Vakil, J. -
(1.) The appellant and two other persons were tried as accused in Sessions Case No. 57 of 1964, for having committed various offences, in the Sessions Court of Junagadh. The other persons were acquitted of all the charges but the appellant was convicted for having committed offences punishable under sections 457, 392 read with section 397 and section 304 Part II, Indian Penal Code, and sentenced to suffer rigorous I. P. C. And to 7 years' rigorous imprisonment for each of the offences under section 392 read with sections 397, 304, Part II Indian Penal Code. The sentences were ordered to run concurrently.
(2.) The prosecution case was that deceased Amichand Damodar originally resided in a village called Dadar in Taluka Visavadar of the District of Junagadh and he had shifted to the village Setranj Vadala which was at a distance of about one mile from Dadar since about 4 months prior to the incident as a result of which he lost his life. He had purchased a small house and was doing some small business in the said premises and also resided therein. He was a bachelor aged about 60 and no one was staying with him, but had his first cousin Jagjivan residing in Setranj Vadala in a separate premises and his other cousins named Ratilal and Chunilal stayed at Dadar. On the night between the 4th and 5th of September 1964, some time at midnight, it was alleged, that appellant and two other accused, in furtherance of their common intention to commit an offence of robbery, death etc., entered into the shop of Amichand and robbed him of property worth about Rs. 460/- including currency notes and some ornaments and during the course of that robbery had inflicted fatal injuries on Amichand which resulted in the death of Amichand on the 9th of September 1964 at Government Dispensary at Visavadar. The injuries were alleged to have been caused with a dagger or knife by the appellant. It appears that one Koil China Jeran came to know about this occurrence and he contacted the police Patel Jivraj Devshi. The police patel arrived on the scene and at that time witnesses Shama Bhima, Dana Jeita and Bachu Masri who met the police patel on his way to the scene of offence, joined him and they all arrived at the residence of the deceased. Then they found that one wooden box was lying open and things were lying helter skelter. Amichand was sitting at that time on his cot and had bleeding injuries in his abdomen. When they enquired of Amichand as to what had happened, it is the version of the prosecution that Amichand told them to call Ratilal and Jagjivan, his cousins. There is some discrepancy in the evidence of the prosecution on his aspect as to whether at this first contact Amichand had told the police patel and those who had accompanied him, the details of the incident including the name of the appellant or whether he did so only on the arrival of his two cousins. We shall deal with this aspect at its proper place. But proceeding with the version, it was that Jagjivan could not be found because he had gone to Junagadh. Therefore, his other cousins Ratilal and Chunilal were called from Dadar and when they arrived they had a look round the ship. They found Amichand injured, who informed them that three persons had entered his house from the place where the wall had fallen down due to heavy rainfall and which he had temporarily blocked up with thorns and kutcha bricks. These miscreants had entered his house sometime at midnight. He had kept the lamp burning in his room and he saw these three persons proceeding toward the big box and fiddle with it to break it open and so he went near them. The appellant No. 1 took him in his grips, made him fall on the cot and as the lap was burning at that time, he could identify him. The deceased gave his name to be Bavaji Doltgiri Itvargiri. The miscreant had then gagged him and then stabbed him with a knife in his abdomen. Thereafter the three persons decamped with Rupees 270/- in currency notes, some packets of Taj Brand cigarettes, a gold ring etc. Then the police patel dictated this information that he received from the deceased himself to Ratilal. Then Ratilal, the police patel himself and the three others who were present at that time signed the same and thereafter that report was sent with Dana Jeta with instructions to give it at Monpari village, which was at a distance of two miles and he was further instructed that if there was nobody there, he should carry the report to Sarsai Police Outpost at a distance of about six miles. Dana Jeta handed that report, which is Exhibit 7 on the record, to witness Champaklal Shamalji, who in his turn handed it over to one Natvarsi or Natubhai, a police constable to be carried to the police station at Visavader which was at a distance of about 10 miles Police Jamader of Sarsai happened to be at that time at village Setranj vandala and on seeing people collected at the place of Amichand, inquired as to what had happened, and having learnt about the incident, he recorded the complaint of Amichand which is Exhibit 8 and has been treated on the record as a dying declaration of Amichand, he having died subsequently. In the meantime, Danajeta returned after handing over Exhibit 7 and, therefore, this complaint or statement, Exhibit 8, of the deceased was given to him to be sent to Sarsai through Champaklal Shamalji. It appears that both these documents were carried by Champaklal Shamlji and police constable Natvarsing, both of whom have been examined as witness, to Visavdar Police Station, Sagunrai Ratilal, another witness examined by the prosecution, was in charge of the police station and having received both the documents simultaneously, he first read Exhibit 8, being the complaint of the deceased himself and having been sent by the police constable Maganlal and then immediately read Exhibit 7, the occurrence report, sent by the police patel. He then registered the offence on the basis of Exhibit 8, the complaint of the deceased. Thereafter the investigation started and the First Information Report was sent by him, which is Exhibit 47. He arrived at the scene of offence, carried on the investigation and arrested accused No. 1 on the 6th of September 1964 in the evening and accused Nos. 2 and 3 on the 7th September 1964. In due course, the charge sheet was submitted against all these three accused who were ultimately committed for trial in the Sessions Court at Junagadh.
(3.) As we are not concerned with the persons who were originally tired as accused Nos. 2 and 3, we shall be confining our discussion and consideration to the evidence so far as it concerns accused No. 1, i.e., the present appellant. At the trial, the defence of the appellant was one of total denial. In short, according to him, he had not entered the house of the deceased as was alleged nor had he committed any of the offences for which he was charged. His version was that, various witnesses had falsely involved him because of some one or the other reason for which they bore enmity against him. We shall examine this part of his case also at its proper place. The learned Judge, after duly weighting the evidence, came to the conclusion that there was no evidence whatever to show or justify to come to the conclusion that there was common intention between the three accused to commit the various offences for which they stood charged. He further held that there was no evidence whatever to come to the conclusion that accused Nos. 2 and 3 were the two of the miscreants who had entered the house of the deceased as alleged by the prosecution and acquitted them as stated hereinabove. But as regards accused No. 1, the present appellant, the learned Judge came to the conclusion that the oral dying declarations relied upon by the prosecution were duly proved. He found them to be reliable and he was inclined to based the conclusion of guilt so far a the appellant was concerned, on these dying declarations themselves, particulars the dying declaration Exhibit 8, and he further came to the conclusion that the prosecution case received support from other circumstances such as the alleged discovery of the dagger by the appellant and the recovery of Rs. 100/- in currency notes of Rs. 10/-denominations and five packets of cigarettes, which were established by reliable oral evidence and, as a result, he convicted and sentenced the appellant as aforesaid.;