CHANDRA NARAIN YADAV Vs. SHIBJEE YADAV

JUDGEMENT

(1.) Respondent 1 is stated to have died. Accordingly, the appeal abates against him.

(2.) This appeal is directed against an order of acquittal passed by the High court of Patna. The two respondents were convicted under S. 302/34 indian Penal Code and were sentenced to undergo imprisonment for life by the learned sessions Judge, Saharsa (Camp at Madhipura) on a finding that on 7/3/1973 at about 12 noon they murdered Surya Narain Yadav by shooting arrows at him. The learned Sessions Judge relied upon the dying declaration of the deceased recorded by the Magistrate (Public witness 5 in the presence of the doctor (PW 18 as well as on the evidence of PWs 6 and 8, who were alleged to have been following the deceased at the fateful time.

(3.) On appeal, the High court did not rely upon the evidence of the aforesaid two witnesses, PWs 6 and 8 and came to the conclusion that the dying declaration itself cannot be said to be such a compelling piece of evidence so as to be sufficient to convict the accused persons of the charges levelled against them. In this court, the accused-respondents were being represented by Mr Parmanand Gaur, the learned counsel. But when the matter was called yesterday the counsel was not present. Even today, when the case was taken up the counsel for the respondents was absent. We have, therefore, examined the records of the case with the assistance of the learnedcounsel appearing for the appellant and in the presence of the State counsel. A bare look at the impugned order of the High court would indicate that the said court committed gross error in coming to the conclusion that the dying declaration itself is not of such a compelling nature on which the conviction could be based in a charge of murder. As has been stated earlier, dying declaration was recorded by a Magistrate in the presence of a doctor who also had opined that the deceased was in a fit condition to make the statement. No reasons have been advanced as to why such dying declaration made by the deceased will not be acted upon. It is too well settled that a dying declaration, if found to be true and voluntary, can from the sole basis of conviction even without any corroboration. We have ourselves scrutinised the dying declaration Ex. P-4 and we have also perused the evidence of the magistrate and the doctor in whose presence the said declaration was recorded. We have no hesitation to come to the conclusion that the aforesaid dying declaration must be held to be a voluntary and truthful one and, therefore, any court can safely rely upon the same. The High court, in our opinion, was not right in excluding the dying declaration from consideration. Even so far as the evidence of the two eyewitnesses is concerned, on perusing the reasons advanced by the High court to discard the same, we are also of the view that the High court was not justified in excluding the evidence of those two eyewitnesses who were following the deceased at the relevant time when the occurrence took place and vividly indicated in their evidence as to how the occurrence took place. Therefore, the evidence of the aforesaid two witnesses fully corroborates the truthfulness of the dying declaration of the deceased recorded by the Magistrate.