MURSALIM SK. @ CHIMMU SK. Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 07.08.2003 and 11.08.2003 respectively passed by Ist Additional Sessions Judge, Pakur in Sessions Case No. 03 of 2002, whereby and where under, appellants are convicted under section 302/34 of the Indian Penal Code for committing murder of Serajul Sk. and sentenced to undergo imprisonment for life. The case of prosecution, in brief, as per First Information Report is that on 24.04.2001, informant Ajibul Sk. (P.W. 6) heard rumour that his younger brother Serajul Sk. has been assaulted by some persons and thrown in a field situated at the village Nayagram. Thereafter, informant along with his sister Aima Bibi, brother -in -law Gaju Sk. and others went to the place of occurrence at Nayagram and found that Serajul Sk. was lying injured in the field. He further states that on query, his brother disclosed that at about 12 noon, after taking meal he was taking rest near the house of Niyamat Sk., eight persons namely, Mursalim Sk. @ Chimmu Sk., Khalik Sk., Ajibul Sk., Sabir Sk., Saifur Sk., Madhu Sk. and Ajim Sk. arrived. He further disclosed that Alam Sk. open fire from a pistol and exhorted others. He further disclosed that when he tried to run away, aforesaid persons chased and caught him near a Neem Tree, then after felling him on a plastic -sheet, Chimmu Sk. cut his left leg, Madhu Sk. cut his left wrist, whereas others namely, Khalik Sk. and Sabir Sk. inflicted cut injuries on his body and thrown him in the field assuming that he already died. Informant further stated that at about 4.00 P.M., while he was making arrangement for taking the injured to the hospital, he died. Thereafter, informant went to police station and lodged information.

(2.) ON the basis of aforesaid information Maheshpur P.S. case No. 31/2001 dated 28.04.2001 instituted under section 302/34 of the Indian Penal Code and police took up investigation. In course of investigation, police prepared inquest and, sent dead -body for postmortem examination. Police after completing investigation submitted charge -sheet against the appellants under section 302/34 of the Indian Penal Code. It appears that cognizance was taken for the aforesaid offence and the case committed to the Court of Sessions, as the offence under section 302/34 of the Indian Penal Code is triable by a Court of Session. After commitment, record of the case transferred to the file of Ist Additional Sessions Judge, Pakur for adjudication, who vide his order dated 09.04.2002 framed charge under section 302/34 of the Indian Penal Code and explained the same to the appellants to which they pleaded not guilty and claimed to be tried.

(3.) WHILE assailing the judgment of the court below, Ms. Supriya Dayal, learned counsel for the appellants submitted that in the instant case, learned court below convicted the appellants on the basis of oral dying declaration of the deceased. She further submitted that alleged dying declaration cannot be accepted because the occurrence took place at about 12 noon and P.W. 5, P.W. 6, P.W. 12 and P.W. 15, who are witnesses of oral dying declaration, had reached at the place of occurrence at 3.00 P.M. She further submitted that the doctor P.W. 16 had found altogether 9 injuries on the person of deceased and gave opinion that deceased in all probability will die within half an hour if no medical aid given to him. She further submitted that thus when P.W. 5, P.W. 6, P.W. 12 and P.W. 15 reached at the place of occurrence, deceased was not alive. Therefore, question of making disclosure, about the occurrence, by the deceased does not arise. She further submitted that admittedly, aforesaid witnesses had inimical relation with the appellants. Thus, they have concocted a story with a view to falsely implicate appellants. She further submitted that statement of P.W. 14, who is also one of the relative of informant, cannot become the basis of conviction because he did not disclose the names of appellants, as the assailants of deceased. He identified them for the first time in court. Accordingly, she submitted that appellants are entitled to be acquitted in the present case.