DULAR PANDIT AND ORS. Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal has been directed against the judgment of conviction and sentence dated 29.08.2005 and 31.08.2005 respectively, passed by Sri Sajjan Kumar Dubey, Addl. District and Sessions Judge, Fast Track Court -IV, Giridih in connection with Sessions Trial No. 148 of 1990, corresponding to Rail (Gomo) P.S. Case No. 02 of 1990, G.R. Case No. 101 of 1990 whereby the learned Addl. Sessions Judge has held the appellants guilty for the offence punishable under Sec. 302/34 of the Indian Penal Code and sentenced them to undergo R.I. for life and also to pay fine of Rs. 1000/ - each and in default of making payment of fine, further R.I. for six months. The prosecution case, as it appears from the fardbeyan of Murat Pandit recorded on 09.01.1990 at about 7.30 p.m. at referral hospital Dumari (Giridih), in brief, is that on 09.01.1990 informant had gone to Giridih court to know about the development of a case which was lodged against murder of his daughter Bishuni. In course of returning, at about 5.00 p.m. he boarded Dhanbad -Gaya passenger at Parasnath railway station. The informant noticed that appellants Dular Pandit, Kiti Pandit and Deglal Pandit were also present in the said compartment. As soon as the train proceeded, appellant Dular Pandit, who happens to be son -in -law of Murat Pandit, pushed Murat Pandit from the train as a result he fell down and sustained injuries on his person. Murat Pandit was removed to hospital for treatment where his fardbeyan was recorded and a case being Rail (Gomo) P.S. Case No. 02 of 1990 under Ss. 326 and 307/34 of the Indian Penal Code was registered. After few minutes of recording of fardbeyan Murat Pandit died. Since Murat Pandit died, Sec. 302 of the Indian Penal Code was requested to be added and for that requisition was filed by the I.O. before the Court below. It is also disclosed in the fardbeyan that appellant Dular Pandit is none else but son -in -law of Murat Pandit. The daughter of Murat Pandit has been done to death for which a case was lodged by Murat Pandit against Dular Pandit and others and that case was pending at Giridih court and Murat Pandit had gone to know above development of that very case.

(2.) Learned counsel appearing for the appellants have assailed the impugned judgment mainly on the ground that it was a case of an accident but the informant has given it a colour of murder. As a matter of fact, it was a coincidence that the appellants and the deceased boarded in the same compartment of same train. The statement given by the informant clearly indicates that there was crowd in the compartment and the informant was compelled to stand on the door. As soon as the train moved from Parasnath railway station, due to jostling he fell down from the running train and sustained injuries on his person. The informant was removed to hospital for treatment but under vengeance he has named the appellants and levelled allegation that push was given by appellant Dular Pandit as a result he fell down and sustained injuries. Learned counsel has submitted that appellant Dular Pandit had been facing consequence of a case which was lodged by his wife for grant of maintenance and for the offence punishable under Sec. 498A of the Indian Penal Code. Taking advantage of that situation and the coincidence that the appellants were also present in the same compartment, the informant has levelled allegation to take revenge. The contention of the informant does not find support from any other witness though admitted case of the prosecution is that occurrence took place at Parasnath railway station where passengers were present. No co -passenger has been examined to corroborate the prosecution case. The learned Addl. Sessions Judge, placing reliance on the fardbeyan of the informant and considering it to be a dying declaration, has held the appellants guilty. The findings of trial Court is highly erroneous and based on mis -appreciation of facts. The fardbeyan could not be considered as dying declaration because certificate from the doctor has not been taken, it bears L.T.I. of Murat Pandit. From the statement of PW 1 Chulham Ram it appears that within 57 minutes after recording of fardbeyan Murat Pandit died. Had it been so, it can well be said that Murat Pandit was not in position to give any statement.

(3.) Learned counsel appearing for appellant Nos. 2 and 3 namely Kiti Pandit and Deglal Pandit has submitted that conviction is recorded relying on the fardbeyan which has been considered as dying declaration. In the fardbeyan, the deceased has not levelled any allegation against these two appellants. They have been made accused and held guilty with the aid of Sec. 34 of the Indian Penal Code and the findings of the trial court is erroneous on this account. Travelling in the same compartment could not be an offence. No overt act was committed by any of them. In the circumstances, the judgment of conviction and sentence recorded against appellant Nos. 2 and 3 namely Kiti Pandit and Deglal Pandit is liable to be set aside.