Indian Penal Code. Charge

was read over and explained to them, to which they pleaded not guilty

and claimed to be tried.

7. To substantiate its case, in ocular evidence the

prosecution has examined altogether six prosecution witnesses,

namely, Ram Karan Singh as P.W.1, Hari Narain Thakur as P.W.2,

Chauthi Mandal as P.W.3, Raj Kumar Mandal as P.W.4, Ram Baboo

Mandal as P.W.5 and Nandlal Raut as P.W.6. All the aforesaid

witnesses turned hostile. In documentary evidence, the prosecution

has filed and got exhibited four documents including fardbeyan under

Section 294 Cr.P.C. on admission of the defence.

8. The statement of the accused persons was

recorded under Section 313 Cr.P.C. The case of the defence is
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complete denial of the occurrence claiming themselves to be innocent.

In buttress of their case in documentary evidence, the accused persons

have filed order-sheet of Trial No.282/97 dated 17.05.1996 marked as

Ext.A.

9. After hearing the parties and perusing the record,

the learned trial Court passed the impugned judgment and order of

conviction and sentence as detailed in earlier paragraph.

10. Being aggrieved and dissatisfied with the

impugned judgment and order of conviction and sentence, the

convicts have preferred this present appeal.

11. The point for consideration in this case is, as to

whether the prosecution has been able to bring home the charge

levelled against the appellants beyond all reasonable doubt or not.

12. It has been submitted by learned amicus curiae

that as per the fardbeyan itself the condition of the victim was

precarious and as per the postmortem report, the deceased was badly

injured. There was 90% burn injury and the deceased was burnt from

neck to head so he was not in a position to give graphical details of

the entire incident in her fardbeyan. Moreover, the fardbeyan of the

deceased was recorded at PHC, Bela but no certificate has been

granted by the doctor to the effect that the deceased was mentally fit

to give the aforesaid fardbeyan. The aforesaid fardbeyan is said to
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have been recorded in presence of P.W.2, Hari Narain Thakur but he

has not supported the prosecution case rather turned hostile. Thus,

recording of the aforesaid fardbeyan of the victim in the PHC, Bela

also does not stand corroborated by the said witness. Though the said

fardbeyan has been marked as exhibit under Section 294 Cr.P.C. but

as the said fardbeyan is shrouded with doubt indicating that the

deceased was not mentally fit to give such fardbeyan, the conviction

of the appellants cannot be made on the basis of the said fardbeyan as

dying declaration. The learned lower Court has wrongly convicted the

appellants on the basis of said dying declaration of the deceased hence

impugned judgment and order is liable to be set aside.

13. On the other hand, learned A.P.P. appearing for

the State, advocating the correctness and validity of the impugned

judgment and order of conviction and sentence, has submitted that

though all the material witnesses have turned hostile but as the

accused have themselves admitted the genuineness and correctness of

the aforesaid fardbeyan under Section 294 Cr.P.C. and on the basis of

her admission the fardbeyan has been marked as Ext.2 and the

deceased had died just on the following day of recording of the

fardbeyan, the aforesaid fardbeyan happens to be dying declaration of

the deceased and it does not require any corroboration at all. The

learned trial Court relying upon the said dying declaration of the
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deceased has rightly convicted the appellant under Section 306 of the

Indian Penal Code, which is liable to be upheld.

14. From perusal of the record, it appears that to

substantiate its case in ocular evidence the prosecution has examined

altogether six prosecution witnesses but all the aforesaid prosecution

witnesses turned hostile. Thus, the only material to be considered in

the case against the appellants and is the basis for the conviction of

the appellants by the learned trial Court is the fardbeyan of the

deceased recorded by S.I. I.S. Choudhary at PHC, Bela a day

preceding to the death of the deceased. From perusal of the aforesaid

fardbeyan, it appears that the deceased was burnt in the fire and her

condition was precarious. She was rushed to the hospital by the locals.

The postmortem report of the deceased which has also been admitted

by the defence under Section 294 Cr.P.C. indicates that doctor has

found 90% burn injury on the person of the deceased and her whole

body was burnt except scalp hairs. The said fardbeyan was recorded at

the PHC, Bela but the doctor has not given any certificate to the effect

that the deceased was fit to give fardbeyan at that time. Said

fardbeyan was recorded in presence of Hari Narain Thakur and the

said Hari Narain Thakur has been examined as P.W.2 but he has

turned hostile and has not corroborated recording of the fardbeyan of

the deceased at PHC, Bela before him. But, notwithstanding the
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aforesaid facts and circumstances and laches on the part of the

prosecution, the said fardbeyn has been exhibited on the basis of

admission of the defence under Section 294 Cr.P.C. As per Section

294 Cr.P.C. where the genuineness of any document is not disputed,

such document may be read in evidence in any inquiry, trial or other

proceeding under this Code without proof of the signature of the

person to whom it purports to be signed. It is the settled principle of

law that if the genuineness and correctness of any document is

admitted by any party in the case under Section 294 Cr.P.C., he/she

cannot challenge its genuineness correctness and its contents at the

later stage and such document may be used as a substantive evidence

against the person admitting the same. If the prosecution or accused

does not dispute genuineness of a document filed by the opposite

party under Section 294 (1) Cr.P.C. it amounts to an admission that

the entire document is true or correct. It means that the document has

been signed by the person by whom it purports to be signed and its

contents are correct. It does not only amount to admission of it being

signed by the person purports to be signed but also implies the

admission of the correctness of its contents. Such a document may be

read in evidence under Section 294 (3) Cr.P.C. Neither the signature

nor the correctness of its contents need be proved by the prosecution

or the accused by examining its signatory as it is admitted to be true
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or correct. The phrase ‘read in evidence’ means read as substantive

evidence, which is the evidence adduced to prove a fact in issue.The

Hon’ble Apex Court in the case of Sonu alias Amar Vs. State of

Harayana reported in AIR 2017 Supreme Court at page 3441 has

been pleased to rule that Section 294 of Cr.P.C. provides a procedure

for filing documents in a Court by prosecution or accused. The

documents have to be included in a list and other side shall be given

an opportunity to admit or deny genuineness of each document. In

case genuineness is not disputed, such document shall be read in

evidence without formal proof in accordance with Evidence Act. A

Full Bench of Bombay High Court in Shaikh Fand Hussinsab Vs.

State of Maharashtra reported in 1983 Cr.L.J. at page 487 has been

pleased to take the view that a document becomes both relevant and

authentic evidence of its contents without the proof of its authenticity

by the author or anybody else by force of Section 294 Cr.P.C. A

Division Bench of Andhra Pradesh High Court in K. Pratap Reddy

Vs. State of A.P. reported in 1985 Cr.L.J. at page 1446 has been

pleased to observe that Section 293 294 Cr.P.C. are obviously

intended to slim the proceedings by dispensing with by elaborate and

sometimes longdrawn procedure of examining the concerned persons

when the genuineness of document is not in dispute. The trial Court

is justified in admitting the report of Deputy Controller of Explosives
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and postmortem report as evidence without insisting upon the

evidence of expert or doctor. This High Court in Surya Nath

Upadhyaya Vs. State of Bihar reported in 2003 (1) PLJR at page

620 has ruled that non-examination of doctor may not cause prejudice

to the accused in a case if the postmortem report has been proved

without objection under Section 294 Cr.P.C. It is open to the Court to

read the postmortem report in evidence without formal proof where

genuineness of postmortem report is not disputed.

15. In view of the aforesaid facts, in my considered

opinion, the fardbeyan of the deceased recorded on a day preceding to

her death and whose genuineness and correctness has been admitted

by the defence under Section 294 Cr.P.C. happens to be a dying

declaration of the deceased. It does not require any corroboration of

any sort and is a substantive evidence and has potential to substantiate

the case of prosecution. Thus the aforesaid case of prosecution stood

established by said substantive evidence. Learned Lower Court is

justified to hold conviction of the appellants relying upon the said

dying declaration of the deceased. Hence, the impugned judgment and

order of conviction and sentence passed by the learned lower Court

does not warrant any interference by this Court. Hence, the impugned

judgment and order of conviction and sentence passed by the learned

lower Court is upheld. As the appellants are on bail, their bail bonds
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are cancelled and they are directed to surrender before the learned

Court below forthwith.

16. Accordingly, this appeal is dismissed.

17. Let a copy of the first and last page of this

judgment be handed over to the learned Amicus Curiae, Mr. Animesh

Kumar Mishra. Learned Amicus Curiae be paid prescribed fee by the

Patna High Court Legal Services Committee.

(Prakash Chandra Jaiswal, J.)
Trivedi/-

AFR/NAFR AFR
CAV DATE NA
Uploading Date 18.10.2017
Transmission 18.10.2017
Date

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