(1.)THIS is an appeal by the accused Meharchand, Surja, Chunna and Dedia, all of whom have been convicted by the learned Sessions Judge, Bikaner, under secs. 302 and 452, I. P. C, and have been sentenced to imprisonment for life and three years' rigorous imprisonment respectively. Both the sentences have been made to run concurrently.
(2.)THE prosecution case is that there are two factions of Visnois in village Udsar. One of them is headed by one Ramkaran, who was also an accused in this case, but was acquitted by the trial court. THE leader of the other faction was the deceased Dhonkal. THEre was a long standing enmity between these two factions and previously some murders had also taken place, as a result of this enmity. To add fuel to the fire, there arose some dispute in respect of a field between Samela, belonging to the party of the accused, and one Madhosingh. Amar Singh son of Madho Singh obtained the possession of the field with the help of the Police from Samela, Meharchand and Chunna. THE deceased Dhomkal helped Amar Singh in bringing that field under cultivation and even lent his plough to Amar Singh. This act of Dhonklal, it is alleged by the prosecution, further strained the relations between the two parties and there were cases under sec. 147 and 447, I. P. C. , between Amar Singh and the accused. THE deceased Dhonkal appeared as a witness on behalf of Amar Singh. It is alleged by the prosecution that on August 24, 1966, at about 3 P. M. , the accused Ram Karan, Meharchand, Surja, Chunna, Dedia and Manphool attacked Dhonkal who ran into the house of his nephews P. S. 1 Laluram and P. W. 2 Ratiram, sons of Bhagirath. Ramkaran had a gun, Meharchand and Dedia had 'selas' while the rest of the accused were armed with lathis. PW. 1 Laluram and P. W. 2 Ratiram, according to the prosecution, were sitting under the 'neem' tree in their house at that time. Ram Karan is alleged to have tired the gun in the air, and Meharchand and Dedia struck blows with 'selas' and the rest of the accused dealt lathi blows to Dhonkal, as a result of which he fell down, badly injured, in the house of Ratiram. P. W. 3 Kasba and P. W. 4 Laluram son of Birbal are said to have arrived on the spot while beating was in progress and they witnessed the same. At that time a motor car happened to pass by that way in front of the house of Ratiram and the sound of the approaching car made the accused flee away from the spot. That motor car was utilised for taking the deceased Dhonkal to the hospital at Nokha. All the four witnesses, namely, Lalu son of Bhagirath; Ratiram, Kasba and Lalu son of Birbal accompanied Dhonkal to the hospital. PW. 1 Lalu lodged an oral report of the occurence at the Police Station, Nokha, which is at a distance of about 20 miles from the place of occurrence, namely, village Udsar. This report was written out by Jamadar Raghunath Singh and the copy of the same has been placed on the record and marked Ex. P. 1. Dhonkal who had, in the meanwhile, been admitted in the hospital, was found to be in a precarious condition. THE Doctor Asharam Acharya P. W. 7 Incharge, Primary Health Centre, Nokha, in view of the serious condition of Dhonkal started recording his dying declaration, and the Tehsildar Magistrate, Nokha, Shri Hiralal Kaushik, P. W. 12, also arrived at the Primary Health Centre while Dr. Acharya was recording the statement of Dhonkal. That dying declaration has been placed on the record and marked Ex. P. 8; Shri Hiralal Kaushik, Tehsildar-Magis-trate, Nokha, also made an endorsement on Ex. P. 8 that it had not been possible to obtain the thumb impression of the deceased Dhonkal on Ex. P. 8 as the hands of Dhonkal had been badly injured. THE condition of Dhonkal began to deteriorate and it was thought proper to send him to Bikaner for treatment Accordingly Dhonkal was sent to Bikaner and was admitted in the hospital at Bikaner at about 8 P. M. the same day. At Bikaner he was examined by PW. 8 Dr. G. K. Bhatna-gar. He found 18 injuries on the person of Dhonkal. THE deceased, however, died as a result of shock and haemorrhage due to multiple wounds, injuries to left anterior tibial artery and multiple fractures of various bones, at about 9-15 p. m. After necessary investigation, the police challaned the accused Ramkaran, Mehar Chand, Surja, Manphoola, alias Phulia, and Chunna in the court of Additional Munsiff-Magistrate 1st Class, Bikaner, for offences u/sec. 302 read with sec. 34, and sec. 148, 149 and 452, I. P. C. Learned Additional Munsif-Magistrate, First Class Bikaner, in due course committed the accused for trial to the court of Sessions Judge, Bikaner. During the course of the trial the prosecution examined 13 witnesses. All the accused denied having committed the offences and the accused Ramkaran, Meharchand, Surja Phulia and Chunna pleaded alibi. THE accused also examined 10 witnesses in their defence. At this stage it will not be out of place to mention that the prosecution rests its case against the accused on direct evidence consisting of the statements of the alleged eye witnesses Lalu son of Bhagirath, Ratiram, Kasba and Lalu son of Birbal, P. Ws, 1, 2,3 and 4 respectively, as also on the dying declaration Ex. P. 8 made before P. W. 7 Dr. Asharam Acharya, and P. W. 12 Hiralal Kaushik, Tehsildar Magistrate, Nokha.
Learned Sessions Judge, Bikaner. while dealing with the direct evidence, discarded the testimony of P. W. 1 Lalu son of Bhagirath on the ground that his statement contained a bundle of lies. As regards P. W. 2 Ratiram, the learned Sessions Judge found that even though the witness had given an exaggerated and embellished statement there was a ring of truth in his deposition. The same was the finding of the learned Sessions Judge with respect to the statement of P. W. 3 Kasba and P. W. 4 Lalu son of Birbal. The learned Sessions Judge also relied upon the dying declaration, Ex. P. 8. Thus, having accepted the prosecution case in its broad features, the learned Sessions Judge examined the cases of Ram Karan and Manphool individually, and came to the conclusion that the prosecution had failed to establish the offences against these accused beyond reasonable doubt. As against the appellants, however, the learned Sessions Judge came to the conclusion that the case had been fully established against them and their act clearly came within the ambit of the offence of murder under S. 302 and also under S. 452 I. P. C. All the accused were, however, acquitted under sec. 148, I. P. C. The appellants have, therefore, come to this court from their conviction and sentences. The State has not filed appeal from the acquittal of Ram Karan and Manphool and we are therefore, concerned in this appeal only with the case of the appellants who have been convicted.
As already stated in the earlier part of our judgment, the case against the accused appellants depends upon the evidence of four eye witnesses and the dying declaration Ex. P. 8. Learned counsel for the appellants has vehemently argued that the prosecution story is inherently incredible and as a matter of fact none of the alleged eye witnesses were present on the spot. He has contended that the four eye witnesses produced by the prosecution are partisan witnesses and are highly inimical to the accused and, therefore, their evidence should not be accepted unless it is corroborated by some other independent evidence oral or circumstantial both as regards the commission of the crime as well as regarding the complicity of the accused-appellants in the crime. He has submitted that prosecution has not put on record any other evidence of these alleged four eye witnesses, who are admittedly members of the opposite faction. He has urged that these alleged eye witnesses have been found lying on material particulars of the prosecution story. Their evidence against the two accused Ram Karan and Manphool has been found to be positively false and no reliance should be placed upon the testimony of such witnesses who have implicated the two innocent persons Ram Karan and Manphool without any compunction.
He has also directed his attack against the dying declaration Ex, P. 8 on the ground that it is a touched up document and has been proved to be untruthful in important details. We shall first take up the direct evidence against the accused consisting of the statements of P. Ws. 1,2,3 and 4. The incident took place in the house of Lalu P. W. 1 and Ratiram, P. W. 2. The first information report Ex. P. 1 was lodged by Laluram after two hours of the occurrence at Police Station, Nokha, which is at a distance of about 20 miles from village Udsar. The first criticism advanced against the statement of this witness is that it was the month of Sawan, the busiest part of the year for cultivators for cultivation. It is urged by reference to the statements of P. W. 3 Kasba, and P. W. 4 Lalu son of Birbal that the neighbours of Lalu and Ratiram had gone to their Dhanis in the fields for the purposes of cultivation and it was most unlikely that these witnesses should have stayed in their house that day. It is, however, significant that no question has been put to any of these witnesses as to why they had chosen to stay at their houses that day and did not go to their fields. For ought we know, these witnesses may have furnished a good explanation for not going to their fields that day, but since they were not put any question at all in this respect during the course of cross-examination, it would not be fair to draw an inference against the prosecution in this respect and to hold that their presence at their houses that day was unnatural. Then it is urged that P. W. 1 Lalu as also the other alleged eye witnesses have ascribed definite part to the accused Ram Karan and Manphool who have been acquitted and they have also implicated Samela as much as the other accused, even though Samela was not prosecuted at all and even his name was not mentioned either in the first information report or in the dying declaration. It is urged that if these witnesses could go to the extent of implicating innocent persons no reliance whatever can be placed on their testimony against the other accused also. It is true that the name of Samela was neither mentioned in the first information report, nor in the dying declaration as one of the attackers of Dhonkal. It is also true that Samela was not challaned by the Police and the name of Samela was introduced for the first time by P. W. 1 Lalu in his statement before the Police under Sec. 161 Cr. P. C There is no doubt that P. W. 1 Lalu as well as other eye witnesses have deposed that Ram Karan was armed with a gun and he fired in the air. It has also been stated by other witnesses that Ram Karan gave a command to his associates to attack Dhonkal. The trial court has found for certain reasons, which it is not necessary to narrate here, that the case against the accused Ram Karan is not established beyond reasonable doubt. In view of the fact that P. W. 1 Lalu as also other eye witnesses have introduced the name of Samela in the course of the trial we would act upon the testimony of these witnesses with caution. But merely because they have implicated Samela at a later stage, we would not throw out the prosecution case altogether, if we find that the evidence of these witnesses against the accused appellants is corroborated by some other evidence. It is well established that the evidence of a witness is not liable to be thrown out in its entirety against all the accused in a case where there are more than one accused if it is found to be unreliable against one. Such an evidence can be acted upon against the other accused if it is corroborated by other reliable and dependable evidence. All that we may observe at this stage is that the evidence of these witnesses will have to be accepted with caution.
Mr. Thanchand Mehta is also right in his criticism that the alleged eye witnesses are partisan witnesses and their evidence should not be accepted unless it is corroborated by some other good evidence. We are not prepared to accept the proposition pronounced by him that in all cases where there is evidence of a partisan witness, such an evidence should not be made the basis of conviction unless it is corroborated by independent evidence. He has no doubt placed before us a Bench decision of the Lahore High Court in Dalip Singh vs. Empsror (1), wherein it was observed that it would be unsafe to base the conviction upon their testimony (inimical witnesses) unless it is supported by the evidence of disinterested witnesses This observation was made by the learned Judges of the Lah, High Court in view of the facts and the circumstances of that particular case and it cannot be laid down as an absolute rule of law that in no case conviction can be based upon the evidence of partisan and inimical witnesses. In this connection we may refer to a recent decision of their Lordship of the Supreme Court in Bhanuprasad Hariprasad Dave vs. The State of Gujrat (2 ). After reviewing the case law on the subject their Lordships were pleased to observe : "it is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may, in appropriate case look for corroboration. " In the present case, however, as already observed above, the partisan witnesses have indulged in some falsehood in respect of Samela and, at any rate, the name of Samela has been introduced at a very late stage, which makes the version of these witnesses in regard to Samela highly doubtful. We would, therefore, naturally look for corroboration of the evidence of these witnesses against the accused before we record a finding against them. As regards the part ascribed by these witnesses to Ram Karan, we find ourselves unable to agree to the contention raised by learned counsel for the appellants that the presence of Ram Karan is positively disproved. May be, that the prosecution has not been able to establish the presence of Ram Karan beyond reasonable doubt, but we are not prepared to hold that, the case against Ram Karan is positively disproved. There is a lot of difference between saying that the case is not proved against Ram Karan and holding that the case against Ram Karan is positively proved to be false. Learned counsel has urged that the story given out by these witnesses that Ram Karan had fired in the air is highly improbable and if Ram Karan was actually armed with a gun and the assailants had come determined to do away with Dhonkal, there was nothing to prevent them from using the gun and finishing Dhonkal at once. It is on account of this improbability in the prosecution version that Ram Karan has been given the benefit of doubt Ram Karan's name has been mentioned in the dying declaration Ex. P. 8. May be, that Ram Karan appeared on the scene either before or after the occurrence. May be, that Ram Karan was not armed with a gun and the prosecution has indulged in exaggerations and embellishments, but, on that score alone, we cannot reject the prosecution case against all the accused altogether.
Learned counsel for the accused has also taken pains to point out certain discrepancies in the statement of P. W. 1. Lalu, which, according to him, negative the presence of this witness at the site, and he has further derived support to his arguments from the observations of the learned Sessions Judge who has characterised the evidence P. W. 1 Lalu as a deep ocean of falsehood. In this respect it has been observed by the learned Sessions Judge and has been reiterated before us by the learned counsel for the appellant that in the first information report Lalu had stated that he and Ratiram were sitting under 'neem' tree in the 'angan' of their house and at that time Dhonkal Ram, his uncle, came to them followed by the accused Ram Karan, Surja, Meharchand, Chunnia and Dedia. In his statement before the court the witness has not stated that he was sitting under 'neera' tree, but he deposed that he was sitting in the 'sal' and was coming out of it for bringing water when he saw Dhonkal coming in the 'phalsa' of the house So far as this discrepancy is concerned, the attention of the witness was not drawn to the first information report and he was not given any opportunity to explain this discrepancy and, therefore, the learned Sessions Judge was, in our opinion, not justified in making a capital out of it. Moreover, the discrepancy in this respect, in our view, is not of much importance. Apar from this discrepancy, the criticism of the lower court had been directed against the witness with respect to the part ascribed by the witness to Ram Karan and Samela and the absence of the injuries on the various parts of the body in the injury report as described by the witness. We have carefully examined the evidence of P. W. 1 Lalu, and are not prepared to hold that all that he has stated is false and even then, as already observed above by us earlier, we are not prepared to put implict reliance on every word the witness has said. We do not, at the same time, subscribe to the view taken by the learned Sessions Judge that his statement is a deep ocean of falsehood. He may have indulged in exaggeration and embellishments, but his presence at the spot appears to us to be very likely and quite probable. The occurrence took place in his house and within two hours of the occurrence it was he who lodged the first information report at the Police Station, Nokha. We have, therefore, only to see to what extent he has lied and not to act upon his evidence unless he is corroborated by other independent evidence.
What we have said about P. W. 1 Lalu, applies more or less to PW. 2 Ratiram. The learned Sessions Judge, curiously enough, while rejecting the evidence of P. W. 1 Lalu as a deep ocean of falsehood, has held with reference to this witness that he is not wholly false and had seen the occurrence. Learned counsel for the appellants has submitted that the presence of this witness has not been stated in the dying declaration Ex. P. 8, therefore, it is highly doubtful whether this witness was present at the site at all. It has been mentioned in the dying declaration that Dhonkal was sitting in the house of Ratiram. But the dying declaration is silent about the fact whether Ratiram was in the house or not and, therefore, it cannot be said that the dying declaration excludes his presence from the house. The utmost that can be said is that the dying declaration is silent about the presence of Ratiram at the time of the incident and that, in our view, is not sufficient to hold that the witness was not present there at all. The incident took place in his house. His name has been mentioned in the first information report, which was lodged soon after the occurrence. Ratiram like P. W. 1 Lalu is a nephew of the deceased Dhonkal and, therefore, we are not prepared to accept the contention of the learned counsel for the appellants that Ratiram was a got up witness and was not present at his house at the time of the occurrence. The evidence of P. W. 3 Kasba and P. W. 4 Lalu son of Birbal has been accepted by the lower court against the appellants. What we have said above about exaggerations and embellishments while dealing with the statements of P. W. 1 Lalu and P. W. 2 Ratiram holds good in the cases of these witnesses also. The names of these witnesses have been mentioned in the first information report. In his police statement Ex. D. 4, Kasba P. W. 3 had, no doubt, stated that he was in the room of his house when the occurrence took place while in the statement in the court he has stated that he was present in the room of Jora's house. It is evident from his statement that he is hard of hearing and that there is no room in his house at all. Be that as it may, we do not find sufficient ground to hold that these witnesses had been introduced later on to pose as eye witnesses. All these four witnesses had accompanied Dhonkal from Udsar to Nokha after the occurrence. We are of the opinion that these witnesses were present at the time of the incident and had witnessed it.
The next question is even if these witnesses were present at the time of the occurrence, can their evidence be made the basis of conviction ? Undoubtedly they are inimical to the accused and have also introduced embellishments and exaggerations in their statements. We have, therefore, to see whether their evidence is corroborated by other reliable and independent evidence against the appellants, and can safely be acted upon ?
This brings us to the dying declaration Ex. P. 8. Learned counsel for the appellants has strenuously contended that the dying declaration is not truthful and is false in important details. The first criticism advanced against the dying declaration is that when the deceased Dhonkal was being brought from Udsar to Nokha, he was accompanied by all these four witnesses and had ample opportunity to have consultations with them. It is urged that the dying declaration was made after haying consultation and concert with these witnesses. Then again, it is argued that it is in conflict with the prosecution case as set out in the first information report. According to the dying declaration Dhonkal was already at Ratiram's house when the assailants came there, whereas in the first information report Dhonkal entered into Ratiram's house when he was attacked by the accused into Ratiram's house when he was attacked by the accused. Another criticism is that in the dying declaration it is mentioned that Ramkaran was also among the assailants and was armed with a gun and had actually fired in the air. This part of the story has been found to be not proved by the trial court. It is also urged that according to the dying declaration Lalu arrived at the spot after the beating had been finished, whereas according to the first information report Lalu was there before the beating had started.
We have bestowed our careful consideration on the points of criticism advanced by the learned counsel for the appellants in respect of the dying declaration Ex. P. 8. It is true that Lalu son of Bhagirath, Ratiram, Kasba and Lalu son of Birbal, who were present at the site, had accompanied the deceased Dhonkal from Udsar to Nokha in the car. Apart from this fact, there is no other evidence to show that the deceased had any consultation or concert with these persons about the assailants to be named. We have it from the statement of P. W. Dr. Asharam Acharya and P. W. 12 Shri Hiralal Kaushik that when the dying declaration was being recorded neither any police employee nor any suggestion was made to the deceased. Dr. Asharam Acharya states that he told the injured Dhonkal that his condition was serious and he may possibly die and he, therefore, warned him to tell the truth. It is further clear from the statement of P. W. 12 Shri Hiralal Kaushik that Dhonkal said at the time of recording his dying declaration that he was in the last moments of his life and he would state correctly on oath. Thus, it is clear that Dhonkal deliberately made the statement Ex. P. 8 under a, solemn sense of impending death. The mere fact that he was accompanied from the place of occurrence to the primary health Centre, Nokha, by a few persons, who were present at the time of the occurrence, does not necessarily lead to the conclusion that he had consultations with them as to whose names should be given out as his assailants. We are not prepared to accept the broad contention of the learned counsel for the appellants that if friends and relations have had at any time before the recording of the dying declaration an opportunity of meeting the deceased, without there being anything more, it should be presumed that the dying declaration made by the deceased was the result of tutoring. There should be something more to show that the deceased made the dying declaration as a result of some sugges-tions made to him or, at any rate, there must be some circumstances to lead to the conclusion that the dying declaration was not made by the person voluntarily and from his personal knowledge. The learned counsel for the appellants has cited Bhanwar Singh vs. The State (3) in support of his contention. In this case the dying declaration was excluded from consideration on the ground that the learned Magistrate, who recorded the dying declaration himself gave a remark to the effect that the deceased Amar Singh was not in his proper senses at the time of recording of the dying declaration. It also appears from the facts stated in the judgment that there was ample opportunity for others, e. g. , friends and relations of the deceased to have access to him in between the time when the Magistrate began and completed the dying declaration and the learned Magistrate, who recorded the dying declaration, himself admitted in his statement in the court that the relations of the deponent did talk to him in his presence although the Magistrate said that the talk was directed to enable the deceased Amar Singh to regain consciousness. It further appears that in that case the relations of the deceased Amar Singh were present when the Magistrate left the room where Amar Singh was lying after putting the first question and also when the Magistrate re-entered the room after 15 minutes. Thus, it would be clear that all the requisite care and caution were not taken at the time of recording of the dying declaration in that case and, therefore, the learned Judge came to the conclusion that the dying declaration appeared to have been made under circumstances which permitted consultation and concert with outsiders. Another ground of attack against the dying declaration is that Ramkaran has been falsely implicated in the dying declaration and it has been wrongly mentioned therein that Ramkaran fired the gun. It is true that Ramkaran has been given benefit of doubt by the trial court and the part ascribed to him by the prosecution has not been accepted and the evidence against him has not been considered sufficient for conviction. The position, therefore, is that out of the five persons mentioned as assailants in the dying declaration, the prosecution has not been able to establish the case against the one, namely, Ramkaran. The question is, whether on that ground whole of the dying declaration is liable to be discarded. In Harbans Singh and another vs. The State of Punjab (3), their Lordships of the Supreme Court were pleased to observe : "the law does not make any distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits. A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true. Just as when a number of persons are mentioned as culprits by a person claiming to be an eye witness in his evidence in court the court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appears to have been mentioned as culprits in a dying declaration the court has to scrutinise the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits. The contrary view taken in the Lahore High Court in Khurshaid Hussain vs. Emperor, 43 Cr. L. J. 59 (AIR 1941 Lahore 368) on which apparently the trial Judge has relied is cleary erroneous. " Thus, we cannot reject the dying declaration on the ground that one of the persons named, therein has not been found guilty, the case having not been proved against him beyond reasonable doubt and we shall have to judge whether the dying declaration is true as a whole ? It is also true that one more person named assailant in the dying declaration, viz. . Manphool has also been acquitted by the trial court by giving him the benefit of doubt. While dealing with the case of Manphool, the trial court has observed that Manphool is a resident of Janglu and his presence in village Udsar is not established by any other independent evidence except the evidence of the witnesses who are alleged to have seen the occurrence. Another argument given for acquitting the accused Manphool is that the prosecution witnesses have not been able to ascribe any particular injury to this accused. Lastly, the trial court has observed that the identification parade for Manphool was not held even though the accused Manphool had made an application to that effect. On these grounds Manphool has been given the benefit of doubt. It appears that the lower court entertained some doubt regarding the identity of the accused Manphool and, therefore, acquitted him. We are not impressed with the reasons given by the trial court and since no appeal has been filed against Manphool, his case must rest where it is, but we are definitely of the view that the mention of his name in the dying declaration does not in any way weaken the veracity or truthfulness of the dying declaration.
We also do not find any substance in the argument of the learned counsel for the appellant that according to the dying declaration, Lalu P. W. 1 arrived after the beating had been finished. All that has been mentioned in the dying declaration is that at that time Lalu son of Bhagirath, Lalu son of Birbal and Bisna came. " It does not necessarily mean that they came only after the beating had been over. The events in the dying declaration have not been narrated in a chronological order and we have to make due allowance of the fact that the condition of Dhonkal at the time he was making the dying declaration was very serious. Thus we have to look at the substance of the narrative given by him. Another argument of the learned counsel for the appellants that Ratiram's presence is excluded by the dying declaration is also not correct. Ratiram's presence has not been mentioned in so many words, but it has been stated in the dying declaration that the deceased was in the house of his nephew Ratiram. It is not unlikely that in a highly tortuous and disturbed state of mind, as the deceased was, at the time of making the dying declaration, he might have omitted to make a positive mention about the presence of Rati Ram, but he has nowhere stated that Ratiram was not there. This omission to make mention of the presence of Ratiram at the time of the occurrence in specific terms, in our opinion, does not detract from its veracity. Still another argument that in the first information report it is mentioned that Dhonkal went into the house of P. W. 1 Lalu and P. W. 2 Ratiram and the assailants followed him, whereas in the dying declaration it is mentioned that the deceased was in the house of Ratiram does, not, in our opinion, make the dying declaration untruthful. In the dying declaration, it is mentioned that when the deceased was in the house of Ratiram, the assailants came and attacked him. This narration, in our opinion, does not necessarily run counter to the narration given in the first information report. While examining the reliability or otherwise of the dying declaration we cannot lose sight of the fact that the occurrence took place in broad day light at about 3 p. m. It further appears from the medical evidence that the deceased was administered a severe beating by 'selas' and lathis which must nave lasted for some time so as to give him ample opportunity to identify his assailants. It cannot be disputed that the deceased had seen his assailants. We are then at a loss to understand for what earthly reason the deceased did not mention the names of the real assailants and quite falsely fastened the responsibility of the crime on the accused only because they belonged to a different faction ? Taking all the circumstances into consideration, we are firmly of the view that the dying declaration is true in material particulars and merely because the assailants mentioned therein, namely, Manphool, and Ram Karan, have been absolved of the crime, we do not consider it unreliable against the rest. This dying declaration furnishes a strong corroborative piece of evidence of the direct evidence given by the eye witnesses. It is well settled that a dying declaration, if found to be true, can be made the sole basis for conviction even without any corroborative evidence. In the present case we are inclined to hold that the dying declaration furnishes good evidence against the accused and our belief in it is strengthened by the direct evidence given by the eye witnesses against these accused.
Learned counsel for the appellants has in the alternative contended that the accused Meharchand and Dedia are at least entitled to benefit of doubt even though the dying declaration is accepted as correct. The argument is that Dedia's father's name, caste or place of residence have not been mentioned in the dying declaration and, therefore, the identity of the accused Dedia is not established, It is further argued that the eye witnesses have ascribed particular injuries to these two accused. It has been stated by these witnesses that Meharchand struck with 'sela' on the left hand of Dhonkal and Dedia also dealt with 'sela' blow on the right hand of Dhonkal, but the medical evidence shows that there were injuries by sharp-edged weapon either on the left or the right hand. P. W. 2 Ratiram has stated that the 'sela' blow was given by the accused Dedia on Dhonkal's right shin, but from the injury report it is clear that there was no injury by sharp edged weapon on the right shin of Dhonkal. It is, however, clear from the statement of P. W. 8 Dr. G. K. Bhatnagar that there were following incised wounds on the person of Dhonkal: - 1. An incised wound verticle 1-1/4" x 1/3" x bone deep on the left shin lower. 2. An incised wound bleeding 1/3" x 1/10" bone deep just above the left lateral malleolus. 3. A vertical incised wound 1/2" x 10" x musle deep above injury No. 3. 4. A transverse incised wound 1-1/2" x 1/3" x bone deep on the ulnar border of right forearm lower third. 5. An oblique incised wound 1/2" x 1/10" x 1/10" on the radial border of right forearm lower third. Thus, there were injuries by sharp-edged weapon on right forearm, and left shin. In our view, it was not possible for the witness to have correctly noticed as to on which hand or leg the blow was given by a particular accused and slight mistake in this connection is quite possible. Even on left hand and right shin there are injuries even though they are not incised. This discrepancy between the evidence of the witnesses and the medical evidence is clearly explicable on the grounds, first the blows with 'selas' which were inflicted by these accused might have been struck with the wooden part of the 'selas' or second there may have been some mistake in the description given by the witnesses in this respect. But on this slight discrepancy we are not prepared to hold that these two accused Meharchand and Dedia did not participate in giving beating to the deceased. As regards Dedia, it is also urged that he is a boy of 18 years and since he has not been fully described in the dying declaration, he should be given benefit of doubt. Even though he has given his age 18 years, learned Sessions Judge has made a note that he appears to be 25 years. It has no where been suggested to any of the witnesses produced by the prosecution that there is any other Dedia residing in village Udsar. He has been identified before the trial court as one of the assailants by all the four eye witnesses, and we are not prepared to hold that his identity has not been established. Our conclusion, therefore is that from the direct evidence as well as the dying declaration Ex. P. 8 it is fully established that all the four appellants participated in the beating given to Dhonkal. Meharchand and Dedia struck the deceased with 'selas' and the other two accused used lathis.
(3.)THE only question which now remains to be considered is as to whether these accused have been properly convicted under sec. 302, I. P. G. It is clear from the medical evidence that the death was caused due to rupture of tibial artery and excessive bleeding from the same. THE Doctor has no where stated that the injuries found on the person of Dhonkal were individually or collectively sufficient in the ordinary course of nature to cause death. THE cause of death is said to be shock and haemorrhage due to multiple injuries. While judging the nature of the offence we have also to bear in mind the fact that none of the injuries were inflicted on any vital part of the body. All the injuries are either on the arm or the legs. If the tibial artery had not been cut, the man would not have died. This is admitted even by Dr. G. K. Bhatnagar, P. W. 8. Under these circumstances, it would not be safe to infer that the intention of the assailant was to make homicidal attack on Dhonkal. Dr. Tiwari, learned Dy. Govt. Advocate argued that the case is covered by 3rd clause of sec. 300, I. P. C. and, therefore, the accused are liable to be convicted under sec 302 I. P. C. It is argued by the learned Deputy Government Advocate that the beating was given to Dhonkal with the intention of causing bodily injury and the bodily injury intended to be declined was sufficient in the ordinary course of nature to cause death. It must, however, be remembered that but for the fact that tibial artery was cut, death might not have ensued. Clause 3 sec. 300, required that the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts. THE first part is subjective. It indicates that the injury must be an intentional one and not an accidental one. THE second part in objective and the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think, the first part is complied with because the injury which was intended to be caused was the one which was found on the person of Dhonkal, but the second part, in our opinion, is not fulfilled because but for the fact that the injury caused resulted in the rupture of the tibial artery, death might not have ensued. Moreover, it is not clear as to who was the author of the injury which resulted in the cutting of the tibial artery. Under these circumstances, we are of the opinion that the third clause of sec. 300 I. P. C. , does not cover this case. THE matter must still come within at least culpable homicide not amounting to murder. THE assailants made a severe attack on Dhonkal who was unarmed and caused as many as 18 injuries which resulted in 8 fractures of the various parts of legs and hand, e. g. , tibia, fibula, ulna, humerus etc. THE act which was done by these accused must be presumed to have been done with the knowledge that the death of Dhonkal was likely to be caused by such an act. THE case, therefore, in our opinion, falls within third part of sec. 299, I. P. C. as the act was done by the accused with the knowledge that they were likely by such act to cause death of Dhonkal. THE accused are, therefore, punishable under the second part of sec. 304 I. P. C.
We accordingly alter the conviction of the four accused appellants from sec. 302 to second part of sec. 304, I. P. C. and in lieu of the sentence of imprisonment for life imposed on them, we impose rigorous imprisonment for five years' each. With this modification the appeal shall stand dismissed. .