Baijnath Manjhi vs State of Jharkhand

This appeal is directed against the judgment and order of conviction and sentence dated 20.2.2004 and 24.2.2004 respectively passed by the learned Addl. Sessions Judge, FTC 1, Bermo at Tenughat, in Sessions Trial No. 228 of 2000 whereby and whereunder the appellant having been found guilty for committing murder of Sonia Manjhian has been convicted for the offence punishable under section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. The case of the prosecution is that while Babuchand Marandi (PW2), Motilal Manjhi (PW3), Haldhar Manjhi (PW4) and Rajkumar Manjhi (PW5) had gone to field to answer nature of call, they heard sound of screaming. Upon it, when they went to that direction, they saw Sonia Manjhian (deceased) at a place severely injured. She disclosed to them that it was the appellant who had inflicted injuries upon her. One of them Raj Kumar Manjhi (PW5) informed the brother of the deceased Bajan Manjhi PW6 (informant) who along with others, PWs 2 to 5, came at the place of occurrence to whom the deceased again told that it was the appellant who has inflicted injuries upon her. Thereupon, when the informant and others started taking the deceased to hospital, she died on the way whereupon the dead body was brought by the informant to his house. Subsequently, the informant PW6 came to the police station and gave a written report (Ext. 4) upon which the case was registered under Section 302 of the Indian Penal Code and a formal FIR (Ext. 4/1) was drawn.

The matter was taken up for investigation. During investigation, Police came to the house of the informant and prepared inquest report (Ext. 2/1). Thereafter, the dead body was sent for post-mortem examination which was conducted by Dr. Ratneshwar Prasad Verma, (PW8) on 15.3.2000 during which he found following ante mortem injuries:---

"1. Abrasion 1 1/2 " x 1/4" over right side of forehead.

Abrasion 3 1/2" x 1/4 over right side of back. 1'' below costal cartridge obliquely placed.

Abrasion Pea size left side of waist.

Cut 1'' x 1/2'' x skin deep outer side of right arm.

Cut 1/2'' x 1/2'' x skin deep outer side of right arm.

Cut 1 x 1/2 x 1/6'' back of the palmer side of the thumb.

Cut 1 x 1/6'' x skin deep medial side of the palm of right hand.

Cut 1'' x 1/4'' x skin deep right side of back at the lower end of scapula, 2'' away from the mid line.

Cut 1'' x 1/2'' x 1/2'' right side of waist.

Cut 1'' x 1/4'' x 1/2'' left side of back 2" away from the mid line at T-12 level.

Cut 1 1/4'' x 1/4'' x 1'' left side of the back 3" away from mid line at L-1 level.

Cut 3'' x 1/6'' x skin deep transverse 1'' away of midline at L-5 level on left side.

Cut 1/2" x 1/4'' x 1/2" on the mid line of the waist 2" below the L-5.

Cut 1 1/2 x 1/4'' x skin deep lower and outer side of left breast.

Cut 1'' x 1/4'' x 1/2'' medial side of middle of the left forearm.

Cut 1 1/2 x 1/4 '' x 1/2 back of left forearm.

Cut 1'' x 1/4'' x 1/4'' outer side of left forearm 2" below the elbow transverse.

Cut 1/2'' x 1/4'' x 1/2'' front of the left arm transverse.

Cut 1/2'' x 1/4'' x 1/4'' left side of the nape of neck.

Stab injury 1/2'' x 1/4'' x 1 left side of back below the neck.

Stab injury 1 1/2'' x 1/4'' x 1 1/2'' right side of back at the level of T-10 & 1 and 1/2'' away from mid line obliquely placed.

Stab injury 1 1/2 x 1/4 x 2 right side of back half inch below the injury No. 21... Stab injury 1 x 1/4 abdominal cavity deep right side of back about half inch below the injury No. 21 vertical.

Stab injury 1 1/2'' x 1/4'' x 1 1/4'' right side of back transverse about 2" below injury No. 22.

Stab injury 1 1/2 x 1/4 x thoracic cavity deep left side of chest in wall in posterior auxiliary, but at the level of T7.

Stab injury 1 1/2 x 1/4'' x thoracic cavity deep left side of chest in mid axillary line at the level of T3 oblique.

Stab injury 1 1/2 x 1/4'' x Thoracic cavity deep left side of chest in mid auxiliary line at the level of T-8.

Stab injury 1 3/4 x 1/4 thorasic cavity deep just behind the auxiliary line at the level of T4.

Stab injury 1 x 1/2 1 1/2 left side of abdomen in mid clavicular line."

According to the doctor, the death of the deceased occurred due to cardio respiratory failure on account of massive haemorrhage and shock due to severe injuries to vital organs like lung, stomach and spleen. The post-mortem report has been proved as Ext. 3.

On completion of the investigation, police submitted charge-sheet upon which cognizance of the offence was taken. When the case was committed to the court of sessions, the appellant was put on trial.

The prosecution examined altogether nine witnesses. Of them, PW2, PW3, PW4 and PW5 did testify that while they had gone to the field, they heard sound of screaming coming from a direction, when they moved to that direction, they found the deceased Sonia Majhian severely injured. She disclosed to them that it was the appellant who had inflicted injuries upon her with knife. One of them (PW5 Rajkumar informed the brother of the deceased Bejan Manhi (PW6) who along with P.W. 1 Surendra Manjhi when came to the place of occurrence, the deceased disclosed to them also that it was the appellant who had inflicted knife injuries to her. They started taking her to hospital, but, on the way, she died and, therefore, they brought the dead body of the deceased to the house of the informant PW6. The witnesses, particularly PW6, have clearly deposed that neither he had enmity with the appellant, nor the appellant was inimical to the deceased. However, the trial court having found the evidences of the witnesses credit-worthy, placed its reliance over the dying declaration and hence recorded the order of conviction and sentence against the appellant. Being aggrieved with that judgment of conviction and order of sentence, this appeal has been preferred.

Mr. Shiv Kumar Singh, learned counsel appearing for the appellant submits that though the trial court has relied upon the dying declaration allegedly made by the deceased, but it would not be possible for a person having 28 injuries on her person and some of them on vital parts, to speak out anything after receiving injuries whereby the lungs and pleura got torn and thereby the court by placing reliance upon the oral dying declaration has committed illegality in recording the order of conviction and sentence against the appellant.

However, learned counsel for the State submits that it is true that as many as 28 injuries have been inflicted on the person of the deceased and some of them are on vital parts, but the defence has failed to elicit any thing from the evidence of PW8 Dr. Ratneshwar Pd. Verma that the deceased was not in a position to speak out anything after receiving those injuries and in that circumstance, the trial court has rightly believed the oral dying declaration of the deceased and hence the judgment of conviction and order of sentence passed against the appellant never warrants to he interfered with.

The question which falls for consideration is as to whether, the deceased having received 28 injuries and some of them are on the vital parts, like pleura, lungs and stomach, would be in a position to say anything or there would be instantaneous death?

We have already taken notice that the deceased had been inflicted with number of injuries. At the risk of repetition, we would be highlighting here only those injuries which must have had impact on the death of the deceased. The doctor (PW8) upon dissection of the organs did find following injuries.

Thorasic and abdominal cavity were found filled with blood and blood clots. The peritoneum was torn as well as lacerated filled with digested food material, blood and clots. Pleura and lungs were torn and lacerated. The stomach was punctured at great curvature and wall of the stomach was torn and lacerated giving way to the tip of the finger. Both sides of chambers of the heart were empty.

Thus, we find that the peritoneum , pleura and lungs were found torn and lacerated. In that event, whether there would be instantaneous death or the person would survive for some time? in order to find it out, in absence of any evidence in this regard, we may refer to the text of Modi''s 24th Edition 2011 wherein it has been noted that in case of injury being inflicted upon intestine, death may occur immediately from a shock or subsequently from the peritonitis owing to expulsion of the contents into peritoneal cavity. It has further been recorded that in three out of ten cases of medical violence to the small intestine that came under Modi''s observation, death occurred from peritonitis on the third, fourth and sixth day respectively after the rupture.

However, in the instant case, we find that not only peritoneum was torn and lacerated, pleura and lungs were also torn and lacerated. Since peritoneum was torn, digested food material blood and blood clots got filled up in the peritoneum cavity. In that event, there is likelihood of suffocation being caused immediately. There may be instantaneous death. Here, in the instant case, the prosecution has not come forward to place on record as to when the witnesses PW2 to 5 had came near the deceased after she was inflicted with injuries. The circumstances which are appearing in the instant case do suggest that the witnesses may not have reached immediately after the deceased was inflicted with injury, as according to the evidence of PW2, it took 1/1 1/2 minutes in reaching at the deceased after they heard the sound of screaming. Much before that, she would have been inflicted with injuries. Had the deceased been inflicted with injuries by the appellant immediately, the witnesses could have cited the appellant at the place of occurrence. But it is never the case of the prosecution that the appellant was seen running away by the witnesses. Therefore, it is expected that there would have been much time gap in between the witnesses coming near the deceased and the deceased being inflicted with injuries and in such situation, the deceased, keeping in view the nature of the injuries sustained by her would not have been in a position to speak out anything. Therefore, it would never be safe on our part to rely on the oral dying declaration of the deceased. Moreover, as per evidence of PW6 when the appellant was neither inimical to the informant, nor to the deceased, one would go on guessing as to why the appellant would commit murder of the deceased. In such circumstances, we do find that the trial court has committed illegality in recording order of conviction and sentence against the appellant which is fit to be set aside. For the reasons aforesaid, this appeal is allowed. The order of conviction and sentence of the appellant by the trial court in Sessions Trial No. 228 of 2000 is hereby set aside and the appellant is acquitted of the charges. Consequently, the appellant is directed to be released forthwith if not wanted in connection with any other case.

Thus, this appeal is allowed.