Case Background
The case arose from a violent incident on 20.10.1987 at about 6:30 p.m. at Sheo Shakti Medical Agency, a medical shop on Bangaon Road, Saharsa. The shop was owned by Parmeshwar Lal Dokania and was situated in the front room of his residential house. He also owned another medical shop named Mithila Medicals at Saharsa.
On the evening of the incident, his sons Anil Kumar Dokania (P.W.8, the informant) and Arun Kumar Dokania (P.W.7) were present in Sheo Shakti Medical Agency along with other employees. They were doing business and also cleaning the shop for the forthcoming Deepawali festival.
According to the written report dictated by P.W.8 and written by Ram Kumar Agrawal, about 11 miscreants entered the shop armed with pistols, daggers and heavy electric wire. They threatened everyone, assaulted P.W.8 and P.W.7, looted about Rs. 8–9 thousand from the cash box and snatched a gold ring.
On hearing the commotion, the owner, Parmeshwar Lal Dokania, came into the shop from the residential portion at the back. One of the miscreants fired two shots at him, hitting his abdomen and left groin. He fell down and was also beaten with heavy electric wire. While fleeing towards Ashok Cinema, the miscreants allegedly exploded two grenades to create smoke and confusion.
Based on this eye-witness account, P.S. Case No. 511 of 1987 was registered at Saharsa Sadar Police Station under Section 395 IPC against unknown dacoits. After Parmeshwar Lal Dokania died on 03.11.1987, Section 396 IPC was added. Later, on instructions of the Superintendent of Police, Sections 302 and 380 IPC and Section 27 of the Arms Act were also added, allegedly on the basis of a dying declaration.
The injured—Parmeshwar Lal, P.W.8 Anil and P.W.7 Arun—were first treated at the Government Hospital, Saharsa. The prosecution claimed that on 28.10.1987, in the presence of the Superintendent of Police and relatives P.W.4 and P.W.9, P.S.I. Sudist Kumar Singh (P.W.14) recorded a dying declaration of Parmeshwar Lal at the hospital. That statement supposedly implicated appellant Ashok Kumar Keshri and his father, Bishwanath Keshri.
The victim was then shifted towards Patna by train and ambulance, and he ultimately died while under treatment at the private hospital of Dr. Abdul Hai on 03.11.1987. Post-mortem was conducted at Saharsa by Dr. Baidyanath Jha (P.W.11), who found multiple gunshot-related injuries and opined that death was due to shock and haemorrhage from gunshot wounds.
After routine investigation, statements of witnesses were recorded and medical and post-mortem papers collected. A charge-sheet was filed against two accused—Bishwanath Keshri and his son Ashok Kumar Keshri.
The case was committed to the Sessions Court and registered as Sessions Case No. 270 of 1989. The trial court framed charges under Sections 324/149, 307/149, 302/149, 380/149 and 147 IPC. Both accused pleaded not guilty and faced trial.
The Sessions Judge convicted both accused and sentenced them to life imprisonment under Section 302/149 IPC and three years’ rigorous imprisonment under Section 326/149 IPC. No separate sentences were imposed for Sections 324/149, 380/149 and 147 IPC. All substantive sentences were to run concurrently.
During the pendency of the criminal appeal before the Patna High Court, appellant no.1, Bishwanath Keshri, died. The appeal against him was abated by order dated 17.11.2021. The appeal then effectively concerned only appellant no.2, Ashok Kumar Keshri.
What the Court Examined and Decided
The Division Bench of the Patna High Court, comprising Hon’ble Mr. Justice A.M. Badar and Hon’ble Mr. Justice Sunil Kumar Panwar, heard Criminal Appeal (DB) No. 69 of 1995 against the conviction.
Senior counsel for the appellant argued that, although several eyewitnesses were examined, none had named Ashok Kumar Keshri as a participant in the crime. P.W.3 Ashok Thakur, a shop owner opposite Sheo Shakti Medical Agency, stated that the appellant was not at the spot. Even the informant, P.W.8 Anil Kumar Dokania, did not name the appellant in the FIR or his court testimony.
Only P.W.7 Arun Kumar Dokania and P.W.2 Musafir Singh made a passing reference to seeing Ashok Kumar Keshri at the verandah or staircase in front of the shop. No overt act was attributed to him. The defence argued that mere presence, even if accepted, was not enough to prove membership of an unlawful assembly with a common object to murder, as required under Section 149 IPC.
The defence also attacked the alleged dying declaration recorded by P.W.14. It was said to be a “got-up” document: not reliable, unsupported by medical evidence, unsigned, and not even mentioned by P.W.8 Anil, who was present with his father in the hospital. The defence pointed out that even in that declaration, no specific role was attributed to Ashok Kumar Keshri beyond alleged presence.
The Additional Public Prosecutor, on the other hand, supported the conviction. He submitted that prosecution witnesses were in a disturbed state and were more focused on saving the life of Parmeshwar Lal, which explained why names were not given in the earliest statements. He relied strongly on the dying declaration and its alleged corroboration by P.W.4 and P.W.9.
The High Court first emphasised the definition of “proved” in Section 3 of the Indian Evidence Act—that a fact is proved when the court believes it to exist or considers its existence so probable that a prudent person would act on that basis.
The Bench noted that there were two “divergent versions” coming from the prosecution itself:
First, the FIR version by P.W.8: a dacoity with murder by more than five unknown dacoits, armed with firearms and sharp weapons, looting the shop and killing Parmeshwar Lal in the process. There was no hint of any property dispute or conspiracy with known persons.
Second, the later “contract killer” theory built during investigation, allegedly supported by the dying declaration: that Bishwanath Keshri, due to a long-standing land dispute and title suit, had hired contract killers, formed an unlawful assembly, and instigated them to kill Parmeshwar Lal and his sons. In this version, Ashok Kumar Keshri was said to be a member of the unlawful assembly, standing outside the shop.
The Court explained the law of vicarious liability under Section 149 IPC: it does not create a separate offence, but makes every member of an unlawful assembly liable for offences committed in prosecution of its common object, or which members knew were likely to be committed. Mere presence is not enough; there must be a shared common object and knowledge of the likely offence, to be judged from surrounding circumstances such as arms carried, behaviour, and background.
Against this legal background, the Bench examined the alleged dying declaration (marked as Ext.1 in the case diary). It was an unsigned paragraph in the case diary, said to have been recorded at 8:30 a.m. on 28.10.1987 in the Government Hospital, Saharsa, by P.W.14.
In that statement, Parmeshwar Lal allegedly said that after having tea at his house, he came to his shop from the front side at about 6:30 p.m., saw Bishwanath Keshri coming in a rickshaw and shouting “enemy has come, kill him”, and then was shot twice outside the shop at the front verandah. He claimed he saw Ashok Keshri standing near the staircase in front of the shop. He further stated he could not see clearly what three criminals did inside the shop, and mentioned a 14–15 year land dispute and a title suit with Bishwanath, alleging that Bishwanath had hired contract killers and instigated them to kill him and injure his sons.
The High Court subjected this document to “close scrutiny”. It found serious contradictions between this version and the sworn evidence of the deceased’s own sons, P.W.7 and P.W.8, as well as physical-location details from the investigating officer.
P.W.14 had himself said that the shop formed the front part of the same building in which the family resided; the rear portion was used as residence and the shop was in front. He saw bloodstains inside the shop. P.W.7 and P.W.8 both deposed that their father came into the shop from the inner, residential side, and was shot inside the shop, not at the front verandah. They never said that he arrived from some different house after tea, or that he was shot outside.
This meant the dying declaration described a different place and manner of attack than the consistent eye-witness version. The Court held that when there is such a clash between a dying declaration and direct eye-witness testimony of close relatives who were injured, the dying declaration becomes doubtful and untrustworthy.
The Court also closely examined how the dying declaration was recorded. P.W.14 admitted that on 20.10.1987 and again on 24.10.1987, when he tried to record the statement, the patient was unconscious and sedated, and doctors said there was no possibility of his regaining consciousness. Then, on 28.10.1987, he claimed he received a telephonic message from the hospital that the patient was not responding to treatment, was being shifted to Patna, but was “fit to give a statement”.
P.W.14, however, did not get any doctor’s certificate of fitness; he did not obtain any signature of the declarant, nor of witnesses, on the alleged declaration, saying there was “no practice” of taking signatures in the case diary. Medical officers P.W.11, P.W.12 and P.W.13 did not support the story of any doctor having telephoned the police officer or having certified the patient fit to give a statement. P.W.4 and P.W.9, said to be present, also did not speak about the medical fitness of the declarant, and admitted that on the previous day his condition was very critical and he used to become conscious and unconscious.
The Court found it hard to accept that a patient who was “not responding to medical treatment” could give a detailed, coherent declaration at that very time. The lack of signatures or medical certification further weakened the reliability of Ext.1.
Turning to the presence of Ashok Kumar Keshri, the Court noted that:
• P.W.8, the injured informant, knew both accused since he attained understanding, but did not name them either in the FIR or his evidence. He clearly said he could not identify any assailant during the incident and described the culprits as unknown dacoits.
• P.W.7 mentioned seeing Ashok at the staircase but attributed no act to him; he remained a silent onlooker. P.W.2 also claimed to have seen Ashok at the verandah but admitted he had not told this to the police and gave no convincing reason for this omission.
• Neighbouring shopkeepers examined as defence witnesses, D.W.3 Arvind Thakur and D.W.4 Chhedi Rajak, both of whom had been questioned by police during investigation, deposed that it was a case of armed dacoity and they did not see Ashok or Bishwanath at the spot. Their testimony was not shaken in cross-examination.
• Even the alleged dying declaration, which placed the shooting outside the shop, did not say that Ashok did anything more than stand near the staircase.
Given this, the Court held that mere alleged presence at the verandah or staircase, without proof of participation or shared common object, was wholly insufficient to attract Section 149 IPC. The Court noted that prior enmity and land dispute between the parties was admitted. There had also been earlier incidents of dacoity on that road, including at Mithila Medical Store. In such a background, there was a reasonable possibility of false implication by taking advantage of an armed dacoity by unknown criminals.
In conclusion, the High Court found the trial court’s reliance on the disputed dying declaration as the foundation of conviction to be “totally perverse and unjustified”. It held that the prosecution had failed to prove that contract killers were hired, that an unlawful assembly with a common object to murder was formed, or that appellant Ashok Kumar Keshri was a member of such assembly. The evidence only established an incident of armed dacoity with murder by unknown dacoits.
The appeal was allowed. The judgment and order of conviction and sentence passed by the Ist Additional Sessions Judge, Saharsa in Sessions Case No. 270 of 1989 were quashed and set aside. Appellant Ashok Kumar Keshri was acquitted of all offences and his bail bond was cancelled.
Why This Judgment Matters
This Patna High Court decision is important for families and accused persons facing serious charges like murder and dacoity based mainly on a disputed dying declaration or weak identification.
First, the Court has made it clear that a dying declaration is not automatically believed. It must fit with other evidence, especially eye-witness accounts and medical records. If there are serious contradictions, or if the process of recording is doubtful, the court will not use it to send someone to jail for life.
Second, the judgment shows that mere presence near a crime scene—without any clear act, weapon or proof of planning—is not enough to convict someone for offences under Section 302/149 IPC. For vicarious liability under Section 149, the prosecution has to show a common object shared by the accused and others, not just that they were seen standing nearby.
Third, the Court recognised that where there is long-standing enmity, there is a real risk that innocent rivals may be falsely named after a genuine crime committed by unknown persons. Courts must therefore be cautious, especially when the earliest version (like the FIR) talks only of “unknown dacoits” and names appear for the first time much later without proper explanation.
For shopkeepers and ordinary citizens, the case underlines that prompt and consistent statements, supported by medical and independent evidence, carry great weight. For police and prosecution, it is a reminder that procedure—such as properly recording and proving a dying declaration and securing medical certification—is crucial. Without that, grave convictions may not stand on appeal.
Legal Issues and Answers
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Issue: Whether the prosecution proved beyond reasonable doubt that the appellant was part of an unlawful assembly which committed murder and other offences, making him vicariously liable under Section 149 IPC.
Answer: No. The Patna High Court held that the evidence showed only an armed dacoity by unknown persons. The appellant’s alleged mere presence at the verandah, contradicted by key eyewitnesses and defence witnesses, was insufficient to prove membership of an unlawful assembly with a common object to murder. -
Issue: Whether the alleged dying declaration of the deceased, recorded in the case diary, was reliable enough to base a conviction for murder against the appellant.
Answer: No. The Court found the dying declaration unsigned, unsupported by medical certification, inconsistent with the eye-witness account of the deceased’s sons, and not properly proved. It was held to be unsafe and unreliable, and could not be made the foundation of conviction.
Cases Cited by the Court
- The judgment discusses general principles under Section 149 IPC and Section 32 of the Evidence Act, but does not clearly cite or rely on any specific prior case law by name. Therefore, no express precedents are listed.
Case Details
Case Number: Criminal Appeal (DB) No. 69 of 1995, arising out of P.S. Case No. 511 of 1987, Saharsa Sadar, District Saharsa.
Case Title: Biswanath Keshri & Anr. v. State of Bihar.
Citation: 2022(1) PLJR 432.
Court: High Court of Judicature at Patna.
Bench (Coram): Hon’ble Mr. Justice A. M. Badar and Hon’ble Mr. Justice Sunil Kumar Panwar.
Date of Judgment: 09.12.2021.
Advocates: For the appellants: Mr. K.P. Singh, Senior Advocate, with Mr. Pratik Mishra, Advocate. For the State: Mr. S.N. Prasad, Additional Public Prosecutor.
Nature of Case: Criminal appeal (Division Bench) against conviction and sentence under Sections 302/149, 307/149, 324/149, 380/149 and 147 IPC, arising from a sessions trial (Sessions Case No. 270 of 1989).
Result: Appeal allowed; conviction and sentences set aside; appellant no.2 (Ashok Kumar Keshri) acquitted; appeal abated against appellant no.1 due to his death.
Link to Full Judgment: Click here to read the full Patna High Court judgment
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