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IN THE HIGH COURT OF JUDICATURE AT PATNA
MOHIT KUMAR SHAH and SHAILENDRA SINGH, JJ.
Criminal Appeal (DB) No. 673 of 2016
(12.2.2025)
Nand Kishore Rai & Ors. ... Appellants
vs.
State of Bihar ... Respondent
Indian Penal Code, 1860 – Section 302 – Murder – Appreciation of prosecution witness – Appellants alleged to have assaulted the deceased with lathi, rod and butt of pistol – It is a well settled law that minor divergences, if any in the prosecution's evidence being insignificant in nature, cannot have any effect on the case of the prosecution in case of overwhelming incriminating evidences have been adduced at the trial to establish the guilt of the appellants – In the prosecution's narrative in the FIR is fully supported by the ocular evidence adduced at the trial and the ocular evidence is corroborated by the medical evidence, inasmuch as the doctor has categorically stated in his evidence that the injuries found on the person of the deceased are sufficient to cause his death. (Paras 25 & 26)
Indian Evidence Act, 1872 – Section 32(1) – Dying Declaration – Section 32(1) of the Act, 1872 is yet another exception to the rule that in criminal law the evidence of a person who has not been subjected to or given an opportunity of being cross-examined by the accused would be valueless, for the simple reason that a person on the verge of death is not likely to make a false statement, unless there is strong evidence to show that the statement was secured either by prompting or tutoring – Since, in the present case no conflicting circumstance has been either pointed out or demonstrated during the course of trial so as to warrant excluding the statement made by the deceased-informant, which has been recorded as a fardbeyan as also bears the thumb impression of the deceased-informant and has remained unchallenged apart from the same having been proved by the P.Ws. 4 and 3, who had put their signature over the same, there is no reason to doubt the said declaration of the deceased-informant, which is found not only true and voluntary but the same also stands corroborated by the abundant legal evidence on record. (Para 30)
Indian Penal Code, 1860 – Ss. 302 and 304 Part II – Culpable homicide not amounting to murder – It is a well-settled law that the death must result as a proximate and not a remote consequence of the act of violence – The present case will not fall within the ambit of Section 302 IPC inasmuch as though the accused persons were armed with firearm, khanti and lathi, however, no serious injuries have been found on the body of the deceased and all the injuries (laceration, bruises and abrasion) except one are on non-vital part of the body of the deceased, hence, the accused persons did not have any intention to kill the deceased apart from the fact that they had no knowledge that by assaulting the deceased-informant in the manner they had done would have resulted in his death – Present case would fall under Part II of Section 304 of the IPC. (Para 32)
Manjunath Vs. State of Karnataka, 2023 SCC OnLine 1421; Paramjit Singh Vs. State of Punjab, (1997) 4 SCC 156; Uttam Vs. State of Maharashtra, 2022 (5) BLJ 114 (SC) : (2022) 8 SCC 576; Khushal Rao Vs. State of Bombay, AIR 1958 SC 22; Govind Narain Vs. State of Rajasthan, 1993 Supp. (3) SCC 343; Sudhakar Vs. State of Maharashtra, (2000) 6 SCC 671; Deny Bora Vs. State of Assam, (2014) 14 SCC 42; Ishwar Singh Vs. State of U.P., (1976) 4 SCC 355; Mohan Lal Vs. State of Rajasthan, (1999) 9 SCC 209; State of Madhya Pradesh Vs. Ramjan Khan, 2024 SCC OnLine SC 3070; Saurav Sharma Vs. State of Bihar, (Cr. App. (DB) No.1271/2017); Ramji Singh Vs. State of Bihar, (2001) 9 SCC 528 – Referred to.
Sri Bhagwan Vs. State of U.P., (2013) 12 SCC 137; Camilo Vaz Vs. State of Goa, (2000) 9 SCC 1; Rampal Singh Vs. State of U.P., (2012) 8 SCC 289; Ankush Shivaji Gaikwad Vs. State of Maharashtra, (2013) 6 SCC 770; Chenda Vs. State of Chhattisgarh, (2013) 12 SCC 110; Surain Singh Vs. State of Punjab, (2017) 5 SCC 796; Anbazhagan Vs. State, 2023 SCC OnLine SC 857; Velthepu Srinivas Vs. State of Telangana, 2024 SCC OnLine SC 107; Appabhai Vs. State of Gujarat, 1988 Supp SCC 241; Jai Karan Vs. State of Delhi (NCT), (1999) 8 SCC 161; Balbir Singh Vs. State of Punjab, (2006) 12 SCC 283; Panneerselvam Vs. State of T.N., (2008) 17 SCC 190; Atbir Vs. Govt. (NCT of Delhi), (2010) 9 SCC 1; Rajendra Vs. State of Maharashtra, 2024 SCC OnLine SC 941; Bhagchandra Vs. State of M.P., 2022 (2) BLJ 143 (SC) : (2021) 18 SCC 274; Gian Chand Vs. State of Haryana, (2013) 14 SCC 420; Laxmibai Vs. Bhagwantbuva, (2013) 4 SCC 97; Kans Raj Vs. State of Punjab, (2000) 5 SCC 207 – Relied upon.
Mohit Kumar Shah, J.—The present appeal under Section 374(2) read with Section 389 (1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred against the judgment of conviction and order of sentence dated 06.06.2016 and 08.06.2016, respectively, passed in Sessions Trial No. 66 of 2008 (arising out of Tajpur (Halai O.P.) P.S. Case No. 37 of 2005), by the learned Additional District and Sessions Judge-2nd, Samastipur (hereinafter referred to as “learned Trial Judge”). By the said judgment, the learned Trial Judge has convicted the appellants for commission of the offences under Sections 302 and 379 of the Indian Penal Code (hereinafter referred to as “IPC”) and has sentenced them to undergo rigorous imprisonment for life under Section 302 of the IPC with fine of Rs.50,000/- and in default they have been directed to undergo rigorous imprisonment for a further period of six months separately. All the appellants have been further sentenced under Section 379 of the IPC to undergo rigorous imprisonment for a period of three years. Both the sentences have been ordered to run concurrently.
2. Short facts of the case are that on 09.02.2005, at about 14:30 hours, the fardbeyan of the deceased-informant was recorded at Sadar Hospital, Samastipur by the Sub-Inspector of Police, Town Police Station, wherein he has stated that on 09.02.2005 at about 9:00 a.m., while he was going from his house to Samastipur Court he had asked his son, namely Sanjay to come along with him, however he said that he would come after sometime hence, he had left his house after 15-20 minutes on his new green cycle along with the documents of title suit and a sum of Rs. 1500/-, and when he had travelled for about one kilometer and reached near the pond, the accused persons namely, Arjun Rai, Subodh Rai (Appellant No.2), Nand Kishore Rai (Appellant No.1), Sanjeet Roy and Ranjeet Rai (Appellant No.3), who were present there from before, armed with lathi and khanti had surrounded the deceased-informant whereupon Arjun Rai had exhorted the other accused persons to beat the deceased-informant and kill him, whereafter Arjun Rai had assaulted the deceased-informant with khanti with an intention to kill him, however, he had obstructed with his right hand, resulting his hand being fractured. Thereafter, Arjun Rai had assaulted the deceased-informant with khanti on his stomach and tried to insert it inside the stomach, however, the deceased-informant had obstructed it with his right hand resulting in his elbow being fractured. The deceased-informant had then fallen down, whereafter Subodh Rai (appellant No.2), who was armed with khanti had assaulted the deceased-informant on his right leg knee, leading to blood oozing out from there. Then Ranjeet Rai (appellant No.3) and Sanjeet Rai, with an intention to kill the deceased-informant had repeatedly assaulted him by lathi, leading to the portion below the right leg being fractured. Then Nand Kishore Rai (appellant No.1) had sat on the chest of the deceased-informant and with the butt of pistol he had assaulted on the chest of the deceased-informant as also had pressed his neck. The deceased-informant had then raised an alarm, resulting in his son namely, Sanjay Kumar Sharma (P.W.4) and co-villagers, namely Pandav Singh and Ram Singh having arrived there, whereafter Arjun Rai had taken out the case file from the bicycle of the deceased-informant and Nand Kishore Rai (Appellant No.1) had taken out a sum of Rs.1500/- from the pocket of the deceased-informant and then all the accused persons had fled away. The deceased-informant has further stated that he was then taken to Sadar Hospital in an injured condition and on the way he had become unconscious however, subsequently he regained consciousness at the hospital where he has given his statement. The statement was read over to the deceased-informant and after finding the same to be correct, the deceased-informant had put his left thumb impres
The court relied on oral and documentary evidence to establish the guilt of the accused under Section 302 IPC.
Murder – Non-examination of Doctor who conducted autopsy on dead body of deceased and who prepared post-mortem report is not fatal to case of prosecution.
A dying declaration must be voluntary and reliable; inconsistencies and external pressure can render it inadmissible, leading to acquittal if no corroborative evidence exists.
The voluntary and truthful nature of dying declaration and the competency of a child witness to depose are crucial in establishing guilt and determining the appropriate criminal offense.
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