Vs. State of Bihar  INSC 865 (26 November 1997)
NANAVATI, B.N. KIRPAL
26TH DAY OF NOVEMBER, 1997 Present:
Mr. Justice G.T. Nanavati Hon'ble Mr. Justice B.N. Kirpal M.P. Jha, Adv. for
the appellant Anil Kumar Jha, Adv. for the Respondent
following Judgment of the Court was delivered:
J The appellant was convicted by the trial court for the offence punishable
under Section 302 IPC. On an appeal, the High Court altered his conviction from
under Section 302 to Section 304 Part I IPC and sentenced him to suffer
rigorous imprisonment for ten years. The appellant is challenging in this
appeal his conviction and the sentence imposed upon him.
conviction of the appellant is based solely upon the dying declaration. it has
been found to be reliable.
made by the deceased within about two hours from the incident and a few hours
before his death. In his dying declaration, he has clearly explained how he
came to be injured by the appellant. After carefully scrutinising the dying
declaration, both the courts have come to the conclusion that it contains a
truthful version as regards the manner in which the injuries were accused to
counsel for the appellant, however, submitted that in view of the inconsistency
between the version of the deceased and the version of the eye-witnesses, the
courts ought not to have relied upon the dying declaration without any
independent corroboration. The eye-witnesses did not support the prosecution
and were declared hostile. As they did not state anything about the spear blow
given by the appellant, really there is no inconsistency between their evidence
and the dying declaration. it was submitted by learned counsel that in the
dying declaration, it is stated that the appellant after giving a spear blow
had taken out the spear from the body of the deceased and had taken it away
with hi, PW. 14-another Chowkidar on the other hand has stated in his evidence
that he had produced the spear of the appellant before the Investigation
Officer. That does not necessarily mean that he had recovered that spear from
the place of offence.
therefore, do not find any inconsistency between the dying declaration and the
other evidence on record. No other infirmity in the dying declaration could be
pointed out by the learned counsel.
of the view that the courts below wee fully justified in relying upon the dying
declaration and convicting the appellant.
appeal is, therefore, dismissed.
appellant is ordered to surrender to custody to serve out the remaining part of