The court held that oral dying declarations require corroboration to be considered substantive evidence, especially when the identity of the accused is in doubt.

JUDGMENT :

R. Mukhopadhyay, J.

1. Heard Mr. Rajesh Kumar, learned counsel for the appellants assisted by Mrs. Sunita Kumari, learned Amicus Curiae and Mr. Pankaj Kumar Mishra, learned A.P.P.

2. Since both these appeals arise out of a common judgment, they are being disposed of by this common order.

3. These appeals are directed against the judgment and order of conviction and sentence dated 30.08.1995 passed by Shri Paras Nath Sinha, learned Sessions Judge, Singhbhum West at Chaibasa in S.T No. 171 of 1991 whereby and whereunder the appellants have been convicted for the offence punishable under Section 302/34 I.P.C and have been sentenced to imprisonment for life.

4. The prosecution case arises out of the Fardbayan of Suchan Mahato recorded on 29.12.1989 in which it has been stated that last night at 7.00-7.30 pm the informant was in his house when his brother-in-law and Mukhiya Amin Chandra Mahato both of village Bansa had come and all of them had chicken and rice for dinner. After having dinner, the Mukhiya expressed his intention of sleeping in the house of the brother-in- law of the informant namely Jhari Mahato. Both his brother-in- law and the Mukhiya left for the house of the brother-in-law of the informant and the informant accompanied them for some distance. As soon as the Mukhiya and Jhari Mahato reached the road, the informant saw Ribu Mahato and Suresh Singh Sardar standing in the corner of the house of the informant. Ribu Mahato ascertained by calling out Mukhiya ji and when the answer was in the affirmative, Suresh Singh Sardar fired at Mukhiya ji who fell down and both the accused persons thereafter fled away. It has been alleged that Mukhiya ji had a firearm injury on his leg and blood was coming out. Several persons had reached the said place on hearing the cry of alarm. It has further been alleged that the Mukhiya ji had disclosed to the persons present that Suresh Singh Sardar had shot at him while Ribu Mahato was also present. It has been stated that Mukhiya ji was somehow taken to the hospital where the doctors declared him dead.

On the basis of the aforesaid allegations, Chandil P.S.Case No. 172 of 1989 was instituted for the offences punishable under section 302 / 34 I.P.C and Section 27 of the Arms Act. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the court of sessions where it was registered as S.T. No. 171 of 1991. Charge was framed against the accused under Section 302 / 34 I.P.C which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as nine witnesses in support of its case.

6. P.W.1 Fulchand Mahato has stated that he was in his house when he heard a cry of distress that Ribu and Suresh had shot at Amin Chandra Mahato. When he came out of his house, he found Amin Chandra Mahato lying on the ground. When he went near Amin Chandra Mahato, he found that he had been shot. Amin Chandra Mahato had asked him to inform his family members that Suresh and Ribu had shot at him. At this, he went to the house of Amin Chandra Mahato and disclosed about the incident to his brother. When he returned back to the place of occurrence with the brother of Amin Chandra Mahato, he had seen Jhari Mahato, Ramkishto Mahato, Gurusharan Mahato putting Amin Chandra Mahato on a cot. On the same day, he came to know from the hospital that Amin Chandra Mahato has died.

In cross-examination, he has deposed that the informant Suchan is his own brother. One or two persons had reached the place of occurrence before him. He has further deposed that Amin Chandra Mahato was lying on the road situated at a distance of 100-150 hands from the house of Suchan.

7. P.W.2 Jaldhar Mahato has stated that he was in his house when on hearing a cry of alarm, he had come out and had gone to the house of Mukhiyaji where he saw Mukhiyaji lying on a cot in the courtyard and several persons had assemb