Balmiki Prasad Chourasia vs State Of Bihar
2021 Latest Caselaw 5969 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.240 of 1995
======================================================

Balmiki Prasad Chourasia, son of Late Baldeo Prasad Chourasia, Resident of Vilage-Jhikatia, P.S. Maheshkhut, District-Khagaria.

... ... Appellant.

Versus The State of Bihar

... ... Respondent.

====================================================== Appearance :

For the Appellant : Mr. Amish Kumar, Amicus Curiae.

For the State : Mr. Ajay Mishra, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR)

Date : 09-12-2021

The appellant/accused by this appeal is challenging

the Judgment and order dated dated 03.07.1995 passed by the

learned Additional Sessions Judge-VII, Munger, in Sessions

Case No.562 of 1993 thereby convicting him of the offence

punishable under Section 302 of the Indian Penal Code and

sentencing to suffer him for imprisonment for life.

2. For the sake of convenience, the appellant shall

be addressed in his original capacity as an accused.

3. The facts leading to the prosecution of the

appellant/accused as projected from the police report can be

summarized thus:

(a). Accused Balmiki Prasad Chourasia is second Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

husband of Mira Kumari alias Shakuntala Devi (since

deceased). This couple was staying at the portion of house of

P.W. 4 Devansu Prasad Chourasia which is situated at Chhoti

Kelabari area under jurisdiction of Police Station-Kotwali

District-Munger, by taking it on rent. It is averred by the

prosecution that the accused is a man of short tampered nature

and he used to quarrel with his wife Mira Kumari alias

Shakuntala Devi (since deceased) frequently.

(b). The incident in question allegedly took place

in the night intervening 13th and 14th August 1993 at the

residential house of Mira Kumari alias Shakuntala Devi which

she was sharing with the accused. The accused started beating

Mira Kumari alias Shankuntala Devi at about 08.00 P.M. of that

night. Thereafter he had taken an axe from the house and gave

a blow of that axe on the neck of Mira Kumari alias Shakuntala

Devi. That blow caused bleeding injury on the neck of Mira

Kumari alias Shakuntala Devi. She then went to Sadar Hospital,

Munger, in an injured condition for medical treatment. At that

Hospital, at about 01.30 A.M. of 14th August 1993, her statement

came to be recorded by P.W.8 Sushil Kumar Khanna Assistant

Police Inspector of Police Station-Kotwali. Accordingly, the

subject crime came to be registered at about 01.30 A.M. on Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

14.08.1993. Mira Kumari alias Shakuntala Devi ultimately

succumbed to the injury sufferred by her on the very same day.

(c). After death of Mira Kumari alias Shakuntala

Devi, Section 302 of the Indian Penal Code was added to the

case diary of the crime. Inquest notes were prepared after

inspecting the dead body of Mira Kumari alias Shakuntala Devi.

The dead body of Mira Kumari alias Shakuntala Devi was then

sent for autopsy. P.W.6 Dr. H.N. Mandal, Civil Assistant

Surgeon performed the post-mortem examination on the dead

body.

(d). The Statement of the witnesses came to be

recorded and on completing investigation, the accused came to

be charge-sheeted.

(e). Charge for the offence under Section 302 of the

Indian Penal Code was framed and explained to the accused.

He pleaded not guilty and claimed to be tried. In order to bring

home the guilt of the accused, the prosecution examined in all 9

witnesses. The defence of the accused was of total denial.

(f). After hearing the parties, the learned trial court

by the impugned Judgment and Order was pleased to convict the

appellant/accused for the offence punishable under Section 302

of the Indian Penal Code and he is sentenced to suffer life Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

imprisonment.

4. We have heard Sri Amish Kumar, learned

Advocate, appointed to represent the appellant at the cost of the

State. He argued that the entire case of the prosecution is based

on a single piece of evidence and that is the dying declaration of

the deceased made by her and recorded by P.W.8 Sushil Kumar

Khanna, Assistant Police Inspector. It is argued that the said

dying declaration is not trustworthy and reliable to convict the

appellant/accused. The same was not recorded after getting the

medical condition of the deceased examined from the attending

Medical Officer. The injury was on the neck and the deceased

succumbed to the injury within a short period of time.

Therefore, it cannot be said that the deceased was in a position

to make the statement.

5. Learned appointed Advocate further argued that

the evidence of P.W.3 Bishwa Nath Mandal casts a serious doubt

on the case of the prosecution. Other witnesses such as P.W.4

Devansu Prasad Chourasia and P.W.5 Deoki Devi have turned

hostile to the prosecution and therefore the appeal deserves to be

allowed.

6. As against this learned Prosecutor supported the

impugned Judgment and order of conviction and sentence by Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

contending that the dying declaration of the deceased is showing

the complicity of the appellant/accused in the crime in question.

The deceased was in the company of the appellant/accused at

the time of the incident and, therefore, the appeal deserves to be

dismissed.

7. We have considered the submissions so advanced

and we have also perused the record and proceeding including

the oral as well as documentary evidence adduced by the

parties.

8. Upon perusal of record, we have noticed that the

case of the prosecution rests on the dying declaration of

deceased Mira Kumari alias Shakuntala Devi recorded at 01.30

A.M. on 14.08.1993 at Sadar Hospital by P.W.8 Sushil Kumar

Khanna. Section 32 of the Evidence Act deals with admissibility

of such statement in evidence. When a 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,

such statement becomes relevant in cases in which the cause of

that person's death comes into question. Section 32 of the

Evidence Act as such is an exception to the role of hearsay and

makes admissible the statement of a person who dies, whether

the death is homicidal or suicidal, provided such statement is Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

relevant to the cause of death or exhibits circumstances leading

to the death. The dying declaration stands on a same footing as

any other piece of evidence and has to be judged in the light of

the surrounding circumstances with reference to the principles

governing the weighing of evidence. The dying declaration can

form the sole basis for conviction provided that the same is

found to be truthful and reliable. In order to pass the test of

reliability, a dying declaration is required to be subjected to a

very close scrutiny, keeping in mind the fact that such statement

has been made in absence of the accused who had no

opportunity of testing the veracity of such statement by means

of cross-examination. If the dying declaration fails to pass the

test of reliability and truthfulness, then the same is required to

be ignored from consideration. There is no rule of law that the

dying declaration must be recorded by a particular authority.

What is required to be seen is, whether the declarant was in a

position to make a declaration and whether such declaration is

truthful and trustworthy.

9. Sri Amish Kumar learned Appointed Advocate

has rightly placed reliance on the Judgment of the Supreme

Court in the matter of Jayamma & Anr. Versus State of

Karnataka along with Lachma s/o Chandyanaika & Anr. Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

Versus State of Karnataka decided on 07.05.2021 and reported

in (2021) 6 SCC 213. Hon'ble Supreme Court in that matter

had taken a review of the entire case law on the subject of

appreciation of dying declaration. In that ruling, relevant

paragraph from the Judgment in the matter of Sham Shankar

Kankaria Vs. State of Maharashtra reported in (2006) 13 SCC

165 is reproduced which lays down the principles of

appreciation of evidence regarding the dying declaration found

in several Judgments of the Hon'ble Supreme Court. It reads

thus:-

"(i). There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104]);

(ii). If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211]);

(iii). The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618]);

(iv). Where dying declaration is suspicious, it should not be acted upon without corroborative Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

evidence. (See Rasheed Beg v. State of M.P.

[(1974) 4 SCC 264)]);

(v). Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25]);

(vi). A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654]);

(vii). Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]);

(viii). Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769]);

(ix). Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152]);

(x). Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390]);

Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

(xi). Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the pluraity of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700])."

10. Fate of the prosecution case hinges on the

officially recorded dying declaration of the deceased Mira

Kumari alias Shakuntala Devi by P.W.8 Sushil Kumar Khanna

Assistant Police Sub Inspector. This witness deposed that on

receipt of O.D. slip he went to the Sadar Hospital and recorded

the statement of Mira Kumari alias Shakuntala Devi at 01.30

A.M. of 14.08.1993. As per his version, he treated that

statement as the First Information Report and registered the

crime in question. This F.I.R. is at Ext.3. After the death of

Mira Kumari alias Shakuntala Devi, this F.I.R. at Ext.3 is

elevated to the status of dying declaration of Mira Kumari alias

Shakuntala Devi.

11. Now, we will have to see whether the declarant

was in a position to make the declaration Ext.3 and whether

such declaration is truthful and trustworthy. For this purpose,

let us see what is the declaration Ext.3 made by the deceased.

12. The F.I.R. at Ext.3, which is declaration of the

deceased is a full page hand written document. Perusal of this Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

declaration shows that deceased Mira Kumari alias Shakuntala

Devi has stated her full name with the name of her husband.

She further stated that she is presently residing with her

husband Balmiki Prasad Chourasia in the rented house of

Devansu Prasad Chourasia. In that declaration, she has stated

the location of that house. The declaration then contains a

recital to the effect that she is making a statement on that day in

the night at 01.30 A.M. while being admitted at the Sadar

Hospital. She is stated to have said that she is making

statement in front of Jamadar Saheb of Kotwali Police Station.

Thereafter she is stated to have given all details of location of

her parental house with the name of the jurisdictional police

station and the district where her parental house is situated. In a

similar way details in respect of her matrimonial house is also

stated to have given by her in her statement. Then the deceased

is stated to have declared that her husband used to beat her in an

angry mood and she used to oppose him. It is stated in the

declaration that she was beaten at 08.00 P.M. Then she is again

stated to have given the details of the house and full name of

her husband. Then she is stated to have said that he took axe

from the house and gave a blow on her neck. The declaration

further states that then the declarant was injured and blood Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

started flowing from the wound. It is further stated in the

declaration that at that time there was no body at the house

except the husband of the declarant. It is further stated that then

anyhow, the declarant managed to come to the Hospital. The

declarant is further stated to have said that with an intention to

commit her murder, her husband has assaulted her. The

declaration further contains the statement of the declarant that

her statement was read over to her, she understood it and then

she put her thumb impression on it.

13. The question which falls for consideration is

whether the Statement Ext.3 was really made by the deceased,

whether such statement contains truthful account, whether the

declarant was in a position to make statement and whether such

statement can be the solitary foundation for convicting the

accused.

14. On perusal of the declaration at Ext.3, we note

that it is containing the minute and elaborate details which is

not even expected from a person having normal state of mind.

Repeatedly the details of the rented house are coming in the

statement. The statement is giving all details of matrimonial

and parental house of the deceased. It is also containing the

statement that the declarant was assaulted with an intention to Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

cause her murder by the accused. The declaration is not in

question answer form. Bare perusal of the declaration at Ext.3

makes it clear that it is written mechanically in the format in

which police usually records the statement of the victim or the

witnesses. Narration of the declaration that the declaration is

being given at about 01.30 A.M. at Sadar Hospital in front of

Jamadar Saheb of Kotwali Police Station and the declarant was

assaulted with an intention to commit her murder indicates that

P.W.8 Sushil Kumar Khanna had direct influence over the

declarant while recording her statement at Ext.3. These recitals

make the declaration at Ext.3 doubtful and suspicious. A

reasonable doubt lurks in a judicial mind as to whether it is a

statement given by the deceased or whether the same is the

description of the incident written by P.W.8 Sushil Kumar

Khanna by his own surmises and conjunctures. Such a detailed

and elaborate declaration cannot be expected from a person

suffering serious injury on the vital part of the body after

suffering heavy blood loss.

15. Deceased Mira Kumari was a rustic villager. It

does not stand to reason that she was able to narrate the minute

details of the incident and referring the intention of the assailant

to commit her murder. Bare look at her statement shows that it Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

is artificial in nature and has no resemblance of a statement of a

dying person.

16. Now, let us examine whether the deceased was

in a position to make a coherent statement running into full

page as claimed by P.W.8 Sushil Kumar Khanna Assistant

Police Inspector. As stated, he is claimed to have attended the

Hospital on receipt of the information and then recorded the

statement of the deceased. Undisputedly, evidence of P.W.8

Sushil Kumar Khanna shows that the dying declaration of the

deceased was recorded when the deceased was admitted in the

Hospital and was taking the medical treatment. Cross

examination of this witness unerringly points out that he has

not even approach the attending Medical Officer who was

treating the deceased at that time. This witness has not

requested the Medical Officer to examine the patient in order to

ascertain whether she is in a position to give statement or

whether she is conscious, well oriented in time and place and is

in a position to speak particularly in the light of the fact that the

victim had suffered a blow of an axe on her neck. P.W.8 Sushil

Kumar Khanna has not gone through the papers of medical

treatment of the declarant in order to ascertain whether

sedatives were administered to her during the course of her Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

treatment. He has not even recorded the declaration in question

answer form by initially asking few questions to ascertain

whether the declarant is mentally and physically fit to make a

statement. It is seen from the evidence of autopsy Surgeon

P.W.6 Dr. H.N. Mandal, Civil Assistant Surgeon of the Sadar

Hospital that the injury sufferred by the deceased was very

serious in nature and looking at it, even a lay man would say

that it will certainly cause death of the victim. This Statement

of P.W.6 Dr. H.N. Mandal in his cross examination certainly

casts shadow of doubt of the dying declaration of Mira Kumari

alias Shakuntala Devi when the same was not recorded after

ascertaining fitness of the declarant to make a statement. It

seems that this Police Officer had shown his over enthusiasm in

getting the statement of the deceased Mira Kumari alias

Shakuntala Devi prepared without getting her examined to

ascertain her fitness from the attending Medical Officer from

the Goverment Hospital where she was taking medical

treatment.

17. Evidence of Autopsy Surgeon P.W.6 Dr. H.N.

Mandal shows that Mira Kumari alias Shakuntala Devi died on

the very same day i.e. 14.08.1993 and he had performed the

autopsy on that day itself. During the course of post-mortem Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

examination, this autopsy Surgeon has noted that the dead body

of Mira Kumari alias Shakuntala Devi was having incised

wound size 2" x 1" x sharp deep to soft tissues on right side of

neck in the middle. He also noticed that the blood and blood

clots were present at that injury. During the course of internal

examination, this Medical Officer noticed that blood vessels

and soft tissues beneath the injury were cut in circle. As stated

in the foregoing para, as per version of this autopsy Surgeon,

the injury found on the dead body was very serious injury

which could surely cause the death of a human being.

18. Thus because of wound to neck which has

caused deep internal damage to the vital part of body of the

deceased, there was loss of lot of blood. Blood vessels of neck

of the deceased were cut due to blow of an axe. Even during

autopsy, despite medical treatment to the deceased, the autopsy

Surgeon noted blood as well as clots of the blood over the

wound. In such fact situation it is very difficult to infer that the

deceased was in a fit and conscious state, physically as well as

mentally to make such an elaborate dying declaration. The

prosecution has not adduced evidence of the expert i.e. Medical

Officers treating the deceased to show that at 01.30 A.M. on

14.08.1993 when her dying declaration was recorded, Mira Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

Kumari alias Shakuntala Devi was in a position to make a

coherent and lengthy statement as to the circumstances of

transactions leading to her death.

19. As according to the dying declaration, it was the

accused who caused death of Mira Kumari alias Shakuntala

Devi by a blow of an axe at their residential house, let us see

whether in order to corroborate this dying declaration, other

evidence is forthcoming on record to show presence of the

accused on the scene of occurrence. Prosecution has examined

a neighbourer who is P.W. 3 Bishwa Nath Mandal. This

witness is an Advocate by profession. He is also a Panch

witness to the seizure body from the spot of the incident. He is

residing in the neighbourhood of the rented house of the

deceased where the incident had happened. Though it is case of

the prosecution that the accused is the second husband of Mira

Kumari alias Shakuntala Devi, this witness has stated that the

accused is brother of deceased Mira Kumari alias Shakuntala

Devi by relation. P.W. 3 Bishwa Nath Mandal further deposed

that name of husband of the deceased is Nanhe Prasad

Chourasia. As per his version, he saw the accused visiting the

tenanted house of the deceased. However he clarified that on

the day of the incident, he did not see the accused at the place Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

of the deceased. He further stated that in his presence a

footwear and the earth mixed with blood was seized from the

tenanted house of the deceased. Thus evidence of P.W. 3

Bishwa Nath Mandal does not show presence of the accused at

the scene of the offence at the time of the incident or on the day

of the incident. Thus his evidence is not helpful to corroborate

the dying declaration.

20. P.W. 4 Devansu Prasad Chourasia, the land lord

has turned hostile and stated that he is not knowing how his

tenant Mira Kumari alias Shakuntala Devi died. He further

stated that she was not staying with the accused. Evidence of

this hostile witness is not supporting the case of prosecution.

21. P.W. 5 Deoki Devi who happens to be wife of

P.W. 4 Devansu Prasad Chourasia has also not supported the

prosecution in any manner. Except this there is no evidence to

connect the accused to the crime in question.

22. It is thus clear that the dying declaration of the

deceased Mira Kumari alias Shakuntala Devi is forming the

solitary piece of evidence against the accused. No doubt the

conviction can rest upon solitary evidence in the form of the

dying declaration but for that purpose the same must be

trustworthy and reliable. For the reasons stated in foregoing Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

transactions we are unable to hold so, in the instant case.

Therefore we are not in a position to make the dying declaration

of deceased Mira Kumari alias Shakuntala Devi as a sole basis

for conviction of the accused. We have noted that the learned

trial Court has completely misread the material evidence and

has failed to consider the legal position in respect of

appreciation of evidence concerning the dying declaration. The

learned trial Court totally erred in placing explicit reliance on

the dying declaration by giving a reason that P.W. 8 Sushil

Kumar Khanna might not have anticipated immediate death of

Mira Kumari alias Shakuntala Devi and therefore it was natural

on his part not to take aid of the Doctor or the Magistrate in

recording her statement. This observation is totally perverse

because P.W. 8 Sushil Kumar Khanna, the police officer has not

spoken so before the Court.

23. In the result, the appeal succeeds and therefore

the orders.

(I). The appeal is allowed.

(II). The Judgment and Order dated 03.07.1995

passed by the learned Additional Sessions Judge-VII, Munger,

in Sessions Case No. 562 of 1993 in between the parties

thereby convicting the appellant/accused of the offence Patna High Court CR. APP (DB) No.240 of 1995 dt.09-12-2021

punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life is quashed and

set aside. The appellant/accused is acquitted of the offence

alleged against him. His bail bond stands discharged.

24. We record our appreciation for strenuous efforts

taken by Mr. Amish Kumar the learned Advocate appointed to

represent the appellant at the costs of the State, in assisting us

for arriving at the correct conclusion in the matter. We quantify

the fees payable to him at Rs.5,000/- and direct the High Court

Legal Services Authority to pay the said amount to Mr. Amish

Kumar, the learned appointed Advocate.

(A. M. Badar, J)

Sunil Kumar Panwar, J:-

( Sunil Kumar Panwar, J)

P.S./-

AFR/NAFR                AFR
CAV DATE                30.11.2021.
Uploading Date          09.12.2021.
Transmission Date       09.12.2021.