The judgment emphasizes the importance of substantial evidence to prove common intention under Section 302/34 of the Indian Penal Code and highlights the requirements for admissibility and reliability of oral dying declarations.

JUDGMENT :

Sudhir Singh, J.

Both these appeals filed in the year 1996, i.e., around 26 years ago, arise out of the same judgment and order. Hence, both these appeals were heard together and are being disposed of by a common judgment.

2. By order dated 30.08.2022, the appeal against Tahir Mian (appellant No.2 in Criminal Appeal (DB) No.63 of 1996) has already got abated. Therefore, Criminal Appeal (DB) No.63 of 1996 is now confined to appellants Taiyab Mian and Mokhtar Mian only.

3. Both the appeals have been preferred against the judgment of conviction dated 20.12.1995 and the order of sentence dated 21.12.1995, passed by the Additional District and Sessions Judge I, Gaya in Sessions Trial No.597 of 1993/76 of 1995, arising out of Atri P.S. case No.142 of 1992, whereby and whereunder all the appellants have been convicted under Sections 302/34 of the Indian Penal Code and appellant Mokhtar Mian has also been convicted under Section 27 of the Arms Act and all the appellants have been sentenced to undergo life imprisonment under Sections 302/34 of the Indian Penal Code and appellant Mokhtar Mian has further been sentenced to undergo R.I. for a period of three years under Section 27 of the Arms Act. The sentence of the appellant Mokhtar Mian has been directed to run concurrently.

4. Prosecution case, in brief, is that on 23.11.1992 when the informant Kallu Mian (P.W.11) was sitting along with Rasid Mian, Salim Mian, Sabir Mian, Tahir Mian, Gulam Mian, Butai Mian and 2-3 ladies in the north of the village in the barren land of one Khalil Mian near Chauraha, his nephew Mokhtar (deceased) came and sat there. Appellant Taiyab was standing there covering his body by a bedsheet. Thereafter, the informant left for his home. When he reached at his doorstep, he heard sound of firing. He got perplexed. In the meanwhile, he saw Mokhtar (deceased) running towards his house. On his arrival, he told the informant that appellants Taiyab, Tahir and Mokhar, all of village Majhauri, have injured him. He also told that accused Nasim, Mausam and Sahzad were involved in cospiracy and in course of uttering the same, he fell down. He again uttered that appellants Taiyab, Tahir and Mokhtar had fired upon him. His utterances have been heard by other family members also. Thereafter, he succumbed to the injuries. The informant went to the place, where he was sitting and found that people were running here and there and appellants Taiyab, Tahir and Mokhtar had fled away after firing. The occurrence was seen by the persons, who were sitting there. The sound of firing was heard twice from the place where they were sitting and the third sound of firing was heard coming from the lane.

On the statement of informant Kallu Mian (P.W.11), F.I.R. (Ext.4) was drawn up. The police after investigation submitted charge-sheet against the accused persons and the jurisdictional Magistrate took cognizance in the matter and then committed the case to the Court of Sessions. Charges were framed against the appellants. The appellants pleaded not guilty and claimed to be tried.

5. In course of trial, the prosecution has examined altogether twelve witnesses. Out of whom, Md. Yusuf is P.W.1, Akhtar Ali is P.W.2, Asgar Ali is P.W.3, Md. Ali Daj is P.W.4, Sk. Naim is P.W.5, Md. Sabir Ali is P.W.6, Smt. Jainab Khatoon is P.W.7-mother of the deceased, Yugal Prasad is P.W.8, Abdul Rashid is P.W.9, Mithilesh Kumar Sinha is P.W.10-Doctor, who conducted the postmortem of the deceased, Kallu Miyan is P.W.11-informant of the case, Jai Narain Prasad is P.W.12-Investigating Officer. The prosecution has also brought on record the documents, like postmortem report (Ext.3), inquest report (Ext.5). The Defence has examined only one witness, namely, Md. Neshar Ahmad in support of its case.

6. Learned counsel for the appellants submits that the judgment of conviction and order of sentence of the learned trial court is bad in law as the same suffers from several infirmities. The learned trial court has igno