Kishun Shood And Ors. Vs State of Bihar

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(2025:JHHC:26860-DB)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (DB) No. 87 of 1998 (R)

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( Against the Judgment of conviction and order of sentence both dated 02.04.1998 passed by learned 5^th Additional Sessions Judge, Giridih, in Sessions Trial No. 169 of 1992.)

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Kishun Sao, son of Ishwar Sao

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Bhatu Sao, son of Late Budhan Sao

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Kunjo Pandit, son of Late Bhakar Pandit.

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Bhola Sao, son of Teju Sao.

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Digambar Pandit, son of Bishun Pandit.

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All residents of Village-Mangora Baghnala, P.S.-Birni, District-

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Giridih.

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… … Appellants

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Versus

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The State of Bihar (now Jharkhand) … … Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellants : Mr. B.M. Tripathy, Sr. Advocate Mr. Naveen Jaiswal, Advocate For the Resp.-State : Mr. Bhola Nath Ojha, Spl. P.P.

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C.A.V./Reserved on 21^st August, 2025 Pronounced on 04/09/2025

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Per Sujit Narayan Prasad, J.:

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The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the Judgment of conviction and order of sentence both dated 02.04.1998 passed by learned 5^th Additional Sessions Judge, Giridih, in Sessions Trial No. 169 of 1992 arising out of Birni P.S. Case No. 97 of 1990, whereby and whereunder, the appellant no.1 Kishun Sao has been convicted under section 302 and 148 IPC; appellant no.2 Bhatu Sao has been convicted under Section 302/149 and 147 of IPC; appellant no.3 Kunjo Pandit has been convicted under Section 302/149 and 147 of IPC; appellant no.4 Bhola Sao has been convicted under section 341 and 323 IPC; appellant no. 5 Digambar Pandit has been convicted under Sections 341 IPC.

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Cr. Appeal (DB) No. 87 of 1998 (R)

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So far as sentence is concerned, appellant no.1 Kishun Sao has been sentenced to under imprisonment for life undergo section 302 IPC and R.I for one year under section 148 IPC; appellant no.2 Bhatu Sao has been sentenced to undergo imprisonment for life under Section 302/149 and R.I for six months under section 147 of IPC; appellant no.3 Kunjo Pandit has been has been sentenced to undergo imprisonment for life under Section 302/149 and R.I for six months under section 147 of IPC; appellant no.4 Bhola Sao has been sentenced to undergo R.I. for fifteen days under section 341 and R.I for six months under section 323 IPC and Appellant no. 5 Digambar Pandit has been sentenced to undergo undergo R.I. for fifteen days under Sections 341 IPC. All the sentences were directed to run concurrently.

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Factual Matrix

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The prosecution story in brief is required to be referred herein, which is as under:

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The prosecution case is based on the fardbeyan dated 11.07.1990 of the informant Deoki Pandit (deceased) which was given in an injured condition to S.I. G.D. Singh of Birni P.S recorded at P.H.C., Birni, on 11.07.1990 at 8 hours.

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Deoki Pandit (deceased) has stated in his fardbeyan that on 11.07.1990 in the morning at 6:00 to 6:15 am, Ishwar Sao of his village was ploughing in his field and when he went to stop him, accused persons Kishun Sao, Basudeo Sao, Ganesh Sao, Bhatu Sao, Gujar Sao and Kunjo Pandit came armed with talwar, tangi, lathi and surrounded him and started assaulting him. Kishun Sao assaulted him on his neck by talwar, Basudeo Sao assaulted on his left shoulder by a talwar, Ganesh Sao assaulted on his head by a talwar and Ishwar Sao assaulted him by tangi on his left leg and Bhatu Sao, Gujar Sao and Kunjo Sao assaulted him by lathi as a result he sustained injury. On his halla , his brother Jagdish Pandit came there then the accused persons started assaulting him. Deoki Pandit (deceased) further stated that seeing him bleeding from the neck and lying, accused believed that he had died and they fled away. Thereafter, villagers, his father and brother-in-law ( bahnoi ) Budhan Pandit came there and with the help of other

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people, they brought him to hospital where his treatment was going on. It is also stated that last night the aforesaid accused persons took part in a meeting held by Sukhdeo Hazam and thereafter, all the accused persons slept in a room in village Malgoda, which is adjacent to his village and from this it appears that Sukhdeo Hazam had held the meeting for this occurrence as whenever he holds meeting some occurrence occurred in the village.

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On the basis of the fardbeyan, Birni P.S. Case No. 97 of 1990 dated 11.07.1990 was instituted against the accused persons u/s 147, 148, 149, 447, 323, 324, 325, 307 and 120B IPC and later on, when the aforesaid Deoki Pandit died, Section 302 IPC was added vide order dated 13.07.1990. The police, after investigation, submitted charge-sheet and cognizance of the offences were taken and the case was committed to the court of sessions for trial.

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Charges were framed against Kishun Sao, Basudeo Sao, Ganesh Sao, Ishwar Sao, Bhatu Sao, Kunjo Pandit and Gujar Sao under section 302 of IPC; Sukhdeo Hazam, Chitranjan Pandit, Digambar Pandit, Premchand Pandit and Bhola Pandit were charged under section 302/149 of IPC; Premchand Pandit and Bhola Pandit were further charged under section 323 of IPC; Chitranjan Pandit, Digambar Pandit, Premchand Pandit and Bhola Pandit were separately charged under section 341 of IPC; Bhatu Sao, Gujar sao, Kunjo Pandit, Chitranjan Pandit, Digambar Pandit, Premchand Pandit, Bhola Pandit and Sukhdeo Hazam were further charged under section 147 IPC and Kishun Sao, Basudeo Sao, Ganesh Sao and Ishwar Sao were also charged under section 148 of IPC.

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Thereafter, after the framing of charges, trial proceeded and on conclusion of the trial, the appellants were convicted and sentenced as aforesaid, hence, this appeal.

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The aforesaid judgment of conviction and sentence is under challenge herein.

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Submission of the learned counsel for the Appellants:

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Learned counsel for the appellants has taken the following grounds for interfering with the finding recorded by the learned trial court in the impugned judgment:

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(i) It is submitted that the learned trial court has committed error in law as well as on facts in its finding while passing the judgment impugned.

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(ii) It is also submitted that on the one hand the judgment impugned is silent in giving reasons for not accepting the evidence of defence witnesses and on the other hand, the learned trial court has not given any speaking reasoning for accepting the contradictory statements of the prosecution witnesses as gospel truth.

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(iii) It has also been submitted that the learned trial court has failed to take into consideration the post-mortem report as no human being shall speak after more than 02 hours of sustaining incised wound measuring 4” x 1½” x spinal column deep with profuse bleeding from the back of the neck behind the left of both ears. Since the muscle of back of the neck, blood vessels inter vertebral disc and cervical sixth vertibra were cut with damage cut to spinal cord at cervical sixth vertibra fracture, a man with such injuries will immediately go in shock and severe hemorrhage. Due to 6^th vertibra cut, along with the damage to spinal cord, there shall be no support in the head and it shall dangle in the front side which will cause twisting of muscles blocking wind pipe as well as the vocal cord and, in that situation, no human being can utter a single word.

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As such, it is submitted that the learned trial court ought to have held the fardbeyan of Deoki Pandit (deceased) and his dying declaration as an impossibility due to his medical situation.

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(iv) It is also submitted that the learned trial court has failed in appreciating the evidence of P.W.-1, 3, 4 and 7 who claims to be the eye witnesses since the aforesaid witnesses have deposed in their testimonies that they were restrained by the accused persons to go near the place of occurrence and the place of occurrence as alleged is intervened by a high ridge and also by standing sugarcane plantations, as such, it is impossible for the said witnesses to have seen the occurrence.

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(v) It is further submitted that the prosecution has not examined the important charge-sheeted witnesses, namely, Budhan Pandit, Jasia Devi, Bhola pandit, Nilkanth Sao, Kanglu Pandit, Digan Mahto, Suresh Kumar Sao and Poddar Sao @ Ram Naresh Sao and nonexamination the aforesaid witnesses has led to non-appreciation of the facts in right perspective.

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(vi) It is further submitted that the P.W.-10, the investigating officer, has stated that he had made entry in the station diary at 7:30 am on 11.07.1990 on the information received from Primary Health Centre, Birni that a person has been brought in injured condition whereas, the P.W.-9 in his evidence has stated that injured Deoki Pandit was brought to the Primary Health Centre, Birni at 8:20 am, as such, there is serious discrepancy in their statement which creates doubt in the case that the appellants have been implicated in this case due to some previous enmity.

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The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that the learned trial court has not taken into consideration the aforesaid facts, as such, the impugned judgment requires interference, hence not sustainable in the eyes of law.

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Submission of learned counsel for the Respondent-State:

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While defending the judgment of conviction and order of sentence, the learned Special Public Prosecutor appearing for the State has submitted that there are as many as four eye witnesses in the case in hand who are P.W.-1, 3, 4 and 7 and these witnesses had seen the appellants assaulting the deceased. Appellant no. 1 Kishun Sao had assaulted Deoki Pandit on the back of his neck, which is supported by the post-mortem report Ext.-1 of the deceased. Investigating officer P.W-10 has proved the place of occurrence. P.W-11 B.D.O., Birni, had recorded the dying declaration of the deceased, hence, the dying declaration of the deceased is trustworthy and reliable.

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The learned Special Public Prosecutor appearing for the respondent-State, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeal is fit to be dismissed.

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Analysis

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Prosecution had examined altogether 12 witnesses of out whom P.W-1 is Jagdish Pandit, who is brother of the deceased; P.W.-2 is Abdul Razaque; P.W.-3 Pramila Kumari, who is the daughter of the deceased; P.W.-4 is Nilkanth Sao; P.W.-5 is Dr. Ajit Kumar Sahay, who had conducted postmortem examination on the dead body of the deceased Deoki Pandit; P.W.-6 is Surendra Kumar Rai, who is hearsay witness; P.W-7 is Bimala Devi, who is the wife of the deceased; P.W.-8 is Gyandeo Rai ; P.W.-9 is Dr. Subodh Singh and P.W.-10 Girish Deo Singh, is the investigating officer of the case;

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We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.

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We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits appended therewith.

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This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the testimonies of witnesses which have been recorded by learned trial Court. The learned trial court during the trial has altogether examined twelve prosecution witnesses and testimony of the same is required to referred herein.

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P.W.1 Jagdish Pandit has stated in his evidence that on 11.07.1990 at 6:006:15 am in the morning he was in his house and he heard halla from field side. He went behind his house in bari , there he saw Kishun Sao, Basudeo Sao, Ganesh Sao, Ishwar Sao, Gujar Sao, Bhatu Sao, Kunjo Pandit was assaulting his brother Deoki Pandit by lathi and talwar. When he tried to save him then Chitranjan Pandit, Digambar Pandit, Bhola Sao and Premchand Pandit surrounded him and restrained him from saving. Premchand assaulted him with lathi on his left arm and Bhola Sao assaulted him with lathi on his right rib. P.W-1 further stated that he saw from 10/15 cubit that Kishun Sao assaulted Deoki Pandit by sword on back side of his neck, Basudeo assaulted on left shoulder and Ganesh Sao assaulted by talwar on head and Ishwar assaulted by tangi on his left leg. Gujar Sao, Bhatu Sao and Kunjo Pandit assaulted Deoki Pandit with lathi. P.W-1 further stated that due to talwar blow, neck was cut and Deoki Pandit fell down. Deoki Pandit

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was taken to hospital and there, statement of Deoki Pandit was recorded by daroga ji and daroga ji also saw his injury. B.D.O. was called and B.D.O. had enquired from his brother. Doctor told them to take Deoki Pandit to Giridih and then his brother was taken to Giridih but he died. P.W-1 further stated that assault took place in his filed which is ten decimal.

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It his cross-examination, P.W-1 has stated that bari, where the ploughing was being done, is at a distance of 50 yard from his house.

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P.W.-2 Abdul Razaque has stated in his evidence that on the date of occurrence in the morning, he was in his filed and there he heard halla. He ran and climbed on the medh of the pond and saw Kishun Sao, Basudeo Sao, Ganesh Sao, Gujar Sao, Bhatu Sao, Bhola Sao, Kunjo Pandit, Chitranjan Pandit and Digambar Pandit fleeing away from the place of occurrence. Kishun Sao, Basudeo Sao and Ganesh Sao were armed with talwar. Ishwar Sao was armed with tangi and Gujar Sao, Kunjo Pandit , Bhatu Sao and Bhola Sao were armed with lathi and they were fleeing towards east. He went to the place of occurrence and saw Deoki Pandit injured. Deoki Pandit had sustained injury on his neck, head, leg and his neck was cut and little bit separated. He saw Jagdish Pandit there. He, Jagdish Pandit, Jasia Devi and Nilkanth Pandit took Deoki Pandit to home and then to hospital.

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P.W.-3 Pramila Kumari, is daughter of the deceased. P.W-3 has stated in her evidence that on the date of occurrence it was morning and she was at her home with her mother. She heard halla from filed and she came out with her mother and went towards east. She saw the accused Kishun Sao, Basudeo Sao, Ganesh Sao, Ishwar Sao, Kunjo Pandit, Gujar Sao, Bhatu Sao were assaulting her father. Her mother wanted to go over there but Premchand Pandit and Bhola Sao prevented her and Bhola Sao showed farsa and told to finish her if she goes there. Premchand Pandit pulled her hair and dashed her on the ground. P.W-3 further stated Kishun Sao, Basudeo Sao and Ganesh Sao were armed with talwar, Ishwar Sao was armed with tangi and Kunjo and Bhatu Sao were armed with lathi. She has also stated that after the accused persons fled away, she and her mother went to her father and saw injuries on head, neck, shoulder and left leg of her father.

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P.W.-4 Nilkanth Sao has stated in his evidence that on the date of occurrence at 6:00-6:15 am, he was ploughing his field then Deoki Pandit came there and said that Ishwar Sao is ploughing his field and on that he said Deoki Pandit to go home and he is going to enquire about this and then Deoki Pandit went home. He enquired from Ishawar Sao, then, Ishawar Sao told that he will plough the field. P.W-4 further stated that he saw many arms in the field and he came to Deoki Pandit and told Deoki Pandit that there are arms at the field and if he goes there, it may cause danger to him. Then, Deoki Pandit told that he was going to plough another field. P.W-4 further stated that he was going to his field, then Deoki Pandit went to another field in south side and Deoki Pandit was following him. There was sugarcane field and in the sugarcane field Chitranjan Pandit, Digambar Pandit and Bhola Sao came and surrounded Deoki Pandit. In the field Ishawar Sao, Kishun Sao, Ganesh Sao, Basudeo Sao, Gujar Sao, Bhatu Sao and Kunjo Pandit were present there. Kishun Sao, Ganesh Sao and Basudeo Sao were armed with sword and Kishun Sao gave sword blow on the neck of Deoki Pandit, Ganesh Sao assaulted Deoki Pandit on his head, Basudeo Sao assaulted Deoki Pandit on his left shoulder and Ishwar Sao assaulted Deoki Pandit on his left leg by tangi. Thereafter, accused persons started assaulting him. During the assault, family members of Deoki Pandit were coming to save him but Chitranjan, Bhola Sao and Digambar restrained them and thereafter accused persons fled away. When accused fled away then they saw injury of Deoki Pandit. His neck was cut. He was taken to home on coat then he was taken to Birni Hospital by Car and there Deoki Pandit gave statement. Doctor told them to take him to Giridih, but, he died on the way itself.

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P.W-5 Dr. Ajit Kumar Sahay had conducted post-mortem examination on the dead body of the deceased Deoki Pandit . Doctor had found following ante-mortem injuries on the body of the deceased-

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(i) incised wound 4” x 1½" x spinal column deep with bleeding extensively in the back of neck behind level of both ears. Muscles of the back of the neck, blood vessels, intervertebral disc and cervical sixth vertebra were cut with damage cut to spinal cord at cervical sixth vertebra fracture, dislocation present in the back of neck;

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(ii) incised wound 2 ½” x 1”x thoracic cavity deep left side inferior angle of scapula left wound was bleeding.

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Doctor opined that cause of death was due to shock and haemorrhage as a result of above ante-mortem injuries and all the above injuries were caused by sharp cutting weapon and the time elapsed since death within 12 hours. Doctor had proved the post-mortem report which was marked as Ext.-1.

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P.W-7 is Bimala Devi, who is the wife of the deceased. P.W-7 has stated in her evidence that on the date of occurrence at 6 am in the morning, she was at her home. She heard halla of her husband and she came out of her house and went towards the bari from were sound was coming. She saw Kishun Sao, Basudeo Sao, Ganesh Sao, Ishwar Sao, Gujar Sao had surrounded her husband and were assaulting her husband. Kishun Sao, Ganesh Sao and Basudeo Sao were armed with sword. Kishun Sao assaulted her husband with sword on his neck, Ganesh Sao and Basudeo Sao assaulted with sword on head and shoulder respectively and Ishwar saw assaulted with tangi on his leg. Gujar Sao, Bhatu Sao and Kunjo Pandit assaulted her husband by lathi. P.W-7 further stated that she was going to her husband but Chitranjan Pandit, Digambar Pandit and Premchand Pandit and Bhol Sao stopped her and Premchand assaulted her pulling her hair but, she reached upto a distance of 25 yard from her husband. Thereafter, her husband was taken to home and then to Hospital.

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P.W.-8 Gyandeo Rai has stated in his evidence that on the date of occurrence he was at his home. In the morning, Jagdish Pandit came along with Nilkanth Pandit taking Deoki Pandit on a cot and Deoki Pandit was injured. They told him to take Deoki Pandit to hospital and told that Ishwar and his men had assaulted Deoki Pandit. P.W-8 further stated that they proceeded to Birni Hospital by car and on the way, on being asked, Deoki Pandit told that Kishun Sao and Ganesh Sao assaulted him with sword and Ishwar Sao assaulted him with tangi . He was taken to Birni Hospital and there Dr. Subodh Kumar had treated Deoki Pandit. In course of treatment daroga ji and B.D.O came and daroga ji took the statement of Deoki Pandit. Seeing the condition of doctor Deoki Pandit, doctor referred him to Giridih

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Hospital, then they took Deoki Pandit to Giridih Hospital, where Dr. Jitendra declared him dead.

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P.W.-9 is Dr. Subodh Singh and he has stated in his evidence that on 11.07.1990, he was posted at Birni Primary Health Centre on the post of incharge Medical Officer. On that day at about 8:20 am, a patient had arrived in the health centre in the injured condition and he had got requisition from police station for his treatment. Original copy of the requisition was kept and in the carbon copy, dresser Sree Nath had signed on it. P.W-9 has identified the signature of Sree Nath on the requisition, which was marked as Ext.-2. P.W.-9 further stated that he had treated the injured Deoki Pandit, but, as his condition was serious, hence he was referred to Giridih Sadar Hospital. Officer-in-charge had given application for recording the dying declaration of the injured. P.W-9 has identified the carbon-copy of the aforesaid application for recording the dying declaration which bears the signature of officer-in-charge Girish Deo Singh. The aforesaid application for recording the dying declaration was marked as Ext.-3. P.W.-9 further stated that he had recorded the statement of Deoki Pandit, in the presence of the B.D.O. and on the dictation of B.D.O. He had written the statement of Deoki Pandit as B.D.O was writing statement, but, B.D.O. was facing difficulty in writing the statement. P.W.-9 had proved dying declaration/statement which was marked as Ext.-4. Signature on the dying declaration/statement of B.D.O and P.W.-9 were marked as Ext.-2/a and Ext.-2/b respectively.

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P.W.-10 Girish Deo Singh, is the investigating officer of the case. Investigating officer has stated in his evidence that on 11.07.1990, he was posted as officer-in-charge at Birni police station. On information of doctor from Public Health Centre, Birni, he had entered Sanha no. 193 and proceeded for Birni Hospital. He recorded the fardbeyan and issued injury slip. Investigating officer had also stated that on seeing the condition of the injured he requested the B.D.O. to record the dying declaration of the deceased. Investigating officer had proved the fardbeyan of Deoki Pandit which was marked as Ext.-5.

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P.W.-11 Taslim Ahmad, is the B.D.O. who has stated in his evidence that on 11.07.1990, he was posted as B.D.O., Birni. He had got request letter from

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the officer-in-charge to record the dying declaration of Deoki Pandit and hence, he had gone to Primary Health Centre, Birni and there he took the statement of Deoki Pandit. Deoki Pandit had given his statement before him and in presence of Dr. Subodh Singh (P.W-9). P.W-11 further stated that doctor had written the statement and he had attested the statement. Statement was given in his presence and Deoki Pandit had given his L.T.I. in his presence. In his cross-examination, P.W-11 said that Deoki Pandit was injured and he had injury on his head, neck and at five other places. To the court question, P.W-11 stated that at the time of recording of the statement, injured Deoki Pandit, was in position to make statement.

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Defence had produced seven witnesses in in their defence out of whom D.W.-1 Md. Nizamuddin is an Advocate Clerk; D.W-2 Dilip Kumar is an Assistant at District Registration office; D.W-3 Bijay Kumar Sinha is taid ; D.W.-5 Dr. Kamleshwar Prasad is C.A.S at Sadar Hospital, Giridih; D.W-6 is Ishwar Sao who was one of the appellant in this case and D.W-7 is Md. Ashfaque Mirza, an Advocate Commissioner.

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The learned trial court had recorded the testimony of these defence witnesses which are being referred herein as under.

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D.W.-5 Dr. Kamleshwar Prasad, C.A.S at Sadar Hospital, Giridih, has stated that survical vertebra is within the neck, altogether there are seven survical vertebra. Spinal cord lies in spinal column. Spinal cords is connected with brain. In injury no.1, it is mentioned incised wound of 4’’x1½" x spinal column deep, it suggests depth upto spinal column. If the spinal cord is cut at the level of survical vertebra then, there is no question of life. If there is cut of spinal cord then first servical vertebra will cut and then spinal column and then spinal cord. If there is any injury on servical region, the patient will go in shock immediately and he will be unable to speak anything. He will not be in consciousness. D.W.-5 had also stated that there will be profuse bleeding and if lungs is cut air will come which is called pneumothorax and if there is pneumothorax, the patient will not be able to speak at all. He had also stated that if excessive blood was discharged it might cause shock and haemorrhage at the spot.

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D.W.-6 Ishwar Sao, has stated about the enmity with Deoki Pandit and had also given the detailed description of the place of occurrence and its surrounding.

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Apart from these defence witnesses, defence had also produced documentary evidence. Ext.-A to A/3 are rent receipts; sale deed executed by Bhola Kumhar, which is Ext.-B and Ext.-C; Formal FIR and fardbeyan of Birni P.S. Case No. 69/1989 which were marked as Ext.-D and Ext.-E respectively; Ext.-F is signature of Sukhdeo Sharma on the aforesaid fardbeyan; Ext.-G is map prepared by D.W-7; Ext.-H is deposition of Mt. Khiriya in case no. 1336/41; Ext.-I is deposition of Bhola Kumhar in case no.881/69; Ext.-J is deposition of Mathura Rai, in case no.881/69; Ext.-K is charge framed by J.M., to show that Ishwar Teli has alias name of Latal Teli and station Diary Entry dated 11.07.1990 of Birni P.S. was also exhibited.

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Hence, from the testimonies as reproduced above and the fardbeyan of the Deoki Pandit (deceased) , it has come that on 1 1.07.1990 in the morning, Deoki Pandit had told accused Ishwar Sao not to plough his field to which accused persons Kishun Sao, Basudeo Sao, Ganesh Sao, Bhatu Sao, Gujar Sao and Kunjo Pandit came armed with talwar, tangi, lathi and surrounded Deoki Pandit and started assaulting him, as a result, Deoki Pandit sustained injuries on the back side of his neck, head, left shoulder and other parts of the body. Deoki Pandit was rushed to Birni Primary Hospital where his statement was recorded on the direction of B.D.O. But, seeing the serious condition of Deoki Pandit, doctor at Birni Primary Hospital referred him to Giridih Sadar Hospital, but, Deoki Pandit on the way to Giridih Sadar Hospital, succumbed to injuries.

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On the above allegation, ten accused persons including the appellants herein were tried for one or the others charges under sections 341/323/147/148/302/149 and one of the accused Sukhdeo Hazam was charged under section 302/149 and 120B of the IPC. Accused Sukhdeo Hazam was acquitted of the charges, but, the remaining nine accused persons were convicted in one or the others sections under Sections 341/323/147/148/302 and 302/149 of IPC.

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The nine convicted accused persons had filed appeal in this case out of which appellant no. 2 Ishwar Sao, appellant no. 3 Gujar Sao, appellant no. 7 Premchand Pandit and appellant no. 8 Chittaranjan Pandit, died during the pendency of the appeal, hence, their appeal stand abated by the order of this court dated 07.01.2025. The appeal of the surviving appellants remains and has to be decided.

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The admitted fact is that-

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(1) On 1 1.07.1990 in the morning, Deoki Pandit(deceased) had forbade accused Ishwar Sao not to plough his field.

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(2) Accused persons surrounded Deoki Pandit and assaulted him with deadly weapon more specifically sword due to which Deoki Pandit succumbed to injuries.

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Learned counsel for the appellants has mainly taken the ground that (i) learned trial court has failed to take into consideration the post-mortem report as no human being shall speak after sustaining incised wound measuring 4” x 11/2” spinal column deep with profuse bleeding from the back of the neck behind the left of both ears and (ii) learned trial court ought to have held the dying declaration as an impossibility due to the medical situation of the deceased Deoki Pandit.

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In the backdrop of the aforesaid discussions, this Court in the instant case is to consider following issues:

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(i) Whether dying declaration of the deceased Deoki Pandit is truthful, voluntary and trustworthy?

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(ii) Whether the medical opinion given by the defence witness D.W.-5, who is a doctor, that given the critical medical condition of the deceased, deceased cannot speak, will prevail?

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Since, all the aforesaid issues are inextricably interlinked, the same are being discussed and decided hereinbelow together.

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But, before proceeding further, it would be fruitful to see the judgment of Hon’ble Apex Court rendered on the issue of dying declaration. Hon’ble Apex Court in Purshottam Chopra and Another v. State (Government of NCT of Delhi) reported in ( 2020) 11 SCC 489 , has summarized the

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principles relating to recording of dying declaration and its admissibility and reliability at paragraph-21 of the judgment. Paragraph-21 Purshottam Chopra (Supra) is quoted herein below for ready reference-

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“21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:

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21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

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21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

¶115

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

¶116

21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

¶117

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

¶118

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

¶119

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

¶120

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.”

¶121

Now, coming to the first issue i.e. whether dying declaration of the deceased Deoki Pandit is truthful, voluntary and trustworthy. We find that prosecution has relied upon two dying declarations of the deceased Deoki Pandit, said to have been made after the assault on him-

¶122

(i) First dying declaration Ext.-5, was given to the P.W.-10 Girish Deo Singh, who is the investigating officer of the case, and

¶123

(ii) Second dying declaration Ext.-4 was given to the P.W.-11 Taslim Ahmad, who is B.D.O., Birni.

¶124

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Here, it is pertinent to note that in the case in hand, deposition of three prosecution witnesses- P.W.-9 Dr. Subodh Singh, who is in-charge Medical Officer , Birni Primary Health Centre; investigating officer P.W.-10 Girish Deo Singh and P.W.-11 Taslim Ahmad, who is the B.D.O.,Birni, are material witnesses as far as the dying declaration of the deceased Deoki Pandit is concerned.

¶127

Re: First Dying Declaration

¶128

Now, coming to the first dying declaration Ext.-5. We find that first dying declaration is the fardebyan of the deceased Deoki Pandit, which was recorded on 11.07.1990 at 8:00 am in the morning by P.W-10 S.I. Girish Deo Singh, which was treated as FIR.

¶129

At this juncture it would be pertinent to note the judgment delivered by the Hon'ble Apex Court in the case of Dharampal and others vs. State of UP reported in (2008) 17 SCC 337 wherein Apex Court has held that the FIR lodged by deceased would attain the character and legal status of dying declaration, if the victim dies before his examination in the Court.

¶130

Investigating officer P.W-10 Girish Deo Singh has stated in his examinationin-chief that on 11.07.1990, he was officer-in- charge of Birni police station. He received information from doctor of Public Health Centre, Birni that an injured has come in serious condition. He made entry as sanha No. 193 and proceeded for Birni Hospital and recorded the fardbeyan Ext.-5 of Deoki Pandit. Investigating officer also deposed that he issued injury slip and seeing the serious condition of the injured he requisitioned B.D.O. for recording dying declaration. Then, B.D.O. came and B.D.O. recorded the dying declaration of Deoki Pandit. In his cross-examination investigating officer has stated that in the station diary he had entered time as 7:30 am morning and there was injury on neck and head of Deoki Pandit. Deoki Pandit was speaking and he wrote as said by Deoki Pandit.

¶131

Re: Second Dying Declaration

¶132

The second dying declaration Ext.-4, of the deceased Deoki Pandit was recorded by P.W.-11 Taslim Ahmad, who is the B.D.O., Birni, along with P.W-11 Dr. Subodh Singh, who is in-charge Medical Officer at Birni Primary Health Centre.

¶133

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¶135

Now, coming to the deposition of P.W.-9 Dr. Subodh Singh, who is incharge Medical Officer , Birni Primary Health Centre. P.W-9 who has deposed that on 11.07.1990, he was posted at Birni Primary Health Centre on the post of in-charge Medical Officer. On that day at about 8:20 am, a patient had arrived in the health centre in the injured condition and he had got requisition from police for his treatment. He had treated the injured Deoki Pandit, but, as his condition was serious, hence he was referred to Giridih Sadar Hospital. Officer-in-charge had given application Ext.-3 for recording the dying declaration of the injured. P.W.-9 also stated that he had recorded the statement of Deoki Pandit, in the presence of the B.D.O. and on the dictation of B.D.O. He had written the statement of Deoki Pandit, as B.D.O was writing statement, but, B.D.O. was facing difficulty in writing the statement. P.W.-9 had proved dying declaration/statement which was marked as Ext.-4. In his cross-examination P.W.-9 Dr. Subodh Singh had deposed that B.D.O., Birni, had told him that he will ask the question and told him to record it in writing.

¶136

Further, P.W.-11 Taslim Ahmad, who is B.D.O. has stated in his evidence that on 11.07.1990, he was posted at B.D.O., Birni. He received request letter from the officer-in-charge to record the dying declaration of Deoki Pandit and hence, he had gone to Primary Health Centre, Birni and there he took the statement of Deoki Pandit. Deoki Pandit had given his statement before him and in presence of Dr. Subodh Singh (P.W-9). P.W-11 further stated that doctor had written the statement and he had attested the statement. Statement was given in his presence and Deoki Pandit had put his L.T.I. in his presence. To the court question, P.W-11 stated that at the time of recording of the statement, injured Deoki Pandit, was in position to make statement.

¶137

Hence, on conjoint reading of both the dying declaration of the deceased Deoki Pandit, we find that both the dying declaration Ext.-4 and Ext.-5 were recorded independently. Dying declaration Ext.-4 was recorded by P.W.-11 Taslim Ahmad, who is the B.D.O., Birni, along with P.W-9 Dr. Subodh Singh, who is in-charge Medical Officer at Birni Primary Health Centre. P.W-9 had deposed that he had written the statement of Deoki Pandit, in the

¶138

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presence of the B.D.O. and on the dictation of B.D.O., he had written the statement of Deoki Pandit.

¶141

Likewise, P.W.-11 Taslim Ahmad, who is the B.D.O., had also stated that doctor had written the statement and he had attested the statement. Statement was given in his presence and Deoki Pandit had put his L.T.I. in his presence. On perusal of the second dying declaration Ext.-4, we find that dying declaration of deceased Deoki Pandit, bears the signatures of P.W.-11 Taslim Ahmad, B.D.O., and P.W.-9 Dr. Subodh Singh, in-charge Medical Officer , Birni Primary Health Centre and both the signatures were marked as Ext.-2/a and Ext.-2/b respectively.

¶142

Hence, from the discussion made in the preceding paragraph, we are of the view that both the dying declaration Ext.-4 and Ext.-5 of the deceased Deoki Pandit are truthful, voluntary and trustworthy.

¶143

Re: Whether the medical opinion given by the defence witness D.W.-5, who is doctor, that given the critical medical condition of the deceased, deceased cannot speak , will prevail?

¶144

Coming to the second issue i.e. whether the medical opinion given by the defence witness D.W.-5, who is doctor, that given the critical medical condition of the deceased, deceased cannot speak, will prevail? Learned counsel for the appellants has also argued that no human being shall speak after sustaining incised wound measuring 4” x 1½" x spinal column deep with profuse bleeding from the back of the neck and hence, dying declaration is an impossibility due to the medical situation of the deceased Deoki Pandit.

¶145

In this regard, we find that defence had examined D.W.-5 Dr. Kamleshwar Prasad, C.A.S., at Sadar Hospital, Giridih. D.W.-5 had stated that if there is any injury on servical region, the patient will go in shock immediately and he will be unable to speak anything and he will not be in consciousness.

¶146

Hence, D.W-5 Doctor expressed his view that due to nature of injuries sustained by the deceased, deceased was not in position to speak. But, we find that P.W.-8 Gyandeo Rai had deposed that he had spoken to the deceased Deoki Pandit and deceased had told the name of the appellants to

¶147

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him, likewise P.W-11 B.D.O., Birni has also deposed that the deceased was in position to make statement.

¶150

So, in the facts and circumstances of the case in hand, this Court is to decide whether the medical opinion of the doctor D.W-5 or the evidence of P.W-8 and P.W-11, regarding the ability of the deceased to make statement before his death, will prevail.

¶151

This question has already been decided by the Constitution Bench of the Hon’ble Apex Court in case of Laxman v. State of Maharashtra reported in (2002) 6 SCC 710 . In the said case, the Hon’ble Apex Court at paragraph-3 has laid down that normally, 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. Paragraph-3 of Laxman (supra) case is quoted hereinbelow for ready reference-

¶152

“3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. 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 prompting 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

¶153

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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.”

¶156

(emphasis supplied)

¶157

Now, once again, coming to the deposition of P.W.-8 Gyandeo Rai, we find that P.W.-8 had deposed that he accompanied Deoki Pandit and they along with others had proceeded to Birni Hospital by car and on the way, on being asked to Deoki Pandit, Deoki Pandit told that Kishun Sao and Ganesh Sao assaulted him with sword and Ishwar Sao assaulted him with tangi .

¶158

We find that P.W-8 is an independent witness as nowhere from his testimony, it appears that he had any enmity with the appellants. Further, P.W-11 B.D.O, had recorded the dying declaration of Deoki Pandit and to the court question, P.W-11 B.D.O., Birni, had stated that at the time of recording of the statement, injured Deoki Pandit, was in position to make statement. Here, it is pertinent to note that P.W.-9 Dr. Subodh Singh had proved dying declaration/statement which was marked as Ext.-4. In his cross-examination P.W.-9 Dr. Subodh Singh had deposed that B.D.O., Birni, had told him that he will ask the question and told him to record it in writing.

¶159

Hence, from the testimony of P.W.-8 Gyandeo Rai and P.W-11 B.D.O, Birni, it leaves no room for doubt that injured Deoki pandit was in a position to speak and relying on Laxman (supra) case, in the present case medical opinion given by the doctor D.W-5, will not prevail. So, the contention of the learned counsel for the appellant that dying declaration is an impossibility due to the medical situation of the deceased Deoki Pandit, is not tenable. Rather, this Court is of the view that the deceased Deoki Pandit

¶160

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was in a position to speak and was in a fit state of mind to give his dying declaration.

¶163

Analysis of the individual guilt of appellants herein

¶164

Before proceeding to analyse the individual guilt of the appellants herein, it would be necessary to reiterate the assailants that has figured in the evidence. In the present case, ten accused persons were tried for offence under Sections 302, 302/149, 323, 147, 148 of IPC. In the evidence of the prosecution witnesses, it has come that on the day of occurrence accused Kishun Sao, Basudeo Sao, Ganesh Sao, Bhatu Sao, Gujar Sao and Kunjo Pandit came armed with talwar, tangi, lathi and surrounded the deceased Deoki Pandit and started assaulting him. Accused Chitranjan Pandit, Digamber Pandit, Premchand Pandit and Bhola Pandit had restrained the informant side from going to the place of occurrence and had also assaulted the deceased Deoki Pandit and deceased wife P.W-7.

¶165

Coming to the question of death of Deokhi Pandit, we find that investigating officer of the case P.W.-10 Girish Deo Singh has deposed that place of occurrence is behind the house the deceased, which is bari and field of the deceased.

¶166

P.W.-1 Jagdish Pandit, who is the brother of the deceased had deposed that on hearing halla he had rushed to bari , behind his house and saw from a distance of 10/15 cubit that accused Kishun Sao assaulted the deceased with sword on the back of his neck. P.W.-1 was cross-examined on the manner of assault on deceased by accused Kishun Sao, but, in cross-examination, P.W.-1 was not shaken.

¶167

P.W.-7 Bimala Devi, is the wife of the deceased and she had deposed that on hearing halla , she rushed towards the place of occurrence and saw Kishun Sao giving sword blow on the neck of her husband.

¶168

P.W.-5 Dr. Ajit Kumar Sahay, who had conducted post-mortem examination on the dead body of the deceased Deoki Pandit , had found two ante-mortem injuries on the body of the deceased-

¶169

(i) incised wound 4” x 1½" x spinal column deep with bleeding extensively in the back of neck behind level of both ears. Muscles of

¶170

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the back of the neck, blood vessels, intervertebral disc and cervical sixth vertebra were cut with damage cut to spinal cord at cervical sixth vertebra fracture, dislocation present in the back of neck;

¶173

(ii) incised wound 2 ½” x 1”x thoracic cavity deep left side inferior angle of scapula left wound was bleeding.

¶174

P.W-5 Dr. Ajit Kumar Sahay, opined that cause of death was due to shock and haemorrhage as a result of above ante-mortem injuries and all the above injuries were caused by sharp cutting weapon and the time elapsed since death within 12 hours.

¶175

Hence, from the evidence of eye witnesses P.W.-1 Jagdish Pandit and P.W-7 Bimala Devi, we find that P.W-1 and P.W-7 are eye witnesses to the occurrence on assault to Deoki Pandit. Both P.W-1 and P.W-7 have deposed that appellant no.1 Kishun Sao had assaulted Deoki Pandit on his neck, which is corroborated by post-mortem repot Ext.-1, wherein P.W-5 Dr. Ajit Kumar Sahay had found - incised wound 4” x 1½" x spinal column deep in back of neck behind level of ears . Hence, ocular evidence of eye witnesses P.W-1 and P.W-7 as to assault on Deoki Pandit by appellant no. 1 Kishun Sao, is corroborated by the medical evidence of doctor.

¶176

Therefore, prosecution has proved the charges under Sections 302 and 148 IPC against appellant no. 1 Kishun Sao, beyond reasonable doubt.

¶177

Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit have been convicted under Sections 302/149 and 147 of IPC. But, P.W.-1 Jagdish Pandit, who is an eye-witness to the assault on Deoki Pandit has deposed that Kunjo Pandit and Bhatu Sao had assaulted Deoki Pandit, with lathi . Hence, apart from this evidence there is no evidence against the Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit as to inflicting fatal blow on the deceased.

¶178

So, prosecution has failed to prove the charge under section 302/149 of IPC against Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit, beyond reasonable doubt. Hence, conviction of Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit under section 302/149 of IPC is set aside and is modified to Section 323 of IPC. But, conviction of Appellant no.2 Bhatu Sao

¶179

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and appellant no.3 Kunjo Pandit under Section 147 of IPC is sustained and upheld.

¶182

Now, coming to the conviction of appellant no.4 Bhola Sao. Appellant no.4 Bhola Sao has been convicted under Sections 341 and 323 IPC. P.W.-1 Jagdish Pandit, who is the brother of the deceased had stated in his examination-in -chief that Bhola Sao had surrounded him and assaulted him on his rib. P.W-7 Bimla Devi, who is the wife of deceased had also deposed that when she was running towards her husband then Bhola Sao, had restrained her.

¶183

Hence, impugned judgment of conviction passed against appellant no.4 Bhola Sao for his conviction under section 341 and 323 IPC are hereby sustained and upheld.

¶184

So far as conviction of appellant no. 5 Digambar Pandit under Section 341 IPC, is concerned, from the evidence, we find that P.W.-1 Jagdish Pandit has deposed that when he went to save Deoki Pandit, accused Digambar Pandit surrounded him restrained him from saving the deceased. P.W.-7 Bimla Devi, who is the wife of deceased had also deposed that when she was running towards her husband then Digambar Pandit, had restrained her.

¶185

Hence, impugned judgment of conviction passed against appellant no.5 Digambar Pandit for his conviction under section 341 IPC is also hereby sustained and upheld.

¶186

Conclusion:

¶187

Accordingly, on the basis of discussion made hereinabove, we are of the view that the impugned Judgment of conviction and order of sentence both dated 02.04.1998 passed by learned 5^th Additional Sessions Judge, Giridih, in Sessions Trial No. 169 of 1992 arising out of Birni P.S. Case No. 97 of 1990, whereby and whereunder, the appellant no.1 Kishun Sao has been convicted under Sections 302 and 148 IPC requires no interference and is hereby sustained and upheld.

¶188

Consequent upon dismissal of the appeal preferred by appellant no.1 Kishun Sao, since he is enjoying the suspension of sentence after order passed by this Court directing him to be released during pendency of the appeal, bail

¶189

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bond of appellant no.1 Kishun Sao is cancelled and he is directed to surrender before the learned trial court for serving out the sentence passed against him.

¶192

Needless to say, that if appellant no.1 Kishun Sao will not surrender, the trial court will take endeavours for securing custody of the appellant to serve out the sentence as passed by the learned trial court.

¶193

Conviction of Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit under Section 302/149 of IPC is set aside and is modified to Section 323 of IPC. But, conviction of Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit under 147 of IPC is sustained and upheld.

¶194

On the question of sentence of Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit for their conviction under 323 and 147 of IPC, we are inclined to modify the sentence of imprisonment of aappellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit to the period already undergone. Appellant no.2 Bhatu Sao and appellant no.3 Kunjo Pandit are discharged from their liabilities of their bail bond.

¶195

Impugned judgment of conviction passed against appellant no.4 Bhola Sao for his conviction under Sections 341 and 323 IPC are hereby sustained and upheld.

¶196

On the question of sentence against appellant no.4 Bhola Sao for his conviction under Sections 341 and 323 IPC, we are inclined to modify the sentence of imprisonment of appellant no.4 Bhola Sao to the period already undergone. Appellant no.4 Bhola Sao is discharged from his liability of bail bond.

¶197

Impugned judgment of conviction passed against appellant no. 5 Digambar Pandit for his conviction under section 341 IPC is hereby sustained and upheld.

¶198

On the question of sentence of appellant no. 5 Digambar Pandit for his conviction under section 341 IPC, we are inclined to modify the sentence of imprisonment of appellant no. 5 Digambar Pandit to the period already undergone. Appellant no. 5 Digambar Pandit is discharged from his liability of bail bond.

¶199

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¶201

Accordingly, the instant criminal appeal being Cr. Appeal (DB) No. 87 of 1998 (R), stands dismissed with above modifications in conviction and in sentence.

¶202