Decided on August 21,1969



SURAJBHAN J. - (1.) THIS is an appeal by Ishwarprashad, son of Lalluprashad of village Acholi, district Durg, who has been convicted by the learned Additional Sessions Judge, Durg, under section 302 of the Penal Code, for the murder of one Tantu, in the mid-night between 15-3-1905 and 16-3-1965, at village Acholi, and sentenced to imprisonment for life. The other co-accused Mahabir, who was also prosecuted for the offence under section 302 read with section 34 of the Penal Code, has been acquitted, while the remaining co-accused Sitaram and others have been absconding.
(2.) BRIEFLY stated, the facts of the prosecution case were, that relations between Jhumak a lias Jhumaklal and his son Meghashyarn (P.W.I), both of village Acholi, were strained with Sitaram as also his son Surendra, both absconding accused, for sometime past; Ishwarprashad accused was serving with Sitaram and Tantu accused with Jhumaklal, at the relevant time, and it is alleged that accused Ishwarprashad, accompanied by Mahabirprashad accused (since acquitted) and four others who are absconding, had gone to village Acholi with a view to kill Jhumaklal, but there, they found Tantu deceased sleeping in his house, which was under construction at that time. Tantu got awakened as the dog barked and the accused having known that Tantu had recognized them, they inflicted a number of injuries on him in order to eliminate the chance of his divulging the fact to Jhumaklal. Tantu was so severely injured that he succumbed to his injuries soon. A report of the incident was made to the police by Meghashyarn (P. W. 1), vide Ex. P-1, about an hour after the incident and the police, after the usual inquest and necessary investigation in the case prosecuted the accused-appellant and Mahabir for the offence under section 302 read with section 34 of the Penal Code, but the accused was convicted under section 302 of the Penal Code while Mahabir was acquitted. At the trial, the accused-appellant had pleaded not guilty to the charge against him, and his defence was that he had been falsely implicated. The fact of homicidal death of Tantu is amply proved by the evidence of Meghashyarn (P. W. 1), Navinchand (P. W. 4) and others and Dr. Jain (P. W. 6), who had performed the post-mortem on the dead-body of the deceased. On the post-mortem, the doctor found on the dead-body as many as 11 ante-mortem injuries of various dimensions as detailed in his post-mortem report Ex. P-4, and in his opinion, injuries 2, 3, 4 and 11 were grievous, while the rest of the injuries were simple. On internal examination, he also found that the 11th rib was fractured corresponding to injury No. 4; there were tears in the liver at 3 places corresponding to injuries 2, 3 and 4, and in his opinion, all these injuries were sufficient to cause death, and the said injuries could be caused by a sharp cutting weapon like a knife or a sword, and the death was due to shock and haemorrhage on account of the multiple injuries received by the deceased.
(3.) THE prosecution case rests mainly on the oral dying declaration alleged to have been made by the deceased, and the learned Judge, relying on the testimonv of Meghashyam (P. W. 1), Nawinchand (P. W. 4) and Ramdayal (P. W. 8), convicted the accused for murder as aforesaid. Shri Khaskalam, the learned counsel for the appellant, has taken us through the evidence of those prosecution witnesses, mentioned above, who have deposed as regards the dying declaration said to have been made by the deceased, and contended that it is not clear from their statements as to what were the exact words spoken by the deceased, and further, that the record of their statements has not been made intelligently and consequently their statements do not inspire confidence, and the conviction of the accused-appellant should not have been based on such a dying declaration alone.;

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