TILA GOUDA AND TARSUS LAKRA Vs. STATE

JUDGEMENT

(1.) THE two Appellants stood charged under Section 302 read with Section 34 of the Indian Penal Code with having committed the murder of Sukhram Lohar alias Kumar by assaulting him by means of knives at about mid -night on the 21st/22nd August, 1978 and the motive was said to be the defiance of the deceased in not heeding the advice of the two Appellants and his other companions who were in the habit of committing thefts in the locality and committing theft in the house of a person. To bring home the charge, the prosecution had examined seven witnesses. The plea of the Appellants was one of denial and false implication. They had not examined any witness on their behalf. There was no evidence of any eye -witness to the occurrence. Nothing had been recovered from the person or possession of any of the Appellants. The sole evidence against the two Appellants was that of P.W. 3. (Constable) attached to the Jagada Police Beat House under the Rourkela Township Police Station and P.W. 4. Etwa Lohar regarding a dying declaration said to have been made by the deceased implicating the two Appellants as his assailants. This dying declaration was not a written one and was said to have been made first before P.W. 4 who went and reported at the Police Beat House on the basis of which the Station Diary entry (Ext. 4) was made and then before P.W. 3 (Constable) who had been deputed to the spot by P.W. 2, another Constable, who was in charge of the Station Diary and who had made the entry on the basis of the report of P.W. 4. The learned Sessions Judge found that the evidence of P.Ws. 3 and 4 was worthy of credence and accordingly both the Appellants were convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced thereunder to undergo imprisonment for life.

(2.) MR . N.K. Behera, the learned Counsel for the Appellant, has submitted that the evidence of P.Ws. 3 and 4 with regard to the dying declaration could not be accepted. Mr. P.K. Mohanty, the learned Additional Standing Counsel, has supported the order of conviction on the basis of the evidence of P.Ws. 3 and 4.

(3.) AS recorded in the Station Diary entry (Ext. 4), the deceased had stated that Sibu and Tilu had stabbed him. The particulars of those persons had not been given. This is very material in a case of this nature where the identity of the assailants named in a dying declaration is of utmost importance. The same criticism may be levelled regarding the Station Diary entry said to have been made on the basis of the statement made by P.W. 3. The Constable (P.W. 3) had stated that he did not maintain any personal diary as he did not know Oriya or Hindi although the other Constables had been maintaining personal diaries. But we notice from his deposition that he had signed in Hindi. According to P.W. 4, the statement made by the deceased had been reduced to writing by the Constable. No such writing had been brought in evidence by the prosecution. P.W. 4 had stated in his cross -examination that the deceased did not tell him the names of Thilu and Siu as the assailants. He had further stated that as the deceased did not tell him the names of the assailants, he did not give out the names to the Investigating Officer. He had admitted that he had not heard the deceased telling the Constable the names of the accused persons as the assailants. It would appear from the evidence of this witness that at times, the deceased was suffering from mental disorder.