SHIV KUMAR SHARMA, J. - (1.) This is a case where the basis of conviction of the appellants (herein after described as the 'accused') is the dying declaration. The admissibility of dying declaration rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. Truth sits on the lips of dying man. Dying situation is considered so solemn and so awful by the law as creating an obligation equal to that which is imposed by a positive oath administered in the Court.
(2.) The accused, six in number, were indicted in Sessions Case No. 28/1998 before the learned Additional Sessions Judge No.2, Bundi for having committed murder of Kailash. Learned Judge vide judgment dated May 24, 2000 convicted and sentenced each of the accused under Section 302 IPC to suffer Imprisonment for life and fine of Rs.2500/-, in default to further suffer six months simple Imprisonment.
(3.) As per the prosecution case Kailash was brought to the General Hospital Bundi in February 24, 1990 from village Bada Naya Gaon in the injured condition. He was admitted to the Hospital at 12.15 PM. Since it was a medico legal case. Hospital authorities informed Police Station Kotwali Bundi over telephone. Shaikh Nawab, ASI (PW.8) recorded the said information in Rojnamcha and reached Hospital within 10-15 minutes and noted the statements of Kailash in 'Parcha Bayan' at 12.30 P.M. In the Parcha Bayan Kailash stated that around 7-8 A. M. on the said day he found 10-15 Gujars including Ram Nath, Prabhu, Nand Kishore and Prakash standing near his field. When he asked them not to cut 'Neem-tree', Ram Nath inflicted axe blow whereas others gave beating with lathis. Radha Kishan was also amongst the assailants. This incident had been witnessed by Durga. Kailash put his thumb impression on 'Parcha Bayan'. Shaikh Nawab at the end of 'Parcha Bayan' made endorsement registering a case under Section 147, 148, 149, 324, 323 and 307 IPC and noted that since the incident occurred within the jurisdiction of Police Station Hindoli, Parcha Bayan shall be forwarded to Police Station Hindoli. During the pendency of investigation Kailash died and the case was converted under Section 302 IPC. After usual investigation charge sheet was filed and the case came up for trial before the learned Additional Sessions Judge No.2, Bundi. Charge under Section 302 IPC was framed against the accused who denied the charge and claimed trial. The prosecution in support of its case examined as many as 22 witnesses. In the explanation under Sec. 313 Cr. P. C., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the accused as indicated hereinabove.;