JUDGMENT :

1. In this appeal, the sole appellant Shivan Sah @ Shivan Sao has challenged the judgment of conviction dated 29.03.1997 and order of sentence dated 31.03.1997 passed by the Sessions Judge, Godda in Sessions Trial No. 25 of 1996, whereby he has convicted the appellant for the offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘Penal Code’ for brevity) and sentenced him to undergo imprisonment for life thereunder without any fine.

2. The case of the prosecution, shorn of unnecessary details, is that on 3rd of January, 1991 at about 8.30 p.m., an F.I.R. was lodged before the ASI Kedar Mandal at the Health Centre, Panjwara. It was informed by the informant Bateshwar Sharma that he was at the tea-betel shop at Khatnai Chowk, PS-Muffasil, District Godda. At about 6.30 pm, he heard a hulla that near the Boring House situated south to the said Chowk, Krishna Kumar Sah (deceased) was assaulted. The informant rushed to the Boring House where he saw the deceased Krishna Kumar Sah lying with dragger injury over his person and there were bloodstains all over his body. He also noticed that a part of his intestine has protruded out from the injury. The informant then with the help of others shifted the injured to the hospital where later on he died because of the injuries sustained by him. There he was given first-aid treatment and was referred to a higher centre. In the meantime, when he was present before the deceased, the deceased informed that the appellant has inflicted injuries on him by means of a Chhura because of previous enmity. Such declaration was made in presence of the other witnesses also.

3. It is further evident from the record that the deceased died in the hospital and on the basis of the F.I.R. lodged by the informant, a case was initiated against the appellant bearing Godda (Muffasil) P.S. Case No.02 of 1991 for the offence under Sections 307 and 326 of the Penal Code. Later on, after completion of investigation, the same was converted into Section 302 of the Penal Code. The Investigating Officer in course of investigation took all necessary steps like holding inquest on the dead body of the deceased, holding spot visit, seizure of material objects, sending the dead body for the post-mortem examination, recording of statement of witnesses and the informant after examination and finally upon completion of investigation, he submitted charge-sheet under Section 302 of the Penal Code, against the appellant.

4. The defence in the case took the plea of simple denial and false accusation.

5. In order to prove the case, the prosecution examined eight witnesses on its behalf. PW.1 happens to be the informant of this case. The other two important witnesses are PW.2 Nand Lal Sah and PW.2 Foto Mali. PW.4 Anant Ram Sah has also stated about the dying declaration made before them by the deceased on the date of occurrence. PW.5 Dinkar Mandal has been declared hostile by the prosecution. PW.6 Dr. Ajay Kumar Jha conducted post-mortem examination of the dead body of the deceased. PW.7 is the Investigating Officer of this case. PW.8 is the Police Officer who recorded fardbeyan of the informant.

6. After taking into consideration the dying declaration made by the deceased before the witnesses, namely, PW.1, PW.3 and PW.4 and the evidence of PW.6 (Doctor), the learned Sessions Judge has come to the conclusion that the prosecution has proved its case beyond all reasonable doubts and, therefore, proceeded to convict the appellant under Section 302 of the Penal Code.

7. The learned Senior Counsel Ms. Anjana Prakash appearing for the appellant would submit that the material evidence namely in this case runs contrary to the evidence of the medical expert who has conducted the post-mortem examination and, therefore, basing on such uncorroborated oral dying declaration, in the absence of any expert’s opinion regarding the mental capacity of the injured who later on died of the same injury, the learned Sessi