B. R. ARORA, J. - (1.) THESE two appeals are directed against the judgment dated 29th of November, 1976 passed by the Additional Sessions Judge, Ajmer, Camp Jalore, convicting the appellant under section 302, IPC.
(2.) THE appellants were tried by the learned Additional Sessions Judge, Jalore, under section 302/34, IPC, who after trial, convicted the appellants Kana, Khora and Chena, for the offences under section 302, IPC and awarded sentence of life imprisonment and a fine of Rs. 2000/- each and in default of payment of fine, the accused-appellants were further to undergo six months' R. I. The prosecution case, as put up in the FIR which was lodged by Khain at Police Station, Sanchore, on 1. 03. 1976, is that the informant Khian was informed by his son Ramlal that he along with his uncle Sajan were coming to their Dhani after taking their meals at the residence of Chana. When they reached near the field of Kishna; the three accused persons who were hiding themselves behind the Akra bus has come out and inflicted injuries on the head of Sajan. Khera was armed with lathi, Chena was armed with lable and kana was armed with Gupto. After receiving these injuries Sajan fell down and Ramlal then ran away and came to the Dhani of his father Khian and informed him about the incident. Ramlal identified these accused persons as he was carrying a torch with him. On receiving this information, Khianram, Fuaram, Homaram, Ramlal son of Khianram and Ramlal son of Bhianram went towards the scene of the occurrence. Ramlal, Khian and Fua reached the scene of the occurrence first and the remaining persons reached afterwards. On enquiry, Sajan told that Khera, Chena and Kana inflicted injuries to him. On the basis of this report a case under sec. 302 IPC was registered against them (accused ). The police, after necessary investigation presented the challan and the accused-appellants were tried for offence under section 302 IPC. The prosecution in support of its case examined 11 witnesses. PW I Khian is the informant who lodged the First Information Report after receiving an information of the incident from his son. P. W. 2 Ramlal, who was with the deceased at the time when the incident took place. PW 1 is also witness to the dying declaration. PW 2 Ramlal is the only eye witness in the case and he is also a witness to the dying declaration. PW 3 is Dr. N. T. Hirani who conducted the post mortem examination of the deceased. PW 4 is Bhima who went to the scene of the occurrence along with PW I Khian. PW 5 is Fuva who is witness to the dying declaration. PW 6 is Idansingh who went to the scene of the occurrence in a camal cart, after the incident had taken place and saw injured Sajan lying on the ground crying. PW 7 is Mohansingh who was ASI posted at police Station, Sanchore, at the relevant time. PW 8 is Mohanlal, SHO, who conducted the investigation. PW 5 is Constable Jalam Singh are the two Motbir witnesses. The accused examined 2 witnesses in defence, W I Kishnaram and W 2 Tejaram. The learned Additional Sessions Judge relied upon the testimony of eye witnesses PW 2 Ramlal, the dying declaration made by the deceased score PW I Khianram, PW 2 Ramlal and PW 5 Fuaram. The learned Additional Sessions Judge also relied upon the recoveries of the weapon of offence, which also contained human blood. The weapons of offence were recovered at the instance of the accused persons. The learned trial court disbelieved the defence version and by its judgment dated 29th of November, 1976, convicted and sentenced the appellants as mentioned above. Aggrieved with the judgment dated 29th of November, 1976 passed by the learned Sessions Judge, Ajmer (Camp Jalore) the appellants preferred these two appeals, D. B. Cr. Appeal No. 20a/77 was preferred by the appellants through their Advocate Shri B. R. Purohit. The appellants also preferred an appeal against their conviction and sentence passed by the learned Additional Sessions Judge through jail which was numbered as D. B. Cr. Appeal No. 76/77. As both these appeals arise out of the same judgment, therefore, we have taken up both these appeals together.
(3.) MR. Doongar- Singh, learned counsel for the appellants has submitted that the lower court was not justified in convicting and sentencing the appellants on the basis of the testimony of PW 2 Ramlal, who is a chance witness and whose presence at the scene of occurrence is doubtful. His further submission is that witness Ramlal is son of Khianram and nephew of Sajan and thus he is an interested witness and his testimony also does not find support from the medical evidence. MR. Doongar Singh further submitted that though according to Ramlal, the accused had taken meals with him but the stomach was found empty. His other contention is that as the incident was taken place in the night, therefore, at that time there was no possibility of identifying the assailants and to over come with this difficulty the torch has been introduced otherwise, if the witness Ramlal had gone to Chaina Ram's house in the morning for labour, there was no question of taking the torch with him. The learned counsel for the appellants has also challenged the veracity of the dying declaration on various grounds, as according to him, the deceased, after receiving the injuries, was not in a position to make any statement. PW 3 Dr. N. T. Hirani has specifically mentioned that after receiving these injuries, the deceased would have gone into coma within 2 or 3 minutes and he would have survived only for 5 to 10 minutes. On the basis of the statement of the doctor, the contention of the learned counsel for the appellants is that when Ramlal, along with some other persons, came to the scene of the occurrence, at that time Sajan had died and there was no possibility of making the statement by Sajan. The learned Public Prosecutor on the other hand has supported the judgment passed by the Additional Sessions Judge. According to him, PW 2 Ramlal is a reliable witness who accompanied the deceased from the house of Chanaram and while coming from the house of Chanaram, when they reached near the field of Kishna, the deceased was assaulted by the accused persons and on receiving the injuries, he fall on the ground and after some time breathed his last. According to the public prosecutor, PW 2 Ramlal is supported by PW 1 Khian and PW 5 Fuaram. The learned Public Prosecutor argued that there is a dying declaration made by the deceased before PW 1 Khianram, PW 2 Ramlal and PW 5 Fuaram. The dying declaration made by the deceased Sajanram coupted with the statement of PW 2 Ramlal, PW Khian and PW 5 Fuaram, the prosecution case stands proved beyond reasonable doubt. ;