Ashok Kumar Keshri vs The State Of Bihar
2021 Latest Caselaw 5970 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.69 of 1995
 Arising Out of PS. Case No.-511 Year-1987 Thana- SAHARSA SADAR District- Saharsa


1. Biswanath Keshri, Son of Late Bhagwat Keshri, (Abated vide order dated
17.11.2021)
2. Ashok Kumar Keshri, Son of Biswanath Keshri, Resident of Saharsa Kapra
Patti, P.S.- Saharsa, District - Saharsa

                                                                ... ... Appellant/s
                                     Versus
The State of Bihar

                                          ... ... Respondent/s
======================================================

Appearance :

For the Appellant/s : Mr. K.P. Singh, Senior Advocate Mr. Pratik Mishra, Advocate.

For the Respondent/s : Mr. S.N.Prasad, APP ====================================================== 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 appellants/accused are challenging the Judgment

and order dated 29.04.1995 and 02.05.1995 respectively, passed

by the learned Ist Additional Sessions Judge, Saharsa in

Sessions Case No. 270 of 1989 between the parties, thereby

convicting both the appellants for the offences punishable under

Sections 302/149, 307/149, 324/149, 380/149 as well as Section

147 of the Indian Penal Code. They both are sentenced to suffer

imprisonment for life for the offence punishable under Section

302/149 of the Indian Penal Code. For the offence punishable

under Section 326/149 of the Indian Penal Code, they are Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

sentenced to suffer rigorous imprisonment for three years.

However, the learned Trial Judge had not imposed separate

sentences for the offences punishable under Sections 324/149,

380/149 and 147 of the Indian Penal Code. Substantive

sentences were directed to run concurrently.

2. Appellant no.1/accused Bishwanath Keshri died

during the pendency of this appeal and as such, the appeal qua

this appellant stood abated vide order dated 17.11.2021 passed

by this Court. For the sake of convenience, appellant

no.2/accused, Ashok Kumar Keshri shall be referred to as the

accused.

3. The facts in brief leading to the prosecution case

projected from the police report can be summarized thus;

a. Parmeshwar Lal Dokania (since deceased) was the

owner of medical store named as Sheo Shakti Medical Agency

located at Bangaon Road, Saharsa. He was also having another

medical shop named as Mithila Medicals at Saharsa. He was

running those medical shops with the help of his sons P.W.8

Anil Kumar Dokania (the informant), P.W.7 Arun Kumar

Dokania, P.W. 10 Ajit Kumar Dokania and P.W.15 Ashok

Kumar Dokania.

b. The incident in question took place at 6.30 P.M. of Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

20.10.1987 at the Sheo Shakti Medical Agency, Bangaon Road,

Saharsa owned by Parmeshwar Lal Dokania (since deceased).

This medical show was situated in the front room of the

residencial house of Parmeshwar Lal Dokania. At the time of

the incident, his sons P.W. 8 Anil Kumar Dokania (the

informant) and P.W.7 Arun Kumar Dokania along with other

employees were present in that shop. Apart from their business,

they were also busy in cleaning the shop due to forthcoming

Depawali festival.

c. The prosecution case as reflected from the FIR got

written from Ram Kumar Agrawal, under dictation of P.W.8

Anil Kumar Dokania; at about 6.30 P.M. of 20.10.1987, 11

miscreants darted inside the shop named Sheo Shakti Medical

Agency and they threatened all staff members as well as the

owners by pointing pistol and daggers at them. Those

miscreants asked all from that shop to freeze and not to attack.

Then one robber gave a blow of dagger on stomach of first

informant/P.W.8 Anil Kumar Dokania. Another one gave a blow

of heavy electric wire on his forehead. The third dacoit told him

to give all cash from the cash box. Then that third dacoit while

holding the pistol, collected the cash and kept it in the bag.

Thereafter, that dacoit gave a blow of the dagger on the hip of Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

P.W.7 Arun Kumar Dokania. On hearing the shouts, Parmeshwar

Lal Dokania (since deceased) came inside the shop from the

residential portion in the rear side of that shop. As he entered,

one dacoit fired two shots. One bullet hit at the abdomen

whereas the another hit at the left groin area of Parmeshwar Lal

Dokania. He fell down. Thereafter, one of the dacoits gave blow

of heavy electric wire on forehead of Parmeshwar Lal Dokania.

The dacoits then flee from the spot by running towards the

Ashok Cinema by carrying the looted cash and articles like gold

ring. While leaving the spot, they caused explosion of two

grenades causing lot of smoke. It is further averred in the

written FIR by P.W.8 Anil Kumar Dokania that he would be in a

position to identify the dacoits if they are produced before him.

d. On the basis of this eye witness account of the

incident given by first informant/P.W.8 Anil Kumar Dokania to

P.W.14 Sudist Kumar Singh, P.S.I on the spot of the incident

itself, Crime No. 511 of 1987 came to be registered for the

offence punishable under Sections 395 of the Indian Penal Code

against unknown dacoits. Thereafter, on the basis of the

instructions from the Superintendent of Police, Section 396 of

the Indian Penal Code came to be added to the case diary after

death of Parmeshwar Lal Dokania on 03.11.1987. Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

e. Subsequently, it is averred by the prosecution that

on instructions of the Superintendent of Police, Sections 302

and 380 of the Indian Penal Code as well as Section 27 of the

Arms Act came to be added to the case dairy of the crime in

question obviously on the basis of the dying declaration of

Parmeshwar Lal Dokania.

f. Immediately after the incident of dacoity with

murder, injured Parmeshwar Lal Dokania and his son P.W.8 Anil

Kumar Dokania were admitted at the Government Hospital,

Saharsa for medical treatment. Similarly P.W. 7 Arun Kumar

Dokania was also taken to that Hospital. According to the

prosecution case in presence of the Superintendent of Police and

other witnesses such as P.W. 9 Pramod Kumar Agrawal and P.W.

4 Kanhaia Lal Salampuria etc. P.W. 14 Sudist Kumar Singh,

P.S.I. recorded the dying declaration of Parmeshwar Lal

Dokania on 28.10.1987 at the Government Hospital, Saharsa. It

is averred by the prosecution that Parmeshwar Lal Dokania in

his statement has stated about complicity of the

appellant/accused in the crime in question. On 28.10.1987, itself

Parmeshwar Lal Dokania was then taken to Patna by the train as

well as the Ambulance and ultimately he succumbed to the

injuries while taking treatment at the private Hospital of Dr. Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Abdul Hai at Patna on 03.11.1987. Dead body of Parmeshwar

Lal Dokania was then brought to Saharsa, where postmortem

examination thereon came to be conducted by P.W. 11 Dr.

Baidyanath Jha along with other doctors.

g. During the course of routine investigation,

statement of witnesses came to be recorded. Papers of medical

treatment, report of the postmortem examination etc. were

collected by the Investigating Officer. The accused persons were

apprehended and were charge sheeted.

h. On committal of the case, the learned trial court

had framed the charge for the offences punishable under Section

324 r/w 149, 307 r/w 149, 302 r/w 149, 380 r/w 149 and

under Section 147 of the Indian Penal Code against the accused.

They pleaded not guilty and claimed tried. That is how only two

accused namely, appellant no. 2/accused Ashok Kumar Keshri

and deceased appellant no. 1/accused Bishwanath Keshri faced

the trial of the subject offence.

i. In order to bring home the guilt to the

accused/appellant, following 16 witnesses are examined by the

prosecution;

i. P.W. 1 Suresh Prasad Yadav - an employee of Sheo Shakti Medical Agency, who was present at the time of the incident.

Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

ii. P.W.2 Musafir Singh - an employee of Sheo Shakti Medical Agency, who was present at the time of the incident.

iii. P.W.3 Ashok Thakur - owner of medical shop situated opposite to Sheo Shakti Medical Agency.

iv. P.W. 4 Kanhaia Lal Salampuria - relative of the deceased who is examined to prove the dying declaration allegedly recorded on 28.10.1987 by P.W. 14 Sudist Kumar Singh.

v. P.W. 5 Chandi Prasad Dahlan- a Punch witness on the inquest.

vi. P.W. 6 Banarshi Prasad - a witness, who claimed to have seen deceased/accused Bishwanath Keshri near the Mahabir Mandir at about the time of the incident.

vii. P.W. 7 Arun Kumar Dokania - son of the deceased and the injured witness.

viii. P.W.8 Anil Kumar Dokania - son of the deceased and the first informant.

ix. P.W.9 Pramod Kumar Agrawal - relative of the deceased who claimed to be present at the time of recording of dying declaration of the deceased on 28.10.1987.

x. P.W. 10 Ajit Kumar Dokania - son of the deceased who heard about the incident from his brother P.W. 8 Anil Kumar Dokania.

xi. Dr. Baidyanath Jha - Civil Assistant Surgeon, the Government Hospital, Saharsa, who operated and treated the deceased and subsequently conducted postmortem examination on the dead body.

Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

xii. P.W. 12 Dr. R. P. Yadav - Civil Assistant Surgeon, the Government Hospital, Saharsa who operated and treated the deceased as well as the injured along with other Doctors.

xiii. P.W. 13 Dr. Bindeshwari Prasad Singh - Civil Assistant Surgeon, the Government Hospital, Saharsa, who treated the deceased as well as the injured and issued the injury certificates.

viv. P.W. 14 Sudish Kumar Singh - the Investigating Officer.

xv. P.W. 15 Ashok Kumar Dokania - son of the deceased.

xvi. P.W. 16 Advocate Mahesh Lal Das, who proved the signatures of the deceased on several applications.

j. The defence of the accused was that of total denial.

In support of the defence, following the witnesses are examined;

i. D.W. 1 Awadhesh Kumar Singh - an employee at the Government Hospital, Saharsa, who has signed the Bed Head Ticket in respect of the deceased.

ii. D.W. 2 Dr. Jagdish Chandra - Civil Assistant Surgeon of the Government Hospital, Saharsa. He proved the certificate of the Hospital.

iii. D.W. 3 Arvind Thakur - owner of the shop opposite to the Sheo Shakti Medical Agency.

iv. D.W.4 Chhedi Rajak - owner of the shop in the neighbourhood of the Sheo Shakti Medical Agency.

v. P.W.5 Sudesh Kumar Singh - an employee of the Government Hospital, Saharsa.

Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

k. After hearing the parties, the learned trial court by

impugned Judgment and order was pleased to convict the

appellant/accused along with the co-accused/deceased appellant

as indicated in the opening para of this Judgment.

4. We heard Mr. K. P. Singh, learned Senior counsel

appearing with Mr. Pratik Mishra the learned Advocate for the

appellant/accused Ashok Kumar Keshri. It is vehemently argued

by the learned Senior counsel that though as many as five eye

witnesses to the occurrence are examined by the prosecution,

none of them have named the appellant/accused as a criminal,

who took part in the incident in question. P.W. 3 Ashok Thakur

has deposed that the appellant/accused Ashok Kumar Keshri

was not on the spot of the incident. Even P.W.8 Anil Kumar

Dokania who is the informant has not named the

appellants/accused in the FIR as well as during the course of his

evidence. Though P.W. 7 Arun Kumar Dokania has claimed that

he has seen the appellants/accused on the spot at the time of the

incident, the appellants/accused was at Varamdah and the

incident occurred inside the shop. No overt act is attributed to

the appellants/accused and there is nothing on record to show

that the appellants/accused was the members of the unlawfull

assembly. It is further argued that when P.W.8 Anil Kumar Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Dokania had gave his written FIR to P.W.14 Sudist Kumar

Singh - P.S.I, P.W.7 Arun Kumar Dokania was very much

present. Still the prosecution has not explained as to why name

of the appellant/accused Ashok Kumar Keshri is not figuring in

the FIR.

5. The learned Senior counsel further argued that so

called dying declaration of Parmeshwar Lal Dokania allegedly

recorded in the case dairy by P.W.14 Sudist Kumar Singh -

P.S.I. is a got up document. It is neither trustworthy nor reliable.

P.W.8 Anil Kumar Dokania was very much present at the

Government Hospital, Saharsa with the declarant Parmeshwar

Lal Dokania, P.W. 8 Anil Kumar Dokania has not stated in his

evidence that the dying declaration was recorded at the hospital.

Evidence of P.W.4 Kanhaia Lal Salampuria so also that of P.W.

9 Pramod Kumar Agrawal on the aspect of the dying declaration

is wholly unsatisfactory. Even the so called dying declaration is

not attributing any role to the applicant/accused Ashok Kumar

Keshri. Even all Medical Officers examined by the prosecution

have not spoken about the dying declaration allegedly given by

Parmeshwar Lal Dokania to the Investigating Officer. With this,

it is submitted by the learned Senior counsel that the surviving

appellant/accused Ashok Kumar Keshri deserves acquittal. Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

6. As against this, Mr. S. N. Prasad, the learned

Additional Prosecutor supported the impugned Judgment and

order by stating that the prosecution witnesses were trying to

save the life of deceased Parmeshwar Lal Dokania and

therefore, they have not given names of the appellant Ashok

Kumar Keshri and deceased appellant Bishwanath Keshri

during course of their statement before the police. Because of

the incident of murderous assault and dacoities, all prosecution

witnesses were in puzzled condition of mind. The learned

Prosecution further argued that dying declaration of the

deceased is reliable and trustworthy. The same is giving

corroboration from the evidence of P.W.4 Kanhaia Lal

Salampuria and P.W. 9 Pramod Kumar Agrawal. Therefore, on

submission of the learned Prosecutor submits, the appeal

deserves to be dismissed.

7. We have carefully considered the submissions so

advanced and we have also gone through the record and

proceedings including oral as well as documentary evidence

adduced by the prosecution during the course of the trial.

8. Prior to touching the merit of the case, at the outset

we feel it necessary to quote the definition of the term "Proved"

as found in Section 3 of the Indian Evidence Evidence Act, Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

1872. It reads thus:

"Proved".- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."

9. We have quoted this provision keeping in mind the

nature of evidence surfacing in the instant case. There are two

divergent versions in respect of the prosecution case,

surprisingly coming on record from the prosecution side itself.

10. The evidence of the first informant P.W.8 Anil

Kumar Dokania, who suffered severe injury in the incident in

question and who lodged the written report in respect of the

incident with promptitude on the day of the incident i.e. on

20.10.1987 is reflecting the crime of dacoity with murder

punishable under Section 396 of the Indian Penal Code. In fact,

on the basis of the FIR lodged by this witness initially the

offence punishable under Section 395 of the Indian Penal Code

i.e. dacoity was registered and on death of Parmeshwar Lal

Dokania, Section 396 of the Indian Penal Code was added to the

case diary of the crime in question. The story given by this

witness about the incident is dacoity armed with dangerous

weapons including the firearms by more than five unidentified

dacoits, who ultimately looted cash amounting to Rs.8/9

thousand from the cash counter of his shop Sheo Shakti Medical Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Agency situated at Bangaon Road, Saharsa and a gold ring, after

murderously assaulting his father Parmeshwar Lal Dokania and

after injuring him as well as his brother P.W.7 Arun Kumar

Dokania by a sharp edged weapon.

11. As against this, as the investigation of the offence

registered at the instance of P.W.8 Anil Kumar Dokania

proceeded, the Investigator taking the aid of alleged dying

declration of Parmeshwar Lal Dokania recorded on 28.10.1987

at the Government Hospital Saharsa gave a totally new shape to

the prosecution case of hiring the contract killers by accused

Ashok Keshri and his father Biswanath Keshri for eliminating

Parmeshwar Lal Dokania (since deceased) as well as his sons

P.W.7 Arun Kumar Dokania and P.W.8 Anil Kumar Dokania

because of their inter se dispute regarding the immovable

property. The Investigator, in another version of the prosecution

in respect of the very same incident has attempted to show that

in prosecution of common object of the unlawful assembly,

accused Biswanath Keshri instigated the members of the

unlawful assembly, who were armed with pistols, daggers and

heavy electric wires to storm in the medical shop of Parmeshwar

Lal Dokania for committing his murder. Accused Ashok Keshri

was also the member of that unlawful assembly and was present Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

on the scene of the occurrence when the assailants who were

hired by his father accused Biswanath Keshri. In the second

version of the incident, the prosecution alleged that members of

the unlawful assembly then in prosecution of the common

object of that unlawful assembly committed murder of

Parmeshwar Lal Dokania by firing bullets at him and also

assaulted P.W.7 Arun and P.W.8 Anil by means of sharp edged

weapons and heavy electric cables. The members of the

unlawful assembly then committed theft of an amount of Rs.8/9

thousand from the cash counter apart from snatching the gold

ring of P.W.7 Arun.

12. In the light of these contradictory and

inconsistent and mutually exclusive versions of the prosecution

case coming on record from the side of the prosecution itself, let

us first examine whether the appellant/accused Ashok Kumar

Keshri was a member of an unlawful assembly and was sharing

common object of the unlawful assembly formed at the instance

of his father accused Biswanath Keshri, by hiring the contract

killers for eliminating the members of the prosecuting party on

account of dispute over landed property. To buttress this version

of the prosecution, the prosecution is heavily relying on the

evidence of the dying declaration (Ext.1) of Paremeshwar Lal Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Dokania, allegedly recorded by P.W.14 Sudist Kumar Singh

P.S.I. in presence of P.W.4 Kanhaialal Salampuria and P.W.9

Pramod Kumar Agarwal as well as other persons.

13. The defence is not disputing the fact that

Parmeshwar Lal Dokania died homicidal death on 03.11.1987.

Evidence adduced by the prosecution-oral as well as

documentary, is sufficient to hold that Parmeshwar Lal Dokania

died homicidal death while taking treatment at the Private

Hospital of Dr. Abdul Hai at Patna.

14. Evidence of autopsy Surgeon P.W.11 Dr.

Baidyanath Jha of the Government Hospital, Saharsa, shows

that dead body of Parmeshwar Lal Dokania was having

following ante-mortem wounds:

(A). Stitched wound in left iliac fosa 3" in length. (B). Right paramediam incised stitched 10" length. (C). Stitched wound on right hypochdrium 3" length. (D). Open wound on right lumber region transverse and 2" x 1".

(E). Open wound left femosel trangle 2½ " x 1". (F). Right upper abdomen piercing wound 1" x 1/2" on opening the abdomen. There were multiple perforation in the gut which were in stitched position. There was slight laceration of the liver 1/2" incised. Abdomen was filled in pus and blood. Death caused due to shock and haemorrhage due to above injuries caused by gun shot. Time within 24 hours to 48 hours. All the injuries were caused by gun shot and that was sufficient for the cause of death of any body.

15. The contemporaneous documentary evidence

in the form of report of the post-mortem examination of the Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

dead body (Ext.7) prepared and proved by this witness

corroborates the version of this witness. This autopsy Surgeon

has deposed that Parmeshwar Lal Dokania died because of

shock due to gunshot injuries. Hence with this evidence, the

prosecution has established that Paremeshwar Lal Dokania died

homicidal death.

16. Now, let us examine whether it is proved that

for murdering the deceased Parmeshwar Lal Dokania, contract

killers were hired, unlawful assembly was formed with common

object for murdering him and his sons and whether surviving

appellant/accused Ashok Kumar Keshri was member of that

unlawful assembly, thereby making him vicariously liable for all

acts of offence committed by the members of the unlawful

assembly. At this juncture, it is necessary to put on record the

concept of vicarious liability as envisaged by Section 149 of the

Indian Penal Code. It hardly needs to mention that Section 149

IPC does not create separate offence. It creates a constructive

or vicarious liability for acts done in prosecution of the

common object of that assembly, by all members of unlawful

assembly. Vicarious liability envisaged by Section 149 of the IPC

extends to rope in every member of such assembly only when:-

a. the acts done in prosecution of the Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

common object of the unlawful assembly and b. such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object of the unlawful assembly. The word "knew" is indicative of a state of mind at the time of commission of the offence and cannot be interpreted to mean "might have known".

Thus once the Court holds that certain accused

persons formed an unlawful assembly and an offence is

committed by any member of that assembly in prosecution of

common object of that assembly, or such, as the members or

the assembly knew to be likely to be committed in prosecution

of that object, every person who at the time of committing of

that offence was a member of the same assembly, is to be held

guilty of that offence. This is because everyone must be taken

to have intended the probable and natural result of the

combination of the acts in which he joined. Thus Section 149

IPC makes every member of an unlawful assembly at the time

of committing of the offence, guilty of that offence on

establishing the criteria stated above. If such conditions as

stated above are fulfilled, then if not open to the court to see

as to who actually did the offensive act. The court cannot then Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

further require the prosecution to prove which of the member

of the unlawful assembly did which of the offensive act. Every

member of such unlawful assembly then becomes responsible

of the acts of offence committed by another members, in

prosecution of the common object of such assembly. It needs

to be kept in mind that whether a member of such unlawful

assembly was aware as regards to likelihood of the commission

of a particular offence in prosecution of common object can be

gathered from all surrounding circumstances like nature of the

assembly, arms carried by it, behaviour of members of such

assembly at or before the occurrence etc.

17. Having said so, we must hasten to add that the

court is required to determine the issue in every case before it

as to 'whether the offence was committed by any member of

the unlawful assembly in prosecution of the common object or

whether an offence was such as the members of that assembly

knew to be likely to be committed.' The accused should not,

merely by reason of his association with other members of an

unlawful assembly be held vicariously liable for each and every

offence committed by his associates, which he himself neither

intended nor knew to be likely to be committed. Members of Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

an unlawful assembly may have community of object only upto

a certain point. Beyond that point they may differ in their

objects. In such fact situation, the knowledge possessed by

each member as to what offence is likely to be committed in

prosecution of their common object shall also vary. Whether a

member of an unlawful assembly was aware as regards

likelihood of commission of another offence or not would

depend upon facts and circumstances of each case such as

background of the incident, the motive, the nature of the

assembly, the nature of the arms carried by the members of the

assembly, their common object and behaviour of the members

soon before, at and after commission of the crime etc. A mere

possibility of the commission of the offence would not

necessarily enable the court to draw an inference that the

likelihood of commission of such offence was within the

knowledge of every member of an unlawful assembly. Mere

presence in an unlawful assembly cannot render a person liable

unless there was a common object and the accused was

actuated by that common object. The word object means the

purpose or design. In order to make it common it must be

shared by all. It does not require a prior concert and common Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

meeting of minds before the attack.

18. For arriving at the conclusion regarding

formation of an unlawful assembly, if any, and the common

object thereof for inferring vicarious liability, if any, of

surviving appellant/accused Ashok Kumar Keshri, let us

scrutinize the evidence of the prosecution in respect of the dying

declaration of the deceased Parmeshwar Lal Dokania. As

stated, P.W.14 Sudist Kumar Singh, P.S.I. is claiming to have

recorded the dying declaration of the deceased Parmeshwar Lal

Dokania, which is marked as Ext.1, during the course of

examination of P.W.4 Kanhaialal Salampuria. Strangely enough

this dying declaration (Ext.1) is finding its place in the case

diary of the subject crime maintained by P.W.14 Sudist Kumar

Singh, P.S.I. and the Investigating Officer. Without going into

the question as to whether this dying declaration in the case

diary is duly proved or not, we have carefully perused this dying

declaration (Ext.1) found in the case diary. It is an unsigned

paragraph in the case diary. If loosely translated, the relevant

portion of this alleged dying declaration of the deceased

Parmeshwar Lal Dokania is thus:

" On 20.10.1987 at about 06.30 P.M., in the evening,

after having tea at my house as soon as I came at my shop Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

named Sheo Shakti Medical Agency located at Bangaon Road,

Saharsa, I saw Biswanath Keshri (deceased appellant/accused)

coming on rickshaw from west direction and proceeding

towards the east direction. Upon seeing me, Biswanath Keshri

shouted that enemy has come and kill him. Then one person

fired a bullet at me and I fell down. That person fired a second

bullet at me. I saw inside the shop, some persons were with Anil

and Arun but I could not see clearly because I was shocked. As

soon as I reached in front of the shop, I saw Ashok Keshri

(surviving appellant/accused) was standing in front of the shop

near the staircase. Upon being hit by second bullet I became

unconscious. I regained consciousness in the evening hours of

yesterday. I saw only two persons. Biswanath Keshri (deceased

appellant/accused) proceeding from west to east direction and

Ashok Keshri (appellant/accused) standing near the staircase in

front of the shop. I had no occasion to see what three criminals

were doing inside the shop because as soon as I proceeded to go

inside the shop from the front portion of the shop, I was hit by

bullets. Hence, I had no opportunity to see what three criminals

were doing inside the shop. I was having dispute with

Biswanath Keshri in respect of the land from 14 to 15 years and

I have filed a Title Suit. He hired the contract killers and gave Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

exhortation to kill me and to injure my sons."

This is all what is claimed to have been stated by

the deceased Parmeshwar Lal Dokania to Investigating Officer

P.W.14 Sudist Kumar Singh at about 08.30 A.M. of 28.10.1987

in presence of two of the prosecution witnesses and some other

persons.

19. If it is ultimately found that the deceased

Parmeshwar Lal Dokania had actually made a statement to this

effect and that, such statement is trustworthy and reliable, then

one may conclude that Biswanath Keshri and his son Ashok

Keshri (appellant/accused) can be held to be vicariously liable

for the acts of the contract killers done for achieving the

common object of the unlawful assembly.

20. Fate of the prosecution case as such, to a large

extent, hinges on this dying declaration (Ext.1), finding its place

in the case diary of the subject crime. 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 Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

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 relevant to the cause of

death or exhibits circumstances leading to the death. The dying

declaration stands on a same footing as another 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 in a

particular form. 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.

21. Sphere of scrutiny of the dying declaration is Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

very limited because there is no possibility of cross examination

of the maker thereof. Hence, a small inconsistency in such last

version of a dying man may make such statement doubtful and

untrustworthy. It is trait that the dying declaration must be a

version consistent with the other evidence and it must pass the

test of reliability and truthfulness upon compared with other

evidence on record. The dying declaration (Ext.1), upon a close

scrutiny thereof shows that it is a claim of the deceased that the

residential house and the medical shop where the incident took

place are situated at two different places. It is making clear that

declarant Parmeshwar Lal Dokania was coming to his medical

shop from the front portion of his shop. The declarant

Parmeshwar Lal Dokania has stated in his dying declaration that

he came to the medical shop after having tea at his house at

about 06.30 P.M. It is claimed in the dying declaration by the

declarant that as soon as he reached in front of his shop,

assailants have fired and the bullet hit him. His so called dying

declaration shows that after hit by another bullet, he fell down.

He claimed to have seen appellant/accused Ashok standing near

the staircase in front of the shop. The declarant has stated that

he could see only two persons namely Biswanath Keshri (the

deceased appellant/accused) and appellant/ accused Ashok Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Keshri because he was hit by bullets in front of his shop and

exactly when he turned towards his shop from the front portion

(Varamada). The dying declaration further contains a statement

that as the declarant could not get a chance to see what was

happening inside the shop he is unable to state what was done

by three assailants inside the shop.

22. Thus this officially recorded dying declaration

of the declarant Parmeshwar Lal Dokania unerringly shows that

the deceased claimed to have returned from his house located

somewhere else to his shop named Sheo Shakti Medical Agency

and when he reached at the front portion of his shop, at the

exhortation given by deceased Appellant Biswanath Keshri,

assailants fired bullets at him when he was still outside the shop

and then he collapsed. The dying declaration shows that the

declarant suffered a fall after being hit by the bullets outside the

shop. The declaration Ext.1 of the deceased recorded in the case

diary by P.W.14 Sudist Kumar Singh thus gives a clear picture

that the deceased was to enter inside his subject medical shop

from the front portion but could not enter inside the shop due to

assault on him by the firearms and his resultant fall outside the

shop. Because of this reason, he expressed his ignorance to the

events which were happening inside the Sheo Shakti Medical Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Agency Shop.

23. Now, let us examine truthfulness of the

declaration by comparing it with other evidence adduced by the

prosecution. Location of Sheo Shakti Medical Agency- the shop

where the incident took place and the residential house of the

deceased is coming on record from the evidence of P.W.14

Sudist Kumar Singh, Investigating Officer. He has deposed that

this medical shop is located in the front portion of the building

where the deceased was residing. The back portion of the

building was used for the residence by the deceased as well as

his sons. P.W.14 Sudist Kumar Singh has also stated that on the

front side of the shop, grills are fixed and then there is

Varhanda. This Investigator had noticed stains of blood inside

the shop. It is thus clear from this evidence that rest of the

constructed portion except this shop was being used as

residence by the deceased and his family members including

P.W.7 Arun Kumar Dokania and P.W.8 Anil Kumar Dokania and

that the shop is at the front portion of that building. Let us now

see what these two sons of the deceased are speaking about the

point of entry of the deceased in the shop at the time of the

incident as well as location of the shop and place of their

residence. Both these brothers have unanimously deposed that Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

when the incident of dacoity was going on in the Sheo Shakti

Medical Agency, their father Parmeshwar Lal Dokania (since

deceased) came inside the shop from inner portion of the shop

i.e. from their house. Both these witnesses, who are residing

with the deceased have not spoken that their father Parmeshwar

Lal Dokania came to the shop from the front portion of the

shop, which is located at Bangaon Road of Saharsa. Evidence

of P.W.7 Arun Kumar Dokania and P.W.8 Anil Kumar Dokania

further shows that when their father Parmeshwar Lal Dokania

came inside the shop from back portion of the shop, he suffered

gun shot inside the shop. P.W.8 Anil Kumar Dokania has stated

that when his father Parmeshwar Lal Dokania entered the shop

from inside the shop and questioned the assailants about the

reason for their misdeeds, one of the dacoits fired a bullet at his

father and that bullet hit at the abdomen of Parmeshwar Lal

Dokania. They both, in unison stated that their father

Parmeshwar Lal Dokania, upon being hit by the bullets fell

down in the shop and the incident of shooting him took place

inside the medical shop.

24. This evidence coming on record from near and

dear ones of the deceased casts a shadow of doubt of the dying

declaration (Ext.1) of the deceased Parmeshwar Lal Dokania Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

recorded by the Investigating Officer . In the officially recorded

dying declaration (Ext.1), it is stated that declarant Parmeshwar

Lal Dokania had tea at his house and then he returned to his

shop and was going inside the shop from the front portion of the

shop but he was struck by the bullets at the Varhanda of the shop

i.e. at the front portion of the shop. It is thus clear that the

incident as stated in the dying declaration (Ext.1) and the ocular

version of that incident coming from the mouth of P.W.7 Arun

Kumar Dokania and P.W.8 Anil Kumar Dokania (sons of the

deceased) is wholly inconsistent and contradictory. In such

situation, it is not possible to conclude which version in respect

of the circumstances of the transaction resulting in the death of

Parmeshwar Lal Dokania is correct. Whether he was

murderously assault in front of the shop while coming to the

shop from outside or whether upon his entering in the shop from

back side, he suffered gun shot inside is a question difficult to

fathom. In other words, truthfulness and trustworthiness of the

declaration at Ext.1 is in serious doubt in view of the evidence

of the injured eye witnesses P.W.7 Arun Kumar Dokania and

P.W.8 Anil Kumar Dokania, who happens to be the sons of the

deceased. Since sphere of scrutiny of the dying declaration is a

limited area, this discrepancy assumes a great importance and Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

makes the version of the prosecution doubtful.

25. Alleged dying declaration (Ext.1) of the deceased

Parmeshwar Lal Dokania is wholly inconsistent and diagonally

opposite to the version of the incident coming on record from

his two injured sons - P.W. 7 Arun Kumar Dokania and P.W. 8

Anil Kumar Dokania who are eye witnesses to the incident. As

per their version, the incident of murder of their father/declarant

Parmeshwar Lal Dokania took place inside the medical shop

when Parmeshwar Lal Dokania came inside the shop from back

portion of the shop. Both of them have not spoken about

deceased appellant/accused Bishwanath Keshri traveling in the

rickshaw from the road in frond of their shop Shiv Shakti

Medical Agency (place of incident) or about exhortation given

by said Bishwanath Keshri to the contract killers present inside

the shop. Both these sons of the deceased unanimously stated

that as soon as their father entered the shop from inside the

assailants fired gunshots at him inside the shop itself. Both these

witnesses have not even whispered about presence of deceased

appellant Bishwanath Keshri who is father of surviving

appellant Ashok Keshri. It is well settled that some treatment as

is given to the evidence of the prosecution witnesses is to be

given to the evidence of defence witnesses. In this case, during Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

investigation Investigating Officer had examined D.W.4 Chhedi

Rajak. He was a witness examined during investigation by

police. As he was not examined by the prosecution, the defence

has examined him. His version about the incident, stated before

the court is to the effect that declarant Parmeshwar Lal Dokania

entered in the shop from behind and was murderously assaulted

inside the shop. He is also speaking of the armed dacoity.

Version of P.W.7 Arun Kumar Dokania and P.W. 8 Anil Kumar

Dokania is perfectly in tune with the first version of the

prosecution case i.e. decoity with firearms and dangerous

weapons by unknown dacoits. The same is gaining

corroboration even by version of defence witness namely D.W.

4 Chhedi Rajak and D.W. 3 Arbind Thakur who is also a

neighbouring shop owner. Thus, the dying declaration (Ext.1)

gets materially contradicted from the version fo P.W. 7 Arun

Kumar Dokania and P.W. 8 Anil Kumar Dokania injured

eyewitnesses making it unworthy of credit.

26. In order to act upon the dying declaration, the

court is required to examine whether the same was made by the

declarant when he was in a fit condition and that too voluntarily.

Normally the court in order to satisfy whether the declarant was

in a fit mental condition to make the dying declaration deems it Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

fit to look up to the medical opinion, in order to ascertain

whether the declarant was conscious, well oriented and fit for

making statement. On this aspect, evidence of the prosecution is

far from satisfactory. Unsigned dying declaration (Ext.1) found

in the case diary is not having any certificate of the doctor

regarding fitness of the declarant to make a statement. At this

juncture, evidence of Investigating Officer P.W. 14 Sudist

Kumar Singh assumes importance. He has stated that on

20.10.1987, he tried to record the statement of Parmeshwar Lal

Dokania at the Hospital but Parmeshwar Lal Dokania was

unconscious. P.W. 13 Dr. Bindeshwari Prasad Singh told him

that injections and medicines are being administered to

Paremeshwar Lal Dokania and there is no possibility that he will

regain unconsciousness. Thereafter, as claimed by P.W. 14

Sudist Kumar Singh, on 24.10.1987, he again went to the

hospital for recording the statement of Parmeshwar Lal Dokania

but at that time also Parmeshwar Lal Dokania was unconscious

and sedatives were given to him. This Investigating Officer

clarified how he got the dying declaration (Ext.1) recorded. As

per his version on 28.10.1987, he got a telephonic information

from the Hospital to the effect that Parmeshwar Lal Dokania is

not responding to the medical treatment and therefore, he is Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

being shifted from Saharsa to Patna by an aircraft. P.W. 14

Sudist Kumar Singh further added that he was further informed

by the Hospital during that telephonic call that Parmeshwar Lal

Dokania is fit to give the statement. Therefore, he reached at the

Hospital with Dy. S. P. Mr. R. N. Singh and found that

preparations were going on for taking Parmeshwar Lal Dokania

and P.W. 8 Anil Kumar Dokania to Patna by an aircraft. This

statement of the Investigating Officer thus implies that P.W. 8

Anil Kumar Dokania was with Parmeshwar Lal Dokania at that

time. With this, the Investigating Officer stated that he recorded

statement of Parmeshwar Lal Dokania in presence of P.W.4

Kanhaia Lal Aalampuria, P.W. 9 Pramod Kumar Agrawal and

others. Thus, P.W. 14 Sudist Kumar Singh has not claimed that

he got declarant Parmeshwar Lal Dokania medically examined

either before or after recording his statement in order to assess

physical as well as mental condition of Parmeshwar Lal

Dokania for making a declaration. He has neither took signature

of Parmeshwar Lal Dokania on the declaration nor put his own

signature thereon. Though this Investigating Officer has claimed

that the dying declaration (Ext.1) was recorded in presence of

several persons including P.W.4 Kanhaia Lal Salampuria and

P.W.9 Pramod Kumar Agrawal, the Investigating Officer has not Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

even taken their signatures on the dying declaration with a

flimsy reason that there is no practice of taking signature on the

case diary. Even P.W. 8 Anil Kumar Dokania, in his evidence

before the court has not supported the theory of recording the

dying declaration of his deceased father Parmeshwar Lal

Dokania by P.W. 14 Dudist Kumar Singh, the Investigating

officer.

27. P.W. 4 Kahnaia Lal Salampuria has deposed that

he used to visit the Hospital to see condition of Parmeshwar Lal

Dokania. This witness testified that on 27.10.1987, at one

moment, Parmeshwar Lal Dokania used to become conscious

and on the other moment he used to become unconscious. P.W. 4

Kanhaia Lal Salampuria further deposed that on 28.10.1987,

statement of Parmeshwar Lal Dokania was recorded in his

presence. This witness narrated the alleged incident by claiming

that this was what Parmeshwar Lal Dokania had narrated to the

Investigating Officer. However, this witness has not whispered

anything to show that the person whose condition was very

critical on 27.10.1987 was in a fit state of mind on 28.10.1987

for making an elaborate declaration (Ext.1). Similar is evidence

of P.W. 9 Pramod Kumar Agrawal. He has not stated about

mental or physical fitness of the declarant to make a statement Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

before the Investigating officer on 28.10.1987, while taking

medical treatment at the hospital. Though P.W. 9 Pramod Kumar

Agrawal has elaborated what was allegedly stated by

Parmeshwar Lal Dokania, this witness, during the course of

cross-examination, was not remembering simple facts such as

nature of paper used and the instrument used for writing the

declaration. He stated that he is not remembering whether the

declaration was written on plain or colored paper or on the case

diary. This witness was not remembering whether it was sign

and whether pencil or pen was used for writing that dying

declaration at Ext.1

28. Thus from the evidence of P.W. 14 Sudist Kumar

Singh, P.W. 4 Kanhaia Lal Salampuria and P.W. 9 Pramod

Kumar Agrawal, it becomes very clear that prior to recording

the dying declaration of Parmeshwar Lal Dokania, no efforts

were taken to ascertain his fitness to make a statement. Just few

hours earlier, the declarant was oscillating between

consciousness and unconsciousness. Neither of these witnesses

have care to see medical case papers of the declarant for

examining whether sedatives were given to him at that point of

time. P.W. 14 Sudist Kumar Singh was aware that during

medical treatment of Parmeshwar Lal Dokania, sedatives were Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

administered to him. To crown this all, one fails to understand as

to how a patient who was not responding to the medical

treatment, as per the information received by P.W. 14 Sudist

Kumar Singh, the Investigating Officer, was in a position to

make a detailed and coherent declaration at the very same time.

29. There is one more factor which makes evidence

of P.W. 14 Sudist Kumar Singh doubtful. He claimed that he

received telephonic information from the Hospital that as

condition of Parmeshwar Lal Dokania is deteriorating, he is

being shifted to Patna but he is in a position to make a

statement. However, none of the Doctors who were treating

Parmeshwar Lal Dokania and who are examined by the

prosecution have deposed that they made a telephonic call to

P.W. 14 Sudist Kumar Singh to inform all these facts. P.W. 11

Dr. Baidyanath Jha, P.W. 12 Dr. R. P. Yadav and P.W. 13 Dr.

Bindeshwari Prasad Singh of the Government Hospital, Saharsa

have not supported the Investigating Officer on that aspect.

They have not even stated that they had instructed the staff

members to pass this message about the health condition of

Parmeshwar Lal Dokania to the Investigating Officer and to call

him for recording the dying declaration. This position of

evidence of the prosecution makes version of P.W. 14 Sudista Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Kumar Singh, the Investigating Officer highly unreliable and

untrustworthy. He himself has not made it clear as to from

which doctor or an employee of the hospital he got a call for

recording the statement of Parmeshwar Lal Dokania with a

further information that Parmeshwar Lal Dokania is now fit to

give his statement. For all these reasons, we are not in a position

to rely the dying the declaration at Ext.1 of deceased

Parmeshwar Lal Dokania for inferring that he had a hired

contract killers and then by forming an unlawful assembly for

prosecuting common object of murdering Parmeshwar Lal

Dokania, Parmeshwar Lal Dokania was done to death at the

instance of Bishwanath Keshri (deceased appellant) and his son

appellant/accused no. 1 Ashok Keshri. Very substratum of the

prosecution case falls to the ground once the dying declaration

of Parmeshwar Lal Dokania is found to be unsafe and unreliable

in the wake of wholly unsatisfactory evidence in support

thereof.

30. P.W. 7 Arun Kumar Dokania in his evidence has

stated that at 6.30 P.M. of 20.10.2020, when he along with his

brother Anil Kumar Dokania (P.W.8) were present at their

medical shop with the staff members, 8 to 10 criminals stormed

into the shop. He as well as his brother were injured by them by Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

giving a blow of knife to them. He further testified that then his

father Parmeshwar Lal Dokania came inside the shop from back

side and at that point somebody had fired at his father. As per

claim of this witness, he saw appellant/accused no. 1 Ashok

Kumar Keshri at the Varhanda of the shop. P.W. 2 Musafir Singh

is an employee of the medical shop where the incident took

place. As per version of this witness, 3 to 4 persons darted inside

the shop and injured P.W. 7 Arun Kumar Dokania and P.W. 8

Anil Kumar Dokania by giving blows of knife. P.W. 2 Musafir

Singh further deposed that then from inside, Parmeshwar Lal

Dokania came in the shop and those criminals fired at

Parmeshwar Lal Dokania, took the cash and ran away. He

claimed that he saw appellant/accused no. 1 Ashok Kumar

Keshri at the Varandah of the shop. However, this witness, in the

chief examination itself has states that he did not disclose this

fact to police because he was afraid of the accused. So far as

appellant/accused no. 1 Ashok Keshri is concerned, this is the

only evidence which is being relied upon by the prosecution for

showing that this accused was one of the members of the

unlawful assembly which murdered Parmeshwar Lal Dokania in

prosecuting its common object, apart from causing stab injuries

to P.W.7 Arun Kumar Dokania and P.W.8 Anil Kumar Dokania. Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

As seen from chief examination of P.W. 2 Musafir Singh, his

evidence regarding presence of appellant/accused no. 1 Ashok

Kumar Keshri at Varandah is coming on record by way of

omission and as this omission is in respect of material particular

of the incident, this portion of the evidence needs to be kept

away for consideration. Moreover cross-examination of P.W. 2

Musafir Singh shows that he was knowing appellant/accused no.

1 Ashok Kumar Keshri from 1988 as medical shop of Ashok

Kumar Keshri was situated near Mithila Medicals Shop -

another medical shop of his deceased employer Parmeshwar Lal

Dokania. This witness has not clarified as to what were the

reasons for him to be afraid of the accused.

31. Even if for the sake of argument we accept

version of P.W.7 Arun Kumar Dokania to the effect that

appellant/accused no.1 Ashok Kumar Keshri was seen by him at

the staircase of their shop at the time of the incident, nothing

more is stated about him by P.W. 7 Arun Kumar Dokania. The

role ascribed to him by P.W. 7 Arun Kumar Dokania, is only that

of a mute spectator. Even if we accept that statement of P.W. 7

Arun Kumar Dokania, then also it seen that many others like

P.W. 3 Ashok Thakur, D.W. 3 Arbind Thakur, D.W. 4 Chhedi

Rajak (both these defence witnesses were examined by the Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

Investigating officer during investigation) had witnessed the

incident out of curiosity. Suffice to quote that though P.W. 7

Arun Kumar Dokania claimed that appellant/accused no.1

Ashok Kumar Keshri was seen at the Varandah in front of the

shop, even declarant Parmeshwar Lal Dokaniahas not stated so

in his alleged declaration in which he claimed that the incident

took place outside the shop and in front of the shop.

32. Evidence of first informant P.W. 8 Anil Kumar

Dokania - son of the deceased is making the entire case of the

prosecution wholly unreliable suspicion and doubtful. This

witness was present at his medical shop where the incident took

place in which his father Parmeshwar Lal Dokania lost life. This

witness himself has suffered serious injuries in the incident

requiring his hospitalization in different cities. However, this

witness though present in the shop had not spoken about

presence of the appellant/accused no. 1 Ashok Kumar Keshri at

the Varandah/Baramda of the said medical shop nor he has seen

deceased appellant/accused Bishwanath Keshri proceeding by

rickshaw by the road in front of his shop, as claimed by the

declarant in the alleged dying declaration. P.W. 8 Anil Kumar

Dokania after due deliberation had lodged written FIR. When

the FIR was lodged by this witness P.W. 8 Anil Kumar Dokania, Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

his brother P.W. 7 Arun Kumar Dokania was present with Anil

Kumar Dokania. This is clear from cross-examination of P.W.

14 Sudist Kumar Singh, the Investigating Officer. The FIR was

got written from Raj Kumar Agrawal by P.W. 8 Anil Kumar

Dokania - first informant, obviously in presence of P.W. 7 Arun

Kumar Dokania. When the written FIR was got prepared in

presence of P.W.7 Arun Kumar Dokania by his brother P.W.8

Anil Kumar Dokania from Raj Kumar Agrawal, why it is not

mentioning the name of the appellant/accused Ashok Keshri as a

member of unlawful assembly is a mystery which is not being

answered by the evidence of prosecution. However, neither in

the written FIR given to P.W. 14 Sudist Kumar Singh nor in his

evidence P.W. 8 Anil Kumar Dokania is claiming presence of

appellant/accused no. 1 Ashok Kumar Keshri on the scene of the

occurrence. On the contrary in FIR he made a claim that in all

11 unknown persons entered in his medical shop armed with

pistrols and daggers and while in the witness box he reduced the

number of unknown dacoits to 5 or 6. He then narrated the

happening of the incident in tune with his FIR by stating that the

dacoits injured him as well as P.W. 7 Arun Kumar Dokania by

knife and as soon as their father Parmeshwar Lal Dokania

entered in the shop from inside to question the criminals, the Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

criminals fired a bullet and caused gunshot wounds to

Parmeshwar Lal Dokania. Thus, P.W. 8 Anil Kumar Dokania

has not named any of the dacoits involved in the incident of

dacoities with murder. This witness candidly has accepted in the

cross-examination that he was knowing the appellant/accused

no. 1 Ashok Kumar Keshri and deceased/appellant Bishwanath

Keshri since he attained the age of understanding. He admitted

that during course of happening of the incident he could not

identify any of the assailant. Thus, evidence of this witness

makes it clear that he has not seen either appellant/accused no. 1

Ashok Kumar Keshri or deceased/appellant Bishwanath Keshri

at or near the spot of the incident.

33. We have already noted in the forgoing paragraph

that D.W. 4 Chhedi Rajak is a neighbouring shopkeeper who

was knowing the accused persons. He has stated in his evidence

that he has seen the incident of dacoity at Sheo Shakti Medical

Agency closely but had not seen presence of the

appellant/accused person Ashok Keshri on the spot. Similar is

evidence of D.W. 3 Arvind Thakur, owner of a shop opposite to

the Sheo Shakti Medical Agency. He has also seen the incident

of dacoity and has stated that he has not seen the accused

persons, i.e., Ashok Keshri or Bishwanath Keshri on the spot at Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

that time. Both these witnesses were examined by the

Investigating Officer during the course of investigation and

there is nothing in their cross-examination to disbelieve them.

Thus, a sting statement attributing mere presence of the

appellant/accused Ashok Keshri at the staircase made by P.W.7

Arun Kumar Dokania cannot be reveled upon to cast vicarious

liability for capital offence upon the accused.

34. It is seen from cross-examination of P.W. 4

Kanhaia Lal Salampuria that prior to this incident of dacoity, in

past there was incident of dacoity with murder at the Mithila

Medical Store owned by deceased Parmeshwar Lal Dokania.

P.W. 4 Kanhaia Lal Salampuria has further stated that on that

road, several such incidents of dacoity took place. P.W. 8 Anil

Kumar Dokania has candidly accepted the fact that they were

having dispute in respect of the land with the accused persons

and the deceased appellant/accused Bishwanath Keshri had even

filed a criminal case against them which is still going on. To

show that the prosecuting party and the accused persons were on

inimical term, even the prosecution has examined P.W. 16

Mahesh Lal Das who is Advocate by profession. As stated, the

first version of the incident given by P.W. 8 Anil Kumar

Dokania, son of the deceased and the injured witness is that of Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

dacoity with murder by unknown dacoities. A reasonable doubt

lurks in a judicial mind in the backdrop of these facts that as the

prosecuting party as well as accused were hostile to each other,

there is every possibility of falsely implicating the accused by

taking an advantage of armed dacoity at the shop of the

prosecuting party. Version of armed robbery in the shop of the

prosecuting party is also vouched by P.W. 1 Suresh Prasad

Yadav - an employee of the shop where the incident took place.

He stated that unknown dacoits barged in the shop suddenly and

committed the crime in question. Neighboring shop owner P.W.

3 Ashok Thakur has stated in his cross-examination that the

incident was of dacoity in which deceased Parmeshwar Lal

Dokania was injured. These witnesses have also stated that they

have not seen the accused persons on the spot of the incident.

35. With evidence of such nature as is discussed in the

forgoing paragraphs it is not possible to hold that the

prosecution has established a fact that the accused persons or

any of them had hired contact killers, formed an unlawful

assembly with the common object of eliminating members of

the prosecution party and that the appellant/accused was one of

the member of that assembly sharing the common object of that

assembly. We are enable to endorse the finding of the learned Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021

trial court in that regard. In our opinion the impugned Judgment

of the learned trial court in which the dying declaration was

made a foundation for convicting the accused is totally perverse

and unjustified.

36. The net result of forgoing discussions requires us

to pass the following orders. Therefore, the order:-

(I). The appeal is allowed.

(II). The impugned Judgment and order of

conviction and resultant sentence passed by the learned Ist

Additional Sessions Judge, Saharsa in Sessions Case No. 270

of 1989 between the parties is quashed and set aside.

(III). Appellant/accused no. 1 Ashok Kumar Keshri

is acquitted of the offences held to be proved against him by

the learned trial court. His bail bond stands cancelled.

(A. M. Badar, J)

Sunil Kumar Panwar, J:-

( Sunil Kumar Panwar, J) Bhardwaj/-

AFR/NAFR                AFR
CAV DATE                02.12.2021
Uploading Date          09.12.2021
Transmission Date       09.12.2021