As per case facts, an individual was assaulted by the appellant, Raj Kumar Mahto, by being pushed to the ground and having their neck twisted during a Jhula Puja, leading ...
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.587 of 2011
======================================================
RAJ KUMAR MAHTO Son Of Late Shivji Mahto Resident Fo Village -
Kalhara, Police Station - Hathuri, District - Samastipur.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s: Mrs. Shubhangi Pandey, Amicus curiae
For the Respondent/s: Mr. Abhay Kumar, APP
========================================== ============
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date :09-04-2026
Heard Mrs. Shubhangi Pandey learned Amicus
curiae and Mr. Abhay Kumar learned APP for the State.
2. This criminal appeal has been preferred against the
judgment and order of conviction and sentence dated 06.05.2011
passed in Sessions Trial No. 413 of 2008 arising out of Hathauri
(Shivarji Nagar O.P.) P.S. Case No. 35 of 2007 by Additional
Sessions Judge, Rosera, District, Samastipur whereby the
learned trial court convicted the appellant under Section 304
Part-II of the Indian Penal Code and sentenced him to undergo
10 years of rigorous imprisonment.
3. The prosecution case, in brief, is that on 28.08.2007
at night, a Jhula Puja was being performed at the temple of
Bajrang Bali, where the informant had gone to offer prasad, and
after the puja concluded at about 11:00 P.M., while he was
washing his hands at a hand-pump situated near the temple, the
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accused Raj Kumar Mahto (appellant) allegedly came there and
assaulted him by pushing him on the ground and had twisted his
neck, as a result of which, he sustained serious injuries on his
head and neck and became unconscious. Due to non-availability
of any vehicle during the night, the injured was taken to Baheri
Hospital on the following day by his family members, and upon
regaining consciousness, he made his statement before the
police, alleging that several villagers had witnessed the
occurrence. On the basis of the said fardbeyan, a formal case
was instituted on 03.09.2007 for offences under Sections 341,
323 and 307 of the I.P.C., however, during the course of
treatment, the informant succumbed to his injuries on
01.10.2007 at Safdarjung Hospital, New Delhi, whereupon
Section 302 I.P.C. was added to the case vide order dated
23.05.2008 passed by the learned A.C.J.M., Rosera.
4. After institution of the FIR, the police proceeded
with the investigation and after completion of the investigation,
charge-sheet was submitted. Thereafter, the trial court took
cognizance against the appellant and the case was committed to
the Court of Sessions for trial in which the appellant has been
convicted for the offence under Section 304 Part-II of the Indian
Penal Code and sentenced him to undergo 10 years of rigorous
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imprisonment.
ARGUMENT OF THE Amicus Curiae
5. Learned Amicus curiae submitted that the impugned
judgment of conviction and order of sentence passed by the
learned Additional Sessions Judge, Rosera is wholly illegal and
unsustainable in the eyes of law, having the evidences into the
realm of conjectures and speculation. She contended that the
prosecution has failed to prove its case beyond reasonable
doubt, as there are material contradictions and inconsistencies in
the testimonies of the prosecution witnesses, and none of the
alleged eyewitnesses have supported the prosecution case in a
cogent and reliable manner. She further submitted that the FIR
was lodged after considerable delay, which creates serious doubt
about the authenticity of the prosecution story and leaves room
for embellishment and false implication.
6. Learned counsel further submitted that even if the
prosecution case is taken at its face value, the alleged act does
not disclose any intention or knowledge on the part of the
appellant to cause death, and the occurrence appears to be a
sudden act without premeditation during a village gathering. It
is also argued that the informant survived for a considerable
period after the alleged occurrence and the prosecution has
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failed to establish a clear and proximate nexus between the
alleged assault and the subsequent death.
7. Learned counsel next submitted that the medical
evidence don’t support the prosecution story as alleged. The
doctor at DMCH while the informant/deceased was alive and
admitted had opined that the injury on the head was due to
alleged physical assault upon him, while the doctor of
Safdarjang Hospital, New Delhi, where the postmortem of the
deceased/informant, was conducted had opined that the cause of
death is cerebral damage due to blunt force impact diverted
upon the head by the other party. All the injuries are ante-
mortem in nature and old in duration. Head injury, as mentioned
above, is fatal, caused by hard blunt object and sufficient to
cause death, in the ordinary course of nature.
8. Learned counsel in above backgrounds submitted
that in absence of both oral and documentary evidence, the
learned trial court failed to properly appreciate both the
prosecution and defence evidence in its correct perspective and
erroneously convicted the appellant under Section 304 Part-II of
the Indian Penal Code; hence, the impugned judgment and order
of sentence are liable to be set aside.
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ARGUMENT ON BEHALF OF THE STATE
9. Per Contra, learned State counsel has submitted that
the learned District Court has discussed at length in paragraphs
no.30 that evidences of P.W. 7 Ramrati Devi, who is wife of the
deceased and she is the eyewitness of the occurrence and P.W.
8, who is son of the deceased are reliable and trustworthy.
Learned counsel further submitted that the informant of this
case is late Khubsurat Mukhiya and based on his dying
declaration given before the Sub-Inspector of Police, B.P.
Sharma on 30.08.2007 at Primary Health Centre, Baheri, three
days after the alleged incidence has taken place, once he came
back to his normal sense, FIR was lodged and said fardebyan of
the deceased Khubsurat Mukhiya is treated to be dying
declaration having ultimately died on 01.10.2007, therefore, the
conviction of the appellant under Section 304 II of IPC is error
of record, as well as, the evidence as the appellant should have
convicted by the learned trial Court for the offences under
Section 302 of IPC. On these grounds, he seeks interference of
this Court.
ANALYSIS AND CONCLUSION
10. Heard the parties.
11. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
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learned counsel appearing on behalf of the parties. It would be
apposite to discuss the oral/documentary evidences as available
on record to re-appreciate the evidences for just and proper
disposal of the present appeal.
12. During the trial, the prosecution has examined
altogether fourteen witnesses, namely:
1. P.W.1 – Ram Bahadur Mukhiya (Hostile)
2.P.W.2 – Jitendra Kumar (Hostile)
3.P.W.3 – Dukhan Mahto (Hostile)
4.P.W.4 – Shambhu Mukhiya
5.P.W.5 – Ganesh Mukhiya
6.P.W.6 – Sanjit Kumar Mahto (Hostile)
7.P.W.7 – Ramrati Devi
8.P.W.8 – Jagdish Mukhiya
9.P.W.9 – Sukunari Devi (Hostile)
10.P.W.10 – Jai Narain Mahto
11.P.W.11 – Biranchi Yadav
12. P.W.12 – Sanjeev Kumar
13. P.W. 13- Suresh Paswan
14. P.W. 14 – Kusho Singh
13. The prosecution has also relied upon following
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documents exhibited during the course of trial:-
(i) Signature of P.W.-4 on fardbeyan (Exhibit-1),
(ii) Signature of P.W.-5 on fardbeyan (Exhibit-1/1),
(iii) Post-mortem Report (Exhibit-2),
(iv) Death Report (Exhibit-3).
(v) Formal FIR (Exhibit-4)
(vi) Fardbeyan of informant (Exhibit-5)
14. Upon a meticulous examination of the record,
the evidence of the prosecution witnesses (PWs) can be
summarised as follows:
(i) P.W.1 Ram Bahadur Mukhiya- This witness has
deposed that he does not know anything regarding the
occurrence and stated that the police did not record his
statement. He has not supported the prosecution case and was
declared hostile. Despite being confronted with his earlier
statement, he resiled from the same.
(ii) P.W.2 Jitendra Kumar- He has stated that the
occurrence took place about one year prior, but he was not
present in the village on that day and has no knowledge of the
incident. He was declared hostile and denied his earlier
statement made before the police. His evidence does not support
the prosecution case.
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(iii) P.W.3 Dukhan Mahto- This witness has stated that
he has no knowledge about the occurrence and that the police
did not record his statement. He has been declared hostile and
has not supported any part of the prosecution story, resiling from
his earlier statement.
(iv) P.W.4 Shambhu Mukhiya- He has deposed that
the fardbeyan of the deceased Khubsurat Mukhiya was recorded
in his presence and that he signed the same, which has been
marked as Ext.1. However, in cross-examination, he stated that
he has no knowledge of the occurrence. His evidence proves the
recording of the fardbeyan but not the occurrence.
(v) P.W.5 Ganesh Mukhiya- This witness has stated
that upon receiving information, he went to Baheri Hospital
where the deceased was admitted, and the police obtained his
signature on the fardbeyan, marked as Ext.1/1. He has further
stated that he has no knowledge of the occurrence.
(vi) P.W.6 Sanjit Kumar Mahto- He has deposed that
he does not know anything about the occurrence and that the
police did not record his statement. He was declared hostile and
has not supported the prosecution case, resiling from his earlier
statement.
(vii) P.W.7 Ramrati Devi (Wife of the deceased)- She
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has supported the prosecution case and stated that the accused
Raj Kumar Mahto assaulted her husband Khubsurat Mukhiya by
thrashing and twisting his neck, due to which he sustained
injuries and later died during treatment at Safdarjung Hospital,
New Delhi. Her evidence forms the main basis of the
prosecution case.
(viii) P.W.8 Jagdish Mukhiya- This witness, who is
the son of the deceased, has corroborated the testimony of P.W.7
Ramrati Devi regarding the assault committed by the accused
upon the deceased.
(ix) P.W.9 Sukunari Devi - She has deposed that she
was not present at the time of occurrence and later heard about a
quarrel involving the accused, but does not know with whom
the quarrel took place. She was declared hostile and resiled from
her earlier statement. Her evidence does not support the
prosecution case.
(x) P.W.10 Jai Narain Mahto- He has stated that on
the day of occurrence, the deceased along with his wife visited
the temple and offered Prasad. He distributed the Prasad among
the public. He later came to know that the deceased died at
Delhi. He has clearly stated that he did not witness the
occurrence. His evidence only establishes the presence of the
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deceased at the temple prior to the incident.
(xi) P.W.11 Biranchi Yadav (Formal Witness)- He has
proved the Post-Mortem Report (Ext.2) of the deceased. As per
the report, the cause of death was cerebral damage due to blunt
force impact on the head, and the injuries were ante-mortem in
nature. He has not deposed anything regarding the occurrence.
(xii) P.W.12 Sanjiv Kumar (Formal Witness)- He has
proved the death report and inquest report (Ext.3). The inquest
report notes head injury on the deceased. He has not stated
anything about the occurrence.
(xiii) P.W.13 Suresh Paswan (Formal Witness)- He
has proved the formal F.I.R. (Ext.4). He has not deposed
anything regarding the occurrence.
(xiv) P.W.14 Kusho Singh (Formal Witness)- He has
proved the fardbeyan of the deceased (Ext.5). He has not stated
anything regarding the occurrence.
(XV) PW.15. ( Doctor who conducted the
postmortem) - He has stated that he found that the general
observation of the dead body shows bed sore over sacral area.
Cloths were changed many times since assault and hence could
not be preserved. RM present in limbs. Rm stating over the
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back”. He has opined that “the cause of death is cerebral
damage due to blunt force impact diverted upon the head by the
other party. All the injuries are ante-mortem in nature and old in
duration.
15. On the basis of materials surfaced during the
trial, the appellant/accused was examined under Section 313 of
the Cr.PC by putting incriminating circumstances/evidences
surfaced against him, which he denied and showed his complete
innocence.
16. It would be appropriate to reproduce the provisions
of Sections 299 and 304 Part-II of the IPC and Section 32 of the
Indian Evidence Act, for the sake of convenience and better
understanding of the facts, which are as under:-
“299. Culpable homicide.—
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide.
Illustrations(a)A lays sticks and turf over a
pit, with the intention of thereby causing
death, or with the knowledge that death is
likely to be thereby caused. Z believing the
ground to be firm, treads on it, falls in and is
killed. A has committed the offence of
culpable homicide.(b)A knows Z to be behind
a bush. B does not know it A, intending to
cause, or knowing it to be likely to cause Z’s
death, induces B to fire at the bush. B fires
and kills Z. Here B may be guilty of no
offence; but A has committed the offence of
culpable homicide.(c)A, by shooting at a fowl
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with intent to kill and steal it, kills B who is
behind a bush; A not knowing that he was
there. Here, although A was doing an
unlawful act, he was not guilty of culpable
homicide, as he did not intend to kill B, or to
cause death by doing an act that he knew was
likely to cause death.Explanation 1.— A
person who causes bodily injury to another
who is labouring under a disorder, disease or
bodily infirmity, and thereby accelerates the
death of that other, shall be deemed to have
caused his death.Explanation 2.— Where
death is caused by bodily injury, the person
who causes such bodily injury shall be
deemed to have caused the death, although
by resorting to proper remedies and skilful
treatment the death might have been
prevented.Explanation 3.— The causing of
the death of child in the mother’s womb is
not homicide. But it may amount to culpable
homicide to cause the death of a living child,
if any part of that child has been brought
forth, though the child may not have breathed
or been completely born.
304. Punishment for culpable homicide not
amounting to murder.—
Whoever commits culpable homicide not
amounting to murder shall be punished with
imprisonment for life, or imprisonment of
either description for a term which may
extend to ten years, and shall also be liable
to fine, if the act by which the death is
caused is done with the intention of causing
death, or of causing such bodily injury as is
likely to cause death,or with imprisonment of
either description for a term which may
extend to ten years, or with fine, or with
both, if the act is done with the knowledge
that it is likely to cause death, but without
any intention to cause death, or to cause
such bodily injury as is likely to cause
death.”
“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
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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.
(2) or is made in course of business.––
When the statement was made by such person in the
ordinary course of business, and in particular when
it consists of any entry or memorandum made by
him in books kept in the ordinary course of business,
or in the discharge of professional duty; or of an
acknowledgement written or signed by him of the
receipt of money, goods, securities or property of
any kind; or of a document used in commerce
written or signed by him; or of the date of a letter or
other document usually dated, written or signed by
him.
(3) or against interest of maker.––When
the statement is against the pecuniary or proprietary
interest of the person making it, or when, if true, it
would expose him or would have exposed him to a
criminal prosecution or to a suit for damages.
(4) or gives opinion as to public right or
custom, or matters of general interest.––When the
statement gives the opinion of any such person, as to
the existence of any public right or custom or matter
of public or general interest, of the existence of
which, if it existed, he would have been likely to be
aware, and when such statement was made before
any controversy as to such right, custom or matter
had arisen.
(5) or relates to existence of
relationship.––When the statement relates to the
existence of any relationship 1 [by blood, marriage
or adoption] between persons as to whose
relationship 1 [by blood, marriage or adoption] the
person making the statement had special means of
knowledge, and when the statement was made
before the question in dispute was raised.
(6) or is made in will or deed relating to
family affairs.––When the statement relates to the
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existence of any relationship 1 [by blood, marriage
or adoption] between persons deceased, and is
made in any will or deed relating to the affairs of
the family to which any such deceased person
belonged, or in any family pedigree, or upon any
tombstone, family portrait or other thing on which
such statements are usually made, and when such
statement was made before the question in dispute
was raised.
(7) or in document relating to
transaction mentioned in section 13, clause (a).––
When the statement is contained in any deed, will or
other document which relates to any such
transaction as is mentioned in section 13, clause (a).
(8) or is made by several persons and
expresses feelings relevant to matter in question.––
When the statement was made by a number of
persons, and expressed feelings or impressions on
their part relevant to the matter in question”
17. The record reveals that P.W.-1 P.W.-2, P.W.-3,
P.W.- 6 and P.W.-9 were declared hostile during the trial as
nothing transpired from their testimony during the trial which
may be said relevant for the purpose of corroborating or
contradicting the version of other prosecution witnesses, who
supported the crime in question during the trial. Therefore, the
testimony of these witnesses are not relevant qua establishing
guilt of the accused/appellant.
FINDING ON THE INJURY
18. It will be pertinent to refer to the medical
examination of the deceased when he was alive and admitted at
the Public Health Centre, Baheri and DMCH, and thereafter to
the postmortem conducted at Safdargunj Hospital, New Delhi. It
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will be pertinent to first refer to the postmortem examination
conducted by the doctor. The findings are as follows:
(i) General observation of the dead body shows bed
sore over sacral area.
(ii) Clothes were changed many times since the
assault and hence could not be preserved.
(iii) Rigor mortis (RM) present in limbs.
(iv) Rigor mortis starting over the back.
(v) Cause of death opined as cerebral damage due to
blunt force impact inflicted upon the head by the other party.
(vi) All injuries are ante-mortem in nature and old in
duration.
19. Doctor who conducted the postmortem found that
“the general observation of the dead body shows bed sore over
sacral area. Cloths were changed many times since assault and
hence could not be preserved. RM present in limbs. Rm stating
over the back”. The doctor has opined that “the cause of death is
cerebral damage due to blunt force impact diverted upon the
head by the other party. All the injuries are ante-mortem in
nature and old in duration”.
20. The investigating officer has referred two injury
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reports in the case diary in course of investigation. As per the
opinion of the doctor, there is head injury caused due to altered
sensorium but it is not mentioned that the same was caused due
to alleged twisting of the neck. The doctor was examined as
PW-15 and in his deposition he has given reason that rotation
of neck will cause any external injury as mentioned in above
paragraph.
21. Undoubtedly, the Investigating officer and the
doctor are material witnesses, the former being essential to
explain the manner in which the investigation was conducted
and the steps taken during investigation, and the latter to prove
the medical evidence relating to the nature and cause of injuries.
Their examination also affords the defence an opportunity to test
the fairness of the investigation and the medical findings
through cross-examination.
NON-EXAMINATION OF INVESTIGATING OFFICER
22. In the present case, the Investigating Officer has
not been examined. Question arises, whether the same will ipso
facto vitiate the prosecution case?
23. The Apex Court is of consistent view that effect of
such omission has to be assessed in the facts and circumstances
of each case, particularly with regard to whether any prejudice
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has been caused to the accused and where the ocular and other
substantive evidence is otherwise found to be cogent, reliable
and trustworthy, the prosecution case cannot be rejected on that
ground alone. In this regard, reference can be drawn from the
judgment passed by the Apex Court in para no. 18 in the case of
Rajesh Patel v. State of Jharkhand, reported in (2013) 3 SCC
791 which is reproduced hereinafter:
“18. Further, neither the doctor nor the IO has been
examined before the trial court to prove the
prosecution case. The appellant was right in
bringing to the notice of the trial court as well as
the High Court that the non-examination of the
aforesaid two important witnesses in the case has
prejudiced the case of the appellant for the reason
that if the doctor would have been examined he
could have elicited evidence about any injury
sustained by the prosecutrix on her private part or
any other part of her body and also the nature of
hymen layer, etc. so as to corroborate the story of
the prosecution that the prosecutrix suffered
unbearable pain while the appellant committed rape
on her. The non-examination of the doctor who had
examined her after 12 days of the occurrence has
not prejudiced the case of the defence for the reason
that the prosecutrix was examined after 12 days of
the offence alleged to have been committed by the
appellant because by that time the sign of rape must
have disappeared. Even if it was presumed that the
hymen of the victim was found ruptured and no
injury was found on her private part or any other
part of her body, finding of such rupture of hymen
may be for several reasons in the present age when
the prosecutrix was a working girl and that she was
not leading an idle life inside the four walls of her
home. The said reasoning assigned by the High
Court is totally erroneous in law.”
24. To analyze whether in the facts and circumstances
of the case, the learned trial court has come to the correct
finding, I find that same can be determined in the background
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of the chronology of the events which is summarized as under:-
(i) The occurrence took place on 28.08.2007;
(ii) Hospitlaized on 29.08.2007;
(iii) FIR was instituted on the basis of fardebyan of
the deceased recorded on 30.08.2007 had found head injury.
(iv) Referred to DMCH on 30.08.2007 and undergone
treatment at DMCH.
(v) The deceased was admitted at Safdarganj hospital
on 08.09.2007 and he was treated there till 16.09.2007 and was
discharged.
(vi) He was again examined at OPD On 25.09.2007
and went home;
(vii) He was again brought at Safdarganj Hospital on
01.10.2007 and about 03:15 a.m., he was declared dead.
25. In absence of any adverse inference in respect of
the examination of the investigating officer, I don’t find that no
adverse interference can be drawn just because the prosecution
has failed to produce the Investigating officer.
26. The next question which falls for consideration
before this Court is whether the First Information Report lodged
by the deceased, at a stage when the case was registered under
Sections 307 and 323 of the IPC, can be treated as a dying
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declaration?
27. The Apex Court has discussed the said issue in the
judgment of Munnu Raja v. State of MP1976 AIR 2199
wherein, the Honorable Supreme court observed that the law
pertaining to the admissibility of dying declaration should be
applied and understood with caution because the declarant
making such a statement shall not be cross-examined by the
accused. In addition to this, the court also stated the requirement
of corroboration for admissibility of dying declaration is not a
rule of law but a rule of prudence. Normally the court looks to
the medical opinion about the fit condition of the declarant at
the time of making the statement. But this cannot be an inelastic
rule. If the person who records the statement or the witness to
the declaration tenders satisfactory evidence as to the fit mental
condition, the Dying Declaration will be accepted.
28. In the case of Prem Chand v. State of U.P AIR
1994 SC 1534, the Apex Court held that such declaration was
recorded by the Special Executive Magistrate, who
acknowledged that the declarant has the physical and mental
competence to record the dying declaration which was also
supported by the Police Officer. In such cases dying declarations
were held to be valid despite the lack of evidence of a certificate
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from the medical professional.
29. The Constitution Bench of the Apex court in the
case of LAXMA .v. STATE OF MAHARASHTRA reported in
AIR 2002 SC 2973, held that medical certification is not a sine
qua non for accepting the Dying Declaration which is inter alia
as follows:
4 “For the reasons already indicated earlier, we have no
hesitation in coming to the conclusion that the observations
of this court in Paparambaka Rosamma and Others .v. State
of Andhra Pradesh (MAU/SC/0558/1999) 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
inured 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 hyper- technical
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 specially when the
magistrate categorically stated in his evidence indicating
the questions he had put to the patient and from the answers
elicited was satisfied that the patient was in a fit state of
mind where after he recorded the dying declaration.
Therefore, the judgment of this court in Paparambaka
Rosamma and Others .v. State of Andhra Pradesh (MA
U/SC/0558/1999) must be held to be not correctly decided
and we affirm the law laid down by this court in Koli
Chunilal Savji and another .v. State of Gujarat (MA
U/SC/0624/1999) case.”
30. The Apex Court in case of Irfan alias Naka
Versus State of Uttar Pradesh, 2023 SCC OnLine SC 1060
dealing with the bounden duty of the Court to prove the case
beyond reasonable doubt, held that the prosecution cannot
derive advantage merely from the naming of the accused in the
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dying declaration, particularly, where the surrounding
circumstances render such statement doubtful. The Apex Court
conclusively held that the benefit of doubt must necessarily
ensure to the accused. The discussion in this regard, particularly
made by the Apex Court in para nos. 60 to 62 are reproduced
hereinafter:
“60. Since time immemorial, despite a general
consensus of presuming that the dying declaration is
true, they have not been stricto-sensu accepted,
rather the general course of action has been that
judge decides whether the essentials of a dying
declaration are met and if it can be admissible, once
done, it is upon the duty of the court to see the
extent to which the dying declaration is entitled to
credit.
61. In India too, a similar pattern is followed, where
the Courts are first required to satisfy themselves
that the dying declaration in question is reliable and
truthful before placing any reliance upon it. Thus,
dying declaration while carrying a presumption of
being true must be wholly reliable and inspire
confidence. Where there is any suspicion over the
veracity of the same or the evidence on record
shows that the dying declaration is not true it will
only be considered as a piece of evidence but cannot
be the basis for conviction alone.
62. There is no hard and fast rule for determining
when a dying declaration should be accepted; the
duty of the Court is to decide this question in the
facts and surrounding circumstances of the case and
be fully convinced of the truthfulness of the same.
Certain factors below reproduced can be considered
to determine the same, however, they will only affect
the weight of the dying declaration and not its
admissibility:—
(i) Whether the person making the statement was
in expectation of death?
(ii) Whether the dying declaration was made at
the earliest opportunity? “Rule of First
Opportunity”
(iii) Whether there is any reasonable suspicion
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to believe the dying declaration was put in
the mouth of the dying person?
(iv) Whether the dying declaration was a
product of prompting, tutoring or leading at
the instance of police or any interested
party?
(v) Whether the statement was not recorded
properly?
(vi) Whether, the dying declarant had
opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been
consistent throughout?
(viii) Whether, the dying declaration in itself is a
manifestation/fiction of the dying person's
imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself
voluntary?
(x) In case of multiple dying declarations,
whether, the first one inspires truth and
consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have
been impossible for the deceased to make a
dying declaration?”
31. Now question arises, whether, in the facts of the
present case and on the basis of the material available on record,
serious doubts arise regarding the veracity and reliability of the
alleged dying declaration, thereby rendering it unsafe to place
implicit reliance upon it and whether the said statement was the
result of tutoring, prompting, or improper recording, and further,
whether the deceased declarant was in a fit condition to make
such a statement?
32. Taking into consideration the surrounding
circumstances, consistency of the statement and the incident as
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observed by the declarant or his declaration appears to be a
product of imagination or external influence, and if such factors
create doubt, the declaration cannot be treated as wholly
trustworthy. In such circumstances, the dying declaration can at
best be treated as a piece of evidence requiring corroboration,
and it would be unsafe to base conviction solely upon it.
33. It is undisputed that the FIR was recorded at the
instance of the injured himself, who subsequently succumbed to
his injuries, thus the statement assumes substantial evidentiary
value under Section 32(1) of the Indian Evidence Act, which
renders admissible statements made by a person as to the cause
of his death or the circumstances resulting in his death. In the
present case, the FIR was lodged promptly after the occurrence
when the deceased was conscious and capable of giving a
coherent account of the incident, and there is no material on
record to indicate that the statement was vitiated by tutoring,
coercion, or undue influence, the contents of the FIR directly
relate to the injuries that ultimately proved fatal, and the mere
fact that the case was initially registered under Section 307 IPC
does not detract from the evidentiary value of the statement
upon the death of the informant, as such a statement, if found
voluntary and truthful, assumes the character of a dying
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declaration and can be relied upon even without corroboration,
subject to careful scrutiny. Moreover, being a contemporaneous
document, the FIR carries inherent assurance and absence of
premeditation, minimizes the possibility of embellishment, and
therefore, this Court is of the considered view that the FIR
lodged by the deceased is admissible as a dying declaration and
can be relied upon if it inspires confidence and is found to be
credible and trustworthy.
34. Keeping in mind the above principle of law, I now
analyze the statement of the prosecution witness. The P.W.7
Ramrati Devi who is Wife of the deceased has stated that the
accused Raj Kumar Mahto (appellant) assaulted her husband
Khubsurat Mukhiya by thrashing and twisting his neck, due to
which he sustained injuries and later died during treatment at
Safdargunj Hospital, New Delhi. Her evidence forms the main
basis of the prosecution case but I don’t find her her testimony,
though alleging that the accused assaulted the deceased by
thrashing and twisting his neck, remains uncorroborated by any
independent witness despite the alleged occurrence having taken
place in a public view. Further, her evidence does not dispel the
possibility of embellishment or external influence, particularly
when the prosecution case itself suffers from infirmities relating
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to the manner of occurrence and absence of consistent
supporting material. In such circumstances, and having regard to
the caution mandated in cases resting substantially on
statements akin to dying declarations, this Court finds that the
testimony of P.W.7 cannot be treated as wholly reliable or of
such sterling quality so as to form the sole basis of conviction,
in the absence of credible and independent corroboration.
35. Now coming to section 304 Part -II, the essential
ingredients required to attract Section 304 Part-II IPC,
specifically the existence of knowledge that the act was likely to
cause death, whether in the facts of the present case, it has been
proved beyond reasonable doubt?
36. In this regard, reference can be drawn from the
judgment passed by the Apex Court in para no. 12 in the case of
Yuvraj Laxmilal Kanther and Another versus State of
Maharashtra, reported in 2025 SCC OnLine SC 520, which is
reproduced hereinafter:
12. We have noted above that the appellant have
been charged for committing offence under Section
304 Part II IPC read with Section 34 IPC. Since
Section 34 IPC covers common intention, the
substantive charge against the appellant is under
Section 304 Part II IPC which reads as under:
Punishment for culpable homicide not
amounting to murder -
Whoever commits culpable homicide not
amounting to murder shall be punished with
imprisonment of either description for a term
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which may extend to ten years or with fine or
with both, if the act is done with the
knowledge that it is likely to cause death; but
without any intention to cause death or to
cause such bodily injury as is likely to cause
death.
12.1. The ingredients constituting an offence under
Section 304 Part II IPC are as follows:
(i) he must commit culpable homicide not
amounting to murder;
(ii) the act must be done with the knowledge that
it is likely to cause death;
(iii) but such act is done without any intention to
cause death or to cause such bodily injury as
is likely to cause death.
12.2. Therefore, the first important expression is
‘culpable homicide not amounting to murder’.
Culpable homicide is defined in Section 299 IPC. It
says that whoever causes death by doing an act with
the intention of causing death or with the intention
of causing such bodily injury as is likely to cause
death or with the knowledge that he is likely by such
act to cause death, commits the offence of culpable
homicide.
12.3. All culpable homicides are murders except in
the cases excepted under Section 300 IPC. Thus,
except the cases specifically exempted under Section
300 IPC, all other acts within the meaning of
Section 299 IPC would amount to committing the
offence of culpable homicide. However, what is
important to note is that for committing the offence
of culpable homicide, a positive act must be done by
the doer with the intention that such act would
cause death or cause such bodily injury as is likely
to cause death or he having the knowledge that by
such an act, death may be caused. What, therefore,
is significant is that the doer of the act must have
the intention of causing death or the intention of
causing such bodily injury as is likely to cause death
or has the knowledge that by doing such an act he is
likely to cause death. Therefore, to commit the
offence of culpable homicide, intention or
knowledge is of crucial importance.
12.4. Coming back to Section 304 Part II IPC,
we find that the said section would be attracted if anyone
commits culpable homicide not amounting to murder if the
act is done with the knowledge that it is likely to cause
death but without any intention to cause death or to cause
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such bodily injury as is likely to cause death. Therefore, the
requirement of Section 304 Part II IPC is that the doer must
have the knowledge that the act performed is likely to cause
death or to cause such bodily injury as is likely to cause
death but without any intention to cause death. Thus, the
basic ingredient of Section 304 Part II IPC is presence of
knowledge and absence of intention. The doer must have
the knowledge that the act performed by him would likely
cause death etc but there should not be any intention to
cause death.
37. The legal position governing the applicability of
Section 304 Part-II IPC makes it clear that the prosecution must
establish that the act in question amounts to culpable homicide
not amounting to murder and that such act was committed with
the knowledge that it was likely to cause death, but without any
intention to cause death or such bodily injury as is likely to
cause death. Thus, the essential distinction lies in the absence of
intention coupled with the presence of knowledge. Culpable
homicide, as defined under Section 299 IPC, necessarily
postulates a positive act done either with intention or with
knowledge of the likelihood of causing death, and while all
culpable homicides may not amount to murder, the applicability
of Section 304 Part II arises only when the element of intention
is clearly ruled out. In the present case, upon an overall
appreciation of the materials on record, it becomes imperative to
examine whether the accused possessed the requisite knowledge
that his act was likely to cause death, and at the same time
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lacked any intention to either cause death or inflict such bodily
injury as was likely to result in death, unless such foundational
ingredients are clearly established, the offence cannot be
brought within the ambit of Section 304 Part II IPC. Therefore,
the presence of knowledge and the absence of intention being
sine qua non for invoking the said provision, any ambiguity or
deficiency in proving these elements would necessarily enure to
the benefit of the accused. The circumstances indicate the
possibility of a sudden incident without premeditation, thereby
negating the requisite mens rea. It is a settled principle of
criminal law that suspicion, however strong, cannot take the
place of proof, and the benefit of doubt must be extended to the
accused. In view of the aforesaid deficiencies and the failure of
the prosecution to establish its case beyond reasonable doubt,
this Court is of the considered opinion that the impugned
judgment of conviction and order of sentence is unsustainable in
law.
38. It is also a settled principle of law that no doubt
motive assumes significance, particularly in cases based on
circumstantial evidence. However, where there is direct and
reliable evidence in the form of a credible and trustworthy dying
declaration, the absence of strong or conclusive proof of motive
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is not fatal to the prosecution case. It is further well settled that
the prosecution is not required to establish motive with
mathematical precision, and any failure to conclusively prove
motive does not dilute or weaken an otherwise cogent, reliable
and trustworthy case. Law in this regard is well settled by the
Apex Court in the case of State of Himachal Pradesh vs
Chaman Lal reported in 2026LiveLaw (SC) 48, which is
reproduced hereinafter:
“23. Motive assumes significance,
primarily in cases based on circumstantial
evidence. Where there is direct evidence in
the form of a credible and trustworthy dying
declaration, the absence of strong proof of
motive is not fatal to the prosecution case.
This position has been consistently affirmed
by this Court in State of Andhra Pradesh v.
Bogam Chandraiah and another17, Dasin
Bai @ Shanti Bai v. State of Chhattisgarh18,
and Purshottam Chopra v. State (NCT of
Delhi)19. In the present case, the evidence
on record discloses that the respondent
subjected the deceased to frequent quarrels,
humiliation and verbal abuse, including
branding her a “Kanjri” and repeatedly
asking her to leave the matrimonial home.
The dying declaration itself refers to
persistent matrimonial discord and ill-
treatment thereby furnishing a plausible
background for the commission of the
offence. In any event, the prosecution is not
required to establish motive with
mathematical precision and failure to
conclusively prove motive does not weaken
an otherwise reliable and cogent case.”
39. Upon a careful and comprehensive
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consideration of the entire evidence on record and law laid
down by the Apex Court as referred hereinabove, this Court
finds that the prosecution case is riddled with material
inconsistencies and lacks reliable corroboration. The age of the
deceased at the time of occurrence was about 70 years. A
majority of the prosecution witnesses, including those projected
as eyewitnesses, have turned hostile and failed to support the
prosecution version on material particulars. The conviction of
the appellant rests primarily upon the testimony of P.W.7, the
wife of the deceased, with limited support from P.W.8.
However, their evidence does not inspire full confidence when
tested against the overall circumstances of the case. The alleged
dying declaration in the form of the fardbeyan, though
admissible in evidence, appears doubtful in its reliability due to
the delay in its recording, absence of independent corroboration,
and uncertainty regarding the mental and physical condition of
the deceased at the time of making such statement. Additionally,
the prosecution has failed to establish a clear and proximate
nexus between the alleged act of the appellant and the death of
the deceased, particularly in light of the intervening period of
medical treatment.
40. The FIR creates doubt about the prosecution
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case, inasmuch as, the alleged occurrence is stated to have taken
place suddenly at about 11:00 P.M. near a temple during a Jhula
Puja gathering. From the statement of the material witnesses,
particularly PW 7, who is the wife of the deceased has not stated
that there was any prior enmity or premeditation, suggesting an
act on the spur of the moment. Further, despite the claim that
several villagers had witnessed the incident, no independent
witness has been examined to corroborate the allegation,
thereby undermining its credibility. Moreover, the injured was
not taken for immediate medical treatment during the night and
his statement was recorded only on the following day after
regaining consciousness. The unexplained delay further
weakens the reliability of the prosecution version.
41. In facts of the case, this Court don’t find any
reason to interfere with the conviction of the appellant which is
upheld but the sentence to undergo rigorous imprisonment for
10 years is modified to the period already undergone by the
appellant in custody i.e. three and half years. Since the
appellant is on bail, as such, he is discharged from the liability
of his bail bonds. The fine deposited by the appellant, if any,
shall be refunded to him.
42. The appeal stands partly allowed.
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43. The Patna High Court, Legal Services Committee
is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten
Thousand) to Ms. Shubhangi Pandey, learned Amicus Curiae, as
consolidated fee, for rendering her valuable professional service
for disposal of the present appeal.
44. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Court forthwith.
Sanjay/-
(Purnendu Singh, J)
AFR/NAFR AFR
CAV DATE 24.03.2026
Uploading Date 09.04.2026
Transmission Date 09.04.2026
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