IMPORTANT POINT
When there is no inconsistency between dying declaration and evidence on record, the Court is justified in relying upon dying declaration in convicting the accused.

JUDGMENT

Sadanand Mukherjee, J.—The instant appeal is directed against the judgment and order dated 24.11.1987 passed in Sessions Trial No. 300 of 1985 by Shri Narendra Narayan Singh, 3rd Additional Sessions Judge, Ara wherein and whereunder the appellant Nathuni Yadav had been convicted under Section 396 of the Indian Penal Code and further had been sentenced to undergo rigorous imprisonment for life under the aforesaid section, stating therein that the period undergone by him, as under trial prisoner, would be set-off as provided under Section 428 of the Code of Criminal Procedure.

2. Case of the prosecution relates to an offence occurred on 22.5.1984 at about 11 p.m. Ram Pravesh Ojha (deceased) was sleeping at Sahan i.e. open space outside his house, where his sons Barmeshwarnath Ojha (PW 6), Gora Ojha (PW 8) and Rinku Ojha were also sleeping, whereas the informant, brother of the deceased, Brijlal Ojha was sleeping in the courtyard (sahan) in the house and the ladies were sleeping inside the rooms. The deceased Ram Pravesh Ojha raised alarm and thereafter there was a firing upon which the aforesaid Rampravesh Ojha again raised alarm. The inmates of the house opened the main door whereupon 10-15 dacoits with ‘lathi’, bhala and guns, entered in the house by force. Two of them remained near the informant. The rest dacoits entered into the house and looted away the articles of the house. The voice of one of the accused was identified by the informant which was the voice of accused, Nathuni Yadav (appellant) when the miscreants were enquiring whether Shankara had come outside, shouting in colloquial dialect. “Shankara Nikalal Ki na re”. Thereafter they retreated from the house. It was found that Rampravesh Ojha was lying in injured condition. There was bleeding from wounds of his head and chest, Rampravesh Ojha was said to have stated that Nathuni Yadav (the appellant) son of Paras had assaulted him.

3. The fardbeyan of the informant was recorded on 23.5.1984 at 22 a.m. in the Referal Hospital Shahpur, where Rampravesh Ojha in injured condition, had been taken for treatment. The dying declaration of Rampravesh Ojha was said to have been recorded by the Sub Inspector of Police, Birendra Singh (PW 13) who had also recorded the fardbeyan (Exhibit-3) of the informant at the Referal Hospital, Shahpur. The dying declaration of Rampravesh Ojha is at Exhibit-8 recorded in presence of Dr. S.K. Pandey (PW 12) and Dr. Satyaram Singh (not examined) who certified the recording of dying declaration in their presence.

4. On the basis of the aforesaid fardbeyan (Exhibit-3), a case was instituted being Brahmpur P.S. Case No. 65 of 1984 which was initially registered under Section 395 of the Indian Penal Code against the appellant, Nathuni Yadav, and 10-15 other accused persons but after the death of Rampravesh Ojha the case was converted into Section 396 of the Indian Penal Code.

5. The charge was framed only against two accused persons, namely, Kariman Yadav and Nathuni Yadav (appellant). As many as 13 prosecution witnesses were examined. In course of trial, accused Kariman Yadav was acquitted of the charge levelled against him and Nathuni Yadav stood trial under Section 396 of the Indian Penal Code.

6. The case of the appellant was that the appellant was the co-villager of the deceased. Both the deceased and the appellant were working together as bus agents. There had been enmity in that connection, hence the appellant has been falsely implicated in the case and as a matter of fact, he had not taken any part in the alleged occurrence.

7. In this appeal earlier Mrs. Binita Singh, Advocate, was appointed as amicus curiae as she was so willing to argue on behalf of the appellant but she did not appear when the case was called out, Mr. Arun Kumar Tripathi, Advocate, volunteered to appear on behalf of the appellant and he was appointed as amicus curiae, and he argued the case on behalf of the appellant.

8. On behalf of the appellant the judgment a