Seraj @ Serajuddin Mian vs State of Bihar (Now Jharkhand)

Heard learned counsel for the appellants and the learned counsel for the State.

The appellants are aggrieved by the impugned Judgment of conviction dated 30.01.1996 and Order of sentence dated 31.01.1996, passed by the

learned 6th Additional Sessions Judge, Palamau at Daltonganj, in S.T. No. 80 of 1993, whereby, both the appellants have been found guilty and

convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been

sentenced to undergo R.I. for life for the said offence.

The prosecution case was instituted on the basis of the fardbeyan of the deceased himself, recorded on 01.05.1991, while he was alive and

undergoing treatment at Bhavnathpur hospital. The deceased informant had stated that about one month ago, the accused Seraj Mian had charged him

of practicing witchcraft on his mother. In the previous night, the informant was sleeping outside his house, and at about 04:00 A.M., Seraj Mian and

Sarfu Mian alongwith two unknown persons came, and with the intention to cause his death, assaulted him by knife. He has stated that Seraj pierced

the knife in his neck and Sarfu Mian assaulted him on his face and the left thumb. Upon the alarm raised by him, his family members came out of the

house and they saw the accused persons fleeing away. He has stated that the occurrence had taken place due to the fact that the accused persons

were alleging the informant of practicing witchcraft. On the basis of the fardbeyan of the informant, Bhavnathpur P.S Case No. 49 of 1991,

corresponding to G.R No.331 of 1991, was instituted for the offences under Sections 342, 324, 326, 307 / 34 of the Indian Penal Code, against both the

accused appellants and two unknown persons and investigation was taken up. During his treatment at RIMS, Ranchi, the deceased died and

accordingly, Section 302 / 34 of the Indian Penal Code was also added. After completing the investigation, the police submitted the charge-sheet in the

case.

After commitment of the case to the Court of Session, charge was framed against both the accused persons for the offence under Sections 302 /

34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, four

witnesses were examined by the prosecution. Neither the Doctors conducting the post-mortem examination or treating the deceased while he was

undergoing treatment, nor the I.O., have been examined by the prosecution. Accordingly, the FIR, the fardbeyan, the inquest report and the post-

mortem report were proved by a formal witness, P.W.-5Â Â Md. Ashik, which were marked Exhibits - 1 to 4 respectively.

P.W.-1 Rubiya Bibi and P.W.-2 Saliman Bibi are the wife and the daughter-in-law of the deceased, and from their evidence, it appears that they

have tried to become the eyewitness to the occurrence, stating that they had seen both these accused persons assaulting the deceased by knife.

However, their cross-examinations clearly show that they were not the eyewitnesses to the occurrence, and their evidence being the eyewitnesses to

the occurrence has also been disbelieved by the Trial Court below, and rightly so.

P.W.-3 Salim Ansari and P.W.-4 Ali Mohammad Ansari are the sons of the deceased. P.W.-3 Salim Ansari was present in the house and he has

stated that upon hearing the noise, he came out of the house and he saw his father was injured, and four persons were fleeing away. His father

informed him that both these accused had assaulted him by knife. P.W.-4Â Â Ali Mohammad Ansari was not present in the village and he has stated

that upon getting the information, he came and saw his father at Daltonganj hospital, where his father informed him that both the accused persons had

assaulted him by knife. Thereafter, he was referred to RIMS, Ranchi, where he died in course of treatment. Both these witnesses have stated that

there was land dispute between the parties due to which the occurrence had taken place.

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No

evidence was adduced by the defence in the case. On the basis of the evidence on record, the Trial Court below has found the accused persons guilty,

and convicted and sentenced them as aforesaid. 8. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and

Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, neither the Doctor who had treated the

deceased while undergoing the treatment, or the Doctor who had conducted the post-mortem examination on the dead body of the deceased, nor the

I.O., of the case, have been examined in the case. It is also submitted by the learned counsel that the FIR cannot be treated as the dying declaration

of the deceased, as even though the fardbeyan of the deceased was recorded in the hospital and it also bears the signature of one Doctor, but there is

no certificate on the fardbeyan that the deceased was in a position to give his statement. It is further submitted by the learned counsel that even the

evidence of P.W.-3Â Salim Ansari and P.W.-4 Ali Mohammad Ansari clearly show that they are not the eyewitnesses to the occurrence, rather they

claimed to be informed by their deceased father about the occurrence, but since there is allegation that knife was pierced in the neck of the deceased,

it is absolutely doubtful that the deceased was in a position to make any such statement before his death. Indeed, the land dispute between the parties

is admitted by these witnesses and the false implication of the accused persons for such enmity cannot be ruled out. Learned counsel accordingly,

submitted that the prosecution has failed to bring home the charge against the accused persons beyond all reasonable doubts, and it is a fit case in

which both the appellants ought to have been given the benefits of doubt.

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the case rests on the dying declaration of the

deceased himself and the FIR in the case has to be treated as the dying declaration. It is submitted that even if there was no other ocular evidence to

prove the case, the conviction of the appellants could be secured only on the basis of this dying declaration of the deceased. It is submitted that in the

present case, the FIR is corroborated by at least two witnesses who are P.W.-3 Salim Ansari and P.W.-4 Ali Mohammad Ansari, who have stated

that they were also informed by the deceased that both these accused persons had assaulted him by knife, which ultimately resulted in his death. It is

submitted that though the Doctor conducting the  post-mortem examination, or the I.O. could not be examined in the case, but the FIR and the

post-mortem report have been proved by a formal witness P.W.-5 Md. Ashik. Learned counsel accordingly, submitted that no prejudice is caused to

the defence due to non-examination of the I.O. and the Doctor in the case, and there is no illegality in the impugned Judgment of conviction and Order

of sentence passed by the Trial Court below.

Having heard the learned counsels for both sides and upon going through the record, we find that though it is claimed that the FIR was lodged by

the deceased himself while he was undergoing treatment in the hospital in which he has clearly stated that both these accused persons had assaulted

him by knife and one of them had pierced the knife in his neck, and subsequently in course of treatment, he died, but the fact remains that there is no

endorsement on the FIR by the Doctor, who had put his signature on the fardbeyan, that the deceased was in a position to give such a statement. In

the FIR, it is stated that the occurrence had taken place due to the fact that the accused persons were charging the informant of practicing witchcraft

on the mother of Siraj, whereas the evidence of the prosecution witnesses is that the occurrence had taken place due to the land dispute between the

parties. As such, the motive to commit the offence, as given in the FIR, and as deposed by the witnesses, are quite contrary. It also appears from the

fardbeyan which has been proved as Exhibit-2, that though there is a signature of the Doctor on the fardbeyan but that signature has not been proved

by the prosecution and there is no endorsement on the fardbeyan that the deceased was in a position to give such statement. This was very important

in the facts of the case, as we have gone through the post-mortem report also, though the contents thereof have not been proved by the prosecution

and only the   post-mortem report has been proved by a formal witness, but it shows that the blood vessels in the neck, the 6th cervical vertebra

and the trachea of the deceased were also cut. In that view of the matter the certificate of the attending Doctor that victim was in a position to speak

and give such statement was absolutely necessary in this case, in order to place reliance on the FIR, treating it to be the dying declaration of the

deceased. In the facts of this case, we are of the considered view that even the fardbeyan of the deceased, which is treated as a dying declaration,

does not inspire confidence, so as to base the conviction of the appellants solely on the basis of this dying declaration. Even the alleged information

given by the deceased to his sons, does not inspire confidence, and cannot be treated as oral dying declaration of the deceased.

We are of the considered view that in the facts of this case, both the appellants were entitled at least to the benefits of doubt and as such, the

impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law.

In view of the foregoing discussions, the impugned Judgment of conviction dated 30.01.1996 and Order of sentence dated 31.01.1996, passed by

the learned 6th Additional Sessions Judge, Palamau at Daltonganj, in S.T No. 80 of 1993, convicting and sentencing the appellants, Seraj @ Serajuddin

Mian and Sarfu @ Sarfuddin Mian, for the offence under Sections 302 / 34 of the Indian Penal Code, are hereby, set aside. Consequently, both the

appellants are given the benefits of doubt and they are acquitted of the charge. Both the appellants are on bail and they are discharged from the

liabilities of their respective bail bonds.

This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this

Judgment.