Important Points
(1) Dying declaration – Oral dying declaration made by deceased cannot be relied upon in light of no evidence regarding source of identification and testimony of doctor regarding injuries suffered by deceased.
(2) Non-examination of material witness who has been withheld by prosecution caused prejudice to appellants.

JUDGMENT (C.A.V.)

Sudhir Singh, J.—The criminal appeals arise out of common judgment of conviction dated 15.02.2017 and order of sentence dated 22.02.2017, therefore, to have been heard together and are being disposed of by this common judgment.

2. All the appellants named above have preferred these appeals against the common judgment of conviction dated 15.02.2017 and the order of sentence dated 22.02.2017, passed by Shri Prabhu Nath Singh, Sessions Judge, Rohtas, Sasaram in Sessions Trial No.378 of 2014 arising out of Karakat P.S. case No.242 of 2013, whereby and whereunder the appellants have been convicted under Sections 302/34 of the Indian Penal Code (referred to ‘I.P.C.’) and have been sentenced to undergo life imprisonment with fine of Rs.50,000/- each for the offence under Sections 302/34 of the I.P.C. and in default of payment of fine, further undergo rigorous imprisonment for one year.

3. The prosecution case, as per the written report of informant Vikesh Kumar (PW 5), is that on 26.10.2013 at around 7.30 P.M. his elder brother Ramesh Kumar Sah went to attend natural call towards road. In the meantime he heard cry of his brother whereupon he run towards the road and he had seen in the torch light, accused persons-appellants Davindra Kumar Choudhary, Sukesh Sah and Shankar Choudhary armed with knife and they were blowing knife repeatedly. The accused persons seeing the informant also asked to do away his life. Then he ran away from there towards village making alarm. The accused persons threw the brother of the informant in the water and fled away. The brother of the informant was taken out from the water with the help of the villagers, then the informant saw the injury on the person of his brother making by knife. His brother asked him that Sukesh Sah, Davindra Kumar Choudhary and Shankar Choudhary assaulted him badly by means of knife and further asked him to take him to the Hospital for his treatment. Then he was rushed to the Hospital, but his brother died in the way to the Hospital. Then they rushed to the police station along with dead body of his brother. It has been claimed by the informant that the accused persons with common intention committed death of his brother by means of knife.

4. On the basis of fardbeyan of the informant, Karakat P.S. case No.242 of 2013 was registered. After completion of investigation, the Investigating Officer submitted charge sheet under Sections 302/34 of the I.P.C. and thereafter cognizance was taken by the Jurisdictional Magistrate and thereafter the case was committed to the court of Sessions. Charges were framed against the appellants to which the appellants pleaded not guilty and claimed to be tried.

5. During trial, the prosecution examined altogether nine witnesses, namely, Rajesh Kumar Sah @ Rajesh Kumar (PW 1), Nathuni Sah (PW 2), Rajendra Sao (PW 3), Amrawati Devi @ Umrawati Devi (PW 4), Vikesh Kumar @ Vikash-informant (PW 5), Dr. K.D. Pujan (PW 6), Rajindar Yadav (PW 7), Ajit Choudhary (PW 8) and Bam Bahadur Choudhary (PW 9). In support of its case, the prosecution has also produced exhibits as Ext.1 (fardbeyan), Ext.2 (written report), Ext.3 (postmortem report), Ext.4 (formal F.I.R.), Ext.5 (seizure list) and Ext.6 (inquest report). In support of its case, the defence has produced exhibit, viz. Ext.A (C.C. of final form/report of Karakat P.S. case No.148/2009). After conclusion of the trial, the learned Trial Court convicted and sentenced the appellants in the manner as indicated above.

6. Learned counsel for the appellants has submitted that the trial suffers from several infirmities that have been overlooked by the learned trial Court and, therefore, the impugned judgement is not sustainable in the eyes of the law. It has been contended that the prosecution has miserably failed to prove the place and manner of occurrence beyond reasonable doubt, as the material contradictions and discrepancies in the testimony of the prosecution witnesses cast doubt on the case of