PRADEEP BISOI @ RANJIT BISOI versus THE STATE OF ODISHA on 10 October 2018

PRADEEP BISOI @ RANJIT BISOI

v.

THE STATE OF ODISHA

(Criminal Appeal No.1192 of 2018)

OCTOBER 10, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Code of Criminal Procedure, 1973 – s.161 – Statement ofinjured under, if can be treated as dying declaration after death –Brother of PW-1, informant attacked by the appellant-accused andlater died in hospital – Appellant convicted u/s.304 Part II, IPC –Plea of appellant that the statement of the injured-deceased recordedu/s.161 cannot be treated as dying declaration since his deathoccurred after more than three months – Held: s.32 of the 1872 Actdeals with cases in which statement of relevant fact by person whois dead or cannot be found etc. is relevant – Statement recorded bypolice u/s.161, CrPC falling within the provisions of Clause(1) ofs.32, 1872 Act is relevant and admissible – Trial Court rightly heldthat the statement of the injured-deceased was admissible u/s.32,1872 Act because it was regarding his cause of death and how hewas injured – Further, the statement made by the injured-deceasedfound corroboration from the injuries on his body and the sequencesof the events as claimed by the prosecution – No error in the judgmentof the trial court as well as of the High Court in relying on thestatement of the injured-deceased recorded by the IO – EvidenceAct, 1872 – s.32 – Penal Code, 1860 – s.304, Part II.

Dismissing the appeal, the Court

HELD: 1.1 Section 32 of the Evidence Act, 1872 dealswith cases in which statement of relevant fact by person who isdead or cannot be found etc. is relevant. Section 161, CrPC dealswith examination of witnesses by police. Section 162, CrPC dealswith “statements to police not to be signed– Use of Statementsin evidence”. [Paras 8, 9] [951-D; 952-C]

1.2 Sub-section (2) to Section 162, CrPC incorporates aclear exception to what has been laid down in sub-section (1).The statement recorded by police under Section 161, falling within

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[2018] 12 S.C.R.

Athe provisions of clause(1) of Section 32 of Indian Evidence Act,thus, is clearly relevant and admissible. Present is a case wherea statement was recorded by I.O. under Section 161 of the victimon 05.12.1990. Both the trial court and the High Court held thestatement relevant and placed reliance on the said statement.No error is found in the judgment of the trial court as well as ofBthe High Court in relying on the statement of the injured recordedby the I.O. on 05.12.1990. The trial court after appreciation ofevidence recorded the findings that deceased had acid injuriesas well as bomb blast injuries. In the acid attack, he lost his eye-sight and also lost his right foot. The trial court rightly held thatCstatement of deceased made on 05.12.1990 is admissible underSection 32 because it is regarding his cause of death and how hewas injured. [Paras 10, 15-17] [953-C; 960-E-F; 961-F]1.3 The injuries on the body of deceased fully support theprosecution case. The statement made by the deceased onD05.12.1990, thus, finds corroboration from the injuries on thebody of deceased and the sequences of the events and manner ofincidents as claimed by the prosecution. PW1, the informant fullysupported the prosecution case. [Para 18] [962-C]

Mukeshbhai Gopalbhai Barot v. State of GujaratE(2010) 8 SCALE 477 ;Sri Bhagwan v. State of UttarPradesh (2013) 12 SCC 137 : [2012] 12 SCR 774 ;Najjam Faraghi @ Nijjam Faruqui v. State of WestBengal(1998) 2 SCC 45 : [1997] 5 Suppl. SCR 148– relied on.

FLaxman v. State of Maharashtra (2002) 6 SCC 710 ;Paparambaka Rosamma and Others v. State of A.P.(1999) 7 SCC 695 : [1999] 2 Suppl. SCR 328 ;KoliChunilal Savji and Another v. State of Gujarat(1999) 9 SCC 562 : [1999] 3 Suppl. SCR 284 – referredto.

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Case Law Reference

(2002) 6 SCC 710 referred toPara 4(2010) 8 SCALE 477 relied onPara 5[2012] 12 SCR 774 relied onPara 5

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1192 of 2018.

From the Judgment and Order dated 25.01.2017 of the High Courtof Orissa, Cuttack in Criminal Appeal No. 311 of 1992.

Yasobant Das, Sr. Adv., B. B. Pradhan, M. A. Aleem Majid, KedarNath Tripathy, Advs. for the Appellant.

Sibo Sankar Mishra, Niranjan Sahu, Advs. for the Respondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This appeal has been filed by theaccused against the judgment of Orissa High Court dated 25.01.2017.The Orissa High Court vide the impugned judgment has dismissed thecriminal appeal filed by the appellant questioning his conviction underSection 304 Part II of the Indian Penal Code and sentence of five yearsrigorous imprisonment awarded by the trial court.

2. The prosecution case as is revealed from the record is thatBhaskar Sahu (deceased) on 28.11.1990 in the morning at 7.00 A.M.was going near Belapada by a bicycle. Near the Belapada bridge, theaccused threw a bomb towards the deceased, which hit the right leg ofBhaskar Sahu, the deceased, due to which he fell down on the road.Bhaskar Sahu when started running to save his life, accused came runningbefore the deceased and dealt a kati blow on right shoulder of BhaskarSahu on which he fell down thereafter the accused poured acid on head,face and chest of Bhaskar Sahu. Thereafter the accused and his friendsleft that place. One Khalia Pati belonging to the village of Bhaskar Sahutook the deceased with the help of bicycle. Thereafter brother of BhaskarSahu – Surendra Nath Sahu after receiving the news of assault camewith Tarini Sahu, KasinathBisoi and BidyadharBabu belonging to thevillage and got admitted Bhaskar Sahu in Berhampur Medical College.Suurendra Nath Sahu, the brother of Bhaskar Sahu lodged a FirstInformation Report naming the accused. First Information Report was B

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Alodged under Sections 324/326/286/34 IPC. The I.O. visited the spot on30.11.1990 and seized one blood stained stone and sample stone and oneyellow colour banian with smell of acid and prepared the seizure list.Some sample earth, one towel with smell of acid was also noticed.Thereafter the I.O. examined the witnesses. The I.O. on 05.12.1990showed arrest of the accused. On 05.12.1990 the I.O. recorded theBstatement of Bhaskar Sahu under Section 161 Cr.P.c. in which statementBhaskar Sahu named the accused, the persons, who has thrown thebomb, hit with kati and thrown acid on his face and head. The accusedwas challaned and PW1, the informant, PW2 – Dandopani Dass andPW3 – Prafulla Leuman Sahu were examined by the prosecution. I.O.C(PW4) – Prithandhi Moghi also appeared in the witness box. Thedeceased while still in hospital died on 25.03.1991. Defence examinedtwo witnesses namely DW1 – Ramesh Chandra Sahu and DW2 –Bidyadhar Sahu.

3. The trial court after analyzing the evidence on record andDhearing the counsel for the parties convicted the accused under Section304 Part II of the I.P.C. and awarded five years rigorous imprisonment.Aggrieved by the judgment of the trial court, the appeal was filed by theaccused in the High Court, which has been dismissed by the High Courtby the impugned judgment.

E4. Learned counsel for the appellant contends that there iscontradiction in the evidence of PW1 with other witnesses. There iscontradiction as to who took the injured to the hospital. The victimbecame unconscious and it is unbelievable that he informed the PW1that it was accused, who attacked him. The statement of injured recordedunder Section 161 Cr.P.C. cannot be treated as a dying declaration inFview of the well settled principle of law enunciated by a ConstitutionBench judgment of this Court in Laxman Vs. State of Maharashtra,(2002) 6 SCC 710, as to who is the author of the crime, both theCourts below arrived at the findings based on surmises and conjecturesand not on evidence on record.G

5. Learned counsel for the State refuting the submission of counselfor the appellant contends that on the basis of evidence on record, boththe Courts have rightly held the charge proved against the accused. Noerror has been committed by the Courts below relying on the statementmade by the injured on 05.12.1990 recorded by the I.O. Further, evidenceHof PW1, to whom deceased had informed that it was accused, who threw bomb and made kati attack and threw acid, has rightly been believedby the Courts below. It is submitted that the statement made by theinjured on 05.12.1990 was fully admissible and no error has beencommitted by the Courts below in relying the same. Learned counsel forthe State has placed reliance on judgment of this Court in MukeshbhaiGopalbhai Barot Vs. State of Gujarat, (2010) 8 SCALE 477 andSri Bhagwan Vs. State of Uttar Pradesh, (2013) 12 SCC 137.

6. We have considered the submissions of the learned counsel forthe parties and have perused the records.

7. The main thrust of submission of the learned counsel for theappellant is that statement recorded by I.O. on 05.12.1990 of the victimcannot be treated as dying declaration since death occurred after morethan three months. He submits that both Courts committed error intreating the said statement as dying declaration.

8. Section 32 of the Evidence Act deals with cases in whichstatement of relevant fact by person who is dead or cannot be foundetc. is relevant. Section 32 in so far as relevant in the present case is asfollows:- S.32. Cases in which statement of relevant fact by personwho is dead or cannot be found, etc., is relevant. ––Statements, written or verbal, of relevant facts made by a personwho is dead, or who cannot be found, or who has become incapableof giving evidence, or whose attendance cannot be procuredwithout an amount of delay or expense which under thecircumstances of the case appears to the Court unreasonable,are themselves relevant facts in the following cases: ––

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

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

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A Illustrations:

(a) The question is, whether A was murdered by B; or A died of injuries received in a transaction in the course ofwhich she was ravished. The question is whether she was ravishedby B; or B

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

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

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9. Other provisions relevant to be noticed are Section 161 andSection 162 of the Code of Criminal Procedure. Section 161 deals withexamination of witnesses by police. Section 162 deals with “statementsto police not to be signed – Use of Statements in evidence”. Section162 Cr.P.C. is as follows:- D

162. Statements to police not to be signed: Use ofstatements in evidence.—(1) No statement made by any personto a police officer in the course of an investigation under thisChapter, shall, if reduced to writing, be signed by the person makingit; nor shall any such statement or any record thereof, whether ina police diary or otherwise, or any part of such statement or record,be used for any purpose, save as hereinafter provided, at anyinquiry or trial in respect of any offence under investigation at thetime when such statement was made:

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

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

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

10. Sub-section (2) to Section 162 incorporate a clear exceptionto what has been laid down in sub-section (1). The statement recordedby police under Section 161, falling within the provisions of clause(1) ofSection 32 of Indian Evidence Act, thus, is clearly relevant and admissible.In Mukeshbhai Gopalbhai Barot (supra), this Court had occasion toconsider Sections 161 and 162 of Cr.P.C. and Section 32 of the EvidenceAct. In the above case, the victim, who received burn injuries on14.09.1993 was admitted to Civil Hospital. Her statement was recordedby Executive Magistrate and by the Police. The statement recorded bypolice under Section 161 Cr.P.C. was discarded by the High Court takingthe view that it had no evidentiary value. The view of the High Courtwas not accepted by this Court. In paragraph Nos. 4 and 5, this Courtheld that the statement of persons recorded under Section 161 can betreated as dying declaration after death. In paragraph Nos. 4 and 5,following has been laid down:-

“4. We have considered the arguments advanced by the learnedcounsel for the parties. At the very outset, we must deal with theobservations of the High Court that the dying declarations Ex.44and 48 could not be taken as evidence in view of the provisions ofSection 161 and 162 of the Cr.P.C. when read cumulatively. Thesefindings are, however, erroneous. Sub-Section (1) of Section 32of the Indian Evidence Act, 1872 deals with several situationsincluding the relevance of a statement made by a person who isdead. The provision reads as under:

Sec.32. Cases in which statements of relevant fact byperson who is dead or cannot be found, etc., is relevant. - A

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Statements, written or verbal, of relevant facts made by a personwho is dead, or who cannot be found, or who has becomeincapable of giving evidence, or whose attendance cannot beprocured without an amount of delay or expense which, underthe circumstances of the case, appears to the Courtunreasonable, are themselves relevant facts in the followingcases:-

(1) When it relates to cause of death. - When the statement ismade by a person as to the cause of his death, or as to any ofthe circumstances of the transaction which resulted in his death,in cases in which the cause of that person’s death comesinto question.

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

We see that the aforesaid dying declarations are relevant in viewof the above provision. Even otherwise, Section 161 and 162 ofthe Cr.P.C. admittedly provide for a restrictive use of the state-ments recorded during the course of the investigation but sub-Section (2) of Section 162 deals with a situation where the makerof the statement dies and reads as under:

“(2) Nothing in this section shall be deemed to apply to anystatement falling within the provisions of clause (1) of Section32 of the Indian Evidence Act, 1872 (1 of 1872), or to affectthe provisions of section 27 of that Act.”

5. A bare perusal of the aforesaid provision when read with Sec-tion 32 of the Indian Evidence Act would reveal that a statementof a person recorded under Section 161 would be treated as adying declaration after his death. The observation of the HighCourt that the dying declarations Ex.44 and 48 had no evidentiaryvalue, therefore, is erroneous. In this view of the matter, the firstdying declaration made to the Magistrate on 14th September 1993would, in fact, be the First Information Report in this case.”

11. A similar view has been expressed by this Court in Sri Bhagwan(supra), where this Court had occasion to consider Section 161 Cr.P.C.and Section 32 of the Indian Evidence Act. This Court dealt with astatement under Section 161 Cr.P.C. subsequent to death of the victim.In Para 20 to 24, following has been held:- “20. While keeping the above prescription in mind, when we testthe submission of the learned counsel for the appellant in the caseon hand at the time when Section 161 CrPC statement of thedeceased was recorded, the offence registered was under Section326 IPC having regard to the grievous injuries sustained by thevictim. PW 4 was not contemplating to record the dying declarationof the victim inasmuch as the victim was seriously injured andimmediately needed medical aid. Before sending him to the hospitalfor proper treatment PW 4 thought it fit to get the version aboutthe occurrence recorded from the victim himself that had takenplace and that is how Exhibit Ka-2 came to be recorded.Undoubtedly, the statement was recorded as one under Section161 CrPC. Subsequent development resulted in the death of thevictim on the next day and the law empowered the prosecution torely on the said statement by treating it as a dying declaration, thequestion for consideration is whether the submission put forth onbehalf of the respondent counsel merits acceptance.

21. Mr Ratnakar Dash, learned Senior Counsel made a specificreference to Section 162(2) CrPC in support of his submissionthat the said section carves out an exception and credence thatcan be given to a Section 161 CrPC statement by leaving it like adeclaration under Section 32(1) of the Evidence Act under certainexceptional circumstances. Section 162(2) CrPC reads as under:

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

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

“32. Cases in which statement of relevant fact by personwho is dead or cannot be found, etc. is relevant.—

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AStatements, written or verbal, of relevant facts made by a personwho is dead, or who cannot be found, or who has becomeincapable of giving evidence, or whose attendance cannot beprocured without an amount of delay or expense which underthe circumstances of the case appears to the courtunreasonable, are themselves relevant facts in the followingBcases:

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

23. Going by Section 32(1) of the Evidence Act, it is quite clearthat such statement would be relevant even if the person whomade the statement was or was not at the time when he made itwas under the expectation of death. Having regard to theextraordinary credence attached to such statement falling underSection 32(1) of the Evidence Act, time and again this Court hascautioned as to the extreme care and caution to be taken whilerelying upon such evidence recorded as a dying declaration.

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24. As far as the implication of Section 162(2) CrPC is concerned,as a proposition of law, unlike the excepted circumstances underwhich Section 161 CrPC statement could be relied upon, as rightlycontended by the learned Senior Counsel for the respondent, oncethe said statement though recorded under Section 161 CrPCassumes the character of dying declaration falling within the fourcorners of Section 32(1) of the Evidence Act, then whatevercredence that would apply to a declaration governed by Section32(1) should automatically deemed to apply in all force to such astatement though was once recorded under Section 161 CrPC.The above statement of law would result in a position that apurported recorded statement under Section 161 of a victim havingregard to the subsequent event of the death of the person makingthe statement who was a victim would enable the prosecuting F

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authority to rely upon the said statement having regard to thenature and content of the said statement as one of dying declarationas deeming it and falling under Section 32(1) of Evidence Act andthereby commend all the credence that would be applicable to adying declaration recorded and claimed as such.”

12. It is relevant to refer to judgment of this Court in NajjamFaraghi @ Nijjam Faruqui Vs. State of West Bengal, (1998) 2SCC 45. In the above case, the kerosene oil was poured on the victimand she was put on fire on 13.06.1985. She lived for about a month anddied on 31.07.1985. This Court referring to Section 32(1) held that merefact that victim died long after making the dying declaration, the statementdoes not looses its value. In Para 9, following has been held:-

“9. There is no merit in the contention that the appellant’s wifedied long after making the dying declarations and therefore thosestatements have no value. The contention overlooks the expressprovision in Section 32 of the Evidence Act. The second paragraphof sub-section (1) reads as follows:

“Such statements are relevant whether the person who madethem was or was not, at the time when they were made, underexpectation of death, and whatever may be the nature of theproceeding in which the cause of his death comes into question.”

No doubt it has been pointed out that when a person is expectinghis death to take place shortly he would not be indulging infalsehood. But that does not mean that such a statement loses itsvalue if the person lives for a longer time than expected. Thequestion has to be considered in each case on the facts andcircumstances established therein. If there is nothing on record toshow that the statement could not have been true or if the otherevidence on record corroborates the contents of the statements,the court can certainly accept the same and act upon it. In thepresent case both courts have discussed the entire evidence onrecord and found that two dying declarations contained in Exs. 5and 6 are acceptable.”

13. Much emphasis has been given by the learned counsel for theappellant on Constitution Bench judgment of this Court in Laxman Vs.State of Maharashtra (supra). The above constitution Bench wasconstituted to resolve the conflict between two Three-Judge Bench A

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Ajudgment of this Court, i.e. Paparambaka Rosamma and Others Vs.State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji and AnotherVs. State of Gujarat, (1999) 9 SCC 562. The facts of the case andconflicting views expressed in the above two cases has been noticed inParagraph Nos. 1 and 2, which are to the following effect:-

“In this criminal appeal, the conviction of the accused-appellant isbased upon the dying declaration of the deceased which wasrecorded by the Judicial Magistrate (PW 4). The learned SessionsJudge as well as the High Court held the dying declaration madeby the deceased to be truthful, voluntary and trustworthy. TheMagistrate in his evidence had stated that he had contacted thepatient through the medical officer on duty and after putting somequestions to the patient to find out whether she was able to makethe statement; whether she was set on fire; whether she wasconscious and able to make the statement and on being satisfiedhe recorded the statement of the deceased. There was a certificateof the doctor which indicates that the patient was conscious. TheHigh Court on consideration of the evidence of the Magistrate aswell as on the certificate of the doctor on the dying declarationrecorded by the Magistrate together with other circumstances onrecord came to the conclusion that the deceased Chandrakalawas physically and mentally fit and as such the dying declarationcan be relied upon. When the appeal against the judgment of theAurangabad Bench of the Bombay High Court was placed beforea three-Judge Bench of this Court, the counsel for the appellantrelied upon the decision of this Court in the case of PaparambakaRosamma v. State of A.P., (1999) 7 SCC 695 and contendedthat since the certification of the doctor was not to the effect thatthe patient was in a fit state of mind to make the statement, thedying declaration could not have been accepted by the Court toform the sole basis of conviction. On behalf of the counselappearing for the State another three-Judge Bench decision ofthis Court in the case of Koli Chunilal Savji v. State of Gujarat(1999) 9 SCCC 562 was relied upon wherein this Court has heldthat if the materials on record indicate that the deceased wasfully conscious and was capable of making a statement, the dyingdeclaration of the deceased thus recorded cannot be ignoredmerely because the doctor had not made the endorsement that B

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the deceased was in a fit state of mind to make the statement inquestion. Since the two aforesaid decisions expressed by twoBenches of three learned Judges was somewhat contradictorythe Bench by order dated 27-7-2002 referred the question to theConstitution Bench.

2. At the outset we make it clear that we are only resolving theso-called conflict between the aforesaid three-Judge Benchdecision of this Court, whereafter the criminal appeal will be placedbefore the Bench presided over by Justice M.B. Shah who hadreferred the matter to the Constitution Bench. We are, therefore,refraining from examining the evidence on record to come to aconclusion one way or the other and we are restricting ourconsiderations to the correctness of the two decisions referred tosupra.”

14. The Constitution Bench approved the view taken by laterjudgment in Koli Chunilal Savji (supra). In Paragraph No. 5, followinghas been laid down:- “5. The Court also in the aforesaid case relied upon the decisionof this Court in Harjit Kaur v. State of Punjab4wherein theMagistrate in his evidence had stated that he had ascertainedfrom the doctor whether she was in a fit condition to make astatement and obtained an endorsement to that effect and merelybecause an endorsement was made not on the declaration but onthe application would not render the dying declaration suspiciousin any manner. For the reasons already indicated earlier, we haveno hesitation in coming to the conclusion that the observations ofthis Court in Paparambaka Rosamma v. State of A.P. (1999) 7SCC 695 (at SCC p. 701, para 8) to the effect that

“in the absence of a medical certification that the injured wasin a fit state of mind at the time of making the declaration, itwould be very much risky to accept the subjective satisfactionof a Magistrate who opined that the injured was in a fit state ofmind at the time of making a declaration”

has been too broadly stated and is not the correct enunciation oflaw. It is indeed a hyper technical view that the certification ofthe doctor was to the effect that the patient is conscious and A

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Athere was no certification that the patient was in a fit state ofmind especially when the Magistrate categorically stated in hisevidence indicating the questions he had put to the patient andfrom the answers elicited was satisfied that the patient was in afit state of mind whereafter he recorded the dying declaration.Therefore, the judgment of this Court in Paparambaka RosammaBv. State of A.P. (1999) 7 SCC 695 must be held to be not correctlydecided and we affirm the law laid down by this Court in KoliChunilal Savji v. State of Gujarat (1999) 9 SCC 562.”

15. The view expressed by Three-Judge Bench in PaparambakaRosamma (supra) that in the absence of medical certification that theCinjured was in a fit state of mind at the time of making the declaration, itwould be very much risky to accept the subjective satisfaction of aMagistrate who opined that the injured was in a fit state of mind at thetime of making a declaration, does not lay down a correct law. Thus, theConstitution bench was only considering the question of nature of medical Dcertification regarding fitness of victim to make a dying declaration. Theproposition laid down in the above case does not in any manner supportthe contention raised by the counsel for the appellant in the presentcase. Present is a case where a statement was recorded by I.O. underSection 161 of the victim on 05.12.1990. Both the trial court and theHigh Court held the statement relevant and placed reliance on the saidEstatement.

16. We have noticed that this Court has laid down that statementunder Section 161 Cr.P.C., which is covered under Section 32(1) isrelevant and admissible. Thus, we do not find any error in the judgmentof the trial court as well as of the High Court in relying on the statementFof the injured recorded by the I.O. on 05.12.1990. It is also relevant tonotice that I.O. in his cross-examination has stated that he went on thenight of 30.11.1990 to the Medical College to record the statement butas his condition was serious, he was not examined. Thus, reliance onthe statement made on 05.12.1990 to the I.O. does not lead to anyGsuspicious circumstances so as to discard the value of such statement.The statement, which was made by the victim on 05.12.1990 was to thefollowing effect:- “My name is Bhaskar Sahu, S/o. Kaibalya Sahu, present/permanentResident of Village - Langal Dei, P.S. Digapahandi Dist. Gangnam, H

Today, i.e. on 05.12.1920, being at the Medical College ward Ihereby give my verbal statement that, I was going to Belapadafrom our Village Langal Del on 28.11.1990 at about 6:30 to7:00 O’clock on my bi-cycle. On my way near the bridge ofBelapada Village, inhabitant of our village namely Pradeep Bisoi,S/o. Madhab Bisoi and some of his friends were waiting to killme. They had come by a Scoter. I don’t know others. Near theBelapada Bridge, all of a sudden Pradeep Bisoi threw aBombtowards me which was defused after hitting my right leg for whichI fell down on the road. When I started running, trying to save mylife, at that time Pradeep Bisoi came running after me and dealt akati blow on my right solder, for which I fell down bloodstained.Thereafter from a bottle carried by him, he poured acid on myhead, face, chest and also on my entire body To save my life. Ithrew away my black color vest from my body. Looking at mycritical condition, Pradeep Bisoi and his friends left that place.After that, the son of Khalia Pati of our village saw me, and whiletaking me by the help of a cycle, my brother Surendar Sahu gotthat news and Tarini Sahu, and Kishnath Bisoi and BidhyadharaBabu of our village reached to me and my brother immediatelyadmitted me in the Berhampur Medical Collage. Otherwise I wouldhave died on the spot. Because of our previous enmity, PradeepBisoi was trying to kill me. But I was just saved. There is nochance of my survival.”

17. The trial court after appreciation of evidence recorded thefindings that deceased had acid injuries as well as bomb blast injuries.In the acid attack, he has lost his eye-sight and also lost his right foot.The trial court has rightly held that statement of deceased made on05.12.1990 is admissible under Section 32 because it is regarding hiscause of death and how he was injured. In para 8 of the judgment, trialcourt has recorded as follows:- “8. From the medical report it is clear that the deceased washaving acid injury and bomb blasting injury and during the treatmenthe died in the hospital. Now it is to be seen who has caused thoseacid and bomb blast injuries on the person of the deceased. Thereis no eye witness to the occurrence. The deceased had giveninformation to the P.W.1 and also to the I.O. P.W.1 says that he AB

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Alearnt from the deceased that accused assaulted him and threwacid on his face, and other parts of his body and he reported thematter to the police, after knowing the fact from the deceased,vide Ext. 12. It is also clear from the evidence of P.W.3 that hecarried the deceased to the hospital, who had sustained injuries.The statement of the deceased to P.W.1 is admissible under 32 ofBthe Evidence Act. Because, it gives regarding his cause of deathand how he was injured.”

18. The injuries on the body of deceased fully support theprosecution case. The statement made by the deceased on 05.12.1990,thus, finds corroboration from the injuries on the body of deceased andCthe sequences of the events and manner of incidents as claimed by theprosecution. The PW1, the informant has fully supported the prosecutioncase.

19. The High Court while dismissing the appeal has also madeobservation that conviction and sentence of the accused was for a lesserDoffence and lenient one.

20. We having gone through the evidence on record are fullysatisfied that the trial court did not commit any error in convicting theappellant. High Court while deciding the appeal has also analysed theevidence on record and has rightly dismissed the appeal. We, thus, doEnot find any merit in this appeal, which is dismissed.

Divya Pandey

Appeal dismissed.

F

G

H