MOHAMMAD EKRAMUL Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this appeal by special leave the only question that arises is whether on the facts of this case the conviction of the appellants should have been maintained on the basis of the dying declaration alone. IN order to determine this question it is necessary to state the relevant facts.

(2.) THE two appellants. Mohd. Ekramul and Jethan Mahato were tried along with six others before the learned Additional Sessions Judge. First Court Monghyr. on charges under Ss. 148 and 302 read with Section 149. I. P. C. for the murder of one Doman Mahato of village Lohara within Jamui Police station. Mohd. Ekramul. along with two others were further charged under Section 302 read with Section 34. I. P C. THE Trial court acquitted the six co-accused in respect of all the charges against them and also acquitted Ekramul in respect of the charge under Section 302 read with Section 34. I. P. C. THE Trial Court however convicted the two appellants under Ss. 148 and 302 read with Section 149. I. P. C. and each of them has been sentenced to undergo rigorous imprisonment for life.

(3.) THE High Court, on appeal, has confirmed the conviction but it has based it solely on the dying declaration, reproduced above. Regarding Mst. Kapurba P. W. 3, the High Court held that "it is rather difficult to hold on her evidence that she had seen the actual assault on her husband and it is probable that she arrived at the place, where her husband was lying injured much after the assault on Doman'". Regarding Sarjug (P. W. 5), the High Court held his evidence to be unsatisfactory and undependable. THE High Court observed that "the witness made contradictory statements in the committing court and in the court of Session and tried to suppress facts. THE dying declaration of Doman was recorded by a Magistrate on the same day at Jamui hospital, but this witness evidently on being tutored tried to suppress the fact that his father had made a dying declaration before the Magistrate and stated that his father remained unconscious all the time and till his death he was unable to speak." THE High Court, further observed that this witness failed even to identify the signatures of his father, and he also tried to suppress the fact that his father had fought out a series of litigations since long with Ramcharitar Bhagat and others.