Pramod Rai Vs State Of Bihar

1. The appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction dated 29.05.2015 and the order of sentence dated 09.06.2015 passed by the learned 1st Additional Sessions Judge, Sitamarhi in Sessions Trial No. 377 of 2007/518/13 arising out of Sonbarsa P.S. Case No. 56 of 1994, whereby and whereunder the appellants have been convicted and sentenced as under :-

Appellant Pramod Rai in Criminal Appeal (DB) No. 628 of 2015

Appellant No. 1 Chandeshwar Rai in Criminal Appeal (DB) No. 648 of 2015

Appellant No. 2 Umesh Rai in in Criminal Appeal (DB) No. 648 of 2015

2. The fardbeyan of the informant Sitaram Rai (P.W. 6) led to registration of the concerned Sonbarsa, P.S. Case No. 56 of 1994 for commission of the offences punishable under Sections 147, 148, 149 324, 307 of the IPC, Section 27 of the Arms Act and Sections 3/4 of the Explosive Substances Act, 1908. As the victim died, Section 302 of the IPC was subsequently incorporated in the FIR under the Court’s Order. The prosecution's case as disclosed in the fardbeyan of the informant recorded at about 11:35 am before the Officer-in-charge of the police station is to the effect that in the morning of 02.07.1994, the informant and his son were uprooting seeds for sowing millet. In the nearby land belonging to them, paddy seeds were sown. In the meanwhile, accused Ram Chandra Rai was seen taking his cattle through the middle of their paddy field which was objected to by his son Nagendra Rai (the deceased). He alleged in his fardbeyan that thereafter, the accused Ramchandra Rai abused him and entered into some altercation. Subsequently, at about 11:00 am when the deceased went to his house for bringing food for the labourers and was coming back with the food, the moment he reached near a tree on the road, accused Ramchandra Rai opened fire with his pistol causing fire-arm injury to the deceased sustained his right elbow. Thereafter, Pramod Rai (appellant in Criminal Appeal (DB) No. 628 of 2015) hurled a bomb causing injuries in the stomach of the deceased. Ramchandra Rai, again fired a shot with his pistol. Other accused persons namely, Gajendra Rai, Raj Kishore Rai, Chandeshwar Rai (Appellant no. 1 in Cr. App. No. 648 of 2015 and Umesh Rai (Appellant no. 2 in Criminal Appeal (DB) No. 648 of 2015) were standing there and when Ram Dayal Rai (a cousin of the deceased) attempted to save the deceased; on being exhorted by co-accused Gajendra Rai, Umesh Rai hurled a bomb on him. He, however, managed to escape. The genesis of occurrence, the informant disclosed in his fardbeyan, as some dispute between the parties over drainage of water for which a panchayati was also held nearly 10 days ago. It is also the prosecution’s case that fardbeyan of the deceased Nagendra Prasad Yadav was recorded on 02.07.1994 at about 11:55 PM by one J.K. Singh an Officer of Sonbarsa police station, in Sonbarsa hospital wherein he had stated that Ramchandra Rai had shot at him with an intention to kill him which shot had hit his right hand and when he attempted to escape, the appellant Pramod Rai shot at him with pistol hitting in his stomach. After he raised hulla, his father and his neighbour Jai Narayan Rai (hostile) and Kailash Rai (hostile) came and took him to the hospital. We notice at this juncture itself, which is evident from the evidence of the witnesses that the deceased died on 02.07.1994, according to the prosecution’s case, while being taken to the Muzaffarpur hospital from Sitamarhi hospital.

3. The police upon completion of investigation initially submitted chargesheet against Gajendra Rai, keeping the investigation pending against rest of the accused persons named in the FIR. The chargesheet was subsequently submitted against four persons namely, Raj Kishore Rai, Umesh Rai, Chandeshwar Rai and Pramod Rai. Co-accused, Raj Kishore Rai died before submission of second chargesheet. The chargesheets were submitted for commission of the offences punishable under Sections 147, 148, 149, 323, 307 and 302 of the IPC, Section 27 of the Arms Act and Sections 3/4 of the Explosive Substances Act, against these appellants and the accused Ramchandra Rai.

4. After taking cognizance of the aforesaid offences, the case was committed to the Court of Sessions and was subsequently transferred to the court of learned 1st Additional Sessions Judge, Sitamarhi.

5. Charges were framed against the accused persons for the offences punishable under Sections 302, 302/34 of the IPC and Sections 3/4 of the Evidence Act. The accused Ram Chandra Rai was charged also of commission of the offence punishable under Section 27 of the Arms Act. The accused persons, including these appellants denied the charges and accordingly they were put on trial.

6. At the trial, the prosecution examined altogether 10 witnesses out of whom PW-2 (Fakira Thakur), PW-4 (Kailash Rai), PW-5 (Jai Narayan Rai) and PW- 9 (Ramasish Beldar) came to be declared hostile. Neither the investigating officer was examined nor the Doctor who had conducted the postmortem examination was examined. PW-8, an advocate’s clerk, proved the sanction order for the prosecution under Section 3/4 of the Explosive Substance Act. PW-10 is another advocate’s clerk, a formal witness, who proved the formal FIR and fardbeyan. He also proved the signature of the Doctor on the injury report and the postmortem report (Exhibit-4 and Exhibit-5).

7. After closure of the evidence of the prosecution’s witnesses, statements of the persons put on trial were recorded under Section 313 of the CrPC.

8. Learned trial court after having analyzed the evidence adduced at the trial has held the appellants guilty of the offences punishable under Sections 302/34 of the IPC. The appellants Pramod Rai and Umesh Rai have been held guilty also of the offences punishable under sections 3/4 of the Explosive Substance Act. The appellant, Chandeshwar Rai, has however been acquitted of the charge punishable under Section 3/4 of the Explosive Substance Act.

9. We have heard Mr. Vikram Deo Singh, learned counsel for the appellant in Criminal Appeal (DB) No. 628 of 2015 and Mr. Harsh Singh, learned counsel for the appellants in Criminal Appeal (DB) No. 648 of 2015. Mr. Abhimanyu Sharma has assisted this Court on behalf of the State in Criminal Appeal (DB) No. 628 of 2015 and Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State in Criminal Appeal (DB) No. 648 of 2015.

10. Mr. Harsh Singh, learned counsel for the appellants in Criminal Appeal (DB) No. 648 of 2015, has submitted that the prosecution has miserably failed to prove either the manner of occurrence or the place of occurrence. He has submitted that the so-called dying declaration of the deceased cannot at all be relied upon for many reasons. It appears that PW-7 was present in the hospital when the fardbeyan was recorded by the police officer which bears signature of PW-7 also. In his cross-examination, PW-7 has expressed his ignorance about the fardbeyan of the deceased having been recorded by a police officer in the hospital. He has also submitted that there is material inconsistency between the so called fardbeyan of the deceased recorded at about 11:55 am on the same day and the evidence of the witnesses at the trial. He contends that non examination of the investigating officer, the Doctor and the police officer, who according to the prosecution, had recorded the fardbeyan of the deceased is fatal to the prosecution’s case and it cannot be said that the prosecution was able to establish the charge beyond all reasonable doubts. Absence of the investigating officer at the trial has greatly prejudiced the informant’s case. He has also argued that the signature of the informant (PW-6) over the FIR has not been proved. He has drawn our attention to the statements of the appellants recorded by the trial court under Section 313 of the CrPC and has submitted that the same has been done by the trial court in a most casual and cavalier manner, inasmuch as, the circumstances emerging against the appellants were not duly explained by the trial court to the appellants, so as to enable them to duly respond thereto. In support of his submission, he has relied on the hon’ble Supreme Court’s decisions in the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra reported in (1984) 4 SCC 116, Avtar Singh & Ors vs State Of Punjab reported in (2002) 7 SCC 419 and Chairman, Disciplinary Authority, Rani Lakshmi Bai Bank vs Jagdish Sharan Varshney and Ors reported in (2009) 4 SCC 240. He has also argued that some of the witnesses who were not examined by the police during the course of investigation have claimed to be the eye witnesses at the trial. He has also submitted that the trial court has not considered the evidence of the witnesses examined at the trial as DW-1, DW-2 and DW-3.

11. Mr. Vikram Deo Singh, learned counsel appearing on behalf of the appellant in Criminal Appeal (DB) No. 628 of 2015 has argued that in the present case, the prosecution has failed to prove even the formal FIR and fardbeyan. He has reiterated that it is evident from the evidence of P.W. 1 that he was deposing at the trial for the first time and his statement was not recorded by the police under Section 161 of the Cr.P.C. He has submitted that the deposition of PW-6 (the informant) at the trial is materially different from what he had stated in his fardbeyan. He has argued that the contradictions could not be taken by the defence at the trial because of non-examination of the I.O. which has seriously prejudiced the appellants’ case. In order to bolster this contention, he has drawn this Court’s attention to the deposition of the informant (PW-6) in paragraph no. 10 of his evidence.

12. Learned Additional Public Prosecutor representing the State has submitted that the trial court has rightly held the appellants guilty of the charges based on the oral evidence of the prosecution’s witnesses and the fardbeyan of the deceased was recorded by the police officer when the deceased was undergoing treatment. They have argued that minor inconsistencies in the evidence of the prosecution’s witnesses may not be a ground for this Court to take a different view than what had been taken by the trial court on the point of the guilt of these appellants of the charges for which they were facing trial. It has been submitted that non-examination of the I.O. has not prejudiced the case of these appellants. Further, there is no legal infirmity in the manner in which the statement of the accused persons were recorded under Section 313 of the CrPC for the reason that they were present before the Court during the course of trial when the evidence of the prosecution’s witnesses was being recorded by the trial court and the defence had adequate opportunity to cross-examine the prosecution’s witnesses. Based on the evidence adduced at the trial, the trial court had put questions to these appellants. Except for simple denial, they did not explain the circumstances which were emerging against them from the evidence of the prosecution’s witnesses. In such view of the matter, they contend that no prejudice can be said to have been caused to them.

13. We have perused the impugned judgment of and order of the trial court and we have given our anxious consideration to the rival submissions advanced on behalf of the parties as noted hereinabove.

14. We are not referring to the evidence of such prosecution’s witnesses who have been declared hostile by the Court at the instance of the prosecution, since, nothing significant emerges from their depositions, though they were cross-examined also, by the learned public prosecutor.

15. In the present case, the prosecution claims to have got proved the formal FIR and fardbeyan of the informant as well as the fardbeyan of the deceased which came to be marked as Exhibits-1, 2 and 3 by an Advocate’s clerk. Further, the prosecution got proved by the said advocate’s clerk the injury report as well as the inquest report as Exhibits 4 and 5. Prosecution also claims to have proved the postmortem report through the same advocate’s clerks as Exhibit-6. We fail to understand as to how an advocate’s clerk could prove in one go the formal FIR, the fardbeyan of the informant and that of the deceased, the signatures of the police officer and the Doctors who had treated the deceased and conducted post mortem examination. In our opinion it will be a travesty of justice, if reliance is placed on the evidence of such witnesses while considering sustainability of conviction of a person for commission of an offence of murder.

16. We now come to the evidence of the prosecution’s witnesses who have supported the case of the prosecution.

17. PW-1 (Upendra Rai) is the full brother of the deceased. According to him, the accused Ramchandra Rai had shot at the deceased with the pistol hitting in his arm consequent upon which he had fallen down whereafter the appellant Pramod Rai had hurled a bomb on the stomach of the deceased. Thereafter, Pramod Rai, Ramchandra Rai, Gajendra Rai, Umesh Rai and Chandeshwar Rai started fleeing away. In the meanwhile, Ram Dayal Rai (PW-7) was been coming, whereafter the accused persons hurled a bomb on him also, but he escaped the assault as the bomb dropped in water.

18. It is pertinent to mention here that PW-1 in his examination-in-chief deposed that the appellant Umesh Rai had hurled a bomb on Ram Dayal Rai (PW-7), but as the bomb had dropped in water, Ram Dayal Rai was saved. It is noteworthy that the informant Sitaram Rai (PW-6) had disclosed in his fardbeyan that Ram Dayal Rai (PW-7) had escaped the bomb assault by concealing himself in water.

19. PW-3 (Indal Rai) deposed in his evidence that the appellant Pramod Rai had taken out a bomb and had thrown the bomb hitting the stomach of the deceased because of which his stomach was completely blown out PW-3, in paragraph no. 3 of his deposition had specifically denied that he had made any statement before the police during the course of investigation. PW-3 is also the full brother of the deceased and son of the informant. Though he has claimed to be an eye witness to the occurrence being present with the deceased at the time of occurrence in his cross-examination, he deposed that his father was there in Sonbarsha hospital with him. It is pertinent to notice that the time of recording of the fardbeyan of the informant is mentioned as 11:35 am. He also deposed that the entire intestine of the deceased had come out after sustaining the injury caused by the bomb.

20. The informant (Sita Ram Rai)(PW-6), the father of the deceased had described 11:00 am as the time of occurrence . Claiming to be an eye witness, he deposed that after the altercation had taken place between the deceased and the accused Ram Chandra Rai in the morning at about 7:00 am, at about 11:00 am Ram Chandra Rai had shot at the deceased in his right arm with a pistol. The second shot fired by Ram Chandra Rai had hit the stomach of the deceased. Ram Dayal Rai (PW- 7) had gone to rescue him but he had to flee away as they attempted to assault him also. According to the prosecution’s case, the appellant Umesh Rai had thrown a bomb on him but Ram Dayal Rai managed to escape by jumping into a water body. He also deposed that thereafter the deceased was taken to the police station in an injured condition and got the FIR registered. It is pertinent to mention that from the fardbeyan of the informant, it appears that the deceased was not taken to the police station in an injured condition. He admitted in his cross-examination that accused Ram Chandra Rai was working as a teacher in Muzaulik Primary School though he denied that on the date and at the time of occurrence, the accused Ram Chandra Rai was in his school. He reiterated in his cross-examination that the injured was taken to the police station first where the statement of the injured was recorded. From the fardbeyan of the deceased said to have been recorded by J.K Singh, Sub-inspector of Police of Sonbarsa police station, it appears that it was not recorded in the police station rather in a hospital i.e. Sonbarsa Primary Health Centre (PHC). He supported the prosecution’s case that the fardbeyan of the deceased was recorded by the police. Though he admitted that while lifting the deceased in an injured condition, his gamcha, kurta etc., were soaked with blood but he had not shown those clothes to the police. He also deposed that the bomb which was thrown on Ram Dayal Ram (PW-7) had fallen into a water in the field of one Jugal Jha.

21. PW-7 (Ram Dayal Rai) supporting the prosecution’s case had deposed that all the six accused persons had surrounded the deceased. Accused Ram Chandra Rai was carrying a pistol whereas Pramod Rai was carrying a bomb. Umesh Rai was also carrying a bag with bomb and others were carrying lathi and bhala. The shot fired by Ram Chandra Rai had hit the right elbow of the deceased and thereafter the appellant Pramod Rai had thrown bomb hitting the stomach of the deceased. The entire intestine of the deceased had come out because of the injury sustained by him by explosion of bomb. He deposed that thereafter, the accused Gajendra Rai caught him and told others to assault him whereupon, Umesh Rai had thrown a bomb upon him. He, however, jumped into water and bowed down to save himself. According to him, appellant Umesh Rai had thrown 2-3 bombs on him but he could save himself by concealing himself in water. As has been noticed hereinabove, PW-7 expressed his inability to say as to whether fardbeyan of the deceased was recorded by the police officer or not. It is the prosecution’s case, on the other hand that the said fardbeyan was recorded in his presence and the fardbeyan of the deceased contained his signature. Subsequently in his cross-examination, he deposed that the deceased had given his fardbeyan before the police in which he had named Chandeshwar Rai and Umesh Rai. It is pertinent to mention that in his cross-examination, he had denied that the deceased had not taken the names of the accused-appellants Umesh Rai and Chandeshwar Rai. We notice that in the fardbeyan of the deceased said to have been recorded by Sub-inspector J.K. Singh at Primary Health Centre, Sonbarsa, the deceased had not disclosed the names of these appellants and he had mentioned the name of only one persons i.e. Ram Chandra Rai, who had fired a shot, which had hit the deceased in his stomach.

22. In view of the submissions advanced on behalf of the appellants, as regards, in compliance of the requirement under Section 313 of the Cr.P.C, we consider it apposite to reproduce the questions put by the court and answers given by the persons put on trial:-

23. As has been noted above, the defence had examined three defence witnesses namely, Ram Naresh Kumar (DW-1), Kapil Dev Baitha (DW-2) and Prema Sinha (DW-3).

24. Evidence of DW-1 and DW-2 is to establish plea of alibi taken by the accused Ram Chandra Rai. Evidence of DW-2 is to establish the defence of alibi of the appellant Chandeshwar Rai. DW-3, Incharge Headmistress of Middle School, Chaniyawan, produced before the trial Court the attendance register of July-1994 of the School. She deposed that appellant-Chandeshwar Rai was an Assistant Teacher of the school and according to the attendance register the appellant-Chandeshwar Rai was present in the school on 01.07.1994, 02.07.1994 and 04.07.1994. The said register was marked as Exhibit-B. Time of arrival of the appellant-Chandeshwar Rai as mentioned in the attendance register was 6:00 am in the morning and departure at 11:30 am.

25. In our considered view, the so called fardbeyan of the deceased recorded by Sub-inspector J.K Singh of Sonbarsa police station at Sonbarsa Primary Health Centre, cannot be treated to be a dying declaration based on which the prosecution could establish the charge. This is firstly for the reason that there is no iota of evidence to prove that the deceased was in a fit mental and physical condition to make his statement before the police in the background of the nature of injury sustained by the deceased. It is the prosecution’s case that his statement was recorded in the Sonbarsa Hospital. No Doctor nor any other staff of the hospital was present when his fardbeyan was recorded to certify that he was in a position to state what he had stated before the police officer. It is noteworthy that the informant in his evidence in paragraph no. 15 has deposed that though the deceased had put his signature on fardbeyan but he was unconscious at that point of time. Surprisingly, the signature of the informant PW-6 is available on the said fardbeyan of the deceased. Informant in his evidence, in paragraph no. 6 has deposed on the other hand that he was unable to state whether the statement of the deceased was recorded by the police or not and he did not remember that he had put any signature on the fardbeyan of the deceased recorded by the police.

26. Mr. Harsh Singh, learned counsel for the appellant has rightly placed reliance on the Supreme Court’s decision in the case of Nallapati Sivaiah vs Sub-Divisional Officer, Guntur, reported in (2007) 15 SCC 465. It is a settled legal principle that though the dying declaration is a substantive piece of evidence and conviction can be recorded based on dying declaration, provided that the court is satisfied that the declaration made by the deceased was voluntary and reliable and that the author recorded the dying declaration as stated by the deceased. In the case of Smt. Paniben vs State Of Gujarat reported in (1992) 2 SCC 474, the Supreme Court, after having analyzed a catena of decisions has laid the principles governing the dying declaration as under:-

“18....................................................................……...

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764]

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] ; Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] ).

(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] ).

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617] )

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] )

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519] )”.

27. In the present case, as has been noted above, the fardbeyan of the deceased was not recorded in the presence of a Magistrate or a Doctor. There is no evidence that the deceased was in a fit state of mind to make his statement before the police. It is specific case of the prosecution’s witnesses that because of the injuries which the deceased had received because of explosion of bomb, his entire intestine had come out. It would be useful at this juncture, to notice paragraph nos. 28 to 36 of the decision in the case of Nallapati Sivaiah (supra) which reads as under:-

“28. In K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] the Court having noticed the evidence of PW 20 therein who conducted the post-mortem that there were as many as 48 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries, came to the conclusion that in view of those serious injuries it was difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. It was also a case where the Magistrate did not put a direct question to the injured whether he was capable mentally to make any statement. In the circumstances this Court came to the conclusion that the Magistrate committed a serious irregularity in “not putting a direct question to the injured whether he was capable mentally to make any statement”. It has been observed that even though the deceased might have been conscious in the strict sense of the term “there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence”.

The certificate issued by the doctor that the deceased was in a fit state of mind to make statement by itself would not be sufficient to dispel the doubts created by the circumstances and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured.

29. In the case in hand before the actual recording of Ext. P-8, dying declaration, the Magistrate (PW 7) did not seek and obtain any opinion and a certificate or endorsement from the duty doctor as to the physical and mental condition of the declarant to give statement. The Magistrate did not put any question as to whether the declarant was making a voluntary statement and whether he was in a fit condition to make the statement and whether any sedatives had been administered.

30. In Padman Meher v. State of Orissa [1980 Supp SCC 434 : 1981 SCC (Cri) 362] relying upon the evidence of doctor expressing the opinion that after receiving the injury the victim would not be able to talk and the injury would have caused great shock and part of the body could have been paralysed, this Court came to the conclusion that “the nature of the injury was such that whether death was instantaneous or not, the shock would have been such that the deceased would not have been in a position to talk”.

31. In Darshan Singh v. State of Punjab [(1983) 2 SCC 411 : 1983 SCC (Cri) 523] relying on the evidence of the medical officer who conducted the post-mortem examination on the body of the victim to the effect that the victim's vital organs like peritoneum, stomach and spleen were completely smashed and that there were remote chances of his remaining conscious after receipt of such injury, this Court observed: (SCC p. 414, para 7)

“7. … it is impossible to believe that he was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death. True, he was quite near his Creator … dangerously so indeed, and we may accept that his mind was then free from failings which afflict the generality of human beings, like involving enemies in false charges. But, Sohan Singh was too ill to entertain any thoughts, good or bad, and he could not possibly have been in a position to make any kind of intelligible statement.”

The Court accordingly refused to place any reliance on the dying declaration and excluded the same from consideration.

32. In Kanchy Komuramma v. State of A.P. [1995 Supp (4) SCC 118 : 1996 SCC (Cri) 31] this Court while considering the evidentiary value of a dying declaration noted that the prosecution for reasons best known to it did not examine the doctor who made the endorsement on dying declaration certifying that “the patient was in a fit state of mind to depose” and having further noticed that no other witness was examined to prove the certificate of the doctor held that the same creates a doubt as to whether the patient was actually in a proper mental condition to make a consciously truthful statement. It was held: (SCC pp. 123-24, para 11)

“11. … This infirmity renders it unsafe to rely on the dying declaration. As a matter of fact, the failure of the prosecution to establish that the deceased, before she made the dying declaration, was in proper mental condition to make the dying declaration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it.

That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the court. There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. [He must record the dying declaration satisfying himself that the declarant is in a proper mental state to make the statement.] … He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law.”

33. We may now refer to the decisions upon which strong reliance was placed by the learned counsel for the State in support of her submission that the dying declaration recorded by the Magistrate cannot be held to be unreliable merely because the doctor who issued the certificate regarding fitness has not been examined by the prosecution.

34. A three-Judge Bench of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] while referring to the judgment of this Court in Maniram v. State of M.P. [1994 Supp (2) SCC 539 : 1994 SCC (Cri) 1487] , in which this Court held that when the declarant was in the hospital itself, it was the duty of the person recording the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration observed that the said requirements “are of merely rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given”. This Court took the view that non-examination of the doctor and the doctor not making any endorsement on the dying declaration itself is no ground to exclude the dying declaration from consideration. This observation is to be understood in the factual background and the circumstances in that case in which the Magistrate who recorded the dying declaration, in his evidence categorically stated that the doctor introduced the victim and when she asked the doctor about the condition of the victim, the said doctor categorically stated that the victim was in a conscious condition. The doctor made an endorsement on the police yadi indicating that the victim was fully conscious. It was a case where the doctor certified about the condition of the victim before the learned Magistrate undertook to record the dying declaration. That apart there were two dying declarations corroborating each other and there was no inconsistency in those two dying declarations made.

35. In Laxman v. State of Maharashtra [(2002) 6 SCC 710 : 2002 SCC (Cri) 1491] a Constitution Bench of this Court held: (SCC pp. 713-14, para 3)

“3. … The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

36. The Constitution Bench in its authoritative pronouncement declared that there is no requirement of law that dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when a dying declaration was recorded by a Magistrate. It is the testimony of the Magistrate that the declarant was fit to make the statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor provided the court ultimately holds the same to be voluntary and truthful. The judgment does not lay down a proposition that medical evidence, even if available on record, as also the other attending circumstances should altogether be ignored and kept out of consideration to assess the evidentiary value of a dying declaration whenever it is recorded by a Magistrate.”

28. Applying the law laid down by the Supreme Court, some of which have been noted hereinabove, we are of the considered view that in the present facts and circumstances of the case, the so called dying declaration is of no evidentiary value.

29. Now, coming to the depositions of the witnesses, we notice from the evidence of PW-3 that he for the first time deposed at the trial supporting the case of the prosecution and according to him his statement was not recorded by the police.

30. We find substance in the submission made on behalf of the appellants that non-examination of the investigating officer in the present facts and circumstances of the case seriously prejudiced the case of the appellant, inasmuch as, they were unable to elicit contradictions based on the statements of the prosecution witnesses recorded by the investigating officer during the course of investigation and the depositions at the trial. Further non examination of the Doctor is also a serious lacunae in the prosecution’s case, inasmuch as, the appellants missed the opportunity to cross-examine the Doctor and merely bringing on record the injury report and the postmortem report by way of exhibits through an advocate’s clerk is not enough for the prosecution to prove the prosecution’s case about the nature of injuries sustained by the deceased during his death.

31. Last but not the least, we also find substance in the submission made on behalf of the appellants on the point of failure on the part of the learned trial court to duly comply with the requirement stipulated under Section 313 of the Cr.P.C. It is an important stage where the court precisely explains to the persons, put on trial, the materials emerging against them based on the evidence of the prosecution’s witnesses. We have reproduced the questions which were put by the learned trial court under section 313 of the Cr.P.C. For example, the appellant Umesh Rai was asked to explain the evidence that he alongwith other accused persons had killed the deceased with bomb and pistol. Exactly same question was put to the appellant Chandeshwar Rai. The questions in the court’s opinion are patently vague and cannot be said to be in due compliance of Section 313 of the Cr.P.C. As regards, Pramod Rai, the Court informed him that there was evidence that he and other accused persons had killed the deceased with pistol, lathi, farsa and bomb, though there was no evidence emerging from the oral or documentary evidence of the prosecution that the deceased was assaulted with lathi or farsa.

32. It has recently been reiterated by Supreme Court in the case of Kalicharan Vs. State of U.P. reported in (2023) 2 SCC 583, that the accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. The Supreme Court in the case of Kalicharan (supra) has referred to the celebrated Supreme Court’s decision in the case of Sharad Birdhi Chand Sarda (supra), wherein, it has been conclusively held that the circumstances which are not put to the appellant in his examination under Section 313 of the Cr.P.C, have to be completely excluded from consideration.

33. For the reasons, discussed hereinabove, we are of the considered view that the prosecution has failed to establish the charges against these appellants of the commission of the offences punishable under Section 302 of the IPC read with section 34 of the IPC and Sections 3/4 of the Explosive Substances Act.

34. We have noticed material inconsistencies in the evidence of the prosecution’s witnesses. Non examination of the investigating officer or the medical expert to prove the postmortem examination is also fatal to the prosecution’s case.

35. Resultantly, the appellants stand acquitted of the charges of commission of offence punishable under Section 302/34 of the IPC and Section 3/4 of the Explosive Substances Act, by giving them benefit of doubt.

36. Accordingly, the impugned judgment of conviction dated 29.05.2015 and order of sentence dated 09.06.2015 passed by the learned 1st Additional Sessions Judge, Sitamarhi in Sessions Trial No. 377 of 2007/518/13 arising out of Sonbarsa P.S. Case No. 56 of 1994, are hereby set aside.

37.These appeals are allowed.

38. The appellants are in custody consequent upon their acquittal by the present judgment, let them be released from jail forthwith, if not required in any other case.

Rajesh Kumar Verma,J:- I agree.