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PETITIONER: BHOLA TURHA

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       26/11/1997

BENCH: G.T. NANAVATI, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                THE 26TH DAY OF NOVEMBER, 1997 Present:               Hon’ble 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                       J U D G M E N T      The following Judgment of the Court was delivered: NANAVATI, 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.      The conviction  of the  appellant is  based solely upon the dying  declaration.   it has  been found to be reliable. It was  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 him.      Learned 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

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not necessarily  mean that  he had recovered that spear from the place of offence.      We 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.      We are  of the  view that  the courts  below wee  fully justified  in   relying  upon   the  dying  declaration  and convicting the appellant.      The appeal is, therefore, dismissed.      The appellant  is ordered  to surrender  to custody  to serve out the remaining part of sentence.