- (1.) This appeal on a certificate of fitness under Art. 134 (1) (c), granted by the High Court at Nagpur (as it then was), is directed against the concurrent judgment and orders of the Courts below, so far as the appellant Khushal is concerned, convicting and sentencing him to death under S. 302, Indian Penal Code, for the pre-mediated murder of Baboolal on the night of February 12, 1956, in one of the quarters of the city of Nagpur.
(2.) It appears that there are two rival factions in what has been called the Mills area in Nagpur. The appellant and Tukaram who has been acquitted by the High Court, are the leaders of one of the factions, and Ramgopal, P. W. 4, Inayatullah, P. W. 1, and Tantu, P. W. 5, are said to be the leaders of the opposite faction. Before the time and date of the occurrence, there had been a number of incidents between the two rival factions in respect of some of which, Inayatullah and Tantu aforesaid had been prosecuted. Even on the date of the occurrence, apart from the one leading to the murder of Baboolal, which is the subject-matter of the present appeal, Tantu and Inayatullah had made two separate reports about the attacks on them by Khushal's party, There was another report lodged by Sampat - one of the four persons placed on trial along with the appellant, for the murder of Baboolal. That report was lodged at Ganespeth police station at about 9.30 p.m. on the same date - February 12, 1956 - against Inayatullah alias Kalia and Tantu, that they had attacked the former with sharp-edged weapons (Ex. P. 26). The prosecution case is that the appellant Khushal was on bad terms with Baboolal who was on very friendly terms with the leaders of the opposite faction aforesaid. Being infuriated by the conduct of Baboolal in associating with the enemies of the party of the accused, Sampat, Mahadeo, Khushal and Tukaram suddenly attacked Baboolal with swords and spears and inflicted injuries on different parts of his body. The occurrence took place, in a narrow lane of Nagpur at about 9 p.m. Baboolal was taken by his father and other persons to the Mayo hospital where he reached at about 9.25 p.m. The doctor in attendance Dr. Kanikdale (P. W. 14) at once questioned him about the incident and Baboolal is said to have made a statement to the doctor which the latter noted in the bed-head ticket (Ex. P-17) that he had been assaulted by Khushal and Tukaram with swords and spears. After noting the statement aforesaid, of Baboolal, the doctor telephoned to the Ganespeth police station where the information was noted at 9-45 p.m. On receiving the information, Sub-inspector A. K. Khan recorded (Ex. P-1) and registered an offence under S. 307, Indian Penal Code, and immediately went to the Mayo hospital along with a head-constable and several constables. He found Baboolal in a serious condition and suspecting that he might not survive and apprehending that it might take time for the magistrate to be informed and to be at the spot, to record the dying declaration, he consulted Dr. Ingle, the attending doctor, whether Baboolal was in a fit condition to make a statement. The dector advised him to have the dying declaration recorded by a magistrate. The Sub-inspector decided that it would be more advisable for him to record the dying declaration without any delay. Hence, he actually recorded Baboolal's statement in answer to the questions put by him (Ex. P-2) at 10-15 p.m. In the meantime, Shri M. S. Khetkar, a magistrate, first class, was called in ,and he recorded the dying declaration (EX. P-16) between 11-15 and 11-35 p.m., in the presence of Dr. Ingle who certified that he had examined Baboolal and had found him mentally in a fit condition to make his dying declaration. Besides these three dying declarations recorded in quick succession, as aforesaid, by responsible public servants, Baboolal is said to have made oral statements to a number of persons, which it is not necessary to set out because the High Court has not acted upon those oral dying declarations. We shall have to advert, later, to the recorded dying declarations in some detail, in the course of this judgment. It is enough to say at this stage that the Courts below have founded their orders of conviction of the appellant mainly on those dying declarations. Baboolal died the next morning at about 10 a.m. in hospital.
(3.) Having come to know the names of two of the alleged assailants of Baboolal from his recorded dying declarations, the police became busy apprehending those persons. They could not be found at their respective houses. The appellant was arrested four days later in an out-house locked from outside, of a bungalow on Seminary Hill in Nagpur. The other person named as one of the assailants, Tukaram, was arrested much later. The prosecution case it that these persons were absconding and keeping out of the way of the police.;