The credibility of dying declarations is critical; absence of medical certification on the informant's consciousness undermines their admissibility, impacting the prosecution's burden of proof.

JUDGMENT :

Rongon Mukhopadhyay, J.

1. Heard Mr. Sahay Gaurav Piyush, learned Amicus Curiae for the appellant and Mr. Bhola Nath Ojha, learned Spl. P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 15.05.1997 (sentence passed on 20.05.1997) passed by Sri R.P. Verma, learned Sessions Judge, Godda in Sessions Case No. 103/1995, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 302/34 of the IPC and has been sentenced to R.I. for life.

3. The prosecution case arises out of the fardbeyan of Prakash Kumar Mirdha recorded on 20.09.1994, in which, it has been stated that on 19.09.1994 in the afternoon he had gone to the house of Jamuna Bhagat. The informant had not taken his lunch. The wife of Jamuna Bhagat used to treat the informant like her son. She had fed the informant and expressed her desire to visit the place the informant stays. It has been stated that the informant had taken the wife of Jamuna Bhagat to the house of Tunu Mirdha where they had tea and snacks and spent some light hearted moments. The informant thereafter had gone to work in the flour mill of Fuleshwar Gupta. In the evening the wife of Tunu Mirdha had informed the informant that she had accompanied the wife of Jamuna Bhagat to her house and had left her there. She had also stated that the wife of Jamuna Bhagat has called the informant to meet her. After closing the mill of Fuleshwar Gupta the informant started going towards the house of Jamuna Bhagat and when at 7:30 P.M. he had reached Saketpuri Raj Kumar Bhagat (appellant) and Dilip Sah surrounded the informant and admonished him as to why he has not stopped going to the house of Jamuna Bhagat. A quarrel had also ensued between them. It has been alleged that the informant on seeing Raj Kumar Bhagat taking out a pistol from his bag started fleeing away and he was shot at the back. When the informant raised a cry of alarm one of the persons arrived and the informant asked for water from him who had given him water. The informant somehow started going towards the Hatia but he fell down in front of the house of Anita Devi. The informant was taken to Sadar Hospital on a rickshaw after which he started becoming unconscious. The reason for the occurrence is that Raj Kumar Bhagat never like the informant frequenting the house of Jamuna Bhagat and earlier also quarrel had taken place between them.

Based on the aforesaid allegations Godda (T) P.S. Case No. 280/1994 was instituted u/s 341, 324 and 307/34 of the IPC . 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 Sessions Case No. 103/1995. Charge was framed against the accused u/s 302/34 of the and against Raj Kumar Bhagat u/s 302 of the which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as fourteen witnesses in support of its case.

5. P.W.1 (Chandiya Devi) did not support the case of the prosecution and was declared hostile by the prosecution.

6. P.W.2 (Dr. K.N. Choudhary) was posted as a Civil Assistant Surgeon, Godda and on 19.02.1994 he had examined Prakash Kumar Mirdha and had found the following:

(i) Lacerated wound on the back of the chest on left side in 10th intercostal space, surrounded by minute abrasions, margins everted and oozing, margins charred, tattooing grossly size ¼” x ½” (communicating with the wound of exit). Shape was oval. This was the wound of entry.

(ii) Lacerated wound, margins evert