No weapon, no bullet, and the only account of the killing came from the dying man’s own family

The defence said oral dying declarations made to a wife, a son and a brother-in-law cannot carry a murder conviction. A Division Bench of the Patna High Court disagrees and affirms a life sentence.

On 24 September 2026 a Bench of Justice Bibek Chaudhuri and Justice Rana Vikram Singh dismissed an appeal against conviction for murder and affirmed the sentence of life imprisonment passed in 2018.

Fifty yards

The prosecution case is that the deceased returned to his shop, ate bhunja, and after a while set off for home. He had barely covered about fifty yards when the appellant, who was sitting there armed with a pistol, pointed it at his head and fired. The deceased pushed him and tried to run; the bullet struck him in the back and he fell at the spot. The appellant escaped.

People from nearby, including the shop staff, gathered on hearing the shot. The injured man was taken to hospital, and his wife and son were informed and reached him there.

The appellant was arrested during the investigation and has remained in custody since. The case was committed to the Court of Session, charge was framed in March 2018, and he pleaded not guilty and claimed to be tried.

He was convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959, and sentenced to rigorous imprisonment for life with a fine of Rs 20,000 — a further year in default — and to three years and Rs 2,000 under the Arms Act, with three months in default, the sentences to run concurrently. He was arrested during investigation and has been in custody since.

What the defence attacked

The appeal was pressed on the quality of the evidence rather than on any dispute that the death was homicidal.

The central attack was on the oral dying declarations. The statements attributed to the deceased, it was argued, did not satisfy Section 32(1) of the Indian Evidence Act, 1872. They were made only to highly interested witnesses — his wife, his son, his brother-in-law and a close associate. There was no contemporaneous record of them. And the prosecution had failed to establish that he was in a fit state of mind and body when he made them.

On that footing counsel submitted that the trial court had applied Section 32(1) mechanically, without subjecting the declarations to the close scrutiny the law requires.

The medical evidence was said to take the prosecution only so far: it established a homicidal death by firearm, but did not corroborate the precise manner and genesis of the occurrence as the witnesses described it. And two absences were pressed as significant lacunae — neither the weapon of offence nor the bullet was ever recovered.

The defence also pointed to the criminal antecedents of the deceased, and to the identification evidence, contending that it could not establish the identity of the assailant except through the declarations themselves.

One further strand concerned the trial court's treatment of the deceased's background. Evidence led to establish his criminal antecedents was held not to assist the defence — a point that recurs in cases of this kind, where the suggestion is that a man with enemies may have been shot by any of them.

Why it failed

The arguments are ones that succeed often enough to be worth making, and the Bench’s answer is that they did not on this record.

Having examined the evidence, the Court held the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt, and that the findings recorded by the trial court did not warrant interference.

The reasoning behind that conclusion is the useful part. A dying declaration is not excluded because it was made to a relative; interest goes to the weight of the evidence, not to its admissibility, and the family are usually the people at a dying man’s side. Nor is the absence of a recovered weapon fatal where the fact of a firearm death is medically established and the assailant is otherwise identified. What the law requires is that the statement be scrutinised closely — and the Bench found the trial court’s appreciation of it sound, including its acceptance of the motive suggested by the prosecution.

That is the difference between a lacuna and a doubt. The defence identified real gaps — no weapon, no bullet, no written record of the declarations — but a gap only helps an accused if it makes the prosecution case unsafe. Here the Bench found the account of the shooting, the medical finding of a firearm death, the identification and the motive fitted together closely enough that the missing items did not unsettle them.

The order

The appeal failed and was dismissed. The judgment of conviction of June 2018 and the order of sentence of July 2018, passed by the Sixth Additional District and Sessions Judge at Patna City, were affirmed, and the appellant was directed to serve the sentence awarded by the trial court. The trial court records were ordered returned forthwith.

Before parting, the Bench placed on record its appreciation for the research and assistance rendered by two Legal Researchers attached to the court — a note that appears increasingly in Patna judgments and is worth seeing.