The reliability of the dying declaration and the fit state of mind of the deceased are crucial in establishing guilt beyond reasonable doubt.

JUDGMENT :

Pradip Mohanty, J. - The appellant, who has been convicted by the Additional Sessions Judge, Rairangpur u/s 302 I.P.C. in S.T. Case No. 36/144 of 2000 and sentenced to undergo imprisonment for life, has preferred this appeal from jail. The case of the prosecution, as narrated in the F.I.R. (Ext.1), is that on 16.03.2000 at about 5.30 PM, when the informant (P.W.1) was in his house, Sumitra Tiriya (P.W.3), the wife of the deceased, came and told him that the appellant committed murder of her husband by pounding his head with a stone. When he asked the reason for such assault, she told that on the previous day, i.e., on 15.03.2000, her husband and nephew Niranjan Tiriya had plucked some tamarind from their common tamarind tree and also cut some branches, which were creating obstacles in cultivation of their land. For this, the appellant being enraged had threatened to kill the deceased. On the date of occurrence, one Sunaram Tiriya told her that the appellant killed the deceased by giving stone blows. Hearing this, she went to the spot and with the help of others brought the deceased to house. She gave water to the deceased and on being asked the deceased told her that the appellant dealt stone blows on his head. Thereafter, the deceased succumbed to the injury. The informant (P.W.1) went to Joshipur police station and orally reported the incident. Officer in-charge of the said P.S. reduced the said oral report to writing, registered the case, took up investigation, seized the blood stained earth, sample earth and small stone (M.O.VII), held inquest over the dead body of the deceased and sent the same for post mortem examination and after completion of the investigation, filed charge sheet against the appellant u/s 302 I.P.C.

2. The plea of the appellant was one of complete denial of the allegations.

3. In order to prove its case, prosecution examined as many as fifteen witnesses including the doctor and the I.O. and exhibited fifteen documents. The defence examined none.

4. Learned Additional Sessions Judge, who tried the case, convicted the present appellant u/s 302, IPC basing upon the oral dying declaration of the deceased.

5. Dr. Rath, learned counsel for the appellant submits that non-examination of the material witness Sunaram is fatal to the prosecution. The so-called dying declaration without corroboration cannot form the basis for conviction of the appellant and the same is not believable, since at the time of making the dying declaration the deceased was not in a fit condition. The contents of the F.I.R. have not been proved by the informant.

6. Mr. Rath, learned Additional Standing Counsel vehemently contends that the evidence P.Ws.3 and 4, before whom the deceased had made dying declaration, cannot be disbelieved because even though P.W.4 is the brother of the deceased he is also nephew of the appellant and likewise even if P.W.3 is the widow of the deceased she is also aunt of the appellant. The doctor (P.W.13) also opined that the injuries were ante mortem in nature and that the death of the deceased was due to heavy injury causing laceration of the brain coupled with lungs injury due to fracture of left side ribs. It is the settled principle of law that basing upon the dying declaration, a conviction can be made. Therefore, the learned Additional Sessions Judge has rightly convicted the appellant and there is no scope for this Court to interfere with the impugned judgment.

7. Perused the LCR. P.W.1 is the ward member and informant of the case. He reported the matter orally at the police station which was reduced to writing. This witness has not supported the case of the prosecution and the prosecution has declared him hostile.

P.W.2 is a co-villager who accompanied P.W.1 to the police station. In his examination-in-chief, he stated that P.W.3 told him that the appellant and the deceased quarrelled each other on the road and the appellant killed the deceased. He put his signature on the F.I.R. (Ext.1). In cross