SIKRI C. J. - (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. The occurrence took place at 4 a m. or October 17. 1964 at a lane outside the darwaja of the deceased Doman Mahto. The prosecution story, in brief was that Doman. deceased was sleeping in his house and the two appellants along with the six co-accused, came to the darwaja of Doman, and Ekramul called out Doman from outside and the latter came out followed by his son Sarjug (P. W. 5 ) and wife Kapurba (P. W. 3): at the instigation of Ekramul. Amrit (since acquitted) pulled Doman by his leg and as Doman fell down. Ekramul struck Donan on his neck with a sword while Zubeir and Wahab (since acquitted) inflicted bhala blows on the chest of Doman: Kapurba (P. W. 3) and Sarjug (P W. 5) raised alarm and the prosecution witnesses arrived from the neighbourhood: Sarjug reported the occurrence on the same day at 7 a. m. at Jamui Police Station, which is five miles away from the place of occurrence: P. W. 10, the officer incharge arrived at village Lohara at 8. 30 a. m. and found Doman lying injured to the west of his darwaza: P W 10 found injuries on the deceased. which will be described later, he sent Doman to Jamui hospital for treatment: he also sent a requisition to the Sub Divisional Magistrate Jamui for getting the dying declaration of the injured recorded. The injured was examined on October 17. 1964 at 11 a. m. at Jamuni hospital by the Civil Assistant Surgeon. Dr. A. Kabir, and he found the following injuries: (1) Transverse incised wound on the front of the neck extending to both sides 6" x 2" trachea deep with cutting of trachea into two parts at the level of the thyroid cartilage with blood oozing out and few blood clots. (2) Incised wound on the right side of the chest penetrating below the clavicle 21/2" x 3/4 a chest cavity deep with emphysema. (3) Incised penetrating wound on the left side of the chest in the second inter-costal space vertical in direction 1 1/2 "x 1/2" chest cavity with emphysema. According to the doctor, injury No. 1 appeared to have been caused with a sword while the two other injuries with bhala. He also stated that the victim, with injury No. 1, could not have been able to make audible speech. The Magistrate. U. S. Singh therefore could not record any dying declaration of Doman, at that time. Later on when the injury was repaired by the doctor, U. S. Singh, Magistrate P. W. 6, went on the same day at 3 30 p. m. and purported to record the following dying declaration: JUDGEMENT_312_3_1973Html1.htm Doman died at the Patna Medical College hospital on October 30. 1964. The learned Additional Sessions Judge as already stated convicted the two appellants.
(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. The High Court came to the conclusion that the two eye-witnesses had not really seen the actual assault on Doman and it was just possible that the assault having taken place in the very early hours of October 17. 1964, when it was still dark, and since Doman was sleeping on the verandah while P. Ws. 3 and 5 were sleeping inside the two different rooms of the house, they did not wake up when Doman on being called out came outside and was assaulted in the lane and these witnesses found Doman lying injured sometime afterwards when the assailants had actually fled away, and the names of the assailants were mentioned in the F. I R. evidently on suspicion.;