Points of law : Do not find any error in judgment of Trial Court as well as the High Court in convicting appellant relying on the dying declaration of deceased which was promptly recorded and has been proved to be genuine.

ORDER

1. Heard Shri Pramod Dayal, learned counsel appearing for the appellant and Shri Anuj Kumar, learned counsel appearing for the State of Jharkhand.

2. This appeal has been filed against the Division Bench judgment of the High Court dated 30.06.2009 by which the appeal filed by the appellant challenging his conviction under Section 302/34 IPC and Section 27 of the Arms Act has been dismissed. The appellant aggrieved by the judgment has come up in this appeal.

3. The prosecution case, in brief, is that on 23.07.1988 at 9.15 pm informant Prem Kumar lodged a first information report before Police Station Kotwali, Ranchi to the effect that while the informant and his maternal uncle Mahesh Pandey were at their residence when their neighbour Sudhir Ganjhu came on a scooter and called the deceased. The deceased went to a culvert near the said Cinema and gossiped. Informant also came out of the house and went near Betal Gumti. Meanwhile, appellant arrived at the site on Hero Honda motorcycle driven by Deepak Deb. Stopping the motorcycle the appellant fired two shots at the Mahesh Pandey due to which Mahesh Pandey fell down and assailant fled towards Court on motorcycle. Mahesh Pandey was taken to R.M.C.H. Ranchi for treatment and at 11 p.m. the Judicial Magistrate, Ranchi recorded his dying declaration in the presence of doctor. Mahesh Pandey died and postmortem was conducted by PW. 3-Dr. Ajit Kumar Choudhary on 25.07.1988. The appellant faced the trial. The prosecution examined six witnesses whereas no witness was examined on behalf of the defence. The 7th Additional Judicial Commissioner, Ranchi by judgment dated 28.05.1999 convicted and sentenced the appellant under Section 302 IPC and Section 27 of the Arms Act.

4. Shri Pramod Dayal, learned counsel appearing for the appellant submits that the conviction is solely based on the dying declaration of the deceased which finds no corroboration. He further submits that the doctor's certificate was not there at the time of recording the dying declaration hence without there being certificate of doctor the dying declaration could not have been relied. He further submits that PW. 1, the mother of the deceased as well as PW. 2, the sister of the deceased have not supported the prosecution case due to which the Court ought to have been very careful in considering the dying declaration. He further submits that PW. 6-IO has stated that injured was not in a position to give any statement hence the dying declaration was not to be relied by Court for convicting the appellant.

5. Learned counsel appearing for the State refuting the submissions of learned counsel for the appellant contends that even the statement of mother has proved the incident of firing. She has also signed the dying declaration which proves her presence in the hospital. Learned counsel further submits that Courts did not commit any error in relying on the dying declaration for convicting the appellant. It is submitted that it is well settled that doctor's certificate is not mandatory for relying on the dying declaration and Court can consider and rely on a dying declaration even if there is no doctor's certificate.

6. We have considered the submissions of learned counsel for the parties and have perused the record.

7. The incident took place at about 9 p.m. and the first information report was immediately lodged at 9.15 pm. The injured-Mahesh Pandey was immediately taken to R.M.C.H., Ranchi where the Judicial Magistrate was requisitioned for recording the dying declaration. The dying declaration of the deceased was recorded at 11 pm on the same day. In the dying declaration the deceased had categorically stated that appellant has fired on him at 9 pm. He also stated that his mother was present. Further he stated that appellant had fired four shots. The dying declaration also contains the L.T.I, of Rampati, the mother of deceased as well as signature of Dr. D.P. Bhandari. The Judicial Magistrate who recorded the statement wa