PRADEEP BISOI @ RANJIT BISOIversusTHE STATE OF ODISHA

                        [2018] 12 S.C.R. 947                             947


               PRADEEP BISOI @ RANJIT BISOI                              A
                                  v.
                     THE STATE OF ODISHA
                 (Criminal Appeal No.1192 of 2018)
                        OCTOBER 10, 2018                                 B
          [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
       Code of Criminal Procedure, 1973 – s.161 – Statement of
injured under, if can be treated as dying declaration after death –
Brother of PW-1, informant attacked by the appellant-accused and
                                                                         C
later died in hospital – Appellant convicted u/s.304 Part II, IPC –
Plea of appellant that the statement of the injured-deceased recorded
u/s.161 cannot be treated as dying declaration since his death
occurred after more than three months – Held: s.32 of the 1872 Act
deals with cases in which statement of relevant fact by person who
is dead or cannot be found etc. is relevant – Statement recorded by      D
police u/s.161, CrPC falling within the provisions of Clause(1) of
s.32, 1872 Act is relevant and admissible – Trial Court rightly held
that the statement of the injured-deceased was admissible u/s.32,
1872 Act because it was regarding his cause of death and how he
was injured – Further, the statement made by the injured-deceased
                                                                         E
found corroboration from the injuries on his body and the sequences
of the events as claimed by the prosecution – No error in the judgment
of the trial court as well as of the High Court in relying on the
statement of the injured-deceased recorded by the IO – Evidence
Act, 1872 – s.32 – Penal Code, 1860 – s.304, Part II.
                                                                         F
      Dismissing the appeal, the Court
      HELD: 1.1 Section 32 of the Evidence Act, 1872 deals
with cases in which statement of relevant fact by person who is
dead or cannot be found etc. is relevant. Section 161, CrPC deals
with examination of witnesses by police. Section 162, CrPC deals
with “statements to police not to be signed– Use of Statements           G
in evidence”. [Paras 8, 9] [951-D; 952-C]
      1.2 Sub-section (2) to Section 162, CrPC incorporates a
clear 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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                                 947
948            SUPREME COURT REPORTS                     [2018] 12 S.C.R.


A     the provisions of clause(1) of Section 32 of Indian Evidence Act,
      thus, is clearly relevant and admissible. Present is a case where
      a statement was recorded by I.O. under Section 161 of the victim
      on 05.12.1990. Both the trial court and the High Court held the
      statement relevant and placed reliance on the said statement.
      No error is found in the judgment of the trial court as well as of
B
      the High Court in relying on the statement of the injured recorded
      by the I.O. on 05.12.1990. The trial court after appreciation of
      evidence recorded the findings that deceased had acid injuries
      as well as bomb blast injuries. In the acid attack, he lost his eye-
      sight and also lost his right foot. The trial court rightly held that
C     statement of deceased made on 05.12.1990 is admissible under
      Section 32 because it is regarding his cause of death and how he
      was injured. [Paras 10, 15-17] [953-C; 960-E-F; 961-F]
            1.3 The injuries on the body of deceased fully support the
      prosecution case. The statement made by the deceased on
D     05.12.1990, thus, finds corroboration from the injuries on the
      body of deceased and the sequences of the events and manner of
      incidents as claimed by the prosecution. PW1, the informant fully
      supported the prosecution case. [Para 18] [962-C]
            Mukeshbhai Gopalbhai Barot v. State of Gujarat
E           (2010) 8 SCALE 477 ; Sri Bhagwan v. State of Uttar
            Pradesh (2013) 12 SCC 137 : [2012] 12 SCR 774 ;
            Najjam Faraghi @ Nijjam Faruqui v. State of West
            Bengal (1998) 2 SCC 45 : [1997] 5 Suppl. SCR 148
            – relied on.

F           Laxman 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 ; Koli
            Chunilal Savji and Another v. State of Gujarat
            (1999) 9 SCC 562 : [1999] 3 Suppl. SCR 284 – referred
            to.
G
                             Case Law Reference
            (2002) 6 SCC 710            referred to          Para 4
            (2010) 8 SCALE 477          relied on            Para 5
            [2012] 12 SCR 774           relied on            Para 5
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   PRADEEP BISOI @ RANJIT BISOI v. STATE OF ODISHA                          949


      [1997] 5 Suppl. SCR 148             relied on         Para 12         A
      [1999] 2 Suppl. SCR 328             referred to       Para 13
      [1999] 3 Suppl. SCR 284             referred to       Para 13


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                     B
No. 1192 of 2018.
      From the Judgment and Order dated 25.01.2017 of the High Court
of Orissa, Cuttack in Criminal Appeal No. 311 of 1992.
      Yasobant Das, Sr. Adv., B. B. Pradhan, M. A. Aleem Majid, Kedar
                                                                            C
Nath 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 the
accused against the judgment of Orissa High Court dated 25.01.2017.         D
The Orissa High Court vide the impugned judgment has dismissed the
criminal appeal filed by the appellant questioning his conviction under
Section 304 Part II of the Indian Penal Code and sentence of five years
rigorous imprisonment awarded by the trial court.
        2. The prosecution case as is revealed from the record is that      E
Bhaskar Sahu (deceased) on 28.11.1990 in the morning at 7.00 A.M.
was going near Belapada by a bicycle. Near the Belapada bridge, the
accused threw a bomb towards the deceased, which hit the right leg of
Bhaskar Sahu, the deceased, due to which he fell down on the road.
Bhaskar Sahu when started running to save his life, accused came running    F
before the deceased and dealt a kati blow on right shoulder of Bhaskar
Sahu on which he fell down thereafter the accused poured acid on head,
face and chest of Bhaskar Sahu. Thereafter the accused and his friends
left that place. One Khalia Pati belonging to the village of Bhaskar Sahu
took the deceased with the help of bicycle. Thereafter brother of Bhaskar
Sahu – Surendra Nath Sahu after receiving the news of assault came          G
with Tarini Sahu, KasinathBisoi and BidyadharBabu belonging to the
village and got admitted Bhaskar Sahu in Berhampur Medical College.
Suurendra Nath Sahu, the brother of Bhaskar Sahu lodged a First
Information Report naming the accused. First Information Report was
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950            SUPREME COURT REPORTS                         [2018] 12 S.C.R.


A     lodged under Sections 324/326/286/34 IPC. The I.O. visited the spot on
      30.11.1990 and seized one blood stained stone and sample stone and one
      yellow colour banian with smell of acid and prepared the seizure list.
      Some sample earth, one towel with smell of acid was also noticed.
      Thereafter the I.O. examined the witnesses. The I.O. on 05.12.1990
      showed arrest of the accused. On 05.12.1990 the I.O. recorded the
B
      statement of Bhaskar Sahu under Section 161 Cr.P.c. in which statement
      Bhaskar Sahu named the accused, the persons, who has thrown the
      bomb, hit with kati and thrown acid on his face and head. The accused
      was challaned and PW1, the informant, PW2 – Dandopani Dass and
      PW3 – Prafulla Leuman Sahu were examined by the prosecution. I.O.
C     (PW4) – Prithandhi Moghi also appeared in the witness box. The
      deceased while still in hospital died on 25.03.1991. Defence examined
      two witnesses namely DW1 – Ramesh Chandra Sahu and DW2 –
      Bidyadhar Sahu.
             3. The trial court after analyzing the evidence on record and
D     hearing the counsel for the parties convicted the accused under Section
      304 Part II of the I.P.C. and awarded five years rigorous imprisonment.
      Aggrieved by the judgment of the trial court, the appeal was filed by the
      accused in the High Court, which has been dismissed by the High Court
      by the impugned judgment.
E             4. Learned counsel for the appellant contends that there is
      contradiction in the evidence of PW1 with other witnesses. There is
      contradiction as to who took the injured to the hospital. The victim
      became unconscious and it is unbelievable that he informed the PW1
      that it was accused, who attacked him. The statement of injured recorded
      under Section 161 Cr.P.C. cannot be treated as a dying declaration in
F     view of the well settled principle of law enunciated by a Constitution
      Bench judgment of this Court in Laxman Vs. State of Maharashtra,
      (2002) 6 SCC 710, as to who is the author of the crime, both the
      Courts below arrived at the findings based on surmises and conjectures
      and not on evidence on record.
G            5. Learned counsel for the State refuting the submission of counsel
      for the appellant contends that on the basis of evidence on record, both
      the Courts have rightly held the charge proved against the accused. No
      error has been committed by the Courts below relying on the statement
      made by the injured on 05.12.1990 recorded by the I.O. Further, evidence
H     of PW1, to whom deceased had informed that it was accused, who
   PRADEEP BISOI @ RANJIT BISOI v. STATE OF ODISHA                             951
                [ASHOK BHUSHAN, J.]

threw bomb and made kati attack and threw acid, has rightly been believed      A
by the Courts below. It is submitted that the statement made by the
injured on 05.12.1990 was fully admissible and no error has been
committed by the Courts below in relying the same. Learned counsel for
the State has placed reliance on judgment of this Court in Mukeshbhai
Gopalbhai Barot Vs. State of Gujarat, (2010) 8 SCALE 477 and
                                                                               B
Sri Bhagwan Vs. State of Uttar Pradesh, (2013) 12 SCC 137.
      6. We have considered the submissions of the learned counsel for
the parties and have perused the records.
       7. The main thrust of submission of the learned counsel for the
appellant is that statement recorded by I.O. on 05.12.1990 of the victim       C
cannot be treated as dying declaration since death occurred after more
than three months. He submits that both Courts committed error in
treating the said statement as dying declaration.
        8. Section 32 of the Evidence Act deals with cases in which
statement of relevant fact by person who is dead or cannot be found            D
etc. is relevant. Section 32 in so far as relevant in the present case is as
follows:-
      S.32. Cases in which statement of relevant fact by person
      who is dead or cannot be found, etc., is relevant. ––
      Statements, written or verbal, of relevant facts made by a person        E
      who is dead, or who cannot be found, or who has become incapable
      of giving evidence, or whose attendance cannot be procured
      without an amount of delay or expense which under the
      circumstances of the case appears to the Court unreasonable,
      are themselves relevant facts in the following cases: ––
                                                                               F
      (1) When it relates to cause of death. –– When the statement
      is made by a person as to the cause of his death, or as to any of
      the circumstances of the transaction which resulted in his death,
      in cases in which the cause of that person’s death comes into
      question.
                                                                               G
                Such statements are relevant whether the person who
      made them was or was not, at the time when they were made,
      under expectation of death, and whatever may be the nature of
      the proceeding in which the cause of his death comes into question.
                                xxxxxxxxxxxxxx
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952            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A              Illustrations:
                 (a) The question is, whether A was murdered by B; or
                A died of injuries received in a transaction in the course of
            which she was ravished. The question is whether she was ravished
            by B; or
B
                The question is, whether A was killed by B under such
            circumstances that a suit would lie against B by A’s widow.
                 Statements made by A as to the cause of his or her death,
            referring respectively to the murder, the rape and the actionable
C           wrong under consideration, are relevant facts.
             9. Other provisions relevant to be noticed are Section 161 and
      Section 162 of the Code of Criminal Procedure. Section 161 deals with
      examination of witnesses by police. Section 162 deals with “statements
      to police not to be signed – Use of Statements in evidence”. Section
D     162 Cr.P.C. is as follows:-
            162. Statements to police not to be signed: Use of
            statements in evidence.—(1) No statement made by any person
            to a police officer in the course of an investigation under this
            Chapter, shall, if reduced to writing, be signed by the person making
            it; nor shall any such statement or any record thereof, whether in
E
            a police diary or otherwise, or any part of such statement or record,
            be used for any purpose, save as hereinafter provided, at any
            inquiry or trial in respect of any offence under investigation at the
            time when such statement was made:
            Provided that when any witness is called for the prosecution in
F
            such inquiry or trial whose statement has been reduced into writing
            as aforesaid, any part of his statement, if duly proved, may be
            used by the accused, and with the permission of the Court, by the
            prosecution, to contradict such witness in the manner provided by
            section 145 of the Indian Evidence Act , 1872 (1 of 1872); and
G           when any part of such statement is so used, any part thereof may
            also be used in the re-examination of such witness, but for the
            purpose only of explaining any matter referred to in his cross-
            examination.


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   PRADEEP BISOI @ RANJIT BISOI v. STATE OF ODISHA                             953
                [ASHOK BHUSHAN, J.]

      (2) Nothing in this section shall be deemed to apply to any statement    A
      falling within the provisions of clause (1) of section 32 of the
      Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions
      of section 27 of that Act.
      Explanation.—An omission to state a fact or circumstance in the
      statement referred to in sub-section (1) may amount to                   B
      contradiction if the same appears to be significant and otherwise
      relevant having regard to the context in which such omission occurs
      and whether any omission amounts to a contradiction in the
      particular context shall be a question of fact.
       10. Sub-section (2) to Section 162 incorporate a clear exception        C
to what has been laid down in sub-section (1). The statement recorded
by police under Section 161, falling within the provisions of clause(1) of
Section 32 of Indian Evidence Act, thus, is clearly relevant and admissible.
In Mukeshbhai Gopalbhai Barot (supra), this Court had occasion to
consider Sections 161 and 162 of Cr.P.C. and Section 32 of the Evidence
Act. In the above case, the victim, who received burn injuries on              D
14.09.1993 was admitted to Civil Hospital. Her statement was recorded
by Executive Magistrate and by the Police. The statement recorded by
police under Section 161 Cr.P.C. was discarded by the High Court taking
the view that it had no evidentiary value. The view of the High Court
was not accepted by this Court. In paragraph Nos. 4 and 5, this Court          E
held that the statement of persons recorded under Section 161 can be
treated as dying declaration after death. In paragraph Nos. 4 and 5,
following has been laid down:-
      “4. We have considered the arguments advanced by the learned
      counsel for the parties. At the very outset, we must deal with the       F
      observations of the High Court that the dying declarations Ex.44
      and 48 could not be taken as evidence in view of the provisions of
      Section 161 and 162 of the Cr.P.C. when read cumulatively. These
      findings are, however, erroneous. Sub-Section (1) of Section 32
      of the Indian Evidence Act, 1872 deals with several situations
      including the relevance of a statement made by a person who is           G
      dead. The provision reads as under:
               Sec.32. Cases in which statements of relevant fact by
          person who is dead or cannot be found, etc., is relevant. -

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954      SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A        Statements, written or verbal, of relevant facts made by a person
         who is dead, or who cannot be found, or who has become
         incapable of giving evidence, or whose attendance cannot be
         procured without an amount of delay or expense which, under
         the circumstances of the case, appears to the Court
         unreasonable, are themselves relevant facts in the following
B
         cases:-
         (1) When it relates to cause of death. - When the statement is
         made by a person as to the cause of his death, or as to any of
         the circumstances of the transaction which resulted in his death,
         in cases in which the cause of that person’s death comes
C        into question.
         Such statements are relevant whether the person who made
         them was or was not, at the time when they were made, under
         expectation of death, and whatever may be the nature of the
         proceeding in which the cause of his death comes into question.”
D
      We see that the aforesaid dying declarations are relevant in view
      of the above provision. Even otherwise, Section 161 and 162 of
      the 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 maker
E     of the statement dies and reads as under:
         “(2) Nothing in this section shall be deemed to apply to any
         statement falling within the provisions of clause (1) of Section
         32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect
         the provisions of section 27 of that Act.”
F
      5. A bare perusal of the aforesaid provision when read with Sec-
      tion 32 of the Indian Evidence Act would reveal that a statement
      of a person recorded under Section 161 would be treated as a
      dying declaration after his death. The observation of the High
      Court that the dying declarations Ex.44 and 48 had no evidentiary
G     value, therefore, is erroneous. In this view of the matter, the first
      dying declaration made to the Magistrate on 14th September 1993
      would, in fact, be the First Information Report in this case.”



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   PRADEEP BISOI @ RANJIT BISOI v. STATE OF ODISHA                            955
                [ASHOK BHUSHAN, J.]

      11. A similar view has been expressed by this Court in Sri Bhagwan      A
(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 a
statement 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 test         B
      the submission of the learned counsel for the appellant in the case
      on hand at the time when Section 161 CrPC statement of the
      deceased was recorded, the offence registered was under Section
      326 IPC having regard to the grievous injuries sustained by the
      victim. PW 4 was not contemplating to record the dying declaration
      of the victim inasmuch as the victim was seriously injured and          C
      immediately needed medical aid. Before sending him to the hospital
      for proper treatment PW 4 thought it fit to get the version about
      the occurrence recorded from the victim himself that had taken
      place and that is how Exhibit Ka-2 came to be recorded.
      Undoubtedly, the statement was recorded as one under Section            D
      161 CrPC. Subsequent development resulted in the death of the
      victim on the next day and the law empowered the prosecution to
      rely on the said statement by treating it as a dying declaration, the
      question for consideration is whether the submission put forth on
      behalf of the respondent counsel merits acceptance.
                                                                              E
      21. Mr Ratnakar Dash, learned Senior Counsel made a specific
      reference to Section 162(2) CrPC in support of his submission
      that the said section carves out an exception and credence that
      can be given to a Section 161 CrPC statement by leaving it like a
      declaration under Section 32(1) of the Evidence Act under certain
      exceptional circumstances. Section 162(2) CrPC reads as under:          F

         “162. (2) Nothing in this section shall be deemed to apply to
         any statement falling within the provisions of clause (1) of
         Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to
         affect the provisions of Section 27 of that Act.”
                                                                              G
      22. Under Section 32(1) of the Evidence Act it has been provided
      as under:
         “32. Cases in which statement of relevant fact by person
         who is dead or cannot be found, etc. is relevant.—
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956            SUPREME COURT REPORTS                         [2018] 12 S.C.R.


A              Statements, written or verbal, of relevant facts made by a person
               who is dead, or who cannot be found, or who has become
               incapable of giving evidence, or whose attendance cannot be
               procured without an amount of delay or expense which under
               the circumstances of the case appears to the court
               unreasonable, are themselves relevant facts in the following
B
               cases:
            (1) When it relates to cause of death.—When the statement is
      made by a person as to the cause of his death, or as to any of the
      circumstances of the transaction which resulted in his death, in cases in
      which the cause of that person’s death comes into question.
C
             Such statements are relevant whether the person who made them
      was or was not, at the time when they were made, under expectation of
      death, and whatever may be the nature of the proceeding in which the
      cause of his death comes into question.”

D           23. Going by Section 32(1) of the Evidence Act, it is quite clear
            that such statement would be relevant even if the person who
            made the statement was or was not at the time when he made it
            was under the expectation of death. Having regard to the
            extraordinary credence attached to such statement falling under
            Section 32(1) of the Evidence Act, time and again this Court has
E           cautioned as to the extreme care and caution to be taken while
            relying upon such evidence recorded as a dying declaration.
            24. As far as the implication of Section 162(2) CrPC is concerned,
            as a proposition of law, unlike the excepted circumstances under
            which Section 161 CrPC statement could be relied upon, as rightly
F           contended by the learned Senior Counsel for the respondent, once
            the said statement though recorded under Section 161 CrPC
            assumes the character of dying declaration falling within the four
            corners of Section 32(1) of the Evidence Act, then whatever
            credence that would apply to a declaration governed by Section
G           32(1) should automatically deemed to apply in all force to such a
            statement though was once recorded under Section 161 CrPC.
            The above statement of law would result in a position that a
            purported recorded statement under Section 161 of a victim having
            regard to the subsequent event of the death of the person making
            the statement who was a victim would enable the prosecuting
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   PRADEEP BISOI @ RANJIT BISOI v. STATE OF ODISHA                             957
                [ASHOK BHUSHAN, J.]

      authority to rely upon the said statement having regard to the           A
      nature and content of the said statement as one of dying declaration
      as deeming it and falling under Section 32(1) of Evidence Act and
      thereby commend all the credence that would be applicable to a
      dying declaration recorded and claimed as such.”
       12. It is relevant to refer to judgment of this Court in Najjam         B
Faraghi @ Nijjam Faruqui Vs. State of West Bengal, (1998) 2
SCC 45. In the above case, the kerosene oil was poured on the victim
and she was put on fire on 13.06.1985. She lived for about a month and
died on 31.07.1985. This Court referring to Section 32(1) held that mere
fact that victim died long after making the dying declaration, the statement
does not looses its value. In Para 9, following has been held:-                C

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

          “Such statements are relevant whether the person who made
          them was or was not, at the time when they were made, under
          expectation of death, and whatever may be the nature of the
          proceeding in which the cause of his death comes into question.”
                                                                               E
      No doubt it has been pointed out that when a person is expecting
      his death to take place shortly he would not be indulging in
      falsehood. But that does not mean that such a statement loses its
      value if the person lives for a longer time than expected. The
      question has to be considered in each case on the facts and
      circumstances established therein. If there is nothing on record to      F
      show that the statement could not have been true or if the other
      evidence on record corroborates the contents of the statements,
      the court can certainly accept the same and act upon it. In the
      present case both courts have discussed the entire evidence on
      record and found that two dying declarations contained in Exs. 5         G
      and 6 are acceptable.”
      13. Much emphasis has been given by the learned counsel for the
appellant on Constitution Bench judgment of this Court in Laxman Vs.
State of Maharashtra (supra). The above constitution Bench was
constituted to resolve the conflict between two Three-Judge Bench
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958            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     judgment of this Court, i.e. Paparambaka Rosamma and Others Vs.
      State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji and Another
      Vs. State of Gujarat, (1999) 9 SCC 562. The facts of the case and
      conflicting views expressed in the above two cases has been noticed in
      Paragraph Nos. 1 and 2, which are to the following effect:-
B           “In this criminal appeal, the conviction of the accused-appellant is
            based upon the dying declaration of the deceased which was
            recorded by the Judicial Magistrate (PW 4). The learned Sessions
            Judge as well as the High Court held the dying declaration made
            by the deceased to be truthful, voluntary and trustworthy. The
            Magistrate in his evidence had stated that he had contacted the
C           patient through the medical officer on duty and after putting some
            questions to the patient to find out whether she was able to make
            the statement; whether she was set on fire; whether she was
            conscious and able to make the statement and on being satisfied
            he recorded the statement of the deceased. There was a certificate
D           of the doctor which indicates that the patient was conscious. The
            High Court on consideration of the evidence of the Magistrate as
            well as on the certificate of the doctor on the dying declaration
            recorded by the Magistrate together with other circumstances on
            record came to the conclusion that the deceased Chandrakala
            was physically and mentally fit and as such the dying declaration
E           can be relied upon. When the appeal against the judgment of the
            Aurangabad Bench of the Bombay High Court was placed before
            a three-Judge Bench of this Court, the counsel for the appellant
            relied upon the decision of this Court in the case of Paparambaka
            Rosamma v. State of A.P., (1999) 7 SCC 695 and contended
F           that since the certification of the doctor was not to the effect that
            the patient was in a fit state of mind to make the statement, the
            dying declaration could not have been accepted by the Court to
            form the sole basis of conviction. On behalf of the counsel
            appearing for the State another three-Judge Bench decision of
            this Court in the case of Koli Chunilal Savji v. State of Gujarat
G           (1999) 9 SCCC 562 was relied upon wherein this Court has held
            that if the materials on record indicate that the deceased was
            fully conscious and was capable of making a statement, the dying
            declaration of the deceased thus recorded cannot be ignored
            merely because the doctor had not made the endorsement that
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   PRADEEP BISOI @ RANJIT BISOI v. STATE OF ODISHA                            959
                [ASHOK BHUSHAN, J.]

      the deceased was in a fit state of mind to make the statement in        A
      question. Since the two aforesaid decisions expressed by two
      Benches of three learned Judges was somewhat contradictory
      the Bench by order dated 27-7-2002 referred the question to the
      Constitution Bench.
      2. At the outset we make it clear that we are only resolving the        B
      so-called conflict between the aforesaid three-Judge Bench
      decision of this Court, whereafter the criminal appeal will be placed
      before the Bench presided over by Justice M.B. Shah who had
      referred the matter to the Constitution Bench. We are, therefore,
      refraining from examining the evidence on record to come to a
      conclusion one way or the other and we are restricting our              C
      considerations to the correctness of the two decisions referred to
      supra.”
      14. The Constitution Bench approved the view taken by later
judgment in Koli Chunilal Savji (supra). In Paragraph No. 5, following
has been laid down:-                                                          D

      “5. The Court also in the aforesaid case relied upon the decision
      of this Court in Harjit Kaur v. State of Punjab4 wherein the
      Magistrate in his evidence had stated that he had ascertained
      from the doctor whether she was in a fit condition to make a
      statement and obtained an endorsement to that effect and merely         E
      because an endorsement was made not on the declaration but on
      the application would not render the dying declaration suspicious
      in any manner. For the reasons already indicated earlier, we have
      no hesitation in coming to the conclusion that the observations of
      this Court in Paparambaka Rosamma v. State of A.P. (1999) 7             F
      SCC 695 (at SCC p. 701, para 8) to the effect that
         “in the absence of a medical certification that the injured was
         in a fit state of mind at the time of making the declaration, it
         would be very much risky to accept the subjective satisfaction
         of a Magistrate who opined that the injured was in a fit state of    G
         mind at the time of making a declaration”
      has been too broadly stated and is not the correct enunciation of
      law. It is indeed a hyper technical view that the certification of
      the doctor was to the effect that the patient is conscious and
                                                                              H
960             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           there was no certification that the patient was in a fit state of
            mind especially when the Magistrate categorically stated in his
            evidence indicating the questions he had put to the patient and
            from the answers elicited was satisfied that the patient was in a
            fit state of mind whereafter he recorded the dying declaration.
            Therefore, the judgment of this Court in Paparambaka Rosamma
B
            v. State of A.P. (1999) 7 SCC 695 must be held to be not correctly
            decided and we affirm the law laid down by this Court in Koli
            Chunilal Savji v. State of Gujarat (1999) 9 SCC 562.”
             15. The view expressed by Three-Judge Bench in Paparambaka
      Rosamma (supra) that in the absence of medical certification that the
C     injured was in a fit state of mind at the time of making the declaration, it
      would be very much risky to accept the subjective satisfaction of a
      Magistrate who opined that the injured was in a fit state of mind at the
      time of making a declaration, does not lay down a correct law. Thus, the
      Constitution bench was only considering the question of nature of medical
D     certification regarding fitness of victim to make a dying declaration. The
      proposition laid down in the above case does not in any manner support
      the contention raised by the counsel for the appellant in the present
      case. Present is a case where a statement was recorded by I.O. under
      Section 161 of the victim on 05.12.1990. Both the trial court and the
      High Court held the statement relevant and placed reliance on the said
E     statement.
             16. We have noticed that this Court has laid down that statement
      under Section 161 Cr.P.C., which is covered under Section 32(1) is
      relevant and admissible. Thus, we do not find any error in the judgment
      of the trial court as well as of the High Court in relying on the statement
F     of the injured recorded by the I.O. on 05.12.1990. It is also relevant to
      notice that I.O. in his cross-examination has stated that he went on the
      night of 30.11.1990 to the Medical College to record the statement but
      as his condition was serious, he was not examined. Thus, reliance on
      the statement made on 05.12.1990 to the I.O. does not lead to any
G     suspicious circumstances so as to discard the value of such statement.
      The statement, which was made by the victim on 05.12.1990 was to the
      following effect:-
            “My name is Bhaskar Sahu, S/o. Kaibalya Sahu, present/permanent
            Resident of Village - Langal Dei, P.S. Digapahandi Dist. Gangnam,
H
   PRADEEP BISOI @ RANJIT BISOI v. STATE OF ODISHA                            961
                [ASHOK BHUSHAN, J.]

      Today, i.e. on 05.12.1920, being at the Medical College ward I          A
      hereby give my verbal statement that, I was going to Belapada
      from our Village Langal Del on 28.11.1990 at about 6:30 to
      7:00 O’clock on my bi-cycle. On my way near the bridge of
      Belapada Village, inhabitant of our village namely Pradeep Bisoi,
      S/o. Madhab Bisoi and some of his friends were waiting to kill
                                                                              B
      me. They had come by a Scoter. I don’t know others. Near the
      Belapada Bridge, all of a sudden Pradeep Bisoi threw aBomb
      towards me which was defused after hitting my right leg for which
      I fell down on the road. When I started running, trying to save my
      life, at that time Pradeep Bisoi came running after me and dealt a
      kati blow on my right solder, for which I fell down bloodstained.       C
      Thereafter from a bottle carried by him, he poured acid on my
      head, face, chest and also on my entire body To save my life. I
      threw away my black color vest from my body. Looking at my
      critical condition, Pradeep Bisoi and his friends left that place.
      After that, the son of Khalia Pati of our village saw me, and while
                                                                              D
      taking me by the help of a cycle, my brother Surendar Sahu got
      that news and Tarini Sahu, and Kishnath Bisoi and Bidhyadhara
      Babu of our village reached to me and my brother immediately
      admitted me in the Berhampur Medical Collage. Otherwise I would
      have died on the spot. Because of our previous enmity, Pradeep
      Bisoi was trying to kill me. But I was just saved. There is no          E
      chance of my survival.”
       17. The trial court after appreciation of evidence recorded the
findings that deceased had acid injuries as well as bomb blast injuries.
In the acid attack, he has lost his eye-sight and also lost his right foot.
The trial court has rightly held that statement of deceased made on           F
05.12.1990 is admissible under Section 32 because it is regarding his
cause of death and how he was injured. In para 8 of the judgment, trial
court has recorded as follows:-
      “8. From the medical report it is clear that the deceased was
      having acid injury and bomb blasting injury and during the treatment    G
      he died in the hospital. Now it is to be seen who has caused those
      acid and bomb blast injuries on the person of the deceased. There
      is no eye witness to the occurrence. The deceased had given
      information to the P.W.1 and also to the I.O. P.W.1 says that he

                                                                              H
962             SUPREME COURT REPORTS                       [2018] 12 S.C.R.


A           learnt from the deceased that accused assaulted him and threw
            acid on his face, and other parts of his body and he reported the
            matter to the police, after knowing the fact from the deceased,
            vide Ext. 12. It is also clear from the evidence of P.W.3 that he
            carried the deceased to the hospital, who had sustained injuries.
            The statement of the deceased to P.W.1 is admissible under 32 of
B
            the Evidence Act. Because, it gives regarding his cause of death
            and how he was injured.”
             18. The injuries on the body of deceased fully support the
      prosecution case. The statement made by the deceased on 05.12.1990,
      thus, finds corroboration from the injuries on the body of deceased and
C     the sequences of the events and manner of incidents as claimed by the
      prosecution. The PW1, the informant has fully supported the prosecution
      case.
            19. The High Court while dismissing the appeal has also made
      observation that conviction and sentence of the accused was for a lesser
D     offence and lenient one.
             20. We having gone through the evidence on record are fully
      satisfied that the trial court did not commit any error in convicting the
      appellant. High Court while deciding the appeal has also analysed the
      evidence on record and has rightly dismissed the appeal. We, thus, do
E     not find any merit in this appeal, which is dismissed.


      Divya Pandey                                              Appeal dismissed.


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