Patna High Court
Ashok Kumar Keshri vs The State Of Bihar on 9 December, 2021
Author: A. M. Badar
Bench: A. M. Badar, Sunil Kumar Panwar
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
2/44
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
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20.10.1987at 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 4/44 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 5/44 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 6/44 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 7/44 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 8/44 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 9/44 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 10/44 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 11/44
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 12/44 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 13/44 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 14/44 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 15/44 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 16/44 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 17/44 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 18/44 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 19/44 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 20/44 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 21/44 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 22/44 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 23/44 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 24/44 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 25/44 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 26/44 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 27/44 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 28/44 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 29/44 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 30/44 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 31/44 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 32/44 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 33/44 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 34/44 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 35/44 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 36/44 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 37/44 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 38/44 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 39/44 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 40/44 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 41/44 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 42/44 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 43/44 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 44/44 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/-
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