Criminal Appeal (SJ) No.230 of 1997 [Appeal against the judgment and order dated 12.8.1997 passed by the 3rd Additional Sessions Judge, Siwan in Sessions Trial No.325 of 1995] Sudama Mishra, son of Baliram Mishra, resident of village Matukchapra, Police Station Pachrukhi, District Siwan …………………….. Appellant Versus The State of Bihar ………….. Respondent For the Appellant : Mr.Udit Narayan Singh, Advocate For the Respondent : Mr. J.K. Singh, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s.304 Part II I.P.C. and sentenced to R.I. for seven years by a judgment dated 12.8.1997 passed by the 3rd Additional Sessions Judge, Siwan in Sessions Trial No.325 of 1995. 2. The case of the prosecution according to the informant is that on 3.4.1994 at about 4 P.M. the accused Dil Kumar, Sobha Devi and Sarswati Devi started abusing the deceased, at which she protested. She was then assaulted by means of fists and slaps. When her husband intervened he was also assaulted by the accused persons with fists and legs as well. In the course of this occurrence, the appellant is said to have given a brick blow on the head of the deceased, on account of which he died. The motive of the occurrence was that the husband of the deceased had sold some land of his shares to co-villager, which was not liked by the accused 2 persons, who were close relatives. The appellant along with four others was charged u/s.302/34 I.P.C. but the rest of the accused persons were acquitted whereas the appellant was solely convicted for the offence punishable u/s.304 Part II I.P.C. 3. During trial the prosecution has examined eight witnesses. Out of whom, P.W.2 Ram Chandra Mishra, P.W.4 Rambari Tiwary and P.W.5 Hridaya Tiwary have not supported the prosecution case and were declared hostile. P.W.3 Suresh Nath Tiwary and P.W.6 Surendra Nath Mishra were tendered for cross examination. P.W.7 Dr. Uma Shankar Pandey held the postmortem on the dead body of Manorma Devi and proved the postmortem examination report Exhibit-2. P.W.8 is Lalbihari Ram, who recorded the fard beyan of Manorma Devi, the deceased. P.W.1 Bidya Sagar Pandey is the Judicial Magistrate, who recorded the confessional statement of accused Parmatma Mishra. None of the witnesses supported the prosecution case. 4. I find that apart from the fact that an occurrence had taken place in which Manorma Devi had lost her life, there is no legal evidence against the appellant. It appears that the Trial Court has relied on the statement made by the deceased Exhibit 2 which depicted as a dying declaration, but I find that there is no corroboration to her statement from any independent source. The dying declaration is also suspect because evidently it was not recorded by a doctor nor is there any certificate with regard to the fact that the deceased was in a fit 3 mental state to give such a statement. In fact the Trial Court also rejected part of the dying declaration while acquitting the rest of the accused persons. Therefore, considering that there is complete lack of any evidence to sustain the conviction of the appellant, the conviction is set aside. 5. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant on 12.8.1997 by the 3rd Additional Sessions Judge, Siwan in Sessions Trial No.325 of 1995 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 18th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )