Santosh Mahto Vs State of Bihar

Both the appeals emanate from the same impugned Judgment and order of conviction as such, same are being heard together and decided by this common Judgment.

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Both the appeals are preferred against the impugned Judgment of conviction and order of sentence dated 22.09.1998 passed by learned Additional Sessions Judge, Singhbhum West at Seraikella in S.T. No. 146 of 1992 whereby appellants have been found guilty under Sections 302/148/149 of I.P.C. and sentenced to undergo life imprisonment under Section 302/149 of I.P.C. and further sentenced to undergo R.I. for two years under Section 148 of I.P.C.

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In the present case, FIR being Seraikella P.S. Case No.39/91 dated 05.06.1991 under Section 147/148/149/302/307/326 of I.P.C. came into existence on the basis of fardbeyan of Bikram Gope S/o late Gobind Gope resident of Chota Lapang P.S. Ichgarh, District-West Singhbhum recorded on 05.06.1991 i.e. Wednesday at 13:45 Hrs. in injured condition at Seraikella SubDivisional Hospital, who allegedly stated before Daroga ji of Seraikella P.S. that on 05.06.1991 he came to look after his case in Seraikella Court alongwith his father and after completion of Court work at about 12.30 P.M., they went to Dogi Ghat river to take bath and the moment they reached near the river, all of a sudden his villagers Koila Gope son of late Mahindar Gope, Kala Gope son of Srikanto Gope came from backside and started giving bhujali blow on him as well as his father and in the meanwhile, Hero Gope son of Sikandar Gope, Hemanto Gope Son of Ananto Gope, Paltan Gope son of Ananto Gope all residents of Chota Lapang, P.S. Ichagarh, District West Singhbhum and Santosh Mahato son of Kartik Mahato resident of Bada Lapang P.S. Ichagarh, District West Singhbhum also came and all of them started giving bhujali blow on them and on account of which, they could not save themselves and all the above said persons caused number of injury on their persons specially on their heads on account of which his father succumbed to injury in the hospital. The reason for quarrel

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assigned by informant is that case under Section 145 Cr.P.C. is going on at Seraikella Court between them.

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Record reveals that the above said informant referred to M.G.M Hospital, Jamshedpur on the same day and he succumbed to injury on 07.06.1991, as such, the above said fardbeyan has become dying declaration of the informant/deceased.

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After due investigation chargesheet has been submitted and after taking cognizance of the offence, case was committed to the court of sessions and thereafter charge has been framed against accused persons to which the appellants-accused persons pleaded not guilty and claimed to be tried.

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To prove its case, prosecution has examined as many as eleven witnesses and they are P.W.-1, Dr. Muralidhar Das who examined Bikram Gope, informant (since deceased) and also recorded dying declaration. P.W.-2, Pradeep Kumar Acharya is witness to seizure of articles near the place of occurrence. P.W.-3, Khudiram Gope and P.W.-5, Tupa Gope are the real brothers of informant Bikram Gope (since deceased) s/o deceased Govind Gope. P.W.4, Amulya Gope is the maternal uncle (mama) of informant Bikram Gope (since deceased). P.W.-6, Dr. Radhika Kumari Sinha who has conducted autopsy of deceased Govind Gope. P.W.-7, Balram Prasad Saw and P.W.-9, Nilkamal Gope are witnesses to inquest report. P.W-8, Aswani Kumar Pati has been tendered by prosecution. P.W.-10, Dr. Yogendra Nath has conducted post mortem examination of informant Bikram Gope and P.W.-11, Raj Narayan Singh is the I.O. of the present case.

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Before discussion and/or analyzing the evidence available on record, it is required to be noted at this stage, that in the present case there are three dying declarations of deceased Bikram Gope. First dying declaration is said to be recorded by Dr. Murlidhar Das (P.W.-1) at Sub-Divisional Hospital Seraikella at 1.00 P.M. on 05.06.1991 second dying declarations is said to be fardbeyan

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of the informant which has been recorded by I.O. (P.W.-11) of the case at Sub-Divisional Hospital Seraikella at 13.45 Hrs. on 05.06.1991, whereas third dying declaration is oral dying declaration which has been said to be made before Khudiram Gope (P.W.-3), Amulya Gope (P.W.-4) and Tupa Gope (P.W.-5) at M.G.M. Hospital, Jamshedpur on 06.06.1991. Learned trial court relied upon all the three dying declarations and therefore, held guilty all the accused persons in the present case.

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Submission has been made on behalf of defence that admittedly there is no eye witness in the present case and it is also not a case of circumstantial evidence. Three material witnesses who are Khudiram Gope (P.W.-3), Amulya Gope (P.W.-4) and Tupa Gope (P.W.-5) are close blood relatives of deceased persons. Except alleged three dying declaration, there is no iota of evidence in the present case. Learned counsel further pointed out the injury report (Exhibit-1) and submitted that it is not believable that a person who has received so many injuries on his head that too incised wound and few wounds indicate cutting of bone in scalp also, could speak in the manner as allegedly recorded in first and second dying declaration. Further it is argued that it is the statement of Dr. Muralidhar Das (P.W.-1) who has stated that condition of informant was serious, as such, he was immediately referred to M.G.M. Hospital at Jamshedpur. Therefore, considering the statement of Doctor (P.W.-1) also, two dying declarations allegedly recorded at Seraikella Hospital cannot and should not be believed by this Court. As far as, third dying declaration is concerned, it is submitted that it is brain child of family members of deceased persons to implicate the appellants in the present case because the medical condition of the injured clearly indicate that he could not speak that too after getting such injuries. Upon aforesaid premises, prayer has been made that at

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least appellants are entitled for benefit of doubt in the present matters.

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Learned APPs submitted that learned trial court after analyzing all the three dying declarations found these as genuine one and, nothing is available on record which could make any of the dying declaration suspicious. Apart from above said submission, it has also been pointed out that accused persons/appellants were interested to get the Bhu-daan land which was given to informant side and as the appellants side objecting the same and this objection culminated in village of two persons who were none other than a father and son.

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10.Heard the arguments advanced by learned Counsel for the parties and perused the material available on record.

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11.It is apposite to mention herein the legal propositions attributed involving multiple dying declarartions, before proceeding to examine the facts in hand of the present matter. The dying declaration is based on the maxim “ nemo moriturus praesumitur mentire” , which means, “no one at the time of death is presumed to lie and he will not meet his Maker with a lie in his mouth”. Though a dying declaration is not recorded in the court in the presence of the accused nor is it put to strict proof of crossexamination by the accused, still it is admitted in evidence against the general rule that hearsay evidence is not admissible in evidence. The dying declaration does not even require any corroboration as long as it inspires confidence in the mind of the court and that it is free from any form of tutoring. At the same time, dying declaration has to be judged and appreciated in the light of surrounding circumstances. The whole point in giving lot of credence and importance to the piece of dying declaration, deviating from the rule of evidence is that such declaration is made by the victim when he/she is on the verge of death. In the judgment rendered by the Hon’ble Supreme Court in the case of

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Abhishek Sharma v. State (NCT of Delhi) , reported in 2023 SCC OnLine SC 1358 has laid down various principles with regard to cases involving multiple dying declarations which is appreciated hereunder. Relevant Paragraphs of the judgment reads as follows :

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“8. 81 .This Court in Kamla v. State of Punja b ( 1993) 1 SCC 1 has held:

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“5. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao v. State of Bombay [AIR 1958 SC 22 : 1958 SCR 552 : 1958 Cri LJ 106]). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration, they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.”

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8.2. In State of Punjab v. Parveen Kumar(2005) 9 SCC 769 this court further observed:

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“10. …. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this court could have considered such corroborative evidence to test the truthfulness of the dying declarations…”

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8.3. In Amol Singh v. State of M.P. (2008) 5 SCC 468,

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“13. … However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.”

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8.4. Faced with multiple dying declarations, this Court in Lakhan v. State of M.P. (2008) 5 SCC 468observed-

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“21. … In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to

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scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.”

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This judgment was also referred to by this court recently in Makhan Singh v. State of Haryan a 2 022 SCC OnLine SC 1019.

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8.5. In Ashabai v. State of Maharashtra,the court observed:—

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“15. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other.”

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8.6. In Jagbir Singh v. State (NCT of Delhi), (2019) 8 SCC 779 the following principles were observed:

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31. A survey of the decisions would show that the principles of declarations can be culled out as follows:

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31.6. However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable.

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31.7. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the Accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;

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31.8. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the Accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration buta dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.”

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8.7. In Uttam v. State of Maharashtra, (2022) 8 SCC 576, this court observed:

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“15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the

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other attendant circumstances that would help the court in exercise of its discretion.”

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9. Having considered various pronouncements of this court, the following principles emerge, for a Court to consider when dealing with a case involving multiple dying declarations:

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9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;

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9.2 All dying declarations should be consistent. In other words, inconsistencies between such statements should be ‘material’ for its credibility to be shaken;

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9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations.

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9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.

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9.5 Each 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.

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9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.

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9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc

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Having meditated on the above-extracted principles, we now

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proceed to examine them in the facts in hand of the present cases. As the case of prosecution has been unfolded by I.O., therefore we would like to discuss the evidence of I.O. first and thereafter other evidence available on record. I.O. (P.W.-11) who has stated in his testimony that on 05.06.1991 he was at Seraikella Police Station. He was under probation at Seraikella Police Station and on the same day while he was in crime meeting in the office of Dy.S.P. at about 12.35 P.M., he got rumor (udti khabar) that two persons got injured by someone near mandir at Dogi Ghat and he reached to Dogi Ghat at 12.45 P.M. and Dy.S.P as well as Inspector of police also followed him and reached there by jeep and both the injured were brought to Seraikella hospital by jeep at about 12.55 P.M. and while the injured were being taken to the hospital, one injured (Govind Gope) succumbed to injury prior to treatment and second injured was being treated by the doctor.

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Death inquest report of died person was prepared by this witness and same has been marked as Exhibit-5. I.O. has also stated that second injured Bikram Gope made fardbeyan which is in his hand writing and signature and it also bore the thumb impression of Bikram Gope and signature of one compounder R.P. Thakur. Said fardbeyan has been marked as Exhibit-6. Thereafter, I.O. sent the dead body for post mortem and inspected the place of occurrence where one umbrella and one bag containing some articles got recovered and seizure list was made on which witness, Aswani Kumar Pati (P.W.-8) and Pradeep Kumar Acharya(P.W.-2) put their respective signatures and the said seizure list has been marked as Exhibit-8. During course of treatment, injured Bikram Gope succumbed to injury on 07.06.1991, thereafter I.O. came to know about the same on 09.06.1991 and death inquest report was prepared.

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13.P.W.-1 is the Dr. Murlidhar Das who examined injured Bikram Gope and found injuries as:-

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(i) Incised wound on right side in back middle of the scalp. There were eight injuries in number:-

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(a) 3”x1/2”x bone deep

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(b) 4”x1/2”x cutting of the scalp bone

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(c) 2.1/2”x1/2” x bone deep

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(d) 2”x1/2”x bone deep

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(e) 2”x1/2”x bone deep

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(f) 3”x1/2” bone deep

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(g) 4”x1/2”x bone deep

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(h) 2.1/2”x1”x cutting of the bone.

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(ii) Incised wound on the right index finger 1/2"x1/4”x1/4”

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(iii) Scratch on the right neck 3”x1/4” skin deep

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(iv) Incised wound right back of the scapular region:(a) 1”x1/4”x1/4”

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(b) 1”x1/2”x1/4”

14.Injury report has been marked as Exhibit-1. He has stated that he has examined the injured on the requisition of police and he also recorded the dying declaration of the injured in his pen and under his signature and injured has put LTI in his presence. The dying declaration has been marked as Exhibit-2. The injured was, thereafter referred to M.G.M Hospital, Jamshedpur. At Para 8 of cross-examination, P.W. 1 has stated that as the condition of injured was serious, therefore he considered to record his dying declaration and prior to that for saving life of the injured, he had given treatment and examined him. The dying declaration was got recorded in operation theater and at that time 3-4 sub-ordinate staffs were present but no police officer was there. He has stated that he requested police for recording dying declaration, but no one turned up and even telephonically he requested S.D.O. to get the dying declaration of injured be recorded, but no magistrate was present. At Para 9, he has stated that injured had given dying declaration in hindi and he asked him about the assailant, weapon which he has recorded in dying declaration. He very fairly conceded that part of the conversation from his side (question) was not recorded and only answer of injured is recorded in dying declaration. He further stated that injured had not lost consciousness in spite of injuries and he was always conscious.

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15.P.W.-3 Khudiram Gope and P.W.-5 Tupa Gope are real brothers of deceased Bikram Gope and son of deceased Govind Gope who stated that on the next day of the incident at 06.30 A.M. they came to know about the incident from P.W.-4, Amulya Gope (maternal uncle of P.W.-3 and P.W.-5) and thereafter, P.W.-3, P.W.-4 and P.W.-5 went to Seraikella and met their advocate and thereafter they went to police station and alongwith police official they visited to Seraikella Hospital where dead body of father of P.W.-3 and P.W.-5 was handed over to them and they

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cremated the same and thereafter all the three i.e. P.W.-3, P.W.-4, and P.W.-5 proceeded for M.G.M Hospital, Jamshedpur and reached there after sun set. These three witnesses further stated that they went into the hall/room of the hospital where injured Bikram Gope was on bed apart from other three patients and when P.W. 3, Khudiram Gope asked about the incident then injured Bikram Gope stated that Koila Gope, Kalo Gope, Paltan Gope, Hemkant Gope, Santosh Mahato, Meghnath Mahato had given blows to him as well as father at Dogi Ghat and thereafter, police came and they were taken to hospital and father succumbed to injuries. P.W.-3 has also stated that injured spoken to him that accused persons were demanding land of Bhu-daan and they committed the occurrence on account of not giving the said land.

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16.From the above stated discussions, it is clear that when police official took injured Bikram Gope and his father, Govind Gope to the hospital at Seraikella, Govind Gope died in the hospital prior to treatment, whereas Bikram Gope after getting treatment by Doctor (P.W.-1) had given dying declaration to P.W.-1 and thereafter, I.O. (P.W.-11) of the case has also recorded his fardbeyan which has also become dying declaration on account of death of informant on 07.06.1991. Thereafter, two brothers and mama of informant Bikram Gope (since deceased) namely, Khudiram Gope (P.W.-3), Tupa Gope (P.W.-5) and Amulya Gope (P.W.-4), have also stated that they heard from the mouth of Bikram Gope regarding commission of offence by the hands of six convicts of the present case. Therefore, there are three dying declarations in the present case, first dying declaration (vide Exhibit 2) recorded by Dr. Murlidhar Das, i.e. (P.W.-1), second dying declaration recorded by I.O. (P.W.-11) of the case as fardbeyan (vide Exhibit-6) and third-one is oral dying

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declaration made before brothers (P.W.-3 & 5) and mama (P.W.4) of the deceased.

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It is admitted case of prosecution that there is no eye witness to the incident and only dying declarations and evidence of P.W. 3, P.W.-4 and P.W.-5 are on record which speaks about the inimical relation between accused persons and deceased side and also oral dying declaration before them.

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18.Now in the backdrop of above stated material, we would like to examine three alleged dying declarations one by one to determine whether they are worthy of reliance. The first dying declaration is reproduced herein:-

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foØe xksi] firk&xksfoUn xksi] xzke&NksVk ykiqax] Fkkuk&bZpkd] ftyk&flagHkwe g S A ekjusokyk& dkspyk xksi] firk&esgUnh xksi] NksVk ykiqax] Hkqtkyh ls ekjkA

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dkyks xksi] firk&JhdkUr xksi] NksVk ykiqax] iyVu xksi] firk&vuUr xksi] gkFk esa Hkqtkyh Fkk] ftlls ekFkk esa ihNs ls nkfguk rjQ dkV fn;kA buyksxksa ds lkFk&¼1½ esgukFk egrks] firk&ckadq egrks] ¼2½ larks"k ekLVj egrks] firk&dkfrZd egrks Hkh Fkk] gkFk esa Hkqtkyh FkkA

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As far as first dying declaration is concerned, Dr. Murlidhar Das (P.W.-1) has stated that injured was brought to hospital and requisition was made by police official for the treatment of injured Bikram Gope. Firstly, he examined and given treatment and thereafter considering his serious condition, he recorded above stated dying declaration of injured. He clearly stated in his testimony that he put question to the informant and he answered but he has only recorded the answer given by injured. P.W.-1 has categorically stated that injured was conscious. There is no iota of material available on record which could even remotely suggest that any of the family members of the injured were present at the hospital when the dying declaration was recorded by doctor because I.O. (P.W.-11) of the case in his testimony has stated that he heard the rumor about the incident while he was

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attending crime meeting in the office of Dy.S.P., then he immediately rushed to place of occurrence and removed both the injured and one of the injured (Govind Gope) immediately died after reaching hospital and Bikram Gope was given treatment by the doctor (P.W-1). Further P.W.-1 has stated that he requested police for recording dying declaration but none turned up. He also telephonically requested S.D.O. to get dying declaration recorded but no Magistrate was present before him and considering the serious condition of injured he recorded the dying declaration. The said dying declaration is Exhibit-2 in the present case.

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At this stage testimony, of I.O. (P.W.-11) is required to be noted wherein he has stated that he came across the fact that one dying declaration has also been recorded by Dr. Murlidhar Das (P.W.-1) while, he was inspecting the case file of the present case in court on 12.06.1991. He has also stated that on 09.06.1991 he received information from M.G.M. Hospital, Jamshedpur that informant has died on 07.06.1991 and on 09.06.1991 he visited to M.G.M. Hospital, Jamshedpur and has recorded the statement of Khudiram Gope (P.W.-3), Amulya Gope (P.W.-5) and Tupa Gope @ Tribhuvan Gope (P.W.-4). Definitely, it is very unusual situation where the I.O. (P.W.-11) who brought injured to hospital at Seraikella is unaware about recording of dying declaration by the doctor (P.W.-1) who had given the first aid to the injured and referred him to M.G.M. Hospital, Jamshedpur. Further I.O. (P.W.11) recorded the fardbeyan of the injured after elapse of 45 minutes on the same day in the same hospital and was unaware about the dying declaration made by injured to the doctor (P.W.1). From perusal of above said dying declaration (first dying declaration recorded by P.W.-1) it transpires that it has been seen by A.C.J.M., on 11.06.1991. There is no corresponding order sheet in the case record regarding placing the first dying

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declaration before learned A.C.J.M. Seraikella on 11.06.1991. Even after going through the entire case record, we could not find that how this dying declaration delivered to the court of learned A.C.J.M. Seraikella, as I.O. (P.W.-11) was unaware about the existence of the first dying declaration till 12.06.1991. Further there is no material on record which could reveal that by whom it was delivered to the court concerned and prior to delivery who was the custodian. Ideally after recording the above said dying declaration the doctor (P.W.-1) ought to have given it to the I.O. (P.W.-11) of the concerned case who would have sent it to court concerned, but same has not been done in the present case. As we know, that accused is having no opportunity to cross examine the maker of dying declaration, therefore dying declaration ought to be believed by the Court which is beyond the smoke of suspicion from any corner but as in the present case there is no explanation on record that where the above said dying declaration was kept and by whom it was kept and who had taken this to court concerned as it was seen by learned Court (A.C.J.M., Seraikella) on 11.06.1991 but same has been recorded on 05.06.1991 at 01.00 P.M. Further, in first dying declaration, it is said that deceased has taken name of five persons as assailants and out of five, allegedly three had stated to be given bhujali blows and remaining two were also having bhujali in their hands. I.O. (P.W.11) has not recorded statement of Doctor (P.W.-1) under Section 161 Cr.P.C. who had recorded first dying declaration of the deceased. In view of the aforesaid discussion, it is difficult for us to place reliance on the above said first dying declaration.

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Now, coming to second dying declaration , which is in the form of fardbeyan recorded by I.O. (P.W.-11) at 13.45 P.M on 05.06.1991. I.O. has stated categorically in his testimony before the Court that he was not aware about the recording of dying declaration by the Doctor (P.W.-1). In view of such statement of

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I.O. (P.W.-11), it is clear that before recording fardbeyan I.O. was not at all aware about the name of assailants and other particulars regarding identity of injured as well as accused persons. Of course, this fardbeyan does not find certificate from any doctor that injured was in a fit state of mind to make statement. However, this fardbeyan bore the signature of one compounder R.P. Tiwary. It needs to refer herein the Judgment rendered by the Hon’ble Apex court in the case of Sher Singh v. State of Punjab reported in (2008) 4 SCC 265 wherein it has reiterated the legal proposition laid by the constitution bench in L axman v. State of Maharashtra reported in (2002) 6 SCC 710 and held that in the absence of medical certificate regarding the fitness of a person, satisfaction of person recording the statement that the said person being fit negate the doubt regarding veracity of such statement. Relevant paragraph of the judgment reads as follows:

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“15. In Laxman v. State of Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri) 1491 : AIR 2002 SC 2973] a Constitution Bench of this Court had an occasion to consider similar aspects regarding veracity of dying declaration where the doctor's certificate regarding the fitness of a person had not been taken. This Court held that if the person recording the statement is satisfied that the person was fit then the veracity of the declaration will not be questioned”.

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Recapitulating the factual matrix of the present case, it transpires that in the fardbeyan injured has stated that after completing court work when both of them i.e. father and son at about 12.30 P.M visited to Dogi Ghat then all of a sudden his villagers Koila Gope son of late Mahindar Gope, Kala Gope son of Srikanto Gope came from backside and started giving bhujali blow on him as well as his father and in the meanwhile, Hero Gope son of Sikandar Gope, Hemkant Gope Son of Ananto Gope, Paltan Gope son of Ananto Gope all residents of Chota Lapang, P.S. Ichagarh, District West Singhbhum and Santosh Mahato son of Kartik Mahato resident of Bada Lapang P.S. Ichagarh, District West Singhbhum also came and all of them started giving bhujali

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blow on them and on account of which they could not save themselves and all the above said persons caused number of injury on their persons specially on their heads on account of which his father succumbed to injury in the hospital and son was given treatment and thereafter, he was referred to M.G.M. Hospital, Jamshedpur and on the same date he was sent to M.G.M. Hospital at Jamshedpur. I.O.(P.W.-11) of the case has stated in his testimony that at 12.55 P.M. injured and his father (who died in the hospital itself) brought to Seraikella Hospital. I.O. (P.W.-11) has recorded the fardbeyan of the injured Bikram Gope at 13:45 Hrs at Seraikella state dispensary. Testimony of I.O. (P.W.-11) further reveals that after recording of fardbeyan, he visited to the place of occurrence and seized the articles. That articles include one bag and umbrella and bag was containing few documents related to land and court case paper.

¶135

At this juncture, it is required to be noted that, at the time of recording of fardbeyan none of the family members and/or acquainted person(s) of the injured/informant were present in the hospital because P.W.-3, P.W.-4 and P.W.-5 have categorically stated in their respective testimony that they came to Seraikella a day after the incident and met their advocate. Even the material available on record including the cross examination of witnesses, we do not find any iota of material which could suggest that before recording of fardbeyan, injured was tutored or prompted by any of the family members or any acquainted persons(s) of the informant. It is also clear that when the fardbeyan of Bikram Gope was being recorded, I.O. was having no piece of paper related to injured and deceased which could give some inkling towards the contents of fardbeyan. Then, one question which cropped up in our mind is that, if injured Bikram Gope had not stated the content of fardbeyan which contains the entire incident including the name of the culprits, then how I.O. (P.W.-11) could

¶136

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know the same in absence of either family member(s) or any acquainted person(s) of the injured. Entire cross examination of all the witnesses is silent on this point that at the time of recording of fardbeyan injured was prompted or tutored by any of the family member(s) or acquainted person(s) rather defence has chosen to give suggestion that injured was not in a position to speak. In this fardbeyan, informant has taken the name of assailant as Koila Gope s/o late Mahindar Gope, Kala Gope s/o Srikanto Gope, Hiro Gope, Hemant Gope, Paltan Gope, Santosh Mahato.

¶139

Incident is said to have occurred at 12.30 P.M. on 05.06.1991 and fardbeyan got recorded by I.O. (P.W.-11) at 13.45 Hrs. on the same day and this fardbeyan is the basis of FIR of present case and perusal of fardbeyan reveals that it bore signature of learned A.C.J.M dated 06.06.1991. It appears that there is no unnecessary time lag between incident and lodging of FIR on the basis of fardbeyan of injured and even sending the said FIR to court concerned, so we are having no doubt from above angle also. Learned Trial court record reveals that Kala Gope and Hiro Gope are the same and one person. In alleged first dying declaration, informant has allegedly taken name of five persons as assailants. Four names of assailants are common in second dying declaration but in second dying declaration name of Hemanto Gope is taken as fifth assailant whereas in first alleged dying declaration name of Meghnath Mahato was taken as fifth assailant. Two brothers of informant (P.W.-3 and P.W.-5) in their respective testimony have stated that there is animosity between informant side and accused side on account of land (Bhudaan).Therefore, we come to the conclusion that second dying declaration (fardbeyan of Bikram Gope) is voluntary, truthful and is worth of reliance.

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¶142

As far as third dying declaration is concerned, it has come in the testimony of P.W.-3, P.W.-4 and P.W.-5 that they came to Seraikella on 06.06.1991 and met an advocate and alongwith advocate they visited to Police Station and thereafter the hospital and took the dead body of Govind Gope father of P.W.3 and P.W.5 and cremated at Seraikella and thereafter they rushed to M.G.M. Hospital, Jamshedpur and reached there after dusk, where they found Bikram Gope admitted in the hospital and on query by P.W.-3, injured Bikram Gope divulged the name of six accused persons (five persons whose name was taken in fardbeyan and one name of Meghnath Mahato whose name found mentioned in alleged (first dying declaration) as the assailant and on account of non-returning of Bhu-daan land, such occurrence is said to be committed by those persons.

¶143

All the three witnesses have stated in their respective testimony that doctors and sisters were present in the hall of the hospital where apart from injured Bikram Gope other three patients were also lying on the bed and two saline drips were being administered in both the hands of injured and when P.W.-3 asked about the incident then injured stated so and it was being heard by P.W.-4 as well as P.W.-5. There is no medical paper brought on record by the prosecution which could show that what sort of medicines were administered to injured at M.G.M Hospital, Jamshedpur but undoubtedly painkillers would have been administered to him. P.W.-4 has stated that a bit less than half hour taken by injured in disclosing the incident to them and during this period, one nurse had also given injection to the injured. All these three witnesses have said in the respective testimony that the injured told them that Koila Gope, Kali Gope, Paltan Gope, Hemkant Gope, Santosh Mahato and Meghnath Mahato were the assailants. Conjoint reading of testimonies of P.W.-3, P.W.-4 & P.W.-5 suggest that alleged incident said to be

¶144

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narrated by injured to his two brothers (P.W.-3 and P.W.-5) and Mama (P.W.-4), appears to be improbable. This Court is having hesitation to accept the versions of these three witnesses even on account of fact that prior to coming to M.G.M Hospital, Jamshedpur, they met with an advocate and I.O. also and by that time, fardbeyan of injured had already been recorded. Possibility of concoction by these three witnesses by saying that injured had narrated the incident to them and took name of six assailants cannot be ruled out. Therefore, we are of considered view that alleged third oral dying declaration made before P.W.-3, P.W.-4 and P.W.-5 is not worthy of reliance.

¶147

In view of aforesaid discussion, we may conclude now that first alleged dying declaration recorded by P.W.-1 and third alleged oral dying declaration made before P.W.-3, P.W.-4 and P.W.-5 are not worthy of reliance and that’s why we are discarding them. But, as far as second dying declaration , which is in the form of fardbeyan is concerned, we are of the considered view that it is voluntary, truthful and worthy of reliance. Above stated aspect has not been considered by learned trial court while passing Judgment of conviction and order of sentence dated 22.09.1998 as it relied upon all the three dying declaration.

¶148

28.We, therefore, on the basis of discussion made hereinabove, are of considered view that as the names of the five appellants have been taken by the informant (since deceased) in the fardbeyan (second dying declaration) excluding the name of the appellant Meghnath Mahato, therefore, he is entitled for exoneration from the charges.

¶149

29.Consequently, the Judgment of conviction and order of sentence dated 22.09.1998, passed by learned Additional Sessions Judge, Singhbhum West at Seraikella in S.T. No. 146 of 1992 is hereby affirmed against all the appellants, except Appellant no.-5, Meghnath Mahato.

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As a result, Cr. Appeal (D.B.) No. 282 of 1998(R) is dismissed and as far as Cr. Appeal (D.B.) No. 312 of 1998(R) is concerned, Appellant no.5, Meghnath Mahato s/o Banku Mahato is acquitted, therefore, Cr. Appeal (D.B.) No. 312 of 1998 (R) is partly allowed.

¶153

Since, the appellant, Meghnath Mahato is on bail, he is discharged from the liability of his bail bond.

¶154

The remaining appellants are directed to surrender forthwith before the learned trial court to serve the remainder of their sentence.

¶155

33.We appreciate the assistance rendered by Mr. Shubham Sinha, learned Amicus Curiae and consequently direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Shubham Sinha, learned Amicus Curiae within a period of three weeks from the date of receipt/production of a copy of this order.

¶156

34.Let trial court record be sent back to the court concerned.

¶157

(Rongon Mukhopadhyay, J.)

¶158

(Arun Kumar Rai, J.)

¶159

Jharkhand High Court, at Ranchi Dated :- 01/ 07 /2025 Rajnish/-N.A.F.R

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20

Santosh Mahto v. State of Bihar

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Santosh Mahto v. State of Bihar

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