REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1192 OF 2018
(arising out of SLP (Crl.) No. 6225 of 2017)
PRADEEP BISOI @ RANJIT BISOI … APPELLANT(S)
VERSUS
THE STATE OF ODISHA … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed by the accused against
the judgment of Orissa High Court dated 25.01.2017. The
Orissa High Court vide the impugned judgment has
dismissed the criminal appeal filed by the appellant
questioning his conviction under Section 304 Part II of
the Indian Penal Code and sentence of five years
rigorous imprisonment awarded by the trial court.
2. The prosecution case as is revealed from the record
is that Bhaskar Sahu (deceased) on 28.11.1990 in the
morning at 7.00 A.M. was going near Belapada by a
bicycle. Near the Belapada bridge, the accused threw a
bomb towards the deceased, which hit the right leg of
Bhaskar Sahu, the deceased, due to which he fell down on
1
the road. Bhaskar Sahu when started running to save his
life, accused came running before the deceased and dealt
a kati blow on right shoulder of Bhaskar Sahu on which
he fell down thereafter the accused poured acid on head,
face and chest of Bhaskar Sahu. Thereafter the accused
and his friends left that place. One Khalia Pati
belonging to the village of Bhaskar Sahu took the
deceased with the help of bicycle. Thereafter brother
of Bhaskar Sahu – Surendra Nath Sahu after receiving the
news of assault came with Tarini Sahu, Kasinath Bisoi
and Bidyadhar Babu belonging to the village and got
admitted Bhaskar Sahu in Berhampur Medical College.
Suurendra Nath Sahu, the brother of Bhaskar Sahu lodged
a First Information Report naming the accused. First
Information Report was lodged under Sections
324/326/286/34 IPC. The I.O. visited the spot on
30.11.1990 and seized one blood stained stone and sample
stone and one yellow colour banian with smell of acid
and prepared the seizure list. Some sample earth, one
towel with smell of acid was also noticed. Thereafter
the I.O. examined the witnesses. The I.O. on 05.12.1990
showed arrest of the accused. On 05.12.1990 the I.O.
recorded the statement of Bhaskar Sahu under Section 161
Cr.P.c. in which statement Bhaskar Sahu named the
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accused, the persons, who has thrown the bomb, hit with
kati and thrown acid on his face and head. The accused
was challaned and PW1, the informant, PW2 - Dandopani
Dass and PW3 – Prafulla Leuman Sahu were examined by the
prosecution. I.O. (PW4) – Prithandhi Moghi also
appeared in the witness box. The deceased while still
in hospital died on 25.03.1991. Defence examined two
witnesses namely DW1 – Ramesh Chandra Sahu and DW2 –
Bidyadhar Sahu.
3. The trial court after analyzing the evidence on
record and hearing the counsel for the parties convicted
the accused under Section 304 Part II of the I.P.C. and
awarded five years rigorous imprisonment. Aggrieved by
the judgment of the trial court, the appeal was filed by
the accused in the High Court, which has been dismissed
by the High Court by the impugned judgment.
4. Learned counsel for the appellant contends that
there is contradiction in the evidence of PW1 with other
witnesses. There is contradiction as to who took the
injured to the hospital. The victim became unconscious
and it is unbelievable that he informed the PW1 that it
was accused, who attacked him. The statement of injured
recorded under Section 161 Cr.P.C. cannot be treated as
3
a dying declaration in view of the well settled
principle of law enunciated by a Constitution Bench
judgment of this Court in Laxman Vs. State of
Maharashtra, (2002) 6 SCC 710, as to who is the author
of the crime, both the Courts below arrived at the
findings based on surmises and conjectures and not on
evidence on record.
5. Learned counsel for the State refuting the
submission of counsel for the appellant contends that on
the basis of evidence on record, both the Courts have
rightly held the charge proved against the accused. No
error has been committed by the Courts below relying on
the statement made by the injured on 05.12.1990 recorded
by the I.O. Further, evidence of PW1, to whom deceased
had informed that it was accused, who threw bomb and
made kati attack and threw acid, has rightly been
believed by the Courts below. It is submitted that the
statement made by the injured on 05.12.1990 was fully
admissible and no error has been committed by the Courts
below in relying the same. Learned counsel for the
State has placed reliance on judgment of this Court in
Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010)
8 SCALE 477 and Sri Bhagwan Vs. State of Uttar Pradesh,
(2013) 12 SCC 137.
4
6. We have considered the submissions of the learned
counsel for the parties and have perused the records.
7. The main thrust of submission of the learned
counsel for the appellant is that statement recorded by
I.O. on 05.12.1990 of the victim cannot be treated as
dying declaration since death occurred after more than
three months. He submits that both Courts committed
error in treating the said statement as dying
declaration.
8. Section 32 of the Evidence Act deals with cases in
which statement of relevant fact by person who is dead
or cannot be found etc. is relevant. Section 32 in so
far as relevant in the present case is as follows:-
S.32. Cases in which statement of relevant
fact by person who is dead or cannot be found,
etc., is relevant. –– Statements, written or
verbal, of relevant facts made by a person who
is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose
attendance cannot be procured without an
amount of delay or expense which under the
circumstances of the case appears to the Court
unreasonable, are themselves relevant facts in
the following cases: ––
(1) When it relates to cause of death. –– When
the statement is made by a person as to the
cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person’s death comes into
question.
5
Such statements are relevant whether the
person who made them was or was not, at the
time when they were made, under expectation of
death, and whatever may be the nature of the
proceeding in which the cause of his death
comes into question.
xxxxxxxxxxxxxx
Illustrations:
(a) The question is, whether A was
murdered by B; or
A died of injuries received in a
transaction in the course of which she was
ravished. The question is whether she was
ravished by B; or
The question is, whether A was killed by
B under such circumstances that a suit would
lie against B by A’s widow.
Statements made by A as to the cause of
his or her death, referring respectively to
the murder, the rape and the actionable wrong
under consideration, are relevant facts.
9. Other provisions relevant to be noticed are Section
161 and Section 162 of the Code of Criminal Procedure.
Section 161 deals with examination of witnesses by
police. Section 162 deals with “statements to police
not to be signed – Use of Statements in evidence”.
Section 162 Cr.P.C. is as follows:-
162. Statements to police not to be signed:
Use of statements in evidence.—(1) No
statement made by any person to a police
officer in the course of an investigation
under this Chapter, shall, if reduced to
writing, be signed by the person making it;
nor shall any such statement or any record
thereof, whether in a police diary or
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otherwise, or any part of such statement or
record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial
in respect of any offence under investigation
at the time when such statement was made:
Provided that when any witness is called
for the prosecution in such inquiry or trial
whose statement has been reduced into writing
as aforesaid, any part of his statement, if
duly proved, may be used by the accused, and
with the permission of the Court, by the
prosecution, to contradict such witness in the
manner provided by section 145 of the Indian
Evidence Act , 1872 (1 of 1872); and when any
part of such statement is so used, any part
thereof may also be used in the re-examination
of such witness, but for the purpose only of
explaining any matter referred to in his
cross-examination.
(2) Nothing in this section shall be deemed to
apply to any statement falling within the
provisions of clause (1) of section 32 of the
Indian Evidence Act, 1872 (1 of 1872); or to
affect the provisions of section 27 of that
Act.
Explanation.—An omission to state a fact
or circumstance in the statement referred to
in sub-section (1) may amount to
contradiction if the same appears to be
significant and otherwise relevant having
regard to the context in which such omission
occurs and whether any omission amounts to a
contradiction in the particular context shall
be a question of fact.
10. Sub-section (2) to Section 162 incorporate a clear
exception to what has been laid down in sub-section (1).
The statement recorded by police under Section 161,
falling within the provisions of clause (1) of Section
32 of Indian Evidence Act, thus, is clearly relevant and
7
admissible. In Mukeshbhai Gopalbhai Barot (supra), this
Court had occasion to consider Sections 161 and 162 of
Cr.P.C. and Section 32 of the Evidence Act. In the
above case, the victim, who received burn injuries on
14.09.1993 was admitted to Civil Hospital. Her
statement was recorded by Executive Magistrate and by
the Police. The statement recorded by police under
Section 161 Cr.P.C. was discarded by the High Court
taking the view that it had no evidentiary value. The
view of the High Court was not accepted by this Court.
In paragraph Nos. 4 and 5, this Court held that the
statement of persons recorded under Section 161 can be
treated as dying declaration after death. In paragraph
Nos. 4 and 5, following has been laid down:-
“4. We have considered the arguments advanced
by the learned counsel for the parties. At the
very outset, we must deal with the observations
of the High Court that the dying declarations
Ex.44 and 48 could not be taken as evidence
in view of the provisions of Section
161 and 162 of the Cr.P.C. when read cumulatively.
These findings are, however, erroneous.
Sub-Section (1) of Section 32 of the
Indian Evidence Act, 1872 deals with several
situations including the relevance of a statement
made by a person who is dead. The provision
reads as under:
Sec.32. Cases in which
statements of relevant fact by
person who is dead or cannot be
found, etc., is relevant. -
Statements, written or verbal, of
relevant facts made by a person who
is dead, or who cannot be found, or
8
who has become incapable of giving
evidence, or whose attendance cannot
be procured without an amount of
delay or expense which, under the
circumstances of the case, appears
to the Court unreasonable, are
themselves relevant facts in the
following cases:-
(1) When it relates to cause of
death. - When the statement is made
by a person as to the cause of his
death, or as to any of the
circumstances of the transaction
which resulted in his death, in
cases in which the cause of that
person's death comes into question.
Such statements are relevant
whether the person who made them was
or was not, at the time when they
were made, under expectation of
death, and whatever may be the
nature of the proceeding in which
the cause of his death comes into
question."
We see that the aforesaid dying declarations
are relevant in view of the above provision.
Even otherwise, Section 161 and 162 of
the Cr.P.C. admittedly provide for a restrictive
use of the statements recorded during the
course of the investigation but sub-Section
(2) of Section 162 deals with a situation
where the maker of the statement dies and
reads as under:
"(2) Nothing in this section
shall be deemed to apply to any
statement falling within the provisions
of clause (1) of Section 32 of
the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions
of section 27 of that Act."
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5. A bare perusal of the aforesaid provision
when read with Section 32 of the Indian Evidence
Act would reveal that a statement of a
person recorded under Section 161 would be
treated as a dying declaration after his
death. The observation of the High Court that
the dying declarations Ex.44 and 48 had no evidentiary
value, therefore, is erroneous. In
this view of the matter, the first dying declaration
made to the Magistrate on 14th September
1993 would, in fact, be the First Information
Report in this case.”
11. A similar view has been expressed by this Court in
Sri Bhagwan (supra), where this Court had occasion to
consider Section 161 Cr.P.C .and Section 32 of the
Indian Evidence Act. This Court dealt with a statement
under Section 161 Cr.P.C. subsequent to death of the
victim. In Para 20 to 24, following has been held:-
“20. While keeping the above prescription in
mind, when we test the submission of the
learned counsel for the appellant in the case
on hand at the time when Section 161 CrPC
statement of the deceased was recorded, the
offence registered was under Section 326 IPC
having regard to the grievous injuries sustained
by the victim. PW 4 was not contemplating
to record the dying declaration of the
victim inasmuch as the victim was seriously
injured and immediately needed medical aid.
Before sending him to the hospital for proper
treatment PW 4 thought it fit to get the version
about the occurrence recorded from the
victim himself that had taken place and that
is how Exhibit Ka-2 came to be recorded. Undoubtedly,
the statement was recorded as one
under Section 161 CrPC. Subsequent development
resulted in the death of the victim on the
next day and the law empowered the prosecution
10
to rely on the said statement by treating it
as a dying declaration, the question for consideration
is whether the submission put forth
on behalf of the respondent counsel merits acceptance.
21. Mr Ratnakar Dash, learned Senior Counsel
made a specific reference to Section 162(2)
CrPC in support of his submission that the
said section carves out an exception and credence
that can be given to a Section 161 CrPC
statement by leaving it like a declaration under
Section 32(1) of the Evidence Act under
certain exceptional circumstances. Section
162(2) CrPC reads as under:
“162. (2) Nothing in this section
shall be deemed to apply to any
statement falling within the provisions
of clause (1) of Section 32 of
the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions
of Section 27 of that Act.”
22. Under Section 32(1) of the Evidence Act it
has been provided as under:
“32. Cases in which statement of
relevant fact by person who is dead
or cannot be found, etc. is relevant.—Statements,
written or verbal,
of relevant facts made by a person
who is dead, or who cannot be found,
or who has become incapable of giving
evidence, or whose attendance
cannot be procured without an amount
of delay or expense which under the
circumstances of the case appears to
the court unreasonable, are themselves
relevant facts in the following
cases:
(1) When it relates to cause of
death.—When the statement is made by
a person as to the cause of his
death, or as to any of the circumstances
of the transaction which re11
sulted in his death, in cases in
which the cause of that person’s
death comes into question.
Such statements are relevant whether
the person who made them was or was
not, at the time when they were
made, under expectation of death,
and whatever may be the nature of
the proceeding in which the cause of
his death comes into question.”
23. Going by Section 32(1) of the Evidence
Act, it is quite clear that such statement
would be relevant even if the person who made
the statement was or was not at the time when
he made it was under the expectation of death.
Having regard to the extraordinary credence
attached to such statement falling under Section
32(1) of the Evidence Act, time and again
this Court has cautioned as to the extreme
care and caution to be taken while relying
upon such evidence recorded as a dying declaration.
24. As far as the implication of Section
162(2) CrPC is concerned, as a proposition of
law, unlike the excepted circumstances under
which Section 161 CrPC statement could be relied
upon, as rightly contended by the learned
Senior Counsel for the respondent, once the
said statement though recorded under Section
161 CrPC assumes the character of dying declaration
falling within the four corners of Section
32(1) of the Evidence Act, then whatever
credence that would apply to a declaration
governed by Section 32(1) should automatically
deemed to apply in all force to such a statement
though was once recorded under Section
161 CrPC. The above statement of law would result
in a position that a purported recorded
statement under Section 161 of a victim having
regard to the subsequent event of the death of
the person making the statement who was a victim
would enable the prosecuting authority to
rely upon the said statement having regard to
the nature and content of the said statement
as one of dying declaration as deeming it and
falling under Section 32(1) of Evidence Act
12
and thereby commend all the credence that
would be applicable to a dying declaration
recorded and claimed as such.”
12. It is relevant to refer to judgment of this Court
in Najjam Faraghi @ Nijjam Faruqui Vs. State of West
Bengal, (1998) 2 SCC 45. In the above case, the
kerosene oil was poured on the victim and she was put on
fire on 13.06.1985. She lived for about a month and
died on 31.07.1985. This Court referring to Section
32(1) held that mere fact that victim died long after
making the dying declaration, the statement does not
looses its value. In Para 9, following has been held:-
“9. There is no merit in the contention that
the appellant’s wife died long after making
the dying declarations and therefore those
statements have no value. The contention overlooks
the express provision in Section 32 of
the Evidence Act. The second paragraph of subsection
(1) reads as follows:
“Such statements are relevant
whether the person who made them was
or was not, at the time when they
were made, under expectation of
death, and whatever may be the nature
of the proceeding in which the
cause of his death comes into question.”
No doubt it has been pointed out that when a
person is expecting his death to take place
shortly he would not be indulging in falsehood.
But that does not mean that such a
statement loses its value if the person lives
for a longer time than expected. The question
has to be considered in each case on the facts
and circumstances established therein. If
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there is nothing on record to show that the
statement could not have been true or if the
other evidence on record corroborates the contents
of the statements, the court can certainly
accept the same and act upon it. In the
present case both courts have discussed the
entire evidence on record and found that two
dying declarations contained in Exs. 5 and 6
are acceptable.”
13. Much emphasis has been given by the learned counsel
for the appellant on Constitution Bench judgment of this
Court in Laxman Vs. State of Maharashtra (supra). The
above constitution Bench was constituted to resolve the
conflict between two Three-Judge Bench judgment of this
Court, i.e. Paparambaka Rosamma and Others Vs. State of
A.P. (1999) 7 SCC 695 and Koli Chunilal Savji and
Another Vs. State of Gujarat, (1999) 9 SCC 562. The
facts of the case and conflicting views expressed in the
above two cases has been noticed in Paragraph Nos. 1 and
2, which are to the following effect:-
“In this criminal appeal, the conviction of
the accused-appellant is based upon the dying
declaration of the deceased which was recorded
by the Judicial Magistrate (PW 4). The learned
Sessions Judge as well as the High Court held
the dying declaration made by the deceased to
be truthful, voluntary and trustworthy. The
Magistrate in his evidence had stated that he
had contacted the patient through the medical
officer on duty and after putting some questions
to the patient to find out whether she
was able to make the statement; whether she
was set on fire; whether she was conscious and
able to make the statement and on being satis14
fied he recorded the statement of the deceased.
There was a certificate of the doctor
which indicates that the patient was conscious.
The High Court on consideration of the
evidence of the Magistrate as well as on the
certificate of the doctor on the dying declaration
recorded by the Magistrate together
with other circumstances on record came to the
conclusion that the deceased Chandrakala was
physically and mentally fit and as such the
dying declaration can be relied upon. When the
appeal against the judgment of the Aurangabad
Bench of the Bombay High Court was placed before
a three-Judge Bench of this Court, the
counsel for the appellant relied upon the decision
of this Court in the case of Paparambaka
Rosamma v. State of A.P., (1999) 7 SCC
695 and contended that since the certification
of the doctor was not to the effect that the
patient was in a fit state of mind to make the
statement, the dying declaration could not
have been accepted by the Court to form the
sole basis of conviction. On behalf of the
counsel appearing for the State another threeJudge
Bench decision of this Court in the case
of Koli Chunilal Savji v. State of Gujarat
(1999) 9 SCCC 562 was relied upon wherein this
Court has held that if the materials on record
indicate that the deceased was fully conscious
and was capable of making a statement, the dying
declaration of the deceased thus recorded
cannot be ignored merely because the doctor
had not made the endorsement that the deceased
was in a fit state of mind to make the statement
in question. Since the two aforesaid decisions
expressed by two Benches of three
learned Judges was somewhat contradictory the
Bench by order dated 27-7-2002 referred the
question to the Constitution Bench.
2. At the outset we make it clear that we
are only resolving the so-called conflict between
the aforesaid three-Judge Bench decision
of this Court, whereafter the criminal appeal
will be placed before the Bench presided over
by Justice M.B. Shah who had referred the matter
to the Constitution Bench. We are, therefore,
refraining from examining the evidence
on record to come to a conclusion one way or
15
the other and we are restricting our considerations
to the correctness of the two decisions
referred to supra.”
14. The Constitution Bench approved the view taken by
later judgment in Koli Chunilal Savji (supra). In
Paragraph No. 5, following has been laid down:-
“5. The Court also in the aforesaid case
relied upon the decision of this Court in Harjit
Kaur v. State of Punjab4 wherein the Magistrate
in his evidence had stated that he had
ascertained from the doctor whether she was in
a fit condition to make a statement and obtained
an endorsement to that effect and
merely because an endorsement was made not on
the declaration but on the application would
not render the dying declaration suspicious in
any manner. For the reasons already indicated
earlier, we have no hesitation in coming to
the conclusion that the observations of this
Court in Paparambaka Rosamma v. State of A.P.
(1999) 7 SCC 695 (at SCC p. 701, para 8) to
the effect that
“in the absence of a medical certification
that the injured was in a
fit state of mind at the time of
making the declaration, it would be
very much risky to accept the subjective
satisfaction of a Magistrate
who opined that the injured was in a
fit state of mind at the time of
making a declaration”
has been too broadly stated and is not the
correct enunciation of law. It is indeed a hypertechnical
view that the certification of
the doctor was to the effect that the patient
is conscious and there was no certification
that the patient was in a fit state of mind
especially when the Magistrate categorically
stated in his evidence indicating the ques16
tions he had put to the patient and from the
answers elicited was satisfied that the patient
was in a fit state of mind whereafter he
recorded the dying declaration. Therefore, the
judgment of this Court in Paparambaka Rosamma
v. State of A.P. (1999) 7 SCC 695 must be
held to be not correctly decided and we affirm
the law laid down by this Court in Koli Chunilal
Savji v. State of Gujarat (1999) 9 SCC
562.”
15. The view expressed by Three-Judge Bench in
Paparambaka Rosamma (supra) that in the absence of
medical certification that the injured was in a fit
state of mind at the time of making the declaration, it
would be very much risky to accept the subjective
satisfaction of a Magistrate who opined that the injured
was in a fit state of mind at the time of making a
declaration, does not lay down a correct law. Thus, the
Constitution bench was only considering the question of
nature of medical certification regarding fitness of
victim to make a dying declaration. The proposition
laid down in the above case does not in any manner
support the contention raised by the counsel for the
appellant in the present case. Present is a case where
a statement was recorded by I.O. under Section 161 of
the victim on 05.12.1990. Both the trial court and the
High Court held the statement relevant and placed
reliance on the said statement.
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16. We have noticed that this Court has laid down that
statement under Section 161 Cr.P.C., which is covered
under Section 32(1) is relevant and admissible. Thus,
we do not find any error in the judgment of the trial
court as well as of the High Court in relying on the
statement of the injured recorded by the I.O. on
05.12.1990. It is also relevant to notice that I.O. in
his cross-examination has stated that he went on the
night of 30.11.1990 to the Medical College to record the
statement but as his condition was serious, he was not
examined. Thus, reliance on the statement made on
05.12.1990 to the I.O. does not lead to any suspicious
circumstances so as to discard the value of such
statement. The statement, which was made by the victim
on 05.12.1990 was to the following effect:-
“My name is Bhaskar Sahu, S/o. Kaibalya Sahu,
present/permanent Resident of Village - Langal
Dei, P.S. Digapahandi Dist. Gangnam, Today,
i.e. on 05.12.1920, being at the Medical
College ward I hereby give my verbal statement
that, I was going to Belapada from our Village
Langal Del on 28.11.1990 at about 6:30 to 7:00
O'clock on my bi-cycle. On my way near the
bridge of Belapada Village, inhabitant of our
village namely Pradeep Bisoi, S/o. Madhab
Bisoi and some of his friends were waiting to
kill me. They had come by a Scoter. I don't
know others. Near the Belapada Bridge, all of
a sudden Pradeep Bisoi threw a Bomb towards me
which was defused after hitting my right leg
18
for which I fell down on the road. When I
started running, trying to save my life, at
that time Pradeep Bisoi came running after me
and dealt a kati blow on my right solder, for
which I fell down bloodstained. Thereafter
from a bottle carried by him, he poured acid
on my head, face, chest and also on my entire
body To save my life. I threw away my black
color vest from my body. Looking at my
critical condition, Pradeep Bisoi and his
friends left that place. After that, the son
of Khalia Pati of our village saw me, and
while taking me by the help of a cycle, my
brother Surendar Sahu got that news and Tarini
Sahu, and Kishnath Bisoi and Bidhyadhara Babu
of our village reached to me and my brother
immediately admitted me in the Berhampur
Medical Collage. Otherwise I would have died
on the spot. Because of our previous enmity,
Pradeep Bisoi was trying to kill me. But I was
just saved. There is no chance of my
survival.”
17. The trial court after appreciation of evidence
recorded the findings that deceased had acid injuries as
well as bomb blast injuries. In the acid attack, he has
lost his eye-sight and also lost his right foot. The
trial court has rightly held that statement of deceased
made on 05.12.1990 is admissible under Section 32
because it is regarding his cause of death and how he
was injured. In para 8 of the judgment, trial court has
recorded as follows:-
“8. From the medical report it is clear that
the deceased was having acid injury and bomb
blasting injury and during the treatment he
died in the hospital. Now it is to be seen
who has caused those acid and bomb blast
injuries on the person of the deceased. There
19
is no eye witness to the occurrence. The
deceased had given information to the P.W.1
and also to the I.O. P.W.1 says that he learnt
from the deceased that accused assaulted him
and threw acid on his face, and other parts of
his body and he reported the matter to the
police, after knowing the fact from the
deceased, vide Ext. 12. It is also clear from
the evidence of P.W.3 that he carried the
deceased to the hospital, who had sustained
injuries. The statement of the deceased to
P.W.1 is admissible under 32 of the Evidence
Act. Because, it gives regarding his cause of
death and how he was injured.”
18. The injuries on the body of deceased fully support
the prosecution case. The statement made by the
deceased on 05.12.1990, thus, finds corroboration from
the injuries on the body of deceased and the sequences
of the events and manner of incidents as claimed by the
prosecution. The PW1, the informant has fully supported
the prosecution case.
19. The High Court while dismissing the appeal has also
made observation that conviction and sentence of the
accused was for a lesser offence and lenient one.
20. We having gone through the evidence on record are
fully satisfied that the trial court did not commit any
error in convicting the appellant. High Court while
deciding the appeal has also analysed the evidence on
record and has rightly dismissed the appeal. We, thus,
20
do not find any merit in this appeal, which is
dismissed.
......................J.
( A.K. SIKRI )
......................J.
( ASHOK BHUSHAN )
New Delhi,
October 10, 2018.
21
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1192 OF 2018
(arising out of SLP (Crl.) No. 6225 of 2017)
PRADEEP BISOI @ RANJIT BISOI … APPELLANT(S)
VERSUS
THE STATE OF ODISHA … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed by the accused against
the judgment of Orissa High Court dated 25.01.2017. The
Orissa High Court vide the impugned judgment has
dismissed the criminal appeal filed by the appellant
questioning his conviction under Section 304 Part II of
the Indian Penal Code and sentence of five years
rigorous imprisonment awarded by the trial court.
2. The prosecution case as is revealed from the record
is that Bhaskar Sahu (deceased) on 28.11.1990 in the
morning at 7.00 A.M. was going near Belapada by a
bicycle. Near the Belapada bridge, the accused threw a
bomb towards the deceased, which hit the right leg of
Bhaskar Sahu, the deceased, due to which he fell down on
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the road. Bhaskar Sahu when started running to save his
life, accused came running before the deceased and dealt
a kati blow on right shoulder of Bhaskar Sahu on which
he fell down thereafter the accused poured acid on head,
face and chest of Bhaskar Sahu. Thereafter the accused
and his friends left that place. One Khalia Pati
belonging to the village of Bhaskar Sahu took the
deceased with the help of bicycle. Thereafter brother
of Bhaskar Sahu – Surendra Nath Sahu after receiving the
news of assault came with Tarini Sahu, Kasinath Bisoi
and Bidyadhar Babu belonging to the village and got
admitted Bhaskar Sahu in Berhampur Medical College.
Suurendra Nath Sahu, the brother of Bhaskar Sahu lodged
a First Information Report naming the accused. First
Information Report was lodged under Sections
324/326/286/34 IPC. The I.O. visited the spot on
30.11.1990 and seized one blood stained stone and sample
stone and one yellow colour banian with smell of acid
and prepared the seizure list. Some sample earth, one
towel with smell of acid was also noticed. Thereafter
the I.O. examined the witnesses. The I.O. on 05.12.1990
showed arrest of the accused. On 05.12.1990 the I.O.
recorded the statement of Bhaskar Sahu under Section 161
Cr.P.c. in which statement Bhaskar Sahu named the
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accused, the persons, who has thrown the bomb, hit with
kati and thrown acid on his face and head. The accused
was challaned and PW1, the informant, PW2 - Dandopani
Dass and PW3 – Prafulla Leuman Sahu were examined by the
prosecution. I.O. (PW4) – Prithandhi Moghi also
appeared in the witness box. The deceased while still
in hospital died on 25.03.1991. Defence examined two
witnesses namely DW1 – Ramesh Chandra Sahu and DW2 –
Bidyadhar Sahu.
3. The trial court after analyzing the evidence on
record and hearing the counsel for the parties convicted
the accused under Section 304 Part II of the I.P.C. and
awarded five years rigorous imprisonment. Aggrieved by
the judgment of the trial court, the appeal was filed by
the accused in the High Court, which has been dismissed
by the High Court by the impugned judgment.
4. Learned counsel for the appellant contends that
there is contradiction in the evidence of PW1 with other
witnesses. There is contradiction as to who took the
injured to the hospital. The victim became unconscious
and it is unbelievable that he informed the PW1 that it
was accused, who attacked him. The statement of injured
recorded under Section 161 Cr.P.C. cannot be treated as
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a dying declaration in view of the well settled
principle of law enunciated by a Constitution Bench
judgment of this Court in Laxman Vs. State of
Maharashtra, (2002) 6 SCC 710, as to who is the author
of the crime, both the Courts below arrived at the
findings based on surmises and conjectures and not on
evidence on record.
5. Learned counsel for the State refuting the
submission of counsel for the appellant contends that on
the basis of evidence on record, both the Courts have
rightly held the charge proved against the accused. No
error has been committed by the Courts below relying on
the statement made by the injured on 05.12.1990 recorded
by the I.O. Further, evidence of PW1, to whom deceased
had informed that it was accused, who threw bomb and
made kati attack and threw acid, has rightly been
believed by the Courts below. It is submitted that the
statement made by the injured on 05.12.1990 was fully
admissible and no error has been committed by the Courts
below in relying the same. Learned counsel for the
State has placed reliance on judgment of this Court in
Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010)
8 SCALE 477 and Sri Bhagwan Vs. State of Uttar Pradesh,
(2013) 12 SCC 137.
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6. We have considered the submissions of the learned
counsel for the parties and have perused the records.
7. The main thrust of submission of the learned
counsel for the appellant is that statement recorded by
I.O. on 05.12.1990 of the victim cannot be treated as
dying declaration since death occurred after more than
three months. He submits that both Courts committed
error in treating the said statement as dying
declaration.
8. Section 32 of the Evidence Act deals with cases in
which statement of relevant fact by person who is dead
or cannot be found etc. is relevant. Section 32 in so
far as relevant in the present case is as follows:-
S.32. Cases in which statement of relevant
fact by person who is dead or cannot be found,
etc., is relevant. –– Statements, written or
verbal, of relevant facts made by a person who
is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose
attendance cannot be procured without an
amount of delay or expense which under the
circumstances of the case appears to the Court
unreasonable, are themselves relevant facts in
the following cases: ––
(1) When it relates to cause of death. –– When
the statement is made by a person as to the
cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person’s death comes into
question.
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Such statements are relevant whether the
person who made them was or was not, at the
time when they were made, under expectation of
death, and whatever may be the nature of the
proceeding in which the cause of his death
comes into question.
xxxxxxxxxxxxxx
Illustrations:
(a) The question is, whether A was
murdered by B; or
A died of injuries received in a
transaction in the course of which she was
ravished. The question is whether she was
ravished by B; or
The question is, whether A was killed by
B under such circumstances that a suit would
lie against B by A’s widow.
Statements made by A as to the cause of
his or her death, referring respectively to
the murder, the rape and the actionable wrong
under consideration, are relevant facts.
9. Other provisions relevant to be noticed are Section
161 and Section 162 of the Code of Criminal Procedure.
Section 161 deals with examination of witnesses by
police. Section 162 deals with “statements to police
not to be signed – Use of Statements in evidence”.
Section 162 Cr.P.C. is as follows:-
162. Statements to police not to be signed:
Use of statements in evidence.—(1) No
statement made by any person to a police
officer in the course of an investigation
under this Chapter, shall, if reduced to
writing, be signed by the person making it;
nor shall any such statement or any record
thereof, whether in a police diary or
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otherwise, or any part of such statement or
record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial
in respect of any offence under investigation
at the time when such statement was made:
Provided that when any witness is called
for the prosecution in such inquiry or trial
whose statement has been reduced into writing
as aforesaid, any part of his statement, if
duly proved, may be used by the accused, and
with the permission of the Court, by the
prosecution, to contradict such witness in the
manner provided by section 145 of the Indian
Evidence Act , 1872 (1 of 1872); and when any
part of such statement is so used, any part
thereof may also be used in the re-examination
of such witness, but for the purpose only of
explaining any matter referred to in his
cross-examination.
(2) Nothing in this section shall be deemed to
apply to any statement falling within the
provisions of clause (1) of section 32 of the
Indian Evidence Act, 1872 (1 of 1872); or to
affect the provisions of section 27 of that
Act.
Explanation.—An omission to state a fact
or circumstance in the statement referred to
in sub-section (1) may amount to
contradiction if the same appears to be
significant and otherwise relevant having
regard to the context in which such omission
occurs and whether any omission amounts to a
contradiction in the particular context shall
be a question of fact.
10. Sub-section (2) to Section 162 incorporate a clear
exception to what has been laid down in sub-section (1).
The statement recorded by police under Section 161,
falling within the provisions of clause (1) of Section
32 of Indian Evidence Act, thus, is clearly relevant and
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admissible. In Mukeshbhai Gopalbhai Barot (supra), this
Court had occasion to consider Sections 161 and 162 of
Cr.P.C. and Section 32 of the Evidence Act. In the
above case, the victim, who received burn injuries on
14.09.1993 was admitted to Civil Hospital. Her
statement was recorded by Executive Magistrate and by
the Police. The statement recorded by police under
Section 161 Cr.P.C. was discarded by the High Court
taking the view that it had no evidentiary value. The
view of the High Court was not accepted by this Court.
In paragraph Nos. 4 and 5, this Court held that the
statement of persons recorded under Section 161 can be
treated as dying declaration after death. In paragraph
Nos. 4 and 5, following has been laid down:-
“4. We have considered the arguments advanced
by the learned counsel for the parties. At the
very outset, we must deal with the observations
of the High Court that the dying declarations
Ex.44 and 48 could not be taken as evidence
in view of the provisions of Section
161 and 162 of the Cr.P.C. when read cumulatively.
These findings are, however, erroneous.
Sub-Section (1) of Section 32 of the
Indian Evidence Act, 1872 deals with several
situations including the relevance of a statement
made by a person who is dead. The provision
reads as under:
Sec.32. Cases in which
statements of relevant fact by
person who is dead or cannot be
found, etc., is relevant. -
Statements, written or verbal, of
relevant facts made by a person who
is dead, or who cannot be found, or
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who has become incapable of giving
evidence, or whose attendance cannot
be procured without an amount of
delay or expense which, under the
circumstances of the case, appears
to the Court unreasonable, are
themselves relevant facts in the
following cases:-
(1) When it relates to cause of
death. - When the statement is made
by a person as to the cause of his
death, or as to any of the
circumstances of the transaction
which resulted in his death, in
cases in which the cause of that
person's death comes into question.
Such statements are relevant
whether the person who made them was
or was not, at the time when they
were made, under expectation of
death, and whatever may be the
nature of the proceeding in which
the cause of his death comes into
question."
We see that the aforesaid dying declarations
are relevant in view of the above provision.
Even otherwise, Section 161 and 162 of
the Cr.P.C. admittedly provide for a restrictive
use of the statements recorded during the
course of the investigation but sub-Section
(2) of Section 162 deals with a situation
where the maker of the statement dies and
reads as under:
"(2) Nothing in this section
shall be deemed to apply to any
statement falling within the provisions
of clause (1) of Section 32 of
the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions
of section 27 of that Act."
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5. A bare perusal of the aforesaid provision
when read with Section 32 of the Indian Evidence
Act would reveal that a statement of a
person recorded under Section 161 would be
treated as a dying declaration after his
death. The observation of the High Court that
the dying declarations Ex.44 and 48 had no evidentiary
value, therefore, is erroneous. In
this view of the matter, the first dying declaration
made to the Magistrate on 14th September
1993 would, in fact, be the First Information
Report in this case.”
11. A similar view has been expressed by this Court in
Sri Bhagwan (supra), where this Court had occasion to
consider Section 161 Cr.P.C .and Section 32 of the
Indian Evidence Act. This Court dealt with a statement
under Section 161 Cr.P.C. subsequent to death of the
victim. In Para 20 to 24, following has been held:-
“20. While keeping the above prescription in
mind, when we test the submission of the
learned counsel for the appellant in the case
on hand at the time when Section 161 CrPC
statement of the deceased was recorded, the
offence registered was under Section 326 IPC
having regard to the grievous injuries sustained
by the victim. PW 4 was not contemplating
to record the dying declaration of the
victim inasmuch as the victim was seriously
injured and immediately needed medical aid.
Before sending him to the hospital for proper
treatment PW 4 thought it fit to get the version
about the occurrence recorded from the
victim himself that had taken place and that
is how Exhibit Ka-2 came to be recorded. Undoubtedly,
the statement was recorded as one
under Section 161 CrPC. Subsequent development
resulted in the death of the victim on the
next day and the law empowered the prosecution
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to rely on the said statement by treating it
as a dying declaration, the question for consideration
is whether the submission put forth
on behalf of the respondent counsel merits acceptance.
21. Mr Ratnakar Dash, learned Senior Counsel
made a specific reference to Section 162(2)
CrPC in support of his submission that the
said section carves out an exception and credence
that can be given to a Section 161 CrPC
statement by leaving it like a declaration under
Section 32(1) of the Evidence Act under
certain exceptional circumstances. Section
162(2) CrPC reads as under:
“162. (2) Nothing in this section
shall be deemed to apply to any
statement falling within the provisions
of clause (1) of Section 32 of
the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions
of Section 27 of that Act.”
22. Under Section 32(1) of the Evidence Act it
has been provided as under:
“32. Cases in which statement of
relevant fact by person who is dead
or cannot be found, etc. is relevant.—Statements,
written or verbal,
of relevant facts made by a person
who is dead, or who cannot be found,
or who has become incapable of giving
evidence, or whose attendance
cannot be procured without an amount
of delay or expense which under the
circumstances of the case appears to
the court unreasonable, are themselves
relevant facts in the following
cases:
(1) When it relates to cause of
death.—When the statement is made by
a person as to the cause of his
death, or as to any of the circumstances
of the transaction which re11
sulted in his death, in cases in
which the cause of that person’s
death comes into question.
Such statements are relevant whether
the person who made them was or was
not, at the time when they were
made, under expectation of death,
and whatever may be the nature of
the proceeding in which the cause of
his death comes into question.”
23. Going by Section 32(1) of the Evidence
Act, it is quite clear that such statement
would be relevant even if the person who made
the statement was or was not at the time when
he made it was under the expectation of death.
Having regard to the extraordinary credence
attached to such statement falling under Section
32(1) of the Evidence Act, time and again
this Court has cautioned as to the extreme
care and caution to be taken while relying
upon such evidence recorded as a dying declaration.
24. As far as the implication of Section
162(2) CrPC is concerned, as a proposition of
law, unlike the excepted circumstances under
which Section 161 CrPC statement could be relied
upon, as rightly contended by the learned
Senior Counsel for the respondent, once the
said statement though recorded under Section
161 CrPC assumes the character of dying declaration
falling within the four corners of Section
32(1) of the Evidence Act, then whatever
credence that would apply to a declaration
governed by Section 32(1) should automatically
deemed to apply in all force to such a statement
though was once recorded under Section
161 CrPC. The above statement of law would result
in a position that a purported recorded
statement under Section 161 of a victim having
regard to the subsequent event of the death of
the person making the statement who was a victim
would enable the prosecuting authority to
rely upon the said statement having regard to
the nature and content of the said statement
as one of dying declaration as deeming it and
falling under Section 32(1) of Evidence Act
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and thereby commend all the credence that
would be applicable to a dying declaration
recorded and claimed as such.”
12. It is relevant to refer to judgment of this Court
in Najjam Faraghi @ Nijjam Faruqui Vs. State of West
Bengal, (1998) 2 SCC 45. In the above case, the
kerosene oil was poured on the victim and she was put on
fire on 13.06.1985. She lived for about a month and
died on 31.07.1985. This Court referring to Section
32(1) held that mere fact that victim died long after
making the dying declaration, the statement does not
looses its value. In Para 9, following has been held:-
“9. There is no merit in the contention that
the appellant’s wife died long after making
the dying declarations and therefore those
statements have no value. The contention overlooks
the express provision in Section 32 of
the Evidence Act. The second paragraph of subsection
(1) reads as follows:
“Such statements are relevant
whether the person who made them was
or was not, at the time when they
were made, under expectation of
death, and whatever may be the nature
of the proceeding in which the
cause of his death comes into question.”
No doubt it has been pointed out that when a
person is expecting his death to take place
shortly he would not be indulging in falsehood.
But that does not mean that such a
statement loses its value if the person lives
for a longer time than expected. The question
has to be considered in each case on the facts
and circumstances established therein. If
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there is nothing on record to show that the
statement could not have been true or if the
other evidence on record corroborates the contents
of the statements, the court can certainly
accept the same and act upon it. In the
present case both courts have discussed the
entire evidence on record and found that two
dying declarations contained in Exs. 5 and 6
are acceptable.”
13. Much emphasis has been given by the learned counsel
for the appellant on Constitution Bench judgment of this
Court in Laxman Vs. State of Maharashtra (supra). The
above constitution Bench was constituted to resolve the
conflict between two Three-Judge Bench judgment of this
Court, i.e. Paparambaka Rosamma and Others Vs. State of
A.P. (1999) 7 SCC 695 and Koli Chunilal Savji and
Another Vs. State of Gujarat, (1999) 9 SCC 562. The
facts of the case and conflicting views expressed in the
above two cases has been noticed in Paragraph Nos. 1 and
2, which are to the following effect:-
“In this criminal appeal, the conviction of
the accused-appellant is based upon the dying
declaration of the deceased which was recorded
by the Judicial Magistrate (PW 4). The learned
Sessions Judge as well as the High Court held
the dying declaration made by the deceased to
be truthful, voluntary and trustworthy. The
Magistrate in his evidence had stated that he
had contacted the patient through the medical
officer on duty and after putting some questions
to the patient to find out whether she
was able to make the statement; whether she
was set on fire; whether she was conscious and
able to make the statement and on being satis14
fied he recorded the statement of the deceased.
There was a certificate of the doctor
which indicates that the patient was conscious.
The High Court on consideration of the
evidence of the Magistrate as well as on the
certificate of the doctor on the dying declaration
recorded by the Magistrate together
with other circumstances on record came to the
conclusion that the deceased Chandrakala was
physically and mentally fit and as such the
dying declaration can be relied upon. When the
appeal against the judgment of the Aurangabad
Bench of the Bombay High Court was placed before
a three-Judge Bench of this Court, the
counsel for the appellant relied upon the decision
of this Court in the case of Paparambaka
Rosamma v. State of A.P., (1999) 7 SCC
695 and contended that since the certification
of the doctor was not to the effect that the
patient was in a fit state of mind to make the
statement, the dying declaration could not
have been accepted by the Court to form the
sole basis of conviction. On behalf of the
counsel appearing for the State another threeJudge
Bench decision of this Court in the case
of Koli Chunilal Savji v. State of Gujarat
(1999) 9 SCCC 562 was relied upon wherein this
Court has held that if the materials on record
indicate that the deceased was fully conscious
and was capable of making a statement, the dying
declaration of the deceased thus recorded
cannot be ignored merely because the doctor
had not made the endorsement that the deceased
was in a fit state of mind to make the statement
in question. Since the two aforesaid decisions
expressed by two Benches of three
learned Judges was somewhat contradictory the
Bench by order dated 27-7-2002 referred the
question to the Constitution Bench.
2. At the outset we make it clear that we
are only resolving the so-called conflict between
the aforesaid three-Judge Bench decision
of this Court, whereafter the criminal appeal
will be placed before the Bench presided over
by Justice M.B. Shah who had referred the matter
to the Constitution Bench. We are, therefore,
refraining from examining the evidence
on record to come to a conclusion one way or
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the other and we are restricting our considerations
to the correctness of the two decisions
referred to supra.”
14. The Constitution Bench approved the view taken by
later judgment in Koli Chunilal Savji (supra). In
Paragraph No. 5, following has been laid down:-
“5. The Court also in the aforesaid case
relied upon the decision of this Court in Harjit
Kaur v. State of Punjab4 wherein the Magistrate
in his evidence had stated that he had
ascertained from the doctor whether she was in
a fit condition to make a statement and obtained
an endorsement to that effect and
merely because an endorsement was made not on
the declaration but on the application would
not render the dying declaration suspicious in
any manner. For the reasons already indicated
earlier, we have no hesitation in coming to
the conclusion that the observations of this
Court in Paparambaka Rosamma v. State of A.P.
(1999) 7 SCC 695 (at SCC p. 701, para 8) to
the effect that
“in the absence of a medical certification
that the injured was in a
fit state of mind at the time of
making the declaration, it would be
very much risky to accept the subjective
satisfaction of a Magistrate
who opined that the injured was in a
fit state of mind at the time of
making a declaration”
has been too broadly stated and is not the
correct enunciation of law. It is indeed a hypertechnical
view that the certification of
the doctor was to the effect that the patient
is conscious and there was no certification
that the patient was in a fit state of mind
especially when the Magistrate categorically
stated in his evidence indicating the ques16
tions he had put to the patient and from the
answers elicited was satisfied that the patient
was in a fit state of mind whereafter he
recorded the dying declaration. Therefore, the
judgment of this Court in Paparambaka Rosamma
v. State of A.P. (1999) 7 SCC 695 must be
held to be not correctly decided and we affirm
the law laid down by this Court in Koli Chunilal
Savji v. State of Gujarat (1999) 9 SCC
562.”
15. The view expressed by Three-Judge Bench in
Paparambaka Rosamma (supra) that in the absence of
medical certification that the injured was in a fit
state of mind at the time of making the declaration, it
would be very much risky to accept the subjective
satisfaction of a Magistrate who opined that the injured
was in a fit state of mind at the time of making a
declaration, does not lay down a correct law. Thus, the
Constitution bench was only considering the question of
nature of medical certification regarding fitness of
victim to make a dying declaration. The proposition
laid down in the above case does not in any manner
support the contention raised by the counsel for the
appellant in the present case. Present is a case where
a statement was recorded by I.O. under Section 161 of
the victim on 05.12.1990. Both the trial court and the
High Court held the statement relevant and placed
reliance on the said statement.
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16. We have noticed that this Court has laid down that
statement under Section 161 Cr.P.C., which is covered
under Section 32(1) is relevant and admissible. Thus,
we do not find any error in the judgment of the trial
court as well as of the High Court in relying on the
statement of the injured recorded by the I.O. on
05.12.1990. It is also relevant to notice that I.O. in
his cross-examination has stated that he went on the
night of 30.11.1990 to the Medical College to record the
statement but as his condition was serious, he was not
examined. Thus, reliance on the statement made on
05.12.1990 to the I.O. does not lead to any suspicious
circumstances so as to discard the value of such
statement. The statement, which was made by the victim
on 05.12.1990 was to the following effect:-
“My name is Bhaskar Sahu, S/o. Kaibalya Sahu,
present/permanent Resident of Village - Langal
Dei, P.S. Digapahandi Dist. Gangnam, Today,
i.e. on 05.12.1920, being at the Medical
College ward I hereby give my verbal statement
that, I was going to Belapada from our Village
Langal Del on 28.11.1990 at about 6:30 to 7:00
O'clock on my bi-cycle. On my way near the
bridge of Belapada Village, inhabitant of our
village namely Pradeep Bisoi, S/o. Madhab
Bisoi and some of his friends were waiting to
kill me. They had come by a Scoter. I don't
know others. Near the Belapada Bridge, all of
a sudden Pradeep Bisoi threw a Bomb towards me
which was defused after hitting my right leg
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for which I fell down on the road. When I
started running, trying to save my life, at
that time Pradeep Bisoi came running after me
and dealt a kati blow on my right solder, for
which I fell down bloodstained. Thereafter
from a bottle carried by him, he poured acid
on my head, face, chest and also on my entire
body To save my life. I threw away my black
color vest from my body. Looking at my
critical condition, Pradeep Bisoi and his
friends left that place. After that, the son
of Khalia Pati of our village saw me, and
while taking me by the help of a cycle, my
brother Surendar Sahu got that news and Tarini
Sahu, and Kishnath Bisoi and Bidhyadhara Babu
of our village reached to me and my brother
immediately admitted me in the Berhampur
Medical Collage. Otherwise I would have died
on the spot. Because of our previous enmity,
Pradeep Bisoi was trying to kill me. But I was
just saved. There is no chance of my
survival.”
17. The trial court after appreciation of evidence
recorded the findings that deceased had acid injuries as
well as bomb blast injuries. In the acid attack, he has
lost his eye-sight and also lost his right foot. The
trial court has rightly held that statement of deceased
made on 05.12.1990 is admissible under Section 32
because it is regarding his cause of death and how he
was injured. In para 8 of the judgment, trial court has
recorded as follows:-
“8. From the medical report it is clear that
the deceased was having acid injury and bomb
blasting injury and during the treatment he
died in the hospital. Now it is to be seen
who has caused those acid and bomb blast
injuries on the person of the deceased. There
19
is no eye witness to the occurrence. The
deceased had given information to the P.W.1
and also to the I.O. P.W.1 says that he learnt
from the deceased that accused assaulted him
and threw acid on his face, and other parts of
his body and he reported the matter to the
police, after knowing the fact from the
deceased, vide Ext. 12. It is also clear from
the evidence of P.W.3 that he carried the
deceased to the hospital, who had sustained
injuries. The statement of the deceased to
P.W.1 is admissible under 32 of the Evidence
Act. Because, it gives regarding his cause of
death and how he was injured.”
18. The injuries on the body of deceased fully support
the prosecution case. The statement made by the
deceased on 05.12.1990, thus, finds corroboration from
the injuries on the body of deceased and the sequences
of the events and manner of incidents as claimed by the
prosecution. The PW1, the informant has fully supported
the prosecution case.
19. The High Court while dismissing the appeal has also
made observation that conviction and sentence of the
accused was for a lesser offence and lenient one.
20. We having gone through the evidence on record are
fully satisfied that the trial court did not commit any
error in convicting the appellant. High Court while
deciding the appeal has also analysed the evidence on
record and has rightly dismissed the appeal. We, thus,
20
do not find any merit in this appeal, which is
dismissed.
......................J.
( A.K. SIKRI )
......................J.
( ASHOK BHUSHAN )
New Delhi,
October 10, 2018.
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