Motilal Baitha vs State Of Bihar
2021 Latest Caselaw 5523 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.504 of 1994
======================================================

Motilal Baitha, Son of Bharai Baitha, resident of village and Police Station- Raghunathpur, District- Siwan.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Prince Kumar Mishra, Amicus Curiae 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 : 25-11-2021

The appellant/accused no.1 by this appeal is

challenging the Judgment and order dated 05.09.1994 passed in

Sessions Trial No.270 of 1988 by the learned Additional

Sessions Judge, Siwan, thereby convicting him for the offence

punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life. Along with the

appellant/accused, his sons, namely, accused no.2 Nagendra

Baitha and accused 3 Bigu Baitha were also put up for trial.

However, they came to be acquitted by the impugned Judgment

and order. For the sake of conveyance, the appellant/accused

shall be referred in his original capacity.

2. The facts in brief leading to the prosecution case

projected from the police report can be summarized thus; Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

(a) On 03.09.1986 at about 8.30 A.M. Kailash

Baitha (since deceased) was affixing a wooden stump in front of

yard of his house for tethering animals. At that time, accused

Motilal Baitha accompanied by his sons came there and started

questioning him as to why he has affixed the wooden stump.

Quarrel started on this reason. During that course wordy duel,

accused persons lifted Kailash Baitha and thrusted him on the

ground. Kailash Baitha was using a Khanti (instrument used for

digging soil) for afixing the stump. Accused Motilal Baitha took

that Khanti and gave a blow thereof on the head of Kailash

Baitha. Co-accused, Nagendra Baitha and Bigu Baitha also

assaulted him with sticks and bricks. This incident according to

the prosecution, accused was witnessed by P.W.6 Paramdeoti

Devi, P.W.1 Dahari Baitha (brother) and P.W.3 Sanichari Devi

(sister-in-law of the deceased Kailash Baitha). Because of shout

of Kailash Baitha, other villagers such as Balkishore, Kariman,

P.W.2 Saheb Baitha and Hira Baitha reached at the spot. The

accused persons ran away.

(b) Injured Kailash Baitha accompanied by his

brother P.W.1 Dahari Baitha, P.W.3 Sanichari Devi and P.W.6

Paramdeoti Devi went to the Police Station Raghunathpur.

Where the First Information Report of Kailash Baitha (since Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

deceased) came to be recorded by P.W.9 Bipin Bihari Sharan,

Police Station Officer. Accordingly, the subject crime was

registered and the injured was referred to the hospital. P.W.11

Dr. Gopal Das examined Kailash Baitha at about 11 P.M. of

03.09.1986 and found him to have suffered lacerated wounds on

skull and left side of lower rip apart from swelling.

(c) On the next day of 04.09.1986 Kailash Baitha

succumbed to injury suffered by him. His dead body was taken

to the Police Station by the relatives. P.W.9 Bipin Bihari Sharan,

Investigating Officer took inquest notes and sent it for autopsy

to Sadar Hospital, Siwan. P.W.6 Dr. Anil Kumar of Civil

Hospital Siwan conducted postmortem examination on the dead

body of Kailash Baitha and found him to have died of shock and

hemorrhage as a result of abdominal injury caused by hard and

blunt surface. Routine investigation followed leading to the

filing of the charge sheet against three accused persons

including appellant/accused Motilal Baitha.

(d) After committal of the case, the learned Trial

Judge framed the charge for the offence punishable under

Section 302 r/w 34 of the Indian Penal Code against the accused

persons, who adjured the guilt and claimed tried.

(e) In order to bring home the guilt to the accused Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

persons, the prosecution has examined in all 12 witnesses.

Defence of the accused persons was that of total denial. They

examined Baijnath Choudhary as D.W.1.

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

was pleased to hold that appellant/accused Motilal Baitha gave a

blow of Khanti (instrument for digging) on head of Kailash

Baitha causing his death and therefore, he is guilty of the

offence punishable under Section 302 of the Indian Penal Code.

It is further held by the trial court that two co-accused Nagendra

Baitha and Bigu Baitha were stated to have used weapons like

sticks and evidence regarding sharing of common intention

against him is lacking. Similarly, evidence regarding use of

weapons viz, i.e, brick and stick by them is also contradictory.

With this observations, they both came to be acquitted whereas

appellant/accused came to be convicted as indicated in the

opening para of this Judgment and he is accordingly sentenced.

3. We heard Mr. Prince Kumar Mishra, the learned

Advocate appointed as an amicus curiae to assist this Court for

espousing the cause of the appellant/accused as well as the

learned Prosecutor for the State. We have also examined the

record and proceedings. It is argued by Mr. Mishra the learned

Advocate that evidence of the prosecution regarding use of Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

weapons by the co-accused is contradictory and discrepant.

P.W.6 Paramdeoti Devi has deposed that accused Bigu Baitha

used stick whereas accused Nagendra Baitha used brick. As

against this, P.W.7 Parvati Devi attributed stick to co-accused

Nagendra Baitha and brick to co-accused Bigu Baitha. He

further argued that statement of the deceased cannot be

construed as the dying declaration. The evidence of the

prosecution lacunic and unsatisfactorily. As against this, the

learned Prosecutor supported the impugned Judgment and order

of conviction and resultant the sentence.

4. At the outset, let us examined whether deceased

Kailash Baitha died homicidal death. Evidence of P.W.9 Bipin

Bihari Sharan, the Investigating officer shows that after

recording statement of Kailash Baitha, he sent Kailash Baitha

for medical examination by issuing letter to the Medical Officer.

This is how P.W.11 Dr. Gopal Krishna Das had examined

deceased Kailash Baitha at about 11 P.M. of 03.09.1986.

Evidence of this Medical Officer shows that he found following

injuries on the person of Kailash Baitha;

A. Lacerated wound of size 1"X1/4"X1/2" on the vault of skull.

B. Lacerated wound of size1/2"X1/4"X1/4" on the left side of lower rip.

Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

C. Swelling of size 3"X3" on left side of abdomen below cocktail region.

5. As deposed by P.W.11, Dr. Gopal Krishna Das,

the injuries found on the person of Kailash Baiha were possible

by hard and blunt substance like Khanti. Those were simple in

nature. He further deposed that because of abdominal injury

notice by him, he referred Kailash Baitha to Sadar Hospital for

examination. Evidence of this witness is further corroborated by

the injury certificate issued by him which is Ext.8. In cross-

examination, this witness stated that injury no. 1 noticed by him

can be possible by brick, lathi, Khanti (instrument for digging).

He denying the suggestion that injury no. 1 notice by him can be

possible by fall on head. Evidence of P.W.11 Dr. Gopal Das does

indicates that he noticed three injuries on the person of deceased

Kailash Baitha which according to him were simple in nature.

6. After death of Kailash Baitha, his dead body was

dispatched to the Civil Hospital, Siwan and during its

postmortem examination, P.W.5 Dr. Anil Kumar noted that the

dead body was having following wounds;

A. Stitched wound at mid partial region of scalp of size of 1"X1/4" scalp deep.

B. Lacerated wound on left side of chest of size of 1/2"X1/4 skin deep.

C. Swelling on left side of abdomen below costal margin of size of 2"X 1/2". On dissection, Subdural Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

heamotoma was found present. Abdominal cavity was found full of blood.

Upon conducting postmortem examination on the

dead body, as per version of Dr. Anil Kumar, Kailash Baitha

died because of shock and hemorrhage as a result of abdominal

injury caused by hard and blunt substance like Khanti

(instrument for digging). Evidence of this witness corroborated

by contemporaneous report of postmortem examination proved

by him. In cross-examination, this witness admitted that injuries

noted by him can be caused by multiple fall on earth. From the

evidence of P.W.5 Dr. Anil Kumar read with evidence of P.W.11

Dr. Gopal Krishna Das, it becomes clear that Kailash Baitha

died homicidal death caused by shock and hemorrhage as a

result of abdominal injury. Thus it may be safely concluded that

Kailash Baitha died homicidal death.

7. Now let us examined whether prosecution has

proved commission of the offence punishable under Section 302

of the Indian Penal Code by accused Motilal Baitha and if not,

what offence is proved against him.

8. Though, the prosecution has claimed that P.W.1

Dahari Baitha, P.W.2 Saheb Baitha and P.W.3 Sanichari Devi are

eye witnesses to the incident in question , they all turned hostile

to the prosecution. There evidences is of no assistance to the Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

prosecution. Evidence of P.W.6 Paramdeoti Devi - widow of the

deceased shows that after the incident of assault on Kailash

Baitha, she along with her injured husband Kailash Baitha went

to the police station for lodging report. Evidence of P.W.9 Bipin

Bihari Sharan, Investigating Office shows that at about 10 P.M.

of 03.09.1986, injured Kailash Baitha came to the police station

and lodged a report. As per version of P.W.9 Bipin Bihari

Sharan, Police Inspector, he himself wrote the report lodged by

injured Kailash Baitha and then Kailash Baitha affixed his

thump impression on the said report in his presence. P.W.9 Bipin

Bihari Sharan, the Investigating officer further deposed that

thereafter he put his signature on the said report. P.W.9 Bipin

Bihari Sharan proved the report lodged by Kailash Baitha which

is at Ext.1 and further stated that he prepared the printed FIR

Ext.2 on the basis of the said report. Thereafter, he issued

request letter to the Medical Officer for examining injured

Kailash Baitha. Though, P.W.9 Bipin Bihari Baitha was

subjected to the searching cross-examination by the defence,

this portion of evidence is not challenged or shattered in the

cross-examination. As evidence of P.W.6 Paramdeoti Devi -

widow and P.W.9 Bipin Bihari Sharan, the Investigating officer

coupled with that of P.W.5 Dr. Anil Kumar shows that said Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

Kailash died because of abdominal injury caused to him in the

incident in question, his statement in the form of the FIR at

Ext.1, automatically evaluates to the status of his dying

declaration. At this juncture, it is apposite to quote relevant

provisions of Section 32(1) of the Evidence Act which read

thus;

Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

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.

9. Now let us examine the statement at Ext.1 made

by deceased Kailash Baitha and recorded by P.W.9 Bipin Bihari

Sharan the Investigating officer who is stating the circumstances

of transactions which has caused his death. Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

10. Dying declaration (Ext.1) of Kailash Baitha is

to the effect that at about 8.30 AM of 03.09.1986 when he was

affixing the wooden stump at the front yard of his house,

accused persons came there and questioned him as to why he is

affixing that wooden stump. He told the accused persons that he

is doing so for tethering animals. At that point, there was wordy

duel between him and the accused persons. The dying

declaration of Kailash Baitha further shows that then the

accused persons lifted and thrusted him on the ground. Accused

Motilal took the Khanti, which was being used for digging soil

for affixing stump and by that Khanti, accused Mottilal Baitah

hit him on his head. This cause bleeding wound. The deceased

further stated that then he started shouting. Thereafter, sons of

accused Motilal Baitha, namely, Nagendra Baitha and Bigu

Baitha further started assault with sticks. The person sitting

there namely, (P.W.3) Sanichari Devi, (P.W.1) Dahari Baitha,

(P.W. 5) Paramdeoti Devi, (P.W.2) Saheb Baitha, Kewal Hira

and Balkishore came there then accused persons ran away.

Kailash Baitha further stated that then (P.W. 1) Dahari Baitha,

(P.W.3) Sanichri Devi and (P.W.6) Paramdeoti Devi took him to

the police station. This is what, deceased Kailash Baitha has

stated before P.W. 9 Bipin Bihari Sharan, Police Inspector of Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

Police Station Raghunathpur and these narrations were then

recorded in writing by the said witness. Thus, contents of this

statement at Ext.1 made by deceased Kailash Baitha are

disclosing cause of death of Kailash Baitha as assaulted him by

the appellant/accused and the co-accused.

11. Now let us put on record, law laid down by the

Hon'ble Supreme Court regarding appreciation of evidence in

respect of the dying declaration. In Khushal Rao Vs. State

of Bombay (AIR 1958 SC 22) ; (2008 ALL SCR (O.C.C)

41) the Supreme Court has laid down propositions of law

relating to the test of reliability of dying declaration. The

relevant paragraph thereof reads thus :-

"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ;

(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence (4) that a dying declaration stands on the same footing as another piece of Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing that a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control;

                         that the statement has been consistent
                         throughout      if    he    had    several
                         opportunities      of  making    a   dying

declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

The Supreme Court in Padmaben

Shamalbhai Patel Vs. State of Gujarat (1991) 1 SCC

744] has observed thus :-

"If, in the facts and circumstances of the case, it is found that the maker of Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable."

12. We have noted the dying declaration of Kailash

Baitha made by him before P.W.9 Bipin Bihari Sharan in the

earlier paragraphs.

13. Let us now examined whether the said statement

of deceased Kailash Baitha is gaining corroboration from

other evidence available on record. It will have to be seen that

said statement of deceased Kailash Baitha is giving truthful

account of the incident happened with him and the same is

not the result of tutoring, prompting or imagination. It will

also have to be seen whether it is established that Kailash

Baitha was having opportunity to observe and identify the

assailants and was in a fit state to make the declaration. In

this regard, evidence of P.W.9 Bipin Bihari Sharan is clear

and cogent. His evidence shows that whatever was stated by

the declarent, was recorded by him in the words of declarant. Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

There is nothing in the cross-examination to infer that the

declarant was not in a position to make the declaration or

somebody else was tutoring or prompting him in making the

declaration.

14. P.W.6 Paramdeoti Devi is the widow. Her

evidence shows that on the day of the incident, she was at her

door and at that time, her husband Kailash Baitha was

affixing the stump on the ground. As per her version, all

accused persons came there. They lifted Kailash Baitha and

thrusted him on the ground. Appellant/accused Motilal Baitha

gave a blow of Khanti on head of Kailash Baitha causing

bleeding injury. She testified that acquitted co-accused Bigu

Baitha assaulted Kailash Baitha by means of stick on

abdomen whereas acquitted co-accused Nagendra Baitha

assaulted Kailash Baitha by means of brick. Her evidence

further shows that appellant/accused Motilal Baitha is

nephew of Kailash Baitha. She claimed that the incident took

place at the spur of the moments and there were no talks

between the prosecuting party and the accused persons. She

stated that blood stain mat came to be seized in her presence.

In cross-examination, she stated that when she went to the

spot, all accused persons ran away because they saw her Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

husband lying dead.

15. So far as P.W.7 Parvati Devi is concerned, she

claimed to have seen the accused persons lifting and thrusting

her father-in-law Kailash Baitha on ground. She claimed that

appellant/accused Motilal Baitha assaulted Kailash Baitha by

Khanti (instrument for digging), acquitted co-accused

Nagendra Baitha by stick and acquitted co-accused Bigu

Baitha by brick. In cross-examination, she stated that when

she visited the spot, nobody had gathered there but

subsequently, she stated that other persons such as Sanichra

Devi, Dahari Baitha and Saheb Baitha were present there. She

stated that initially, there were talks between her father-in-law

Kailash Baitha and co-accused Bigu Baitha, so also that the

incident took five minutes to complete.

16. We unable to accept the argument of the learned

counsel for the appellant/accused that evidence of P.W.6

Paramdeoti Devi and that of P.W.7 Parvati Devi is

contradictory. What is material is the incident of assault.

Whether the acquitted co-accused used one weapon or other

is of no relevance in the instant case. Evidence of both these

witnesses shows that the appellant/accused was one of the

person who lifted and thrusted the deceased on ground. Both Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

these witnesses have unanimously stated that the

appellant/accused used Khanti for giving blow on head of

deceased Kailash Baitha.

17. So far as P.W.8 Malti Devi is concerned, we feel

that she is not an eye witness to the incident because as her

version, when she reached on the spot, she saw her father-in-

law Kailash Baitah drenched in blood. In all probability, she

reached the spot after the incident.

18. Evidence of P.W.9 Bipin Bihari Sharan, the

Investigating Officer shows that on his visit to the spot of the

incident, he found the stump affixed on the ground. He also

noted that there were blood stains of blood on the spot and the

mat lying at the spot was stained with blood. This witness

duly proved seizure memo Ext.6 and Ext.6/1 of these articles,

so also that of Khanti which was lying nearby the field.

19. In our considered opinion, this evidence duly

corroborates the dying declaration Ext.1 made by deceased

Kailash Baitha to P.W.9 Bipin Bihari Sharan, the

Investigating Officer and it is giving truthful account of the

incident. Thus evidence on record and more particularly the

dying declaration of Kailash Baitha shows that

appellant/accused Motilal baitha had given a blow of Khanti Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

on head of the deceased Kailash Baitha and he was one of the

person who lifted and thrusted the deceased on the ground.

The dying declaration of Kailash Baitha at Ext.1 shows that

thereafter acquitted co-accused assaulted him with sticks.

P.W.6 Paramdeoti Devi has stated that acquitted co-accused

Bigu Baitha had in fact assaulted the deceased by means of

stick on the abdomen. Thus role attributed to the

appellant/accused is only that of inflicting a blow of khanti

(instrument for digging) on head of the deceased as well as

lifting and thrusting the deceased on the ground. On this

background, if evidence of the autopsy surgeon P.W.5 Dr.

Anil Kumar is noted then it is seen that death of Kailash

Baitha was because of shock and hemorrhage as a result of

abdominal injury caused by hard and blunt surface. This

abdominal injury caused to Kailash Baitha is certainly not

attributable to appellant/accused Motilal Baitha. Therefore,

we are of the considered opinion that the learned Trial Court

totally erred in convicting appellant/accused Motilal Baitha

for the offence punishable under Section 302 of the Indian

Penal Code simplicitor by holding that by giving blow of

Khanti by him on head of Kailash Baitha, appellant/accused

Motilal Baitha caused death of Kailash Baitha. The death was Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

due to abdominal injury and there is no evidence to connect

the appellant/accused to that injury. The learned trial court

has already held that Section 34 of the Indian Penal code is

not attracted in the crime in question and had acquitted both

the co-accused. That Judgment has become final. Therefore,

the appellant/accused is not certainly liable for penal

consequences in respect of the offence punishable under

Section 302 of the Indian Penal Code. However he is liable

for commission of the offence punishable under Section 324

of the Indian Penal Code, for voluntarily having caused hurt

by dangerous weapon "Khanti" to deceased Kailash Baitha

after lifting and thrusting him on the ground. Undoubtedly,

the injury which can be attributable to the appellant/accused

was simple in nature, as vouched by P.W.11 Dr. Gopal

Krishna Das.

20. We put on record words of appreciation for the

able assistance rendered by Mr. Prince Kumar Mishra, learned

Amicus Curiae, to this Court in arriving at the proper

conclusion for deciding in that appeal. We direct the High

Court Legal Services Authority to pay an amount of Rs.5,000/-

to Mr. Prince Kumar Mishra, learned Amicus Curiae, for

service rendered by him.

Patna High Court CR. APP (DB) No.504 of 1994 dt.25-11-2021

21. In the result, the appeal is partly allowed with

the following order;

(I). The appeal is partly allowed.

(II). The impugned Judgment of conviction and

order of sentence imposed on appellant/accused Motilal Baitha

for the offence punishable under Section 302 of the Indian

Penal Code is quashed and set aside. The instead

appellant/accused Motilal Baitha is convicted of the offence

punishable under Section 324 of the Indian Penal code for

having voluntarily cause hurt to deceased Kailash Baitha by

dangerous weapon "Khanti" (instrument for digging). For the

offence punishable under Section 324 of the Indian Penal

Code, the appellant/accused Motilal Baitha is sentenced to

suffer imprisonment for a period of one year.

(III) The appeal is accordingly disposed of.

(A. M. Badar, J)

Sunil Kumar Panwar, J: I Agree ( Sunil Kumar Panwar, J) Bhardwaj/-

AFR/NAFR
CAV DATE                16.11.2021
Uploading Date          25.11.2021
Transmission Date       25.11.2021