Deceased Wasn’t In Position To Speak What To Talk Of Making Oral Dying Declaration: Supreme Court Acquits Two Men In 1990 Murder Case

The Supreme Court has acquitted two men who were accused of killing a person in the year 1990, saying that the deceased was not in a position to speak what to talk of making an oral dying declaration.

The Court was hearing a Criminal Appeal preferred against the Judgment of the Jharkhand High Court, by which the conviction was modified.

The two-Judge Bench comprising Justice Vikram Nath and Justice Sandeep Mehta observed, “… we are unable to subscribe to the theory that the deceased would have been in a position to speak after receiving the injuries … It is impossible to believe that, having received such grave head/cranial injuries, the deceased would have been in a position to speak what to talk of making an oral dying declaration.”

The Bench reiterated that the testimony of a defence witness carries the same evidentiary value as that of a prosecution witness.

AOR Manu Shanker Mishra represented the Appellants/Accused, while AOR Tulika Mukherjee represented the Respondent/State.

Facts of the Case

As per the initial case of prosecution, the informant along with his son (deceased) had left his home in May 1990 to sell sweets at a ‘Mela’ held in village. The deceased set up his stall and commenced selling sweets. Three persons approached his stall and demanded quarter kg sweets. The deceased provided the sweets and asked for payment, but the said individuals allegedly refused to pay, whereupon the deceased declined to give them the sweets. An altercation ensued, during the course of which the three persons allegedly threatened the deceased, stating that they would accost and kill him on the way back home. The quarrel was pacified by the watchman of the Police Station and another person.

Thereafter, the informant and his son wound up the stall and left for their home. It was alleged that when they reached a dam, the same three persons intercepted them by inserting a stick into the front wheel of the deceased’s bicycle, causing him to fall. He attempted to run, but the assailants allegedly chased him down, and thereafter assaulted him with wooden sticks, chains, and hockey sticks. When the informant tried to intervene, the assailants allegedly threatened him as well, warning that he too would be killed if he did not flee. The assailants continued beating the deceased, causing injuries to his forehead, chest, and arms. Resultantly, the deceased succumbed to his injuries and hence, an FIR was registered. However, the informant was not satisfied with the report and suspected some foul play. He thus gave a written report alleging that four to five men were involved in the crime.

The informant further stated that there was a case pending between his son and his nephews (Appellants herein), relating to employment in lieu of land acquisition, and that on account of this enmity, they along with others, killed his son. According to him, on being asked, the deceased stated that the Appellants, along with five or six unknown persons, had beaten him, and he kept beseeching them in the words “don’t kill me Aditya, don’t kill me Suresh”. Based on this, another FIR was registered. The Trial Court convicted the Appellants under Sections 120B, 302, and 149 of the Indian Penal Code, 1860 (IPC) and sentenced them to undergo imprisonment for life. This was challenged before the High Court, which dismissed their Appeal and modified the conviction to one under Sections 302 and 34 of IPC and imposed a fine of Rs. 2,000 on the Appellants. Being aggrieved, they approached the Apex Court.

Reasoning

The Supreme Court in view of the facts and circumstances of the case, said, “The purpose of recording the statement of an accused under Section 313 CrPC (Section 351 BNSS) is to make the accused aware of the circumstances as appearing against him in the prosecution case and to seek his explanation for the same. For this purpose, the accused must be informed of each and every incriminating circumstance which the prosecution intends to rely upon for bringing home the guilt of the accused.”

The Court added that omission to put material circumstances to the accused in the statement under Section 313 of CrPC (Section 351 BNSS) would cause grave prejudice and may, in a given case, even prove fatal to the case of the prosecution.

“In the present case, on going through the statements of both the accused persons recorded by the trial Court under Section 313 CrPC (Section 351 BNSS) (supra), we find that these statements are almost a reproduction of the language of the charge and, in no manner, convey to the accused persons circumstances/evidence the produced incriminating by the prosecution so as to indict them for the crime. This defect goes to the root of the matter”, it remarked.

Considering the fact that more than 35 years have passed since the incident took place, the Court was of the view that it would be nothing short of an exercise in futility to direct remand of the case.

“… there is no escape from the conclusion that the withholding of the witness was a deliberate attempt by the prosecution to cover up the crucial flaw in its case. … This Court in Harvinder Singh @ Bachhu v. State of Himachal Pradesh has held that deliberate withholding of material witnesses by the prosecution would destroy its credibility, leading the Court to draw adverse inference”, it noted.

The Court observed that the failure of the informant to identify his own close relatives as being the assailants of his son makes his evidence doubtful.

“The witnesses categorically stated that some unknown assailants had assaulted Gajendra and that the appellants were not present at the time of the incident. Neither the trial Court nor the High Court assigned any plausible reason for discarding the evidence of these two witnesses”, it added.

The Court reiterated that evidence of a witness cannot be discarded merely on the ground that the witnesses were examined by the defence

Conclusion

The Court also said that the failure of the prosecution to examine the material eye-witnesses named in the report, coupled with the fact that the Courts below disregarded their testimony on oath, severely dents the credibility of the prosecution version and strengthens the case of the defence.

“Their evidence creates a clear doubt regarding the identity of the assailants. In such a situation, the defence version appears more probable, and the benefit of doubt must go to the accused-appellants”, it added.

Furthermore, the Court held that the prosecution has miserably failed to fasten the guilt upon the accused-Appellants as there is total lack of credible evidence to indict them for the charges.

“The conviction of the accused-appellants, as recorded by the trial Court and affirmed by the High Court is based on misreading and erroneous appreciation of evidence on record and, hence, the same is unsustainable in facts as well as in law”, it concluded.

Accordingly, the Apex Court allowed the Appeal, set aside the High Court’s Judgment, and acquitted the Appellants.

Cause Title- Suresh Sahu & Another v. The State of Bihar (Neutral Citation: 2025 INSC 1382)

Appearance:

Appellants: AOR Manu Shanker Mishra, Advocates Tripurari Ray, Anirudh Ray, Bhanu Prabha, Atul Wadera, and Arpita Mishra.

Respondent: AOR Tulika Mukherjee, Advocates Rajiv Shankar Dvivedi, Beenu Sharma, and Venkat Narayan.

Click here to read/download the Judgment