ARIJIT PASAYAT, J. - (1.) LEAVE granted.
(2.) IN this appeal judgment of a Division Bench of the Rajasthan High Court is the subject matter of challenge. The appellant was found guilty of offence punishable under Section 302 of the INdian Penal Code, 1860 (in short the 'IPC'), while the co-accused Laxmi Narain was found guilty of offence punishable under Section 302 read with Section 34 IPC. Each of the accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- each with default stipulation. The trial Court's judgment of conviction and sentence was maintained. Background facts in a nutshell are as under: On 22.8.1998 a 'Parcha Bayan' (Ex.P20) of injured Heeralal (hereinafter referred to as the 'deceased') was recorded by the SHO, Police Station, Chechat, Distt. Kota, wherein it was stated that accused appellant Sunderlal told him as to why he has been abused. He told him that he should remove the stones. Subsequently in the night at about 2 a.m. when he was sleeping in his house, accused Sunderlal inflicted a blow on his head by 'Gandasi' with the intention to kill him and also inflicted injuries on his hand. He also stated that accused Laxmi Narain also inflicted injuries on his legs. When he cried Chaturbhuj, Deva, Rameshwar came but both the accused appellants ran away. On the basis of this 'Parcha Bayan' Police registered a case for offences under Sections 448, 307, 323 and 34 IPC. Subsequently, FIR No.125/1998 (Ex.P.22) was registered on 22.8.1998 itself. The injured was examined in the night itself at about 3 a.m. at Primary Health Centre, Chechat by Dr. Girish Chand (PW-1). The injured succumbed to the injuries at about 7 a.m. His post-mortem was conducted on 22.8.1998 itself by Dr. Ashok Mundara (P.W.22). The I.O. prepared the site plan and recorded the statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short the 'Code') The accused persons were arrested and on the basis of their information, the weapons i.e. gandasi and lathi were recovered. After death of Heera Lal the case was converted for offence punishable under Section 302 IPC. After completion of the investigation, the police filed a challan against both the accused appellants. The case was committed and the trial Court framed the charges against the accused appellant Sunderlal for offence under Section 302 IPC and appellant Laxmi Narain for offence under Section 302 read with Section 34 IPC. Both the accused denied the charges and claimed to be tried.
(3.) THE trial Court found the evidence to be cogent and credible. THE dying declaration was found to be reliable. THE High Court found the judgment of the trial Court to be in order and dismissed the appeal. In support of the appeal, learned counsel for the appellants submitted that the High Court should not have placed reliance on the so called dying declaration. The same was not worthy of acceptance. Additionally, when the recovery has been disbelieved, the conviction solely on the highly improbable dying declaration should not have been made. Alternatively, it was submitted that offence under Section 302 IPC has not been made out.;