IMPORTANT POINT
Statement u/s 161 may be treated as dying declaration after death, even after a long time if mentioning the manner of injury and cause of death.

JUDGMENT

ASHOK BHUSHAN, J.

This appeal has been filed by the accused against the judgment of Orissa High Court dated 25.01.2017. 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 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 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 with Tarini Sahu, Kasinath Bisoi and Bidyadhar Babu 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 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 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. (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 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.

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 view of the well settled principle of law enunciated by a Constitution Bench judgment of this Court in Laxman v. 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.

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 of PW1, to whom deceased had informed that it was accused, who threw bomb and made kati attack and threw acid, has righ