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14. Finally, PW-8, Amit Sharan was the SDPO of Sheikhpura who conducted investigation of the case and finally submitted charge-sheet against the appellants.

Submission on behalf of the appellants.

15. Mr. Mishra, learned Advocate on behalf of the appellant, namely, Balmukund Yadav, has made very short but pertinent submission which the Court must take into consideration and discuss. First, he submits that all the witnesses who supported the prosecution's case are police personnel. The Junior Engineer was murdered because of the fact that he was not agreeable allegedly to make false entries in the Measurement Book of works in MNREGA Scheme during evening hours in the heart of the city, in front of a Christian Ashram. But, surprisingly enough, not a single person were present at the time or soon after the incident to see the occurrence. The prosecution examined two witnesses, namely, PW-2, Nitish Kumar and PW-5 Dharmendra Kumar Pandit who did not support the prosecution's case. They stated on oath before the trial court that they do not have any idea how the deceased received gunshot injury on the date and time of occurrence and how he died. Thirdly, it is urged by the learned Advocate on behalf Patna High Court CR. APP (DB) No.953 of 2019 dt.30-03-2026 of Balmukund Yadav, appellant herein, that the trial court relied on the evidence of the informant (PW-6), who in his fard beyan stated that before his death, the deceased on the way to the hospital stated to him that one Nandan fired at him under the instruction of Balmukund Yadav and both Balmukund Yadav and Nandan fled away towards the station by a motorcycle. According to the fard beyan, the victim also stated to the I.O. that the other accused persons forcibly brought him from inside the Ashram up to the gate where the incident took place.

18. Mr. Mishra refers to the paragraph no. 8 of the cross- examination on behalf of the Dharmendra Paswan where PW-1 stated that the SHO tried to record the statement of the injured person. "The injured stated something to him" and the SHO recorded the same in his diary. PW-1 could not say whether SHO obtained his signature or Left Thumb Impression on the alleged statement of the victim. Thus, it is contended by the learned Advocate on behalf of the appellant, namely, Balmukund Yadav that the prosecution has not produced the original diary which contained the original dying declaration allegedly made by the victim. The statement made in the fard beyan regarding the dying declaration is obviously in writing of the SHO which he wrote from the said diary where the original dying declaration was allegedly written. Thus, in the instant case, the original dying declaration has not been produced. The trial court committed a gross error in accepting the fard beyan as the dying declaration of the deceased.

23. PW-6, Santosh Kumar Singh was an informant. He has corroborated the fard beyan submitted by him.

24. PW-8 is the I.O., who at the relevant point of time, was the SDPO of Sheikhpura.

25. We have perused the evidence of PW-8 and we are astonished to note that a senior officer in the rank of SDPO does not know that a police officer cannot record any confessional statement of an accused. There is a specific bar in Section 25 and 26 of the Indian Evidence Act, corresponding to Section 23(1) and Section 23(2) respectively of the B.S.A. It is further found from the evidence of PW-8 that the wife of the deceased lodged a written complaint in the police station. The said written complaint was not produced during trial. The wife of the deceased was also not cited as an evidence on behalf of the prosecution. There is absolutely no evidence as to whether the complaint lodged by Patna High Court CR. APP (DB) No.953 of 2019 dt.30-03-2026 Monika Kumari, wife of deceased Ujjwal Raj was submitted in the police station prior to submission of fard beyan by the SHO or not. Had it been the case, the complaint made by Monika Kumari was filed before the fard beyan submitted by the SHO, then the statement made by the SHO cannot be treated as a statement under Section 154 of the CrPC.

33. In the instant case, however, fard beyan was not made on the basis of the statement by the deceased. On the contrary, it was the fard beyan of the SHO of the Sheikhpura P.S. wherein he recorded what has been heard by him allegedly from the deceased. Now from the evidence of PW-8, it transpires that the dying declaration was recorded by the SHO in a diary. Fard beyan is not the part of the diary. What has been written in the fard beyan was the true and actual account and reproduction of dying declaration has not been deposed by any of the witnesses on behalf of the prosecution. Thus, in this case, the original dying declaration has not been produced before this Court. If voluntariness of the dying Patna High Court CR. APP (DB) No.953 of 2019 dt.30-03-2026 declaration is considered in association with the evidence of the autopsy surgeon (PW-4), it appears that PW-4 clearly stated that a person who is having injury of rupture of pleura, lung, pericardium and heart cannot speak and he will die within seconds. If we accept the opinion of the Medical Officer (PW-4), the deceased died before arrival of police.