A dying declaration can alone substantiate conviction if it instills confidence and is corroborated by credible evidences.

JUDGMENT :

Ramesh Chand Malviya, J.

Heard Mr. Baxi S.R.P. Sinha learned Senior counsel for the appellant assisted by Mr. Lokesh Kumar Singh, Mr. Raghav Prasad, learned counsel for the informant and Mr. S.N. Prasad learned APP for the State.

2. The present appeal has been filed under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction dated 06.07.2013 and order of sentence dated 09.07.2013 passed in Sessions Trial No. 142 of 2009 in connection with Asanwa P.S. Case No. 19 of 2008 passed by learned Ad-hoc Additional District and Sessions Judge-III, Siwan whereby and where-under the appellant no.1 has been convicted for the offence under Sections 304 part II of the Indian Penal Code (hereinafter referred as ‘IPC’) and sentenced to undergo rigorous imprisonment for 7 years and fine for Rs. 10,000 and in default of payment of fine further sentenced to undergo six months imprisonment. Further, appellant no. 2 has been convicted for the offence under Sections 304 part II read with 34 of the IPC and sentenced to undergo rigorous imprisonment for 7 years and fine for Rs. 10,000 and in default of payment of fine further sentenced to undergo six months imprisonment.

3. The brief fact leading to the filing of the present appeal on the basis of the written information of the informant Hare Krishna Pandey on 10.07.2008 at about 8 PM in the night, he was taking meal inside the house. In the meantime the appellants appeared there and entered into his house, dragged him out and assaulted him by fist and slaps, stick and lathi. When the informant fell down the villagers came and intervened. It appears that the informant during the course of treatment is said to have died on 12.07.2008.

4. Further on the basis of the written information of the informant, a case was registered in Asanwa P.S. Case No. 19 of 2008 was instituted on 10.07.2008 for the offences under Sections 448, 341, 323 and 325 read with 34 of the IPC. It may further be added that the charges against the appellants were framed under Sections 302 read with 34 of the Indian Penal Code. It further appears that in view of the aforesaid on 18.07.2008 Section 304 of the Indian Penal Code was also added in the case. The charge sheet was submitted for the offence under Sections 304 (ii) read with 34 of the Indian Penal Code. The cognizance was taken and the case was committed to court of Sessions for trial with the result aforesaid. 5. The prosecution examined altogether 9 witnesses to substantiate the charges leveled against the appellants, who are namely, PW-1 Puja Kumari (daughter of the deceased), PW-2 Indrapati Devi (mother of the deceased), PW-3 Parasnath Pandey (father of the deceased), PW-4 Thakurji Pandey (brother of the deceased), PW-5 Satyanarain Pandey (brother of the deceased), PW-6 Dr. Azhar Ahmad (conducted Postmortem of the deceased), PW-7 Chhathu Pandey, PW-8 Umesh Prasad (Investigating Officer) and PW-9 Vijay Singh (Wireless operator). CW-1 Dr. Prem Kumar (Medical Officer), CW-2 Ramaji Tiwari (Formal Witness) and on behalf of defence only one witness has been examined i.e., DW-1 Gandhi Yadav.

6. PW-1 Puja Kumari (daughter of the deceased) in her examination-in-chief stated that the alleged incidence took place about one year two months ago at 8:00 PM. She further stated that her family members were resting after dinner and her father was alone at home. At that time Rishikesh Singh appellant no. 1 and Raju Singh appellant no. 2 came to her house and started using abusive language and forcefully took her father out of her home to the road while beating him and injured him by hitting him with sticks, fists and slaps, due to the afor