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2014 Supreme(Jhk) 836
IN THE HIGH COURT OF JHARKHAND AT RANCHI
D.N. PATEL & P.P. BHATT, JJ.
Mangal Koya – Appellant
Versus
State of Jharkhand – Respondent
Criminal Appeal (DB) No. 384 of 2004
Decided On : 14.8.2014
For the Appellant: Mr. D.K. Chakravarty.
For the Respondent: Mr. Pankaj Kumar.
Headnote:Indian Evidence Act, 1872 – Section 32 – Dying declaration – Doctor not endorsing the declaration about fitness of deceased to give statement – Police officer recording dying declaration or the person reducing oral declaration into writing not examined – Witnesses stating that deceased was not a position to give statement – Veracity of dying declaration doubtful – Conviction on basis of such dying declaration not sustainable. (Para 21, 26)
AIR 2007 SC 2709; AIR 1999 SC 3883; 2013 AIR SCW 5778 – Relied upon
D.N. PATEL, J.
1. This Appeal has been filed against the judgment of conviction dated 25th September, 2003 and order of sentence dated 27th September, 2003, passed by the Additional District & Sessions Judge, Fast Track Court-II, East Singbhum, Jamshedpur in Sessions Trial No. 131 of 2002, whereby and whereunder this appellant has been convicted for committing murder of Mangal Lakra and sentenced to undergo Rigorous Imprisonment for Life. This appellant has also been convicted and sentenced to undergo Rigorous Imprisonment for two years u/s. 27 of the Arms Act.
Prosecution Case
2. It is the case of the prosecution that on 15th June, 2001 at 19.45 hrs. (7.45 PM) Fardbayan of informant Mangal Lakra (deceased) was recorded by the Police in the Emergency Ward of MGM Hospital, Jamshedpur that on 15th June, 2001 at 13.30 hrs. (i.e. 1.30 PM) while informant was pulling the cable for his friend Sohan Kujur from the adjacent school building, Mangal Koya (accused) came there and forbade the informant to do so and asked him to take Dish connection tram him. The Informant refused and pulled the cable and Mangal Koya left. On the very same day, i.e. on 15th June, 2001, at about 17.30 hrs. (i.e. 5.30 PM), while informant was at his house washing his mouth, Mangal Koya came there and asked the informant to accompany him to R.D. Tata School for a talk regarding Dish cable wire. Informant, in good faith/accompanied Mangal Kaya to the field of R.D. Tata School. They talked while walked and during such course when informant turned back, Mangal Koya took out the pistol from his waist and fired at his back. Blood oozed out from his back and stomach and Mangal Koya fled away. Thereafter when informant, crying and shouting, returned to his house, Babloo and two other boys of his Basti took him to the MGM Hospital where his treatment was going on. He further alleged that occurrence took place at about 17.45 hrs.
3. Details regarding witnesses in a tabular chart:-
| P.W.1 | Laxmi Kujur | She is the sister of deceased Mangal Lakra and Hearsay witness. |
| P.W.2 | Bablu Kujur | Declared Hostile witness. |
| P.W.3 | Sohan Kujur | Declared Hostile witness. |
| P.W.4 | Krishna Kujur | He is the Hearsay witness. |
| P.W.5 | Kundu Lakra | He deposed that Mangal Lakra told him in Hospital about the person who fired at him. |
| P.W.6 | Budhan Tirki | He deposed that deceased Mangal Lakra gave fardbayan to police in his presence that Mangal Koya has fired at him. He also proved the signature of deceased Mangal Lakra in fardbayan i.e. marked as Ext.-1. |
| P.W.7 | Lalan Choudhary | He is the Doctor who has examined the dead body of Mangal Lakra and has proved the post mortem report i.e. marked as Ext. 2 |
| P.W.8 | Asha Berman | She is the Investigating Officer of this case. She has proved the fardbayan i.e. marked as Ext.-3. She has proved the signatures on FIR i.e. marked as Ext.-4 and 4/A respectively. She has proved the case diary i.e. marked as Ext.-5. |
| P.W.9 | N.K. Sinha | She is the Doctor in MGM Hospital and she has examined the injured Mangal Lakra and has proved the injury report i.e. marked as Ext.-6. |
| P.W.10 | Balanand Singh | He is also the Investigating Officer of this case and has proved the formal FIR i.e. marked as Ext.-4/B. |
Argument on behalf of the appellant
4. Major omission, contradiction and improvement in the depositions – Counsel for the appellant submitted that there are major omissions, contradictions and improvements in the deposition of prosecution witnesses, which was not properly appreciated by the trial court and hence judgment of conviction and order of sentence passed by the trial court deserves to be set aside.
5. Offence not proved beyond reasonable doubt – It is further submitted by c
