In Ravi Kumar @ Singhrwa @ Singhara vs. The State of Bihar (2026), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Rana Vikram Singh delivered a 40-page long judgement dated September 24, 2026, wherein, it concluded:"9. Conclusion and Operative Order (i) We have carefully considered the rival submissions advanced on behalf of the parties, examined the entire oral and documentary evidence available on record, and applied the settled legal principles discussed above. (ii) The medical evidence of PW-1 Dr. Mukesh Kumar, supported by the post-mortem report (Ext. 1), conclusively establishes that the deceased Krishna Prasad @ Pahalwan died a homicidal death as a result of a firearm injury sustained on the back of the chest. The occurrence of a fatal shooting is, therefore, not in doubt. (iii) The principal question for determination is whether the prosecution has proved beyond reasonable doubt that it was the appellant who fired the fatal shot. (iv) On a comprehensive and independent appraisal of the evidence, we find that PW-2 Prem Kumar is a natural witness whose presence at the shop of the deceased is fully explained. He has given a consistent account of having seen the appellant armed with a pistol, the deceased attempting to flee, the appellant opening fire, and the bullet hitting the deceased on the back. His evidence finds material corroboration from the testimony of PW-3 Dilip Kumar Gupta and PW-5 Sudhir Kamti, who reached the place of occurrence immediately on hearing the sound of firing. PW-5 has specifically deposed that he saw the appellant running away from the spot within a few minutes of the incident. This circumstance is proximate in time and lends assurance to the version of PW-2. (v) The oral dying declarations attributed to the deceased and deposed to by PW-2, PW-3, PW-4 and PW-6 are consistent in material particulars in naming the appellant as the assailant. Although these witnesses are related or closely associated with the deceased, their evidence on this aspect has withstood cross-examination and finds support from the overall circumstances of the case. The medical evidence corroborates the nature and location of the injury. The motive suggested by the prosecution, namely the outstanding loan and the prior threat, provides an additional link in the chain. (vi) The discrepancies regarding the exact date and time of the occurrence, the non-recovery of the weapon and the projectile, and certain omissions in the investigation, though pointed out with some force, do not go to the root of the prosecution case. They are not sufficient to discard the reliable ocular account and the consistent oral dying declarations. The confessional statement recorded by the Investigating Officer has been kept out of consideration in view of the bar contained in Section 25 of the Indian Evidence Act. (vii) Having regard to the cumulative effect of the evidence of PW-2, the corroborative circumstances spoken to by PW-3 and PW-5, the consistent oral dying declarations, and the medical evidence, we are of the considered opinion that the prosecution has succeeded in proving the guilt of the appellant beyond reasonable doubt. The findings recorded by the learned trial court do not warrant interference by this Court. (viii) In the result, the appeal fails and is hereby dismissed. (ix) The judgment of conviction, dated 29.06.2018 and the order of sentence, dated 05.07.2018 passed by the learned 6th Additional District and Sessions Judge, Patna City, in Sessions Trial No. 40 of 2018 arising out of Agamkuan P.S. Case No. 396 of 2017 are affirmed. The appellant Ravi Kumar @ Singharwa shall serve the sentence awarded by the trial court...."
It concluded: "(xi) Before parting with the judgment, this court places on record its deep appreciation for the research and assistance rendered by Mr. Aditya Shekhar and Mr. Ribhava Raj, Legal Researchers attached with this court." S. K. Lal was the senior counsel on behalf of the appellants who was assisted by advocates Madhaw Prasad Yadav, Arvind Kumar and Pramod Kumar. Anil Kumar was the counsel for the informant and Shashi Bala Verma was the APP.
The criminal appeal was preferred by the sole appellant Ravi Kumar @ Singharwa against the judgment of conviction dated June 29, 2018 and the order of sentence dated July 5, 2018 passed by the 6th Additional District and Sessions Judge, Patna City, in Sessions Trial of 2018 arising out of Agamkuan P.S. Case of 2017, whereby and whereunder the appellant has been convicted for the offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959.
By the impugned order of sentence, the appellant was sentenced to undergo rigorous imprisonment for life and to pay a fine of 20,000 for the offence under Section 302 of the IPC. He was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of 2,000 for the offence under Section 27 of the Arms Act. Both the sentences were directed to run concurrently. The appellant was arrested during investigation and has remained in custody since then. After commitment of the case to the Court of Session, charge under Section 302 of the IPC and Section 27 of the Arms Act was framed against him on March 5, 2018. The appellant pleaded not guilty and claimed to be tried. Upon conclusion of the trial, the trial court convicted and sentenced him. The appeal had challenged the judgment of conviction and order of sentence.
The case of the prosecution emerged from the fardbeyan of the informant Annu Gupta (PW-6), wife
of the deceased, is that the deceased Krishna Prasad @ Pahalwan was running a snack shop under the name and style of “Maa Sheetla Sweet” in front of Sheetla Temple since the year 1996. The brother of the informant, namely Prem Kumar (PW-2), was also associated with the said shop. The appellant Ravi
Kumar @ Singharwa had worked in the said shop as a maker of singhara and litti for about ten years but had left the job a few days prior to the occurrence. On 25.08.2017 at about 7:00 p.m., the
deceased, after closing his work for the day, went to Tulsi
Mandi adjacent to the railway line near Sheetla Mandir for
getting himself shaved. While returning, he met the appellant.
On noticing something in the pocket of the appellant, the
deceased searched the same and found a pistol. The deceased
questioned the appellant as to why he was carrying a pistol
and stated that he would inform the appellant’s mother. The
appellant became enraged.
(iv) Thereafter, the deceased returned to his shop,
consumed bhunja, and after some time started proceeding
towards his house. When he had barely covered a short
distance of about fifty yards from the shop, the appellant, who
was sitting there armed with a pistol, pointed the same
towards the head of the deceased and opened fire. The
deceased pushed the appellant and attempted to flee; however,
the bullet hit him on the back and he fell down at the spot. The
appellant managed to escape from the place of occurrence.
(v) On hearing the sound of the gunshot, several
persons including the staff of the shop assembled there. The
injured was shifted to Rajeshwar Hospital for treatment. The
informant and her son were informed and they reached the
hospital. According to the prosecution, the deceased, while
undergoing treatment and while still conscious, disclosed that
it was the appellant who had shot him. It is further the case of
the prosecution that the appellant and his father had taken a
substantial amount by way of loan from the deceased and,
whenever the deceased demanded repayment, the appellant
used to threaten to kill him. The occurrence is alleged to have
been committed at the behest of the father of the appellant.
(vi) On the basis of the fardbeyan of the informant
recorded at the hospital, Agamkuan P.S. Case No. 396 of 2017
was registered under Sections 341, 324, 307, 504/34 of the
Indian Penal Code and Section 27 of the Arms Act. During the
course of treatment, the injured succumbed to his injuries after
about two days. Upon completion of investigation, the
Investigating Officer submitted charge-sheet under Section
302 of the Indian Penal Code and Section 27 of the Arms Act
only against the present appellant. Cognizance was taken and
the case was committed to the Court of Session, culminating
in the trial that has given rise to the present appeal.
3. Trial Court Findings
(i) The learned trial court, upon appreciation of the
evidence adduced during the trial, recorded the following
material findings:
(a) The prosecution examined seven witnesses in
all. PW-1 Dr. Mukesh Kumar is the Autopsy Surgeon who
conducted the post-mortem examination on the dead body of
the deceased on 27.08.2017 and proved the post-mortem
report (Ext. 1). PW-2 Prem Kumar (brother of the informant
and associated with the shop of the deceased), PW-3 Dilip
Kumar Gupta and PW-5 Sudhir Kamti were examined as
witnesses to the occurrence. PW-4 Anchit Raj is the son of the
deceased and PW-6 Annu Gupta is the informant and wife of
the deceased. PW-7 Suchit Kumar is the Investigating Officer
of the case.
(b) On behalf of the defence, one witness (DW-1
Kashi Nath Chandravansi) was examined and certain
documents relating to a prior criminal case against the
deceased were marked as exhibits.
(c) The learned trial court held that PW-2 Prem
Kumar is an eye-witness to the occurrence. According to the
trial court, this witness had seen the appellant threatening the
deceased with a pistol, the deceased attempting to flee, the
appellant opening fire, the bullet hitting the deceased on the
back, and the deceased falling down. The trial court further
held that PW-3 Dilip Kumar Gupta and PW-5 Sudhir Kamti
reached the place of occurrence immediately on hearing the
sound of firing; PW-5 specifically claimed to have seen the
appellant running away from the spot. The evidence of these
witnesses was found to be consistent and reliable.
(d) The learned trial court placed significant
reliance on the oral dying declarations alleged to have been
made by the deceased. It held that the deceased, while still
conscious, had disclosed to PW-2, PW-3, PW-4 and PW-6 that
it was the appellant Ravi Kumar @ Singharwa who had shot
him. These statements were held to be relevant and admissible
under Section 32(1) of the Indian Evidence Act, 1872, and
were found to be consistent and free from doubt.
(e) The medical evidence of PW-1 was held to
corroborate the prosecution version. The post-mortem report
disclosed an ante-mortem firearm entry wound on the left side
of the back of the chest with blackening and tattooing, and the
cause of death was opined to be haemorrhage and shock due
to the chest injury caused by a firearm.
(f) The trial court accepted the motive suggested by
the prosecution, namely that the appellant and his father had
taken a substantial loan from the deceased and that the
appellant had earlier threatened the deceased with death when
repayment was demanded.
(g) As regards the discrepancy in the date of
occurrence (some witnesses having stated the month as
October instead of August), the learned trial court observed
that witnesses cannot be expected to possess a photographic
memory and that the said discrepancy stood clarified by the
fardbeyan and the endorsement thereon, both of which clearly
mentioned the date as 25/26.08.2017. The discrepancy was
therefore held to be minor and immaterial.
(h) The trial court further referred to the
confessional statement of the appellant (Ext. 6) recorded by
the Investigating Officer. The defence evidence seeking to
establish the criminal antecedents of the deceased was held to
be irrelevant to the determination of the guilt of the appellant
in the present case.
(i) On the basis of the above findings, the learned
trial court concluded that the prosecution had successfully
proved the charges under Section 302 of the Indian Penal
Code and Section 27 of the Arms Act against the appellant
beyond reasonable doubt, and accordingly convicted and
sentenced him as noted earlier.
4. Submissions on behalf of the Appellant
(i) Learned counsel appearing on behalf of the
appellant assailed the impugned judgment of conviction and
order of sentence on several grounds.
(ii) It was firstly submitted that the learned trial
court committed a serious error in recording a finding of guilt
against the appellant when none of the prosecution witnesses
can be said to be reliable eye-witnesses to the actual
occurrence. Learned counsel contended that a careful reading
of the evidence of PW-2 Prem Kumar, PW-3 Dilip Kumar
Gupta and PW-5 Sudhir Kamti would show that their presence
at the precise moment of firing is either unnatural or not free
from doubt. It was argued that the evidence of these witnesses,
even if accepted at face value, is largely in the nature of post-
occurrence testimony and that the trial court erred in treating
PW-2 as a wholly reliable eye-witness.
(iii) It was next submitted that the evidence of PW-4
Anchit Raj and PW-6 Annu Gupta (the informant) is purely
hearsay in character insofar as the actual act of firing is
concerned. Learned counsel urged that these witnesses were
admittedly not present at the place of occurrence and reached
the hospital only after receiving information. Their testimony,
therefore, could not have been used to establish the identity of
the assailant except to the limited extent of the alleged oral
dying declarations.
(iv) Strong reliance was placed on the contention
that the alleged oral dying declarations do not satisfy the
requirements of Section 32(1) of the Indian Evidence Act,
1872. It was argued that the statements attributed to the
deceased were made only to highly interested witnesses (wife,
son, brother-in-law and a close associate), that there is no
contemporaneous record of such statements, and that the
prosecution has failed to establish that the deceased was in a
fit state of mind and body at the time of making the alleged
declarations. Learned counsel submitted that the trial court
mechanically applied Section 32(1) without subjecting the
alleged dying declarations to the close scrutiny required by
law.
(v) It was further contended that the medical
evidence of PW-1, while establishing a homicidal death by
firearm, does not corroborate the precise manner and genesis
of the occurrence as projected by the prosecution witnesses.
The non-recovery of the weapon of offence and the bullet was
also highlighted as a significant lacuna.
(vi) Learned counsel pointed out material
discrepancies in the prosecution evidence, particularly with
regard to the date of the occurrence (some witnesses having
deposed the month as October instead of August), the exact
time, the sequence of events, and the presence of various
persons at the spot. It was submitted that these discrepancies,
when viewed cumulatively, go to the root of the matter and
render the prosecution version unreliable.
(vii) Attention was also invited to the fact that the
confessional statement of the appellant (Ext. 6) recorded by
the Investigating Officer is hit by Section 25 of the Indian
Evidence Act and could not have been relied upon even for
limited purposes. The investigation was described as defective
on account of non-examination of independent witnesses,
delayed recording of statements, and failure to collect material
scientific evidence.
(viii) It was lastly submitted that the appellant is a
first offender, that the evidence on record does not establish
the charges beyond reasonable doubt, and that the impugned
judgment of conviction and order of sentence are liable to be
set aside. In the alternative, a prayer was made for suspension
of sentence and grant of bail during the pendency of the
appeal.
5. Submissions on behalf of the State
(i) Learned Additional Public Prosecutor appearing
on behalf of the State supported the impugned judgment of
conviction and order of sentence and submitted that the appeal
is devoid of merit.
(ii) It was contended that the learned trial court has
correctly appreciated the evidence on record and has recorded
concurrent findings of fact which do not warrant interference
in appellate jurisdiction. Learned counsel submitted that PW-2
Prem Kumar is a natural and reliable eye-witness to the
occurrence. His presence at the shop of the deceased, with
whom he was associated in business, is fully explained.
According to the State, this witness has given a consistent
account of having seen the appellant armed with a pistol, the
deceased attempting to flee, the appellant opening fire, and the
bullet hitting the deceased on the back.
(iii) It was further submitted that the evidence of
PW-2 finds material corroboration from the testimony of PW-
3 Dilip Kumar Gupta and PW-5 Sudhir Kamti. Both these
witnesses reached the place of occurrence immediately on
hearing the sound of firing. PW-5 has specifically deposed
that he saw the appellant running away from the spot. Their
presence is natural as they were associated with the shop of
the deceased, and their evidence lends assurance to the
version of the eye-witness.
(iv) Strong reliance was placed on the multiple oral
dying declarations made by the deceased. Learned Additional
Public Prosecutor submitted that the deceased, while still
conscious and soon after sustaining the injury, clearly named
the appellant as the assailant before PW-2, PW-3, PW-4 and
PW-6. These statements, being consistent and made at the
earliest opportunity, fully satisfy the requirements of Section
32(1) of the Indian Evidence Act, 1872, and constitute
relevant and reliable evidence pointing to the guilt of the
appellant.
(v) The medical evidence of PW-1 was described as
fully corroborative of the ocular account. The post-mortem
report establishes an ante-mortem firearm entry wound on the
back of the chest with blackening and tattooing, which is
consistent with the prosecution version that the deceased was
shot from behind while trying to escape.
(vi) As regards the discrepancy in the month of the
occurrence (August/October), it was submitted that the same
is minor and stands clarified by the contemporaneous
documents, namely the fardbeyan and the endorsement
thereon. Such discrepancies are natural and do not go to the
root of the prosecution case.
(vii) Learned counsel for the State further submitted
that the motive of the occurrence, i.e., the outstanding loan
and the prior threat held out by the appellant, stands
established through the evidence of the informant and other
witnesses. The non-recovery of the weapon, though a lacuna,
is not fatal in the face of reliable ocular and dying-declaration
evidence. The confessional statement recorded by the
Investigating Officer was referred to only as a supporting
circumstance.
(viii) It was lastly contended that the prosecution
has proved the charges under Section 302 of the Indian Penal
Code and Section 27 of the Arms Act against the appellant
beyond reasonable doubt. The learned trial court has assigned
cogent reasons for convicting the appellant, and the impugned
judgment does not suffer from any perversity or infirmity
warranting interference by this Court. The appeal, it was
prayed, deserves to be dismissed.
6. Points for Determination
On the basis of the rival submissions advanced on
behalf of the parties and upon perusal of the impugned
judgment and the evidence available on record, the following
points arise for determination in the present appeal:
(i) Whether the prosecution has been able to prove
beyond reasonable doubt that the appellant, Ravi Kumar @
Singharwa, intentionally caused the death of the deceased
Krishna Prasad @ Pahalwan by firing at him with a firearm on
25.08.2017?
(ii) Whether the oral statements attributed to the
deceased, alleged to have been made shortly after the
occurrence and naming the appellant as the assailant,
constitute reliable and admissible dying declarations under
Section 32(1) of the Indian Evidence Act, 1872, and whether
they inspire confidence?
(iii) Whether the evidence of PW-2 Prem Kumar
(claimed to be an eye-witness) and the evidence of PW-3
Dilip Kumar Gupta and PW-5 Sudhir Kamti (immediate post-
occurrence witnesses) is natural, consistent, reliable and
sufficient to establish the complicity of the appellant?
7. Analysis of Evidence
(i) The prosecution has examined seven witnesses.
PW-1 is the doctor who conducted the post-mortem; PW-2,
PW-3 and PW-5 are witnesses concerning the occurrence and
its immediate aftermath; PW-4 and PW-6 speak principally
about what was allegedly disclosed by the deceased; and PW-
7 is the Investigating Officer. The defence has examined one
witness, DW-1.
(ii) The evidence, therefore, has to be considered in
its proper compartments. The medical evidence establishes the
nature and cause of death; the question of identity of the
assailant rests upon the ocular and surrounding circumstances;
and the alleged statements made by the deceased require
separate consideration under Section 32(1) of the Indian
Evidence Act, 1872.
A. Medical Evidence (PW-1)
(i) PW-1 Dr. Mukesh Kumar conducted the post-
mortem examination on the body of Krishna Prasad @
Pahalwan on 27.08.2017 and proved the post-mortem report
(Ext. 1). The external examination disclosed an ante-mortem
firearm entry wound measuring ¼" × ¼" over the left side of
the back of the chest, one inch away from the mid-line at the
level of the fifth thoracic vertebra, with inverted margins and
surrounded by blackening and tattooing over an area of 8" ×
7". There were also surgical stitched wounds. On dissection,
the chest cavity contained about 500 ml of blood and blood
clots. The projectile had pierced the fifth thoracic vertebra and
the apical area of the right lung. No metallic object was
recovered from the body. The doctor opined that the cause of
death was haemorrhage and shock due to the chest injury and
that Injury No. 1 was caused by a firearm. The time since
death was estimated at 6 to 18 hours.
(ii) The medical evidence thus establishes that the
deceased sustained a fatal firearm injury from behind and that
the death was homicidal in nature. It lends medical support to
the prosecution version that the deceased had been shot in the
back.
(iii) At the same time, the evidence of PW-1 has
definite limits. The doctor does not identify the assailant. The
non-recovery of the projectile is also part of the medical
record. Consequently, while PW-1 establishes the nature and
cause of death, the identity of the person who fired the shot
has to be determined from the remaining evidence.
PW-2 Prem Kumar
(i) PW-2 Prem Kumar is an important witness
because he claims to have been present at the time of the
occurrence. According to him, on 25.08.2017 at about 8:00
p.m., while he was at the shop, the deceased proceeded ahead
and, after covering about 50 steps, the appellant Ravi @
Singharwa took out a pistol, threatened him and fired. The
deceased sustained injury on the back, fell down, and was
thereafter taken for treatment. PW-2 has identified the accused in Court.
(ii) The importance of PW-2’s evidence lies in the
fact that, unlike PW-4 and PW-6, he does not derive his
knowledge of the identity of the assailant solely from a
statement allegedly made by the deceased at the hospital. His
account is presented as direct observation of the occurrence
itself. He has further stated that the deceased, while being
taken to the hospital, was still conscious and was naming the
person who had shot him. At the same time, he does not claim
personal knowledge of the alleged monetary transaction or of
the precise conversation which allegedly took place between
the deceased and the accused before the firing.
(iii) His evidence has to be tested for naturalness of
presence, consistency with the evidence of PW-3 and PW-5,
consistency with the medical evidence, and consistency with
the earliest version recorded during investigation. The
material question is whether his account of the actual firing
withstands scrutiny when read as a whole.
PW-3 Dilip Kumar Gupta
(i) PW-3 Dilip Kumar Gupta states that he was a
friend of the deceased and had accompanied him for shaving.
After returning to the shop, the deceased started for home.
PW-3 thereafter heard the sound of firing, went to the spot
along with others, and found the deceased lying on the ground
with a firearm injury on the back. He participated in taking the
injured to the hospital and has deposed that the deceased
disclosed the name of the appellant as the assailant.
(ii) PW-3 is not an eye-witness to the actual act of
firing. His direct observation begins from the point when he
heard the gunshot and reached the place of occurrence. The
portion of his testimony relating to the identity of the assailant
is based on the statement attributed to the deceased and must
therefore be evaluated under Section 32(1) of the Evidence
Act.
PW-4 Anchit Raj
PW-4 Anchit Raj, the son of the deceased, has
candidly admitted that he was not present at the place of
occurrence. He received information from PW-2, went to the
hospital, and has deposed that his father, while conscious, told
him that Ravi had shot him. His evidence is relevant only as a
recipient of the alleged oral dying declaration and cannot be
treated as ocular evidence of the firing.
PW-5 Sudhir Kamti
(i) PW-5 Sudhir Kamti states that he was at the shop
when he heard the sound of firing. He reached the spot within
about 2-3 minutes, saw the deceased lying injured, and saw
the appellant running away from the place. He also helped in
taking the injured to the hospital.
(ii) PW-5 does not claim to have seen the actual
firing. His evidence is circumstantial in nature: he heard the
shot, reached the spot almost immediately, found the deceased
injured, and saw the appellant fleeing. The circumstance of
the accused being seen running away shortly after the firing is
relevant and proximate in time, but it cannot by itself be
equated with proof of the act of firing. His evidence can
consequently provide corroborative circumstances, but the
fact of fleeing cannot by itself be equated with proof of the
actual firing.
PW-6 Annu Gupta (Informant)
(i) PW-6 Annu Gupta, the wife of the deceased and
the informant, has stated that on the night of the incident, she
received information from her brother (PW-2) and went to the
hospital with her son. According to her, the deceased was
conscious and told her that Ravi had shot him. She has,
however, clearly admitted in cross-examination that neither
she nor her son had witnessed the occurrence.
(ii) Her evidence regarding the identity of the
assailant is therefore dependent on the alleged oral dying
declaration. The trial court noticed that she had at one place
stated the date of occurrence as 25.10.2017 instead of
25.08.2017. While the contemporaneous documents such as
fardbeyan and endorsement consistently mention August
2017, the discrepancy remains a relevant factor to be weighed
while assessing the overall reliability of the prosecution
version.
PW-7 Investigating Officer
(i) PW-7 Suchit Kumar has proved the formal steps
of investigation, the fardbeyan, endorsements, charge-sheet
and other documents. His cross-examination, however, brings
out several omissions: non-recovery of the weapon and the
projectile, non-examination of independent public witnesses,
and certain deficiencies in the recording of statements.
(ii) These lapses assume significance because the
identity of the assailant is the central issue. An investigation is
not to be discarded for every omission, yet omissions that
could have provided objective corroboration or contradiction
cannot be ignored.
(iii) The confessional statement of the appellant
(Ext. 6) recorded by the Investigating Officer when the
appellant was apprehended in a different case is hit by Section
25 of the Indian Evidence Act and cannot be used as
substantive evidence against him.
Defence Evidence
DW-1 has proved documents (bail bond relating to
an earlier Alaganj Police Station case and connected
signatures/documents) relating to a prior criminal case against
the deceased. Even if the deceased had criminal antecedents,
that circumstance does not, by itself, constitute a defence to
the present charge or establish that the appellant was not the
assailant. The defence evidence does not point to any
alternative assailant or offer any substantive explanation for
the fatal firearm injury.
Statement under Section 313 Cr.P.C.
(i) The appellant was examined under Section 313
of the Code of Criminal Procedure. All the material
incriminating circumstances appearing in the prosecution
evidence were put to him. The appellant denied the allegations
and the incriminating circumstances. He did not offer any
specific explanation or alternative version of the occurrence,
nor did he lead any substantive evidence in defence beyond
the formal evidence of DW-1 regarding the antecedents of the
deceased.
(ii) It is well settled that the statement of an accused
recorded under Section 313 Cr.P.C. is not substantive
evidence. It can be taken into consideration only to the limited
extent of explaining the circumstances appearing against him
or for the purpose of appreciating the truth or otherwise of the
prosecution version. The burden of proving the guilt of the
accused never shifts to the accused and remains always on the
prosecution.
(iii) In Reena Hazarika v. State of Assam, reported in (2019) 13 SCC 289, the Supreme Court emphasised that the object of Section 313 is to afford the accused an opportunity to explain the circumstances appearing against him, and that a false explanation or a false plea may, in appropriate cases, be
considered as an additional link in the chain of circumstances. However, the Court cautioned that the absence of a satisfactory explanation cannot by itself fill up the gaps in the prosecution evidence or relieve the prosecution of its primary burden.
Alleged Oral Dying Declarations
(i) The prosecution relies upon oral statements
attributed to the deceased and made to PW-2, PW-3, PW-4
and PW-6, naming the appellant as the person who shot him.
There is no dying declaration recorded by a Magistrate. The
evidentiary value of these oral statements depends on whether
they are found to be voluntary, consistent, and made while the
deceased was in a fit condition.
(ii) It must also be kept in mind that PW-3, PW-4
and PW-6 (and to some extent PW-2) are recounting what
they claim the deceased told them. Their evidence on the point
of identity derives from the same source. While consistent oral
dying declarations can lend assurance, they cannot be treated
as multiple independent eye-witness accounts.
Date and Time Discrepancies
The documentary record and the majority of the
evidence place the occurrence on 25.08.2017. The reference to
25.10.2017 by the informant (and at places by PW-4 and the
IO) has been treated by the trial court as an error of
recollection. There is also a minor variation in the exact time
(approximately 7:30 p.m. to 8:00 p.m.). These discrepancies
have to be evaluated in the light of the overall consistency of
the prosecution case rather than in isolation.
Synthesis
(i) The medical evidence establishes that the
deceased died as a result of a firearm injury sustained on the
back. The occurrence of a fatal shooting is therefore not in
doubt.
(ii) The prosecution seeks to connect the appellant
with the act of firing primarily through:
(a) the direct account of PW-2;
(b) the immediate post-occurrence evidence of PW-
3 and PW-5 (including the circumstance of the appellant being
seen fleeing);
(c) the oral dying declarations alleged to have been
made to PW-2, PW-3, PW-4 and PW-6; and
(d) the surrounding circumstances, including
motive.
(iii) The principal aspects that require careful
judicial scrutiny are: the reliability and naturalness of PW-2’s
presence and version; the weight to be attached to the oral
dying declarations made to interested witnesses; the
corroborative value of PW-5’s evidence of fleeing; the effect
of non-recovery of the weapon and projectile; the
investigative omissions; and the cumulative impact of the
discrepancies regarding date and time.
(iv) The trial court accepted the prosecution
evidence, treated the date discrepancy as immaterial, relied
upon the ocular account, the oral dying declarations and the
medical evidence, and held that the charges stood proved
beyond reasonable doubt. Whether that conclusion is
sustainable on a proper appraisal of the evidence is the
question that now falls for determination by this Court.
8. Legal Principles to be Applied
Before proceeding to the final evaluation of the evidence, it is necessary to recapitulate the settled legal
principles that govern the determination of the present appeal.
Appreciation of evidence of related and interested witnesses
(i) It is well settled that the evidence of a related or
interested witness is not to be discarded merely on the ground
of relationship or interest. In State of Rajasthan v. Kalki,
reported in (1981) 2 SCC 752, the Hon’ble Supreme Court
held that a related witness is not necessarily an interested
witness and that the evidence of such a witness cannot be
rejected on the mere ground of relationship. The real test is
whether the evidence is credible and trustworthy. The relevant
paragraph of the said judgment is reproduced below:
“7. As mentioned above the
High Court has declined to rely on the
evidence of PW 1 on two grounds: (1) she
was a “highly interested” witness
because she “is the wife of the deceased”,
and (2) there were discrepancies in her
evidence. With respect, in our opinion,
both the grounds are invalid. For, in the
circumstances of the case, she was the
only and most natural witness; she was
the only person present in the hut with the
deceased at the time of the occurrence,
and the only person who saw the
occurrence. True, it is, she is the wife of
the deceased; but she cannot be called an
“interested” witness. She is related to the
deceased. “Related” is not equivalent to
“interested”. A witness may be called
“interested” only when he or she derives
some benefit from the result of a
litigation; in the decree in a civil case, or
in seeing an accused person punished. A
witness who is a natural one and is the
only possible eyewitness in the
circumstances of a case cannot be said to
be “interested”. In the instant case PW 1
had no interest in protecting the real
culprit, and falsely implicating the
respondents.”
(ii) The evidence of a related witness should be
scrutinised with care, but if it is found reliable after such
scrutiny, it can form the basis of conviction. The same
principle has been consistently followed in later decisions,
including Raju v. State of T.N., (2012) 12 SCC 701.
Oral dying declarations
(i) A statement 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 is relevant under Section 32(1) of
the Evidence Act.
(ii) In the classic decision of Khushal Rao v. State
of Bombay, reported in AIR 1958 SC 22, the Hon’ble
Supreme Court held that a dying declaration can form the sole
basis of conviction if it is found to be voluntary and reliable.
No particular form is prescribed, and an oral dying declaration
is admissible.
(iii) The guiding principles were further elaborated
in Paniben v. State of Gujarat, reported in (1992) 2 SCC 474.
The Court must be satisfied that:
(a) the declarant was in a fit state of mind;
(b) the statement was voluntary and not the result of
tutoring or prompting;
(c) it is consistent in material particulars; and
(d) it inspires confidence.
(iv) For the sake of elaboration, the relevant
paragraph of the said judgment is reproduced below:
“18. Though a dying
declaration is entitled to great weight, it is
worthwhile to note that the accused has
no power of cross-examination. Such a
power is essential for eliciting the truth as
an obligation of oath could be. This is the
reason the Court also insists that the
dying declaration should be of such a
nature as to inspire full confidence of the
Court in its correctness. The Court has to
be on guard that the statement of deceased
was not as a result of either tutoring,
prompting or a product of imagination.
The Court must be further satisfied that
the deceased was in a fit state of mind
after a clear opportunity to observe and
identify the assailants. Once the Court is
satisfied that the declaration was true and
voluntary, undoubtedly, it can base its
conviction without any further
corroboration. It cannot be laid down as
an absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The
rule requiring corroboration is merely a
rule of prudence. This Court has laid
down in several judgments the principles
governing dying declaration, which could
be summed up as under:
(i) There is neither rule of law
nor of prudence that dying declaration
cannot be acted upon without
corroboration. (Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )
(ii) If the Court is satisfied that
the dying declaration is true and
voluntary it can base conviction on it,
without corroboration. (State of U.P. v.Ram Sagar Yadav [(1985) 1 SCC 552 :1985 SCC (Cri) 127 : AIR 1985 SC 416] ;Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983
SC 164] ).
(iii) This Court has to scrutinise the dying declaration carefully and must
ensure that the declaration is not the
result of tutoring, prompting or
imagination. The deceased had
opportunity to observe and identify the
assailants and was in a fit state to make
the declaration. (K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] ).
(iv) Where dying declaration is suspicious it should not be acted upon
without corroborative evidence. (Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 :1974 SCC (Cri) 426] )
(v) Where the deceased was
unconscious and could never make any
dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021] )
(vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981SCC (Cri) 581] )
(vii) Merely because a dying
declaration does not contain the details as
to the occurrence, it is not to be rejected.
(State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 :1981 SCC (Cri) 364 : AIR 1981 SC 617])
(viii) Equally, merely because it
is a brief statement, it is not to be
discarded. On the contrary, the shortness
of the statement itself guarantees truth.
(Surajdeo Oza v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] )
(ix) Normally the court in order
to satisfy itself whether the deceased was
in a fit mental condition to make the dying
declaration look up to the medical
opinion. But where the eyewitness has
said that the deceased was in a fit and
conscious state to make this dying
declaration, the medical opinion cannot
prevail. (Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )
(x) Where the prosecution
version differs from the version as given in
the dying declaration, the said declaration
cannot be acted upon. (State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989SCC (Cri) 585 : AIR 1989 SC 1519] )”
(v) In cases of oral dying declarations, greater caution is required. In State of M.P. v. Ramjan Khan, 2024
SCC OnLine SC 3070, the Hon’ble Supreme Court flagging
case-specific infirmities, such as uncorroborated, omitted
from FIR/Section 161 CrPC statement, interested witness etc.
emphasised that when an oral dying declaration is made
before close relatives or interested persons and is not recorded
contemporaneously, the Court must examine it with closer
scrutiny. The relevant paragraph of the sid judgment is
reproduced below:
17. Through the evidence of
PW8, the mother of the deceased, who is
also the informant, the prosecution has
attempted to establish the existence of an
oral dying declaration. It is to be noted
that dying declaration itself is not a
strong piece of evidence and therefore,
when it is verbal and that too, allegedly
made to a close relative (in this case
allegedly to the mother), evidence of
mother about the oral dying declaration
was to be treated with care and caution.
To show that the trial Court dealt with the
same without due care and caution self-
evident from paragraph 32 of the
judgment of the Trial Court, which reads
thus:-
“32. During the arguments, ld.
Counsel for the accused argued that
complainant Sitara Bi has stated in her
court statement that when she reached at
well, at that time, her son Naseem Khan
told her that all the three accused Ramjan
Khan, Musab Khan and Habib Khan have
caused his murder after beating him with
sickle, axe and lathi. Though, this fact is
not written in the police statement Exh.
D-3 of Sitara Bi that when he reached, at
that time, accused Naseem had told her to
be beaten by accused persons, even
thereafter, I don't find it proper to give it's
benefit to the accused persons because I
don't find any reason to disbelieve the
statement, which has been given by her
before the court.”
(vi) Consistency among multiple witnesses
recounting the same oral declaration may lend assurance, but
such consistency cannot be treated as independent
corroboration of the same quality as that of an unrelated eye-
witness.
Non-recovery of the weapon of offence and the projectile
(i) It is equally well settled that non-recovery of the weapon of offence or the bullet is not necessarily fatal to the prosecution case if the ocular evidence or the dying declaration is found to be reliable and receives corroboration from medical evidence. In Rakesh v. State of U.P., (2021) 7 SCC 188, the Hon’ble Supreme Court observed that the absence of the weapon does not ipso facto demolish the prosecution version when the other evidence is trustworthy. The relevant paragraph of the said judgment is reproduced below:
“12. Now so far as the submission on behalf of the accused that
as per the ballistic report the bullet found
does not match with the firearm/gun
recovered and therefore the use of gun as
alleged is doubtful and therefore benefit
of doubt must be given to the accused is
concerned, the aforesaid cannot be
accepted. At the most, it can be said that
the gun recovered by the police from the
accused may not have been used for
killing and therefore the recovery of the
actual weapon used for killing can be
ignored and it is to be treated as if there
is no recovery at all. For convicting an
accused recovery of the weapon used in
commission of offence is not a sine qua
non. PW 1 and PW 2, as observed
hereinabove, are reliable and trustworthy
eyewitnesses to the incident and they have
specifically stated that A-1 Rakesh fired
from the gun and the deceased sustained
injury. The injury by the gun has been
established and proved from the medical
evidence and the deposition of Dr
Santosh Kumar, PW 5. Injury 1 is by
gunshot. Therefore, it is not possible to
reject the credible ocular evidence of PW
1 and PW 2 — eyewitnesses who
witnessed the shooting. It has no bearing
on credibility of deposition of PW 1 and
PW 2 that A-1 shot deceased with a gun,
particularly as it is corroborated by
bullet in the body and also stands
corroborated by the testimony of PW 2
and PW 5. Therefore, merely because the
ballistic report shows that the bullet
recovered does not match with the gun
recovered, it is not possible to reject the
credible and reliable deposition of PW 1
and PW 2.”
(ii) At the same time, the non-recovery remains a relevant circumstance, particularly when the identity of the assailant is seriously disputed and scientific evidence could have provided objective support.
Scope of interference in an appeal against conviction
In an appeal against conviction, the appellate court exercises the same power as the trial court to review the evidence, subject to the well-known limitations attending the appreciation of oral evidence. It is under a duty to re-appreciate and re-examine the entire evidence on record, and is not confined to interfering only where the trial court's findings are perverse. Its jurisdiction to reverse a finding of conviction is co-extensive with the trial court’s original jurisdiction to render it. This principle has been reiterated in several decisions, including State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735, the relevant paragraph of which is reproduced below:
“5.2. The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the learned trial court. Being the first appellate court, the High Court was required to reappreciate the entire evidence on record and also the reasoning given by the learned trial court while convicting the accused. Non-reappreciation of the evidence on record may affect the case of either the prosecution or even the accused. Being the first appellate court, the High Court ought to have re-appreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the learned trial court.”
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