The prosecution must prove the authenticity of a dying declaration and the deceased's fit state of mind; any reasonable doubt results in acquittal.

J U D G M E N T

CAV on : 21.11.2024 Pronounced on : 26/11/ 2024 Per Ananda Sen, J.: This Criminal Appeal arises out of the judgment of conviction dated 19.12.2002 and the order of sentence dated 20.12.2002 in Sessions Trial No. 713 of 1996 whereby and whereunder learned Additional Judicial Commissioner (F.T.) Court, Ranchi convicted the appellant under Sections 302 and 341 of the Indian Penal Code and section 27 of the Arms Act and sentenced him to undergo RI for life and fine of Rs. 10,000/- under section 302 of the Indian Penal Code , RI for one month under Sections 341 of the Indian Penal Code and RI for 7 years and fine of Rs. 5,000/- under section 27 of the Arms Act . All the sentences were ordered to run concurrently.

2. The learned counsel for the appellant submitted that the appellant has been convicted solely on the dying declaration of the deceased. He questioned and disputed authenticity of the dying declaration. As per him the deceased was shot at and was not in a position to speak as he was unconscious. Neither the doctor who had treated the deceased was examined nor the scribe who had written down the alleged oral dying declaration. Non-examination of the scribe is fatal so is non-examination of the doctor. Thus the prosecution had failed to prove whether the dying declaration was given by the deceased in a fit state of mind. Considering the nature of injury it was highly probable that the deceased was not in a fit state and was unconscious. The daughter of the deceased had narrated that before the police she had not disclosed the name of the assailants. The learned counsel for the appellant lastly submitted that there was delay in lodging the FIR which is not explained which creates doubt about the fardbeyan itself.

3. The learned counsel for the State submitted that the wife and the son of the deceased had clearly stated that the deceased had disclosed before them that he was shot by this appellant. Further the FIR is based on the fardbeyan of the deceased which is a dying declaration.

4. On the basis of fardbeyan of the deceased, FIR was registered being Mandar PS Case No. 101 of 1995 under sections 307/341/34 of the Indian Penal Code and section 27 of the Arms Act .

5. After investigation, the Investigating Officer submitted chargesheet against the appellant for the offence punishable under sections 302/34 and 341/34 of the Indian Penal Code and section 27 of the Arms Act .

6. On the basis of chargesheet and materials available on record, cognizance was taken and case was committed to the Court of Sessions where charges were framed under sections 302/34 and 341/34 of the Indian Penal Code and section 27 of the Arms Act and trial proceeded.

7. To prove the prosecution case, altogether 10 witnesses were examined by the prosecution, who are:-

i. PW1 :- Bijoy Lakshmi Kumari ii. PW2 :- Sita Devi iii. PW3 :- Nari Oraon iv. PW4 :- Bijay Thakur v. PW5 :- Kamal Ansari vi. PW6:- Sukra Oraon vii. PW7:- Banne Oraon viii.PW8:- Jhirga Oraon ix. PW9:- Arjun Ram x. PW10:- Dr. Niranjan Minz

8. Following documents have been exhibited :

i. Ext.1 – Signature of Kailash Oraon on fardbeyan ii. Ext.2 – Fardbeyan iii. Ext.3 – Formal FIR iv. Ext.4 – Postmortem Report

9. In this case the appellant has been convicted solely on the basis of the dying declaration of the deceased. The dying declaration is fardbeyan. Further the deceased also narrated about the incident before his family members. When I go through the fardbeyan dated 16.11.1995, I find that there is no witness to the said fardbeyan nor any doctor had certified about the state of mind and the physical condition of the deceased and whether he was in a position to give any declaration.

10. The dying declaration requires no corroboration as long as it inspires confidence. The said dying declaration should be free from tutoring. It is the doctor who was treating the deceased or the scribe of the dying declaration who is the best person to say about the mental state of the deceased and