The FIR of a deceased can serve as a dying declaration but must be trustworthy; failure to examine the recording officer undermines its reliability.

JUDGMENT :

(Chandra Shekhar Jha, J.)

This appeal has been preferred by the appellant/convict under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the impugned judgment of conviction and order of sentence dated 28.11.2003 passed by learned Presiding Officer, Additional Court No.2, Patna in Sessions Trial Case No.26(A) of 1990/360 of 2001, whereby the concerned Trial Court has convicted the appellant/convict for the offence punishable under Section 304 Part-II read with 34 of the Indian Penal Code (for short ‘IPC’) and sentenced to undergo rigorous imprisonment for three years.

2. The case of prosecution is based upon fardbeyan of the informant/deceased, Jadunandan Rai, recorded by A.S.I. Subedar Singh on 30.08.1986 at 1.30 pm. in which the informant stated that on 30.08.1986 at 7.00 am, co-accused, namely (i) Suresh Rai (ii) Harami Rai, both sons of Laldeo Rai, (iii) Indradeo Rai brother of Laldeo Rai (iv) Laladeo Rai and (v) the appellant, namely, Ram Janki Devi, wife of Laldeo Rai, who were neighbours of the informant came at the door of the informant, where the accused Suresh Rai, Harami Rai were armed with bhalaand the remaining three accused persons were armed with lathi, accused Suresh Rai said as the informant is not giving them passage in the gali,therefore asked other accused to uproot the Khambha(poles), and upon so, accused persons started uprooting the poles. The informant protested it, whereupon accused Suresh Rai gave a bahlablow, which hit him on his right leg, accused Harami Rai also gave a bhalablow, which hit him on his left hand and the remaining three accused including the appellant started assaulting him with lathi saying that he is still alive. It is said that the informant raised alarm, upon so, people from the neighbourhood gathered, resultantly, accused persons fled away and then Shankar Thakur and Krishna Rai brought him on cot to Nalanda Medical College and Hospital (for short ‘NMCH’), where he was admitted for treatment and subsequently died.

3. On the basis of aforesaid fardbeyan, the police registered Didarganj P.S. Case No.52 of 1986 dated 31.08.1986 for the offences punishable under Sections 447, 323 and 324 read with 34 of the IPC against the appellant and four other co-accused persons, where after the investigation, the police submitted charge-sheet, accordingly.

4. The learned trial court on the basis of materials collected during investigation, framed charge against the appellant/convict 28.09.1994 for the offence under Sections 302 read with 34 of the IPC against the appellant/convict, which she pleaded “not guilty” and claimed trial.

5. To substantiate its case, the prosecution has examined altogether four witnesses. They are:-(i) PW-1 Shankar Thakur; (ii) PW-2 Damanti Devi, (iii) PW-3 Krishna Rai and (iv) PW-4 Dr. Rajesh Sinha.

6. Apart from the oral evidence, the prosecution has also relied upon postmortem report, which is Exhibit No.1.

7. On the basis of evidence as surfaced during the trial, the learned trial court has examined the appellant/accused under Section 313 of the Code, where she completely denied her involvement by denying the incriminating evidences surfaced during the trial and stated that she was implicated with this case falsely and claimed her innocence.

8. No witness was examined by appellant/convict during the trial in her defence and further no documents were also exhibited in support.

9. Taking note of the evidence as surfaced during the trial and the arguments as advanced by the parties, the learned Trial Court has convicted the appellant/convict/accused for the offences under Sections 304 Part-II read with 34 of the IPC and sentenced her in the manner as stated above.

10. Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant/convict has preferred the present appeal.

11. Hence, the present appeal.

12. Learned counsel appearing on behalf of the appellant/convict submitted th