Document Fragment View

Matching Fragments

16.From the above stated discussions, it is clear that when police official took injured Bikram Gope and his father, Govind Gope to the hospital at Seraikella, Govind Gope died in the hospital prior to treatment, whereas Bikram Gope after getting treatment by Doctor (P.W.-1) had given dying declaration to P.W.-1 and thereafter, I.O. (P.W.-11) of the case has also recorded his fardbeyan which has also become dying declaration on account of death of informant on 07.06.1991. Thereafter, two brothers and mama of informant Bikram Gope (since deceased) namely, Khudiram Gope (P.W.-3), Tupa Gope (P.W.-5) and Amulya Gope (P.W.-4), have also stated that they heard from the mouth of Bikram Gope regarding commission of offence by the hands of six convicts of the present case. Therefore, there are three dying declarations in the present case, first dying declaration (vide Exhibit 2) recorded by Dr. Murlidhar Das, i.e. (P.W.-1), second dying declaration recorded by I.O. (P.W.-11) of the case as fardbeyan (vide Exhibit-6) and third-one is oral dying 2025:JHHC:17327-DB declaration made before brothers (P.W.-3 & 5) and mama (P.W.-

11) has not recorded statement of Doctor (P.W.-1) under Section 161 Cr.P.C. who had recorded first dying declaration of the deceased. In view of the aforesaid discussion, it is difficult for us to place reliance on the above said first dying declaration.

21. Now, coming to second dying declaration, which is in the form of fardbeyan recorded by I.O. (P.W.-11) at 13.45 P.M on 05.06.1991. I.O. has stated categorically in his testimony before the Court that he was not aware about the recording of dying declaration by the Doctor (P.W.-1). In view of such statement of 2025:JHHC:17327-DB I.O. (P.W.-11), it is clear that before recording fardbeyan I.O. was not at all aware about the name of assailants and other particulars regarding identity of injured as well as accused persons. Of course, this fardbeyan does not find certificate from any doctor that injured was in a fit state of mind to make statement. However, this fardbeyan bore the signature of one compounder R.P. Tiwary. It needs to refer herein the Judgment rendered by the Hon'ble Apex court in the case of Sher Singh v. State of Punjab reported in (2008) 4 SCC 265 wherein it has reiterated the legal proposition laid by the constitution bench in Laxman v. State of Maharashtra reported in (2002) 6 SCC 710 and held that in the absence of medical certificate regarding the fitness of a person, satisfaction of person recording the statement that the said person being fit negate the doubt regarding veracity of such statement. Relevant paragraph of the judgment reads as follows:

24. Incident is said to have occurred at 12.30 P.M. on 05.06.1991 and fardbeyan got recorded by I.O. (P.W.-11) at 13.45 Hrs. on the same day and this fardbeyan is the basis of FIR of present case and perusal of fardbeyan reveals that it bore signature of learned A.C.J.M dated 06.06.1991. It appears that there is no unnecessary time lag between incident and lodging of FIR on the basis of fardbeyan of injured and even sending the said FIR to court concerned, so we are having no doubt from above angle also. Learned Trial court record reveals that Kala Gope and Hiro Gope are the same and one person. In alleged first dying declaration, informant has allegedly taken name of five persons as assailants. Four names of assailants are common in second dying declaration but in second dying declaration name of Hemanto Gope is taken as fifth assailant whereas in first alleged dying declaration name of Meghnath Mahato was taken as fifth assailant. Two brothers of informant (P.W.-3 and P.W.-5) in their respective testimony have stated that there is animosity between informant side and accused side on account of land (Bhu- daan).Therefore, we come to the conclusion that second dying declaration (fardbeyan of Bikram Gope) is voluntary, truthful and is worth of reliance.

27. In view of aforesaid discussion, we may conclude now that first alleged dying declaration recorded by P.W.-1 and third alleged oral dying declaration made before P.W.-3, P.W.-4 and P.W.-5 are not worthy of reliance and that's why we are discarding them. But, as far as second dying declaration, which is in the form of fardbeyan is concerned, we are of the considered view that it is voluntary, truthful and worthy of reliance. Above stated aspect has not been considered by learned trial court while passing Judgment of conviction and order of sentence dated 22.09.1998 as it relied upon all the three dying declaration.