IMPORTANT POINT
The admissibility of dying declaration and the application of the last-seen theory in establishing guilt in a murder case.

JUDGMENT :

Subhash Chand, J.

The instant criminal appeal is preferred on behalf of the appellants namely, Kapildeo Mandal @ Kapil Mandal @ Kapil @ Tulsi Mandal and Sanjay Paswan @ Sanju Paswan against the judgment of conviction dated 3rd April 2017 and the order of sentence dated 4th April 2017 passed by the learned Additional Sessions Judge-III, Rajmahal in Sessions Case No. 240 of 2011 whereby the accused namely, Subesh Mandal was acquitted while the accused/appellants namely, Kapildeo Mandal and Sanjay Paswan were convicted under sections 302 r/w 34, 120 (B) of the Indian Penal Code (in short, IPC) and 27 of Arms Act.

2. The brief facts of the prosecution case are that the informant (Shankar Mandal) gave the written information with the police station concerned with these allegations that on 23rd March 2011 at about 6 O' clock of evening Kapildeo Mandal @ Kapil Mandal alongwith one another young man came to his house. He had come to his house at 7 O' clock from his agricultural field. Kapildeo Mandal used to come to his house. After gossiping in the night at 10:30 pm he, Kapildeo Mandal and also his aide to whom he was addressing Sanjay Paswan all took food and he took them to Panchayat Bhawan to sleep in the night. In the mid way between his house and Panchayat Bhawan, Kapildeo Mandal shot bullets all of a sudden 4 to 5 times and Sanjay Paswan also shot bullets twice. These bullets hit on his shoulder, abdomen, waist, thigh and leg etc. He fell down at the place of occurrence and on raising alarm and hearing the sound of the bullets both the accused persons fled away. Thereafter, some persons of the locality and his family members carried him to Sadar Hospital, Sahibganj. This occurrence was done under a criminal conspiracy by both these accused persons with Subesh Mandal. One and two months ago Subesh Mandal had called him over his mobile phone and asked him either not to give evidence in a murder case against him or he would the same in his favour. He was also familiar with Kapildeo Mandal who was brother in relation of Subesh Mandal. With intent to commit murder of him they had open fired upon him. The written information of this occurrence was given by victim orally to the police station concerned which was reduced into writing by the police officer of Rajmahal Police Station and the thumb impression of the victim was taken thereof. On this written information, Rajmahal PS case No. 71 of 2011 was registered under sections 120 (B), 307 r/w 34 of IPC and 27 of Arms Act against the accused Kapildeo Mandal, Sanjay Paswan and Subesh Mandal. During treatment the informant/victim died and section 302 of IPC was added.

3. The IO after having concluded the investigation filed the charge-sheet against all the three accused persons for the offence under sections 120 (B), 307 r/w 34, 302 of IPC and 27 of Arms Act with the Court of the learned Magistrate concerned.

4. The learned Magistrate concerned took cognizance on the charge-sheet and the case being exclusively triable by the Court of Sessions, the accused persons were committed before the Court of the learned Sessions Judge, Rajmahal for trial and the learned Sessions Judge transferred the same to the learned Additional Sessions Judge-III, Rajmahal for trial. The trial Court framed charge against the accused persons under sections 307, 302 r/w 34, 120 (B) of IPC and 27 of Arms Act.

5. On behalf of prosecution to prove the charge against all the accused persons in oral evidence examined PW1 Tulsi Karmkar, PW2 Subhash Mandal, PW3 Bina Devi @ Bino Devi, PW4 Praveen Kumar @ Praveen Kumar Mandal, PW5 Dr. Ranvijay Kumar, PW6 Dr. Sandeep Prasad Lal and PW7 Dr. Ajay Kumar, IO, Police Inspector.

6. In documentary evidence adduced injury report of Shankar Mandal Exhibit-1, postmortem report of deceased Shankar Mandal Exhibit-2.

7. The statement of accused Subesh Mandal, Kapildeo Mandal and Sanjay Paswan were recorded under section 313 of Cr.PC. The accused Subesh Mandal denied incriminating ci