AMIR MALLICK Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence dtd. 13/3/2014 passed by Sri Deepak Nath Tiwari, the learned Additional Sessions Judge-II, Jamshedpur in Session Trial No. 240 of 2012, arising out of Mango (Azadnagar) P.S. Case No. 97 of 2012, whereby and whereunder, appellant No. 1 has been punished to undergo rigorous imprisonment for life for committing the offence punishable under Sec. 302/34 IPC and further pay a fine of Rs.10,000.00, whereas, appellant No. 2 has been punished to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000.00. In default of payment of fine, the appellants are liable to undergo rigorous imprisonment for further period of six months and three months respectively.

(2.) Learned counsel appearing on behalf of the appellants-convicts submitted that the main witness P.W. 1, who is the husband of the deceased, has not supported the prosecution case. As per the Fardbeyan of the deceased, which is dying declaration of the deceased, her husband was not in the house and had gone for morning walk, but this fact was demolished by the statement of P.W. 1 himself, who has stated that he was present in the house and was sleeping. Counsel for the appellants also submitted that as per the dying declaration, the deceased was preparing her children to send them to school, but this fact has also been demolished from the evidence of the defence witness i.e. son of the deceased who stated that the school was closed on that day, due to some holiday. He further submitted that Ext.-A, exhibited on behalf of the appellants would suggest that the school was closed, thus the statement of the deceased, which is supposed to be dying declaration cannot be believed. He also submitted that the Doctor, who had conducted the post-mortem report, suggests that the percentage of burn injury was 96% and no smell of kerosene oil was found and as per him, he could not even say that the burn was suicidal or homicidal. As per the appellants, when the percentage of burn injury is 95- 100%, it can be easily presumed that the deceased was not in a position to give any statement. He also submitted that considering the percentage of burn injury and the above discrepancies in the statement of the deceased, a doubt is created as to whether the deceased had actually stated the correct fact or not and what was her mental state. It is the contention of the appellants that the deceased while giving her dying declaration before P.W.9, stated that her Devar had caught her hands, her mother-in-law sprinkled kerosene oil upon her body and Sister-in-law set her ablaze, which is not in consonance with the statement given before the Magistrate, where she stated that her Devar and mother-in-law put kerosene oil over her and set her ablaze and she had not stated anything about her sister-in-law. He further submitted that in fact from the evidence, it is quite clear that the deceased committed suicide. He further argued that her two statements; one which is fardbeyan and another is the statement given before Magistrate creates doubt. Further doubt is created as to why two different doctors were assigned at the time of recording both the statements i.e. one at the time of fardbeyan and another at the time when Magistrate recorded her statement. He further submitted that since there are two different types of statement of the deceased and her statement is the sole basis of conviction, the same needs to be set aside. In support of the case of the appellants, he referred several judgments of the Hon'ble Supreme Court reported in the case of 2019(4) SCC 739 (Sampat Babso Kale and Anr. V. State of Maharashtra), 2005(9) SCC 769 (State of Punjab V. Parveen Kumar) and [Abhishek Sharma Vs. State (Govt. of NCT of Delhi)].

(3.) Counsel appearing on behalf of the State as well as informant submitted that the evidences are clinching and contradiction, which the appellants are trying to put forth are immaterial in nature and the same does not have any impact on the conviction. He further submitted that this cannot be said a material contradiction and both the doctors have clearly testified that the deceased was in a fit mental status to give her statement and a Judicial Magistrate has also recorded the statement, which cannot be doubted. He further submitted that so far as defence witness and statement of P.W. 1 is concerned, the same cannot be relied upon as naturally they were giving false statement saving the accused, who are blood relation and thus, he prayed that the judgment is fit to be upheld.