IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (D.B.) No. 194 of 1994 (R)

(Against the judgment of conviction and order of sentence dated 28.11.1994

passed by the 4^th Additional Sessions Judge, Dhanbad in S.T.No.318 of 1991)

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1. Subodh Chandra Das, son of late Sachidanandan Das.

2. Sushil Chandra Das, son of late Sachidanandan Das.

Both residents of village-Sijua, Baishya Tola, P.S. Balidah, District-Bokaro.

3. Bhaskar Das, son of late Atulya Das, resident of village-Sonathali, P.S. Kashipur,

District-Purulia (West Bengal), present address village-Sijua, Baishya Tola,

P.S. Balidih, District-Bokaro.

…

…

…Appellants

-Versus-

The State of Bihar (now Jharkhand)

…

…

…Respondent

P R E S E N T

HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE SUBHASH CHAND

For the Appellants:

Mr. H. Waris, Advocate

Ms. Reshma Kumari, Advocate.

For the State:

Mr. Tarun Kumar, A.P.P.

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Per Sujit Narayan Prasad, J.

This Criminal Appeal under Section 374 (2) of the Code of Criminal

Procedure is directed against the judgment of conviction and sentence dated

28.11.1994 passed by learned 4^th Additional Sessions Judge, Dhanbad in Sessions

Trial No. 318 of 1991 whereby and whereunder all the three appellants have been

convicted under Section 394/34 and 302/34 of the Indian Penal Code and have been

sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal

Code and rigorous imprisonment for ten years under Section 394/34 of the I.P.C with

a direction that both the sentences to run concurrently.

2.

The prosecution story in brief as per the fardbeyan recorded by one

Nitai Das (P.W.3), as recorded on 10.05.1990 at 1:30 a.m., is that at about 10:30

p.m. on 09.05.1990 he was sleeping at his house. In the meanwhile his elder brother,

namely, Nirmal Chandra Das (deceased) awakened him then he saw that Nirmal

Chandra Das was smeared with pool of blood. On being enquired, Nirmal Chandra

stated that while he was coming from Tentulia to Sijua, thief had snatched his cycle

and was cutting his throat and after a part thereof was cut, then the thief fled away.

It has been stated therein that after narrating the aforesaid fact Nirmal Chandra Das

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became unconscious and thereafter, he was brought to Bokaro General Hospital by

trekker.

3.

The Police on the basis of the aforesaid “fardbeyan” has instituted

F.I.R. against unknown and submitted charge-sheet under Sections 394 and 302 of

the Indian Penal Code finding sufficient allegation against the appellants for facing

trial. The appellants pleaded not guilty and claimed to be tried as such the trial

commenced.

4.

The learned Trial Court after examining altogether 14 witnesses and

relying upon the dying declaration of the deceased made before the P.W.9, P.W.10

and P.W. 14 (the Investigating Officer) and found the charge levelled against the

appellants proved beyond all shadow of doubt and has convicted the appellants for

the offence committed under Section 394/34 and under Section 302/34 of I.P.C. and

also sentenced them to undergo imprisonment for life under Section 302/34 I.P.C.

and R.I. for ten years under Section 394/34 of I.P.C. with a direction that both the

sentences will run concurrently.

5.

Mr. H. Waris, learned Counsel appearing for the appellants has

submitted while questioning the impugned judgment of conviction that the sole basis

of conviction of the appellants are the dying declaration. The dying declaration said

to have been made before the P.W.9, the Doctor who has initially treated the

deceased and thereafter another Doctor (P.W.10), who has said to have recorded

the dying declaration of the deceased. It has been submitted that it is the case of

the prosecution that the occurrence took place on 09.05.1990 at about 10:30 p.m.

and thereafter the deceased who came from the place of