REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

CRIMINAL     APPEAL     NO.1192 OF     2018 (arising out of SLP (Crl.) No. 6225 of 2017)

PRADEEP BISOI @ RANJIT BISOI             … APPELLANT(S)  

VERSUS  

THE STATE OF ODISHA                      … RESPONDENT(S)

J     U     D     G     M     E     N     T

ASHOK     BHUSHAN,     J.  

This appeal has been filed by the accused against

the judgment of Orissa High Court dated 25.01.2017. The

Orissa  High  Court  vide  the  impugned  judgment  has

dismissed  the  criminal  appeal  filed  by  the  appellant

questioning his conviction under Section 304 Part II of

the  Indian  Penal  Code  and  sentence  of  five  years

rigorous imprisonment awarded by the trial court.   

2. The prosecution case as is revealed from the record

is  that  Bhaskar  Sahu  (deceased)  on  28.11.1990  in  the

morning  at  7.00  A.M.  was  going  near  Belapada  by  a

bicycle.  Near the Belapada bridge, the accused threw a

bomb towards the deceased, which hit the right leg of

Bhaskar Sahu, the deceased, due to which he fell down on

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the road.  Bhaskar Sahu when started running to save his

life, accused came running before the deceased and dealt

a kati blow on right shoulder of Bhaskar Sahu on which

he fell down thereafter the accused poured acid on head,

face and chest of Bhaskar Sahu.  Thereafter the accused

and  his  friends  left  that  place.   One  Khalia  Pati

belonging  to  the  village  of  Bhaskar  Sahu  took  the

deceased with the help of bicycle.  Thereafter brother

of Bhaskar Sahu – Surendra Nath Sahu after receiving the

news of assault came with Tarini Sahu, Kasinath Bisoi

and  Bidyadhar  Babu  belonging  to  the  village  and  got

admitted  Bhaskar  Sahu  in  Berhampur  Medical  College.

Suurendra Nath Sahu, the brother of Bhaskar Sahu lodged

a First Information Report naming the accused.  First

Information  Report  was  lodged  under  Sections

324/326/286/34  IPC.  The  I.O.  visited  the  spot  on

30.11.1990 and seized one blood stained stone and sample

stone and one yellow colour banian with smell of acid

and prepared the seizure list.  Some sample earth, one

towel with smell of acid was also noticed.  Thereafter

the I.O. examined the witnesses.  The I.O. on 05.12.1990

showed arrest of the accused.  On 05.12.1990 the I.O.

recorded the statement of Bhaskar Sahu under Section 161

Cr.P.c.  in  which  statement  Bhaskar  Sahu  named  the

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accused, the persons, who has thrown the bomb, hit with

kati and thrown acid on his face and head.  The accused

was challaned and PW1, the informant, PW2 - Dandopani

Dass and PW3 – Prafulla Leuman Sahu were examined by the

prosecution.   I.O.  (PW4)  –  Prithandhi  Moghi  also

appeared in the witness box.  The deceased while still

in hospital died on 25.03.1991.  Defence examined two

witnesses namely DW1 – Ramesh Chandra Sahu and DW2 –

Bidyadhar Sahu.

3. The  trial  court  after  analyzing  the  evidence  on

record and hearing the counsel for the parties convicted

the accused under Section 304 Part II of the I.P.C. and

awarded five years rigorous imprisonment.  Aggrieved by

the judgment of the trial court, the appeal was filed by

the accused in the High Court, which has been dismissed

by the High Court by the impugned judgment.  

4. Learned  counsel  for  the  appellant  contends  that

there is contradiction in the evidence of PW1 with other

witnesses.  There is contradiction as to who took the

injured to the hospital.  The victim became unconscious

and it is unbelievable that he informed the PW1 that it

was accused, who attacked him.  The statement of injured

recorded under Section 161 Cr.P.C. cannot be treated as

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a  dying  declaration  in  view  of  the  well  settled

principle  of  law  enunciated  by  a  Constitution  Bench

judgment  of  this  Court  in  Laxman  Vs.  State  of

Maharashtra, (2002) 6 SCC 710, as to who is the author

of  the  crime,  both  the  Courts  below  arrived  at  the

findings based on surmises and conjectures and not on

evidence on record.            

5. Learned  counsel  for  the  State  refuting  the

submission of counsel for the appellant contends that on

the basis of evidence on record, both the Courts have

rightly held the charge proved against the accused.  No

error has been committed by the Courts below relying on

the statement made by the injured on 05.12.1990 recorded

by the I.O.  Further, evidence of PW1, to whom deceased

had informed that it was accused, who threw bomb and

made  kati  attack  and  threw  acid,  has  rightly  been

believed by the Courts below.  It is submitted that the

statement made by the injured on 05.12.1990 was fully

admissible and no error has been committed by the Courts

below  in  relying  the  same.   Learned  counsel  for  the

State has placed reliance on judgment of this Court in

Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010)

8 SCALE 477 and Sri Bhagwan Vs. State of Uttar Pradesh,

(2013) 12 SCC 137.

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6. We have considered the submissions of the learned

counsel for the parties and have perused the records.   

7. The  main  thrust  of  submission  of  the  learned

counsel for the appellant is that statement recorded by

I.O. on 05.12.1990 of the victim cannot be treated as

dying declaration since death occurred after more than

three  months.   He  submits  that  both  Courts  committed

error  in  treating  the  said  statement  as  dying

declaration.   

8. Section 32 of the Evidence Act deals with cases in

which statement of relevant fact by person who is dead

or cannot be found etc. is relevant.  Section 32 in so

far as relevant in the present case is as follows:-

S.32.  Cases  in  which  statement  of  relevant fact by person who is dead or cannot be found, etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance  cannot  be  procured  without  an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: ––  

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

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Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

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Illustrations:   (a)  The  question  is,  whether  A  was

murdered by B; or  

A  died  of  injuries  received  in  a transaction in the course of which she was ravished.  The  question  is  whether  she  was ravished by B; or  

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.  

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

9. Other provisions relevant to be noticed are Section

161 and Section 162 of the Code of Criminal Procedure.

Section  161  deals  with  examination  of  witnesses  by

police.  Section 162 deals with “statements to police

not  to  be  signed  –  Use  of  Statements  in  evidence”.

Section 162 Cr.P.C. is as follows:-

162. Statements to police not to be signed: Use  of  statements  in  evidence.—(1)  No statement  made  by  any  person  to  a  police officer  in  the  course  of  an  investigation under  this  Chapter,  shall,  if  reduced  to writing, be signed by the person making it; nor shall any such statement or any record thereof,  whether  in  a  police  diary  or

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otherwise, or any part of such statement or record,  be  used  for  any  purpose,  save  as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with  the  permission  of  the  Court,  by  the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act , 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining  any  matter  referred  to  in  his cross-examination.  

(2) Nothing in this section shall be deemed to apply  to  any  statement  falling  within  the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.  

Explanation.—An omission to state a fact or circumstance in the statement referred to in  sub-section  (1)  may  amount  to contradiction  if  the  same  appears  to  be significant  and  otherwise  relevant  having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

10. Sub-section (2) to Section 162 incorporate a clear

exception to what has been laid down in sub-section (1).

The  statement  recorded  by  police  under  Section  161,

falling within the provisions of clause (1) of Section

32 of Indian Evidence Act, thus, is clearly relevant and

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admissible.  In Mukeshbhai Gopalbhai Barot (supra), this

Court had occasion to consider Sections 161 and 162 of

Cr.P.C. and Section 32 of the Evidence Act.  In the

above case, the victim, who received burn injuries on

14.09.1993  was  admitted  to  Civil  Hospital.   Her

statement was recorded by Executive Magistrate and by

the  Police.   The  statement  recorded  by  police  under

Section  161  Cr.P.C.  was  discarded  by  the  High  Court

taking the view that it had no evidentiary value.  The

view of the High Court was not accepted by this Court.

In paragraph Nos. 4 and 5, this Court held that the

statement of persons recorded under Section 161 can be

treated as dying declaration after death.  In paragraph

Nos. 4 and 5, following has been laid down:-

“4. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observa- tions of the High Court that the dying decla- rations Ex.44 and 48 could not be taken as ev- idence in view of the provisions of Section 161 and 162 of the Cr.P.C. when read cumula- tively.  These  findings  are,  however,  erro- neous.  Sub-Section  (1)  of Section  32 of  the Indian Evidence Act, 1872 deals with several situations including the relevance of a state- ment made by a person who is dead. The provi- sion reads as under:

Sec.32.  Cases  in  which statements  of  relevant  fact  by person  who  is  dead  or  cannot  be found,  etc.,  is  relevant.  - Statements,  written  or  verbal,  of relevant facts made by a person who is dead, or who cannot be found, or

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to rely on the said statement by treating it as a dying declaration, the question for con- sideration is whether the submission put forth on behalf of the respondent counsel merits ac- ceptance.

21. Mr Ratnakar Dash, learned Senior Counsel made a specific reference to Section 162(2) CrPC in support of his submission that the said section carves out an exception and cre- dence that can be given to a Section 161 CrPC statement by leaving it like a declaration un- der Section 32(1) of the Evidence Act under certain  exceptional  circumstances.  Section 162(2) CrPC reads as under:

“162.  (2) Nothing  in  this  section shall  be  deemed  to  apply  to  any statement falling within the provi- sions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.”

22. Under Section 32(1) of the Evidence Act it has been provided as under:

“32.  Cases  in  which  statement  of relevant fact by person who is dead or  cannot  be  found,  etc.  is  rele- vant.—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 giv- ing  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  them- selves relevant facts in the follow- ing 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 circum- stances of the transaction which re-

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sulted  in  his  death,  in  cases  in which  the  cause  of  that  person’s death comes into question. Such statements are relevant whether the person who made them was or was not,  at  the  time  when  they  were made,  under  expectation  of  death, and  whatever  may  be  the  nature  of the proceeding in which the cause of his death comes into question.”

23. Going by Section 32(1) of the Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having  regard  to  the  extraordinary  credence attached to such statement falling under Sec- tion 32(1) of the Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying decla- ration.

24. As  far  as  the  implication  of  Section 162(2) CrPC is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 CrPC statement could be re- lied upon, as rightly contended by the learned Senior Counsel for the respondent, once the said statement though recorded under Section 161 CrPC assumes the character of dying decla- ration falling within the four corners of Sec- tion 32(1) of the Evidence Act, then whatever credence  that  would  apply  to  a  declaration governed by Section 32(1) should automatically deemed to apply in all force to such a state- ment though was once recorded under Section 161 CrPC. The above statement of law would re- sult in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a vic- tim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act

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and  thereby  commend  all  the  credence  that would  be  applicable  to  a  dying  declaration recorded and claimed as such.”

12. It is relevant to refer to judgment of this Court

in  Najjam Faraghi @ Nijjam Faruqui Vs. State of West

Bengal,  (1998)  2  SCC  45.   In  the  above  case,  the

kerosene oil was poured on the victim and she was put on

fire on 13.06.1985.  She lived for about a month and

died  on  31.07.1985.   This  Court  referring  to  Section

32(1) held that mere fact that victim died long after

making  the  dying  declaration,  the  statement  does  not

looses its value.  In Para 9, following has been held:-

“9. There is no merit in the contention that the appellant’s wife died long after making the  dying  declarations  and  therefore  those statements have no value. The contention over- looks the express provision in Section 32 of the Evidence Act. The second paragraph of sub- section (1) reads as follows:

“Such  statements  are  relevant whether the person who made them was or was not, at the time when they were  made,  under  expectation  of death, and whatever may be the na- ture of the proceeding in which the cause of his death comes into ques- tion.”

No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in false- hood.  But  that  does  not  mean  that  such  a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and  circumstances  established  therein.  If

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there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the con- tents of the statements, the court can cer- tainly accept the same and act upon it. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs. 5 and 6 are acceptable.”

13. Much emphasis has been given by the learned counsel

for the appellant on Constitution Bench judgment of this

Court in  Laxman Vs. State of Maharashtra (supra).  The

above constitution Bench was constituted to resolve the

conflict between two Three-Judge Bench judgment of this

Court, i.e. Paparambaka Rosamma and Others Vs. State of

A.P.  (1999)  7  SCC  695 and  Koli  Chunilal  Savji  and

Another Vs. State of Gujarat, (1999) 9 SCC 562.  The

facts of the case and conflicting views expressed in the

above two cases has been noticed in Paragraph Nos. 1 and

2, which are to the following effect:-

“In this criminal appeal, the conviction of the accused-appellant is based upon the dying declaration of the deceased which was recorded by the Judicial Magistrate (PW 4). The learned Sessions Judge as well as the High Court held the dying declaration made by the deceased to be  truthful,  voluntary  and  trustworthy.  The Magistrate in his evidence had stated that he had contacted the patient through the medical officer on duty and after putting some ques- tions to the patient to find out whether she was able to make the statement; whether she was set on fire; whether she was conscious and able to make the statement and on being satis-

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fied  he  recorded  the  statement  of  the  de- ceased. There was a certificate of the doctor which  indicates  that  the  patient  was  con- scious. The High Court on consideration of the evidence of the Magistrate as well as on the certificate of the doctor on the dying decla- ration  recorded  by  the  Magistrate  together with other circumstances on record came to the conclusion that the deceased Chandrakala was physically and mentally fit and as such the dying declaration can be relied upon. When the appeal against the judgment of the Aurangabad Bench of the Bombay High Court was placed be- fore a three-Judge Bench of this Court, the counsel for the appellant relied upon the de- cision of this Court in the case of Paparam- baka Rosamma v.  State of A.P., (1999) 7 SCC 695 and contended that since the certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement,  the  dying  declaration  could  not have been accepted by the Court to form the sole basis of conviction. On behalf of the counsel appearing for the State another three- Judge Bench decision of this Court in the case of  Koli Chunilal Savji v.  State of Gujarat (1999) 9 SCCC 562 was relied upon wherein this Court has held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dy- ing declaration of the deceased thus recorded cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the state- ment in question. Since the two aforesaid de- cisions  expressed  by  two  Benches  of  three learned Judges was somewhat contradictory the Bench by order dated 27-7-2002 referred the question to the Constitution Bench.

2. At the outset we make it clear that we are only resolving the so-called conflict be- tween the aforesaid three-Judge Bench decision of this Court, whereafter the criminal appeal will be placed before the Bench presided over by Justice M.B. Shah who had referred the mat- ter to the Constitution Bench. We are, there- fore, refraining from examining the evidence on record to come to a conclusion one way or

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the other and we are restricting our consider- ations to the correctness of the two decisions referred to supra.”

14. The Constitution Bench approved the view taken by

later  judgment  in  Koli  Chunilal  Savji  (supra).    In

Paragraph No. 5, following has been laid down:-

“5. The Court also in the aforesaid case relied upon the decision of this Court in Har- jit Kaur v. State of Punjab4 wherein the Mag- istrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and ob- tained  an  endorsement  to  that  effect  and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. (1999) 7 SCC 695  (at SCC p. 701, para 8) to the effect that

“in the absence of a medical certi- fication that the injured was in a fit  state  of  mind  at  the  time  of making the declaration, it would be very much risky to accept the sub- jective satisfaction of a Magistrate who opined that the injured was in a fit  state  of  mind  at  the  time  of making a declaration”

has been too broadly stated and is not the correct enunciation of law. It is indeed a hy- pertechnical  view  that  the  certification  of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the ques-

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tions he had put to the patient and from the answers elicited was satisfied that the pa- tient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v.  State of A.P. (1999) 7 SCC 695   must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chuni- lal Savji v.  State of Gujarat (1999) 9 SCC 562.”

15. The  view  expressed  by  Three-Judge  Bench  in

Paparambaka  Rosamma  (supra) that  in  the  absence  of

medical  certification  that  the  injured  was  in  a  fit

state of mind at the time of making the declaration, it

would  be  very  much  risky  to  accept  the  subjective

satisfaction of a Magistrate who opined that the injured

was in a fit state of mind at the time of making a

declaration, does not lay down a correct law.  Thus, the

Constitution bench was only considering the question of

nature  of  medical  certification  regarding  fitness  of

victim  to  make  a  dying  declaration.   The  proposition

laid  down  in  the  above  case  does  not  in  any  manner

support  the  contention  raised  by  the  counsel  for  the

appellant in the present case.  Present is a case where

a statement was recorded by I.O. under Section 161 of

the victim on 05.12.1990.  Both the trial court and the

High  Court  held  the  statement  relevant  and  placed

reliance on the said statement.   

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16. We have noticed that this Court has laid down that

statement under Section 161 Cr.P.C., which is covered

under Section 32(1) is relevant and admissible.  Thus,

we do not find any error in the judgment of the trial

court as well as of the High Court in relying on the

statement  of  the  injured  recorded  by  the  I.O.  on

05.12.1990.  It is also relevant to notice that I.O. in

his  cross-examination  has  stated  that  he  went  on  the

night of 30.11.1990 to the Medical College to record the

statement but as his condition was serious, he was not

examined.   Thus,  reliance  on  the  statement  made  on

05.12.1990 to the I.O. does not lead to any suspicious

circumstances  so  as  to  discard  the  value  of  such

statement.  The statement, which was made by the victim

on 05.12.1990 was to the following effect:-

“My name is Bhaskar Sahu, S/o. Kaibalya Sahu, present/permanent Resident of Village - Langal Dei,  P.S.  Digapahandi  Dist.  Gangnam,  Today, i.e.  on  05.12.1920,  being  at  the  Medical College ward I hereby give my verbal statement that, I was going to Belapada from our Village Langal Del on 28.11.1990 at about 6:30 to 7:00 O'clock on my bi-cycle. On my way near the bridge of Belapada Village, inhabitant of our village  namely  Pradeep  Bisoi,  S/o.  Madhab Bisoi and some of his friends were waiting to kill me. They had come by a Scoter. I don't know others. Near the Belapada Bridge, all of a sudden Pradeep Bisoi threw a Bomb towards me which was defused after hitting my right leg

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for which I fell down on the road. When I started running, trying to save my life, at that time Pradeep Bisoi came running after me and dealt a kati blow on my right solder, for which  I  fell  down  bloodstained.  Thereafter from a bottle carried by him, he poured acid on my head, face, chest and also on my entire body To save my life. I threw away my black color  vest  from  my  body.  Looking  at  my critical  condition,  Pradeep  Bisoi  and  his friends left that place. After that, the son of  Khalia  Pati  of  our  village  saw  me,  and while taking me by the help of a cycle, my brother Surendar Sahu got that news and Tarini Sahu, and Kishnath Bisoi and Bidhyadhara Babu of our village reached to me and my brother immediately  admitted  me  in  the  Berhampur Medical Collage. Otherwise I would have died on the spot. Because of our previous enmity, Pradeep Bisoi was trying to kill me. But I was just  saved.  There  is  no  chance  of  my survival.”  

17. The  trial  court  after  appreciation  of  evidence

recorded the findings that deceased had acid injuries as

well as bomb blast injuries.  In the acid attack, he has

lost his eye-sight and also lost his right foot.  The

trial court has rightly held that statement of deceased

made  on  05.12.1990  is  admissible  under  Section  32

because it is regarding his cause of death and how he

was injured.  In para 8 of the judgment, trial court has

recorded as follows:-

“8.  From the medical report it is clear that the deceased was having acid injury and bomb blasting injury and during the treatment he died in the hospital.  Now it is to be seen who  has  caused  those  acid  and  bomb  blast injuries on the person of the deceased.  There

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is  no  eye  witness  to  the  occurrence.   The deceased had given information to the P.W.1 and also to the I.O. P.W.1 says that he learnt from the deceased that accused assaulted him and threw acid on his face, and other parts of his body and he reported the matter to the police,  after  knowing  the  fact  from  the deceased, vide Ext. 12.  It is also clear from the  evidence  of  P.W.3  that  he  carried  the deceased to the hospital, who had sustained injuries.  The statement of the deceased to P.W.1 is admissible under 32 of the Evidence Act. Because, it gives regarding his cause of death and how he was injured.”

18. The injuries on the body of deceased fully support

the  prosecution  case.   The  statement  made  by  the

deceased on 05.12.1990, thus, finds corroboration from

the injuries on the body of deceased and the sequences

of the events and manner of incidents as claimed by the

prosecution.  The PW1, the informant has fully supported

the prosecution case.   

19. The High Court while dismissing the appeal has also

made  observation  that  conviction  and  sentence  of  the

accused was for a lesser offence and lenient one.  

20. We having gone through the evidence on record are

fully satisfied that the trial court did not commit any

error  in  convicting  the  appellant.   High  Court  while

deciding the appeal has also analysed the evidence on

record and has rightly dismissed the appeal.  We, thus,

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do  not  find  any  merit  in  this  appeal,  which  is

dismissed.     

......................J.  ( A.K. SIKRI )

......................J.  ( ASHOK BHUSHAN )

New Delhi, October 10, 2018.

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