Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Indore Bench, upholding conviction of the appellant for offence punishable under Sections 302 read with Section 34 the Indian Penal Code, 1860 (in short the 'IPC').
(2.) Prosecution version, in a nutshell, is as follows: On 20.9.1995 Anil (hereinafter referred to as the 'deceased') left his house for some work and told his brother Rajendra (PW.1) that he will be returning within 10 minutes. He left the house at 8.30 p.m. Just after 15 minutes of his departure, somebody informed Rajendra (PW.1) that deceased was assaulted with a sword. Having heard the news, Rajendra immediately rushed in the direction where the deceased had gone on his motor cycle. He saw a crowd of people in front of Laxmi Market surrounding the deceased who having suffered many injuries on his person was lying on the road. At the same time Dr. Komal Chandra Kothari (PW.4) reached near the crowd and on request deceased was taken to Civil Hospital in his car. On the way to the Hospital deceased was questioned by Rajendra (PW.1) as to who had assaulted him, deceased replied that accused Ramesh, Subhash and Heeralal had assaulted him by sword. Deceased was admitted in the hospital where he succumbed to the injuries during treatment. The FIR (Ex. P.l) was recorded in the night at 9.40 p.m. Police recorded the statements of two eye witnesses Radhesyam (PW.2) and Prakash Jadhav (PW.3) on 9.10.1995 along with other eye witnesses Manohar @ Babu, Balraj, Premsingh and Satish Shrivastave on 21.9.1995. On 22.09.1995 statements of witnesses Nankdas, Ghanshyam, Parmanand, Govindram and Jaikishore were also recorded by Investigating Officer R.S. Chundavat (PW.8). Postmortem was performed by Dr. D.K. Rathore (PW.7). Report is Ex.10. Police also seized the true copy of the documents (Ex. P.2-C) regarding civil litigation pending between deceased Anil Soni, his brother Rajendra Soni (PW. l) and appellant Heeralal. Crime No. 715/ 1995 was registered by the police and after necessary investigation, the charge sheet was filed against the accused persons for commission of offence punishable under Section 302 read with 34 of the IPC and under Section 4 read with Section 25(1B), and 27 of Arms Act, 1959 (in short the 'Arms Act'). The appellants abjured their guilt and their defence was of false implication, therefore, they were put on trial. They stated in their statements recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short 'Cr. P.C.') that deceased and his brother Rajendra (PW.1) were doing colonizing business and on their behalf Radheshyam (PW.2) and Parkash (PW.3) used to collect money from the concerned persons. About three years ago one Babulal was got murdered by the deceased and Rajendra (PW.1). Dr. Komal Chandra Kothari (PW.4) was having family terms with deceased and his brother Rajendra (PW.1). They also submitted that Prakash Jadhav (PW.3) was convicted for murder of one Prabhakar Kadam and sentenced to life imprisonment by the learned Sessions Court of Dewas. In the said case, appellant Ramesh appeared as a witness against Parkash Jadhav. Because of all these reasons, appellants pleaded their false implication. Appellants examined Balraj Tiwari (DW. 1) in their defence whereas prosecution examined eight witnesses and proved 17 documents to prove its case. The trial Court while acquitting Ramesh under Sections 4 read with 25(1B), (b) and 27 of the Arms Act convicted the three appellants under Section 302 read with Section 34 IPC. The trial Court mainly relied on the evidence of PWs. 2 and 3 who were eye witnesses and the dying declarations. In appeal, the primary stand was the evidence of PWs. 2 and 3 should not have been relied upon by the trial Court because of their conduct in not informing the police being eye witnesses of the incident and keeping mum. It was also submitted that the FIR Ex. P1 was ante time. The High Court held that the core question was whether the evidence of PWs.2 and 3 is credible and whether it was in line with the evidence of Rajendra Soni (PW- 1) and doctor (PW-4) on the point of oral dying declaration. The High Court held that the eye witnesses version should not have been relied upon because of highly unnatural conduct of the accused and unexplained silence for long 19 days. However, the High Court found that the evidence relating to dying declaration was reliable. Accordingly, the appeal was allowed in part as the conviction of Hiralal was set aside. However, the appeal was dismissed qua accused Ramesh.
(3.) In support of the appeal learned Counsel for the appellant submitted that after having discarded the version of the so-called eye witnesses, the High Court should not have placed reliance on the so-called dying declaration.;