COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL…
Conviction and sentence set aside; all three appellants acquitted of all charges and directed to be released forthwith from jail if not detained in any other case.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.421 of 2017
Arising Out of PS. Case No.-129 Year-2009 Thana- GARKHA District- Saran
======================================================
Both are sons of Prabhu Rai
All are residents of Village-Bhuigaon, P.S. Gadkha, District-Saran, Chapra.
... ... Appellants
Versus
The State of Bihar ... ... Respondent ====================================================== Appearance : For the Appellants : Mr. Ranjay Kumar Singh, Advocate Mr. Shankar Kumar, Advocate For the State : Mr. Dilip Kumar Sinha, APP For the Informant : Mr. Manoj Kumar, Advocate ======================================================
... ... Respondent
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 03-10-2023
The facts of this case, notwithstanding the
consistent eyewitness account of several witnesses and
oral dying declaration of the deceased before such witnesses, surprisingly but disquietingly, do not
commend to us that the conviction and sentence of the appellants is justified.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 2/25
Mr. Shankar Kumar, learned Advocates for the
appellants, Mr. Manoj Kumar, learned Advocate for the informant and Mr. Dilip Kumar Sinha, learned APP for the State.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 3/25
deceased where the murder took place in the night intervening between 25th and 26th of July, 2009.
lodged by Sub-Inspector Mahesh Kumar (P.W. 10) at the house of the deceased at about 04:45 A.M. on 26.07.2009, it was alleged that at about 12:30 in the night intervening between 25th and 26th of July, 2009, he and others who were sleeping along with him heard the caterwauls of his uncle who had been sleeping in the courtyard of his own house situated next to the house of the informant.
there, he saw the appellants and others assaulting the deceased by means of gupti and knife. The appellants, on seeing the informant and others approaching them,
ran away by scaling over the wall. The deceased was still surviving and he told P.W. 5 and others that the appellants had attacked him by knife and gupti. The deceased had bled profusely. The informant with the
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help of others made attempts to take the deceased to the hospital but shortly after the occurrence, he died. P.W. 5 saw injuries on the chest, stomach and shoulders of the deceased.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 5/25
witnesses on behalf of the prosecution and three on behalf of the defence, convicted the appellants under
Section 302 read with Section 34 of the Indian Penal Code and sentenced them as aforesaid.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 6/25
act of assault from a distance. On that account, he has supported the version of P.W. 5 and has testified to the fact that when all of them reached near the deceased, the appellants ran away. He has also asserted that efforts were made by him and others to stop the bleeding by tying the wounds with cloth. The police had arrived at the scene of occurrence after about 2 to 3 hours and the mosquito net, inside which the deceased was sleeping on a cot, the mattress and blood stained earth were seized by the police.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 7/25
to come back to his home as his father had been murdered.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 8/25
the assault was made is rendered extremely doubtful. The fact that he did not make the fardbeyan being the son of the deceased; did not sign the fardbeyan lodged by his cousin P.W. 5/Shivnath Sah and did not also put his signature on the inquest report further confirms that he had come back home only after three to four days, when for the first time he made statement before the police.
discredited on this account, the major part of the deposition of P.W. 5/Shivnath Sah is also rendered doubtful.
deceased, has been examined as P.W. 2, who has also narrated the same story as P.W. 5/Shivnath Sah but in his cross-examination, he has said that when he along
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with others reached the place of occurrence, the deceased was about five yards away from the cot on which he was sleeping and within five minutes he died. He has also stated that there was no time for putting the deceased to any First Aid or for bandaging his wounds for stopping the bleeding for preventing any neurogenic shock.
shall be discussed later, in the context of the deceased having made an oral dying declaration before P.Ws. 1 to 5.
own brother of the deceased, but separate in mess and business, has claimed to have reached the place of occurrence after about five to six minutes of the halla raised by the deceased. When questioned regarding his having identified the assailants/appellants, he told the Trial Court that none of the appellants had concealed
their faces.
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viz., Tetari Devi (P.W. 4) had a somewhat different story to narrate. We, however, noticed the candor with which she has spoken about the Civil dispute between her, Satyanarayan Sah, Dharamsheela Devi (wife of Satyanarayan Sah) and Sunil Sah with appellant Prabhu Rai.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 11/25
but P.W. 10/I.O. has stated in paragraph-18 of his cross-examination that P.W. 4/Tetari Devi never talked about the manner of occurrence and the specific role played by each of the appellants to him.
discredited so far as her presence at the time of the occurrence is concerned.
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examination, he has said that after the assault, the deceased came out of the courtyard on his own, which statement appears to be a complete exaggeration.
has claimed that Ibne Ali/Dafadar telephonically informed him about the occurrence and the names of the appellants as well, but such statement cannot be believed in face of the clear deposition of P.W. 14, who
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was never informed about the names of the assailants by P.W. 5/Shivnath Sah.
appellant/Prabhu Rai by the brother of Yogendra Singh, viz., Birendra Singh. Birendra Singh and Yogendra Singh are own brothers.
learnt about the occurrence from P.W. 5/Shivnath Sah immediately after the deceased was killed. He has given the details of the family-tree and has stated that the three sons of the deceased, viz., Jay Prakash Sah (P.W.
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1), Surrendra and Arun (not examined) work at Hyderabad in a cable company and out of the three sons only P.W. 1/Jay Prakash Sah was present at the place of occurrence. He had also signed on the inquest report which was prepared. With respect to the Civil dispute, he too agreed that a Title suit was pending between P.Ws. 2 to 5 and appellant/Prabhu Rai.
did not investigate about the Civil dispute between the parties and relied upon the statement of the witnesses that because the deceased had deposed in a Civil case against the interest of appellant/Prabhu Rai, therefore, he had been killed. He had also not investigated about the papers of alibi of appellant/Prabhu Rai, which was given to him during the course of investigation and he
had also received instructions from superior police officers for investigating the aforesaid defence of appellant/Prabhu Rai.
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mortem examination by Dr. Sambhu Nath Singh (P.W. 8) on 26.07.2009 at 10:30 A.M. He had found several injuries on the person of the deceased. There were four incised wounds and one lacerated wound. The incised penetrating wounds were on the right side of the chest; below the left axilla; on the left forearm and in the right side of chest. All such injuries were cavity deep and dangerous to life. The lacerated wound was found on the right leg. The lungs and the liver, on dissection of the body, was found to be ruptured. The death according to P.W. 8/ Dr. Sambhu Nath Singh was the composite result of the injuries suffered by him. The death was accelerated because of the resultant haemorrhage and shock. The time fixed for death was 8 to 24 hours before the post-mortem examination.
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without corroboration, the basis for conviction but not
when the same is found to be doubtful or untrustworthy
of reliance.
statement as it is the last of the statements of the deceased under the expectation of death and no chances of survival. It is based on the doctrine nemo moriturus
praesumitur mentire. However, before relying on such oral dying declaration, the evidence needs to be critically analyzed and sifted to churn out the truth of the matter.
reported in (1992) 2 SCC 474 , the Hon’ble Supreme Court, after taking into account several judgments on the issue has formulated certain broad features which are in a way a test for affirming the veracity of such dying declarations, be it oral or written.
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declaration cannot be acted upon without corroboration, but the Courts must be satisfied that such declaration is
true and voluntary; that the deceased had the opportunity of seeing his assailants; that he was in a fit mental and physical health to narrate about the incident and that such statements do not have such infirmity which would make it difficult to be accepted as a reliable piece of evidence.
do not fall in the category of bog standard for evaluating evidence but something more. Special care has to be taken when interested; related and partitioned witnesses claim to have heard the dying declaration. The Courts have also to find out whether there was any animus against the accused which goaded the witnesses to claim
that they had heard the dying declaration. Unless the declaration passes the muster and crosses this litmus test, it cannot be relied upon solely for convicting an accused.
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have tested the deposition of the witnesses.
relied upon as he was not present at the place of occurrence. The informant (P.W. 5) has made contradictory statements at the trial. He had gone to Ibne Ali, the Dafadar (P.W. 14) in the dead of the night with the information that criminals had killed the deceased and that he should inform the police. On such information, P.W. 14, accompanied by two other Dafadars, who have not been examined, came to the place of occurrence and informed the police. P.W. 14 is emphatic enough that immediately after the occurrence, the names of the appellants were not disclosed to him even when he had called the police.
Entry No. 661 of 2009 which was registered on the information of P.W. 14 to S.I. Mahesh Kumar (P.W. 10).
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This indicates that the names of the assailants were not available to the police when it has visited the house at 04:45 in the morning of 26.07.2009 before the fardbeyan was recorded. The witnesses, therefore, got plenty of time to ponder over and turn their gaze towards the appellants with whom P.Ws. 2 to 5 had definite axe to grind. A plot of land which was earlier acquired by appellant/Prabhu Rai in the name of his wife from one of the co-sharers of the property was later attempted to be obtained by P.Ws. 2 to 5 by a separate sale-deed by the brother of the original vendee. At the trial, P.W. 5 had assured the Court that he shall bring on record the Title documents of the land in question, which he conveniently failed to do so and which fact has been recorded by the Trial Court in his judgment.
the falsity of the claim of the appellants to have seen the occurrence; and secondly, to a complete absence of motive on the part of the appellants to eliminate the
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deceased with whom there was no litigation whatsoever and that the story was very conveniently spun by the
P.Ws. 2 to 5 about the deceased having made a statement before him.
wounds which were cavity deep and there was copious blood-loss.
have been in a position to speak about the names of assailants when P.Ws. 2 to 5 came near him. According to one of the witnesses, there was no time for even putting bandage to the wound for preventing blood-loss. The deceased had died instantaneously.
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whether such dispute was so cantankerous as to propel the murder of the deceased at the hands of the witnesses themselves. This suggestion to the witnesses, therefore, appears us to be a far fetched.
dying declaration claimed to have been heard by P.Ws. 2 to 5 appears to us to be doubtful.
witnesses also would be important for analyzing their evidence with greater circumspection. Without any circumlocution, the Hon’ble Supreme Court in C. Mangesh and Ors. vs. State of Karnataka (2015) 5
SCC has settled the law that the evidence of related/partitioned witness should be viewed with care and the Court should proceed to find whether there are
any discrepancies in their deposition which would adversely strike the Court in accepting their version as genuine. The Courts are also required to see whether the story disclosed by them is probable and while doing so, a
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Court has to take into account all the circumstances available in the case. Mere consistency of accusation in
the deposition of witnesses is not the only test.
a purpose; against a particular enclave, with the central content being to frame the appellants.
that (a) P.W. 1 had given statement, despite his claim of remaining in the house at the time of the occurrence, after four days to the police. He had not signed either the fardbeyan or the inquest report;
(b) P.Ws. 2 to 5 have made contradictory statements about the physical health of the deceased and their having seen the appellants committing the act
and retreating;
(d) the prosecution not bringing on record the
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Station Diary Entry No. 661 of 2009 which was the first version; and the deposition of Dafadar (P.W. 14) who was personally informed by the informant (P.W. 5) about the occurrence with no names of the assailants of the deceased. It may be noted here that the house of P.W. 5 according to P.W. 14 was only one kilometer away, and therefore, he was the first person to have been told about the occurrence by P.W. 5.
Rai has been kept bound over for the last 13 years, whereas appellants no. 2 and 3 (Ashok Rai and Arjun Rai respectively) also have remained in jail for quite a long time up till now. Even though after the passage of 13 years of appellant no. 1 remaining in jail, his sentence was suspended, but for some technical reason i.e. inadvertently incorrect mentioning of Sessions Trial
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Number in the memo of appeal, appellant no. 1/Prabhu
Rai has not yet been released.
appearing in memo of appeal should be read as ‘Sessions Trial No. 696 of 2010’.
to the Superintendent of the concerned Jail forthwith for compliance and record.
Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023 25/25
62. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
( Alok Kumar Pandey, J)
Saurabhkrsinha/ krishna-
| AFR/NAFR | AFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 05.10.2023 |
| Transmission Date | 05.10.2023 |
2 issues framed by the court
Whether the conviction of the appellants under Section 302 IPC could stand given doubtful eyewitness testimony and an untrustworthy oral dying declaration.
Whether related and interested witnesses claiming to have heard a dying declaration can be relied upon for conviction.
Colour shows how this judgement treated each authority
Paniben vs. State of GujaratRelied on¶39
(1992) 2 SCC 474 · Who else cites this
C. Mangesh and Ors. vs. State of KarnatakaRelied on¶51
(2015) 5 SCC · Who else cites this
2 provisions across 1 enactments
Prabhu Rai
Ashok Rai
Arjun Rai
The State of Bihar
Ashutosh Kumar
Alok Kumar Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
