Sujit Narayan Prasad, J.
1. The instant appeal is Section 374(2) of the Cr.P.C. directed against the Judgment of conviction dated 06.02.1998 and order of sentence dated 07.02.1998 passed by learned 3rd Additional Sessions Judge, Jamshedpur, in Sessions Trial No.100 of 1994 whereby and whereunder the appellants have been convicted under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.
Factual Matrix
2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the prosecution story in brief as per the allegation made in the First Information Report. The First Information Report was lodged on the basis of the fardbeyan dated 19.07.1993 of the informant Motka Samad (PW-1), who is the brother of the deceased Rodea Samad, which reads hereunder as: -
The case of the prosecution is that in the preceding night (i.e., on 18.07.1993) at 9.30 P.M., all the three accused persons came to the house of the informant and took his younger brother, Rodea Samad, to village Jagarnathpur to attend a marriage. When his brother did not return in the night, the informant along with same co-villagers said to have started searching him in the next morning in course of which he found his brother lying seriously injured in a field between the villages Jagarnathpur and Matladih.
3. Further, it is said that when the informant in presence of the co-villagers enquired from his brother, he told him that at about 4'O Clock in the morning at a time when he was returning after attending the marriage, all of a sudden, the three accused persons assaulted him by means of tangi, rod and lathi and when he fell down injured, they threw him in the field and fled away.
4. It has further been said that since the deceased was found to be seriously injured, the informant and others took him to the Tata Main Hospital where in course of the treatment, the deceased died.
5. It has further been stated that few days before the occurrence, there was an altercation between the deceased and the accused persons and due to that reason they are alleged to have brutally assaulted the deceased which resulted in his death.
6. On the basis of fardbeyan of the informant, Parsudih (Baghbera) P.S. Case No.101 of 1993 was registered against the accused persons under Section 302/34 of the I.P.C.
7. After investigation, the police submitted charge sheet against the appellants finding the accusation of commission of murder.
8. After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 302/34 1.P.C. was framed to which the accused persons pleaded not guilty and claimed to be tried.
9. The prosecution has altogether examined 13 witnesses including the doctor but the Investigating Officer has not been examined.
10. The postmortem was conducted by the doctor who has been examined as PW-6.
11. The learned trial court, based upon the testimony of PW-1 and considering the same to be corroborated by the testimony of PW-6, the doctor, and on the basis of the dying declaration of the deceased to the PW-1 in presence of PW-8, PW-11and PW-13 has convicted all the appellants for the offence under Section 302 and 34 of the Indian Penal Code and sentenced them to undergo life imprisonment which is the subject matter of the present appeal.
Submission of the learned counsel for the appellant:
12. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the trial court cannot be sustained in the eyes of law.
13. The following grounds have been taken by the learned counsel for the appellants in assailing the impugned judgment of conviction: -
(i) The learned trial court has not considered the acceptance of the dying declaration of the deceased and for that what procedure is to be followed. Herein the dying declaration was not either before the police or before the doctor, rather, before PW-1 who has deposed in the evidence that while the deceased was being carried to the hospital, the names of the appellants have been disclosed. Serious doubt has been created by the learned counsel for the appellant by taking the ground that the nature of injury which was sustained, as taken note by the doctor-PW-6, it is quite impossible for a person who has sustained such a serious nature of injuries, particularly, the injury in the brain to disclose the names of the persons such a mental state.
The submission, therefore, has been made that the testimony of PW-1 cannot be said to be corroborated by the medical evidence.
(ii) The ground has been taken that due to non- examination of the Investigating Officer in such circumstances, particularly, in absence of an eye witness, a serious prejudice has been caused to the appellants.
14. The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that, therefore, it is a case where the judgment of conviction is fit to be interfered with.
Submission of the learned counsel/A.P.P for the State:
15. Per contra, Ms. Kumari Rashmi, learned Additional Public Prosecutor appearing for the State, has submitted by taking the following grounds in defending the impugned judgment:
(i) Learned trial court has appreciated the evidence in entirety including the testimony of PW-1 which has been considered to be in corroboration to the evidence of PW-6, the doctor.
(ii) It has been contended that PW-1 is very specific in saying that while he had seen the deceased in the injured status, he has taken him to hospital and in course thereof, the names of these appellants have been disclosed.
(iii) Further, the same has been disclosed to the PW-8 and PW-11 also.
(iv) Learned State counsel has submitted that on the basis of the testimony of PW-1, PW-8 and PW-11 being corroborated by the testimony of PW-6, the doctor, there is no doubt regarding their involvement in commission of crime of murder of the deceased as has been accepted by the learned trial court and, as such, even though the Investigating Officer has not been examined, no prejudice has been caused to the appellants.
16. Learned State counsel, based upon the aforesaid ground, has submitted that the impugned judgment, therefore, needs no interference.
Analysis
17. We have heard learned counsel for the parties, gone through the finding recorded by the learned trial court in the impugned judgment, the testimony available in the trial court record including the exhibits, particularly, the postmortem report.
18. The issues which require consideration based upon the argument advanced on behalf of the parties are –
(i) Whether the prosecution has been able to prove the charges said to be proved beyond all reasonable doubt in the facts of the present case wherein the PW-1 or none of the witnesses has seen the occurrence, rather, on the disclosure said to be made by the deceased to the PW-1, PW-8, PW-11 and PW-13, the culpability has been found to be established, can be said to be justified?
(ii) Whether due to non-examination of the Investigating Officer in the facts of the present case, any prejudice has been caused to the appellants?
19. Both the issues are interlinked and, as such, both are being taken up together for its consideration.
20. This Court, before considering the aforesaid issue, needs to refer herein the background of the initiation of the case right from the day of institution of F.I.R. and evidence led on behalf of the prosecution and the statement recorded under Section 313 Cr.P.C. need to be referred herein: -
The case of the prosecution is that on 18.07.1993 at 9.30 P.M., all the three accused persons came to the house of the informant Motka Samad and took his younger brother, Rodea Samad, to village Jagarnathpur to attend a marriage. When his brother did not return in the night, the informant along with same co-villagers said to have started searching him in the next morning in course of which he found his brother lying seriously injured in a field between the villages Jagarnathpur and Matladih.
Further, it is said that when the informant in presence of the co-villagers enquired from his brother, he told him that at about 4'O Clock in the morning at a time when he was returning after attending the marriage, all of a sudden the three accused persons assaulted him by means of tangi, rod and lathi and when he fell down injured, they threw him in the field and fled away.
It has further been said that since the deceased was found to be seriously injured, the informant and others took him to the Tata Main Hospital where in course of the treatment, the deceased died.
It has further been stated that few days before the occurrence, there was an altercation between the deceased and the accused persons and due to that reason they are alleged to have brutally assaulted the deceased which resulted in his death.
On the basis of fardbeyan of the informant, Parsudih (Baghbera) P.S. Case No.101 of 1993 was registered against the accused persons under Section 302/34 of the I.P.C.
After investigation, the police submitted charge sheet against the appellants finding the accusation of commission of murder.
After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 302/34 1.P.C. was framed to which the accused persons pleaded not guilty and claimed to be tried
21. In course of trial, the prosecution has examined altogether 13 witnesses. Their depositions are being referred herein :-
P.W.-1 Motka Samad is the informant. He by identifying the accused persons in court has stated that on the date and time of the occurrence, all the three accused persons had come to his house and had taken away the deceased along with them to village Jagarnathpur saying that they will attend the marriage at village Jagarnathpur which according to this witness is at a distance of half K.M. from the village Matladih.
He has further stated that the deceased went away with them, but did not return in the night. In the next morning, according to this witness, when he went to ease himself in the field, he found his brother lying injured in pool of blood in the field.
He has stated that at that time Kanu Hembram was passing through that place and both of them went near the deceased. Subsequently, Janam Singh Jamuda, Shankar Kaludia and Ganga Ram Bodra also reached there. According to the informant, when he enquired from his brother as to how all these happened, he told him that accused Mateen, Badal and Suru had assaulted him with tangi, rod etc. Thereafter, this witness has stated that he brought a tempo and took his injured brother to Tata Main Hospital where during treatment he died.
He has stated that in the hospital itself the police had recorded his fardabayan.
In course of his cross-examination, this witness has said that the police had not taken his statement at any time. The police had never made any enquiry from him and that was done after six months and then he told him about the occurrence.
He has further stated in his cross-examination that when they had reached the hospital, the deceased was very much alive at that time and it is only after some times, the hospital staff had informed him about his death.
Further, he has denied the suggestion that his brother had died much before reaching the hospital and only his dead body was taken to the hospital. He has further denied the suggestion that the deceased was already dead before this witness or others could reach the place where he is said to have been lying injured.
PW-2 Bijoy Bodra, in his examination-in-chief, has simply stated that there was celebration in village Jagarnathpur in which the people from adjoining villages had come to attend but according to him he had not seen the deceased going along with the accused persons anywhere.
This witness has been declared hostile.
P.W.3 Sudan Gagrai has also turned hostile and has denied to have seen the deceased going along with the accused persons to their village. In course of the cross-examination, he has denied to have made any statement before the police as regards seeing the deceased and the accused persons going together towards their village.
P.Ws.4 and 5 are the witnesses who have been tendered by the prosecution and have stated nothing worth mentioning.
P.W.6 Dr. Y. Nag is the doctor who is said to have performed the post mortem examination upon the dead body of the deceased. The following antemortem injuries are said to have been found by the doctor :-
A) Abrasion:-
i) 4 x 2 cm right petric abdomen.
ii) 2 x ½ cm are the left cheek prominence.
iii) ¼ x ¼ cms ¼ x ¼ cm and ¼ x ¼ cm on the left lower lip
(iv) 4 x ½ cm, 3 x ½ cm and 3 x ½ cm are the left chest back lower part
(v) 4 x ½ cm are the sternum
(vi) 4 x 4 and 4 x 4 cm are the right shoulder upper part.
These abrasions could be possible by the dragging of the subject and in the process the upper part of the body coming in contact with hard surface of the ground.
B) Lacerated wounds:-
(i) 2 x ½ x ½ cm are the left lower lip. The wound may be caused by a lathi or rod.
C) Incised wound -
(i) 3 x 1½ cm x soft tissues on the right temporal area behind the right ear
(ii) 3 x 1½ cm x soft tissue beside wound no.1.
(iii) 3½ x 1 x 1½ cms on the left upper eye lid and orbital margin.
(iv) 1½ x ½ cm x ½ cm on the left angle of the left eye
(v) 3 x 1 x 1 cms are the left cheek prominence. The incised wound were caused by sharp cutting weapon which may be including a Kulhari or Tangi.
D) Internal Injuries:-
There was contusion of left face, left eye, sternum, pericardia, and are lying internal soft tissue and right lung.
There was fracture of the left by orbital bone, contusion of left forehead scalp, right temporal muscle and temporal scalp and whole brain. There was blood and blood clot in the chest and cranial cavity.
Opinion
In my opinion all the injuries noted above were ante mortem. Injury nos. A, B & D were caused by hard and blunt substance while no.C was caused by some sharp cutting weapon.
Death was due to the above noted injuries and time since death was within 3 to 18 hours. He has proved the postmortem repot to be in his pen and signature which was marked as Exhibit-1.
PW-7 Jhagru Lohar. He has stated in his deposition that he had gone to attend the marriage ceremony of Bijoy Bodra at village Jagarnathpur where the music and the festivities were going on. According to him, at about 3 0 Clock in the morning, he along with the three accused persons as well as the deceased left for their houses from the house where the marriage ceremony was performed. On the way, he stopped at his house at village Jagarnathpur itself and the rest of the four persons proceeded towards their own village Matladih.
In his cross-examination, this witness has claimed to have friendship with both the accused persons as well as the deceased and has further said that he was not along with other four persons at the marriage house but had only accompanied them when they returned. He has further said that the police had not taken his statement.
P.W.8 is Bhaiya Ban Singh. He has stated in his deposition that on 19.07.1993 at about 5.13 in the morning when he had gone to ease himself in the field, he had met his co-villagers Kanu Hembram, Jamuna Singh Jamunda, Shankar Kaludia, Ganga Ram Bodra and others there. Motka Samad, the informant, according to him was already there from before.
He has further deposed that the informant had told him that his brother was lying in the field whereafter all proceeded towards the said place where they all saw the deceased, Rodea Samad, lying injured. At that time, according to him, in their presence, the informant had asked his brother as to who had assaulted him upon which Roadea Samad (the deceased) told them that accused Matin Lohar, Suru Lohar and Badal Serdar had assaulted him by means of tangi, rod and lathi.
This witness has identified all the three accused persons present in the dock of the court. He has deposed that the deceased was taken to the hospital by the informant on a tempo.
In course of his cross-examination, besides repeating his earlier statement, he has stated that the police had not taken any such statement from him.
Further, he has denied the suggestion that before their reaching to the place of occurrence, the deceased, Rodea Samad, had already died and he was making false statement at the instance of the informant.
P.W.9 is Ganga Ram Bodra. In his deposition, he has deposed that he had seen the deceased going along with the accused persons to village Jagarnathpur for attending a marriage. According to him, they had gone to watch a dance programme there from where at 3 O'clock they left together for their own houses.
In his cross-examination, he has stated that for the first time he is making the statement before the court and earlier the police had not taken his statement.
Further, he has denied the suggestions that he had not seen the deceased and the accused persons going together. Further, he has also stated that the informant had brought him to the court.
P.W.10 is Sonaram. In his deposition, he has deposed that he knows all the accused persons and the deceased as they are his co-villagers.
He has further deposed that at about two years back, he had gone to village Jagarnathpur to watch a dance programme. The accused persons and the deceased had also gone there. At about 3 o'clock in the morning, the dance programme ended whereafter according to him, the deceased and the accused persons together left the place.
In his cross-examination also he has stated that he had not seen the deceased along with the accused persons at the time of going to watch the dance programme rather he had seen them returning together after the programme ended.
He has denied the suggestions that he was brought to the court for giving false evidence.
P.W.11 - Jamuna Singh Jamuda. He has stated in his deposition that on 19.07.1993 in the morning while he was going towards the field for easing himself he had seen the assembly of the persons going towards a place and he had also accompanied them.
He has further deposed that between the villages Matladih and Jagarnathpur deceased Rodea Samad was lying in the field in injured condition. In the crowd, the informant was also there and in the presence of this witness he had enquired from his brother upon which the deceased-brother had named all the three accused persons to be the persons who had assaulted him by means of tangi, rod etc. Thereafter, the deceased was taken to Tata Main Hospital where in an unconsciousness state he was admitted and later he died there.
He has further deposed that the police had prepared the inquest report of the dead body upon which he had put his signature.
He has identified his signature which has been marked Ext.2.
Further, he has identified all the three accused persons present in the dock.
The cross-examination of this witness has been declined by the defence upon which some questions appear to have been put to this witness by the court in course of replying the same, the witness has further stated that among the people who had assembled at the place of occurrence, he had seen Kanu Ram Hembram, Ganga Ram Bodra, Bhaiya Ban Singh and Shankar Kalundia, beside the informant.
He has further stated that he had seen the injury marks on the person of the deceased just above the ear and blood was oozing out.
P.W.12 - Kanu Hembram. He appears to have turned hostile as he has said only that at about two years back at 5.13 hours in the morning when he was going towards the field for easing himself, he saw Kanu Singh running towards him and when he enquired from him, he told that he had seen deceased Rodea in an injured state. Thereafter, according to him, he along with one Jabu went to take the deceased to the hospital.
He has further deposed that he had not gone there where the deceased was lying injured.
In his cross-examination by the prosecution, he has stated that in the hospital, the informant had told him about the involvement of the accused persons in the occurrence.
He has further stated that in his presence the informant had given his fardabayan before the police which was written down by the Inspector and thereafter, he had also put his signature upon that along with one another named Shanker. He had identified the said two signatures which have been marked as Exts.3 and 3/a.
He has also identified the signature on the inquest report made by the police which is marked as Ext.2/4.
He has further stated that the police had not enquired from him and he has further denied to have made any statement before the police with respect to the fact that he had seen the deceased lying injured.
P.W.13 - Shankar Kalundia. He has stated that on 19.07.1993 he was residing at village Matladih and on the same day in the morning at about 6.30 or 7 O’clock while he was going to ease himself in the field, on the way he had seen deceased Rodea Samad lying on the ground in an injured state and many persons were standing there among which the brother of the deceased, the informant, was also there who was crying. When he asked from the informant, he had named the accused persons who had assaulted his brother Rodea who was lying in the field at the same place.
Further, according to this witness, in his presence also, the informant had enquired from his brother upon which the deceased had told him that all the three accused namely, Badal, Suru and Mateen, had assaulted him. Thereafter, according to him, the deceased was taken to the Tata Main Hospital where the police had come and had recorded the statement of the informant and had also enquired from him.
He has also said to have put his signature on the fardbayan recorded by the police. He has identified his signature which is marked as Ext.3/2.
He has further identified all the three accused persons in the dock.
The defence has declined to cross-examine the witness whereafter a few questions were asked by the court upon which this witness has further said that the deceased had died at the hospital.
22. The admitted case of the prosecution is that the accusation which has been said to be committed by these appellants has conclusively been proved which has been said on the basis of the dying declaration of the deceased to the PW-1 in presence of PW-8 and PW-11and PW-13.
23. At this juncture it would be apt to refer herein some of the judgments of the Hon’ble Apex Court in regard to the principle attached with the admissibility and evidentiary value of a dying declaration.
24. There is no dispute that the dying declaration is to be considered to be the basis of conviction on the principle that at the time of death no person will tell lie, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Shudhakar v. State of M.P., (2012) 7 SCC 569 wherein it has been observed by the Hon’ble Apex Court that the “dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival and at such time, it is expected that a person will speak the truth and only the truth.
25. In the case of Bhajju v. State of M.P. (2012) 4 SCC 327 the Hon’ble Apex Court has observed that Section 32 of the Evidence Act is an exception to the general rule against admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which has been generally described as dying declaration. The Hon’ble Apex Court, has further observed that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence.
26. Further in the case of Chirra Shivraj v. State of A.P. [(2010) 14 SCC 444 the Hon’ble Apex Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.
27. In the case of Laxman v. State of Maharashtra, (2002) 6 SCC 710 the Hon’ble Apex Court while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations. The Court answered both these questions as follows:
“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”
28. Thus, dying declaration, if furnished before the police or doctor then such dying declaration will have the evidentiary value subject to its corroboration by the Magistrate or the doctor before whose presence the dying declaration of the deceased concerned has been taken.
29. However, it is not the fact herein, rather, the fact is that the deceased was found by the PW-1 having with serious injuries of assault over the whole body including the brain.
30. The fact about the nature of injury finds reference in the testimony of the doctor who has conducted the postmortem, for ready reference, the same is being referred herein: -
A) Abrasion: -
i) 4 x 2 cm right petric abdomen.
ii) 2 x ½ cm are the left cheek prominence.
iii) ¼ x ¼ cm ¼ x ¼ cm and ¼ x ¼ cm on the left lower lip
(iv) 4 x ½ cm, 3 x ½ cm and 3 x ½ cm are the left chest back lower part
(v) 4 x ½ cm are the sternum
(vi) 4 x 4 and 4 x 4 cm are the right shoulder upper part.
These abrasions could be possible by the dragging of the subject and in the process the upper part of the body coming in contact with hard surface of the ground.
B) Lacerated wounds: -
(i) 2 x ½ x ½ cm are the left lower lip. The wound may be caused by a lathi or rod.
C) Incised wound -
(i) 3 x 1½ cm x soft tissues are the right temporal area behind the right ear
(ii) 3 x 1½ cm x soft tissue beside wound no.1.
(iii) 3½ x 1 x 1½ cm are the left upper eye lid and orbital margin.
(iv) 1½ x ½ cm x ½ cm are the left angle of the left eye
(v) 3 x 1 x 1 cm are the left cheek prominence. The incised wound were caused by sharp cutting weapon which may be including a Kulhari or Tangi.
D) Internal Injuries:-
There was contusion of left face, left eye, sternum, pericardia, and are lying internal soft tissue and right lung. There was fracture of the left by orbital bone, contusion of left forehead scalp, right temporal muscle and temporal scalp and whole brain. There was blood and blood clot in the chest and cranial cavity.
31. It is evident that the deceased has sustained not only the external injuries but also internal injuries, i.e., contusion of left face, left eye, sternum, pericardia, and are lying internal soft tissue and right lung. Fracture was found in left orbital bone, contusion of left forehead scalp, right temporal muscle and temporal scalp and whole brain. There was blood and blood clot in the chest and cranial cavity.
32. It is, thus, evident that the nature of injuries sustained by the deceased was very serious and the deceased has died immediately within 10 minutes after reaching the hospital.
33. The question, therefore, is that in such a condition of sustaining serious injuries and within 10 minutes after reaching the hospital if the deceased has died, then is it possible for a person after sustaining such nature of injuries to disclosed the name of the accused person.
34. Disclosure of the names depends upon the full application of mind and nature of injuries suggests that the deceased cannot be said to be in the state of full consciousness otherwise he would not have died within 10 minutes after reaching the hospital.
35. It is also not the case of the prosecution that while carrying the deceased by the PW-1 to the hospital there was remarkable gap of time leading to deteriorate the situation after reaching the hospital.
36. It may happen that if the injury sustained to a human being is serious but time gap is there and in course of carrying him to the hospital by his kith and kin the disclosure can be made but this is not the prosecution case since nothing to that effect has come in the testimony of PW-1 or even PW-8 or PW-11 or PW-13.
37. The aforesaid aspect of the matter would have been ascertained by the Investigating Officer but very surprisingly the Investigating Officer has not been examined. The question of prejudice, therefore, has been taken on behalf of the appellants due to non-examination of the Investigating Officer.
38. We are conscious that in a case of eye witness non- examination of eye witness is not prejudicial to the interest of the accused person but in the case of circumstantial evidence the significance of examination of Investigating Officer cannot be denied to get the culpability of the accused person by corroborating the evidences but the same is lacking in the present case.
39. We are living in the era of fairness and transparency so far as the criminal trial is concerned and in a case of iota of doubt the benefit is to be given to the accused person since the same is based upon the principle that the accusation is required to be proved beyond all shadow of doubt.
40. This Court, in view of aforesaid discussion and taking into consideration the settled position of law that the prosecution has to prove the charge beyond all reasonable doubt.
41. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under: -
"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
42. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, (supra), has held at paragraph-26 as under:-
"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."
43. Further, it needs to refer herein the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under: -
"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
44. It needs to refer herein that the Hon'ble Apex Court, in the case of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for ready reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-
“6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. —"
45. It needs to refer herein before laying down the aforesaid view, the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has already laid down the same view at paragraph 163 which is required to be referred which read hereunder as
“163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"
46. This Court, again adverting to the factual aspect of the present case, has found the conviction to be totally based upon so called dying declaration of the deceased giving disclosure to the PW-1 in presence of PW-8,PW-11 and PW-13, but the same cannot be said to be expected so as to apply the principle of proving the charge beyond all reasonable doubt.
47. Such observation is being made on the basis of the injury as has been referred by the doctor, PW-6 and the death of the deceased immediately within 10 minutes after reaching the hospital.
48. This Court, after having discussed the aforesaid factual and the legal aspect and coming to the judgment passed by the learned trial court, has found that the learned trial court has not appreciated the principle which is to be followed making the basis of conviction on the basis of dying declaration made before the private individual who has been examined as prosecution witness and in such circumstances it is more required upon the prosecution to prove the charge so that it can be said that the charge has been proved beyond all reasonable doubt.
49. Learned trial court has failed to appreciate the factual aspect, rather, has gone through only on the circumstances under which the deceased was found injured and has given statement naming the accused person but before coming to such conclusion, no scrutiny has been done regarding the mental/physical state of the deceased as to whether he was in a position to disclose the name of the deceased.
50. Learned trial court has also failed to appreciate the prejudice part which has been caused in such circumstances as available in the factual aspect due to non-examination of the Investigating Officer.
51. This Court, after having discussed the factual aspect and legal position as discussed hereinabove is of the view that the prosecution has miserably failed to prove the charges against the appellants beyond all reasonable doubt
52. Accordingly, this Court is of the considered view that the impugned judgment, based upon the reasons referred hereinabove in entirety, cannot be said to be sustainable in the eye of law.
53. Accordingly, the impugned judgment needs interference.
54. In the result, the Judgment of conviction dated 06.02.1998 and Order of sentence dated 07.02.1998 passed by learned 3rd Additional Sessions Judge, Jamshedpur, in Sessions Trial No.100 of 1994, is hereby quashed and set aside.
55. Consequently, the appellants are hereby discharged from all criminal liabilities. Since the aforesaid appellants are on bail, they are discharged from the liability of the bail bonds.
56. Accordingly, the instant appeal stands allowed.
57. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
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