SHARMA, J. - (1.) THE appellant was placed on trial before the learned Additional Sessions Judge (Fast Track) No. 2 Baran (Head Quarter Chhabra) District Baran in Sessions Case No. 118/2003 Learned Judge vide judgment dated October 22, 2003 convicted the appellant Ram Dayal @ Dayal under section 302 IPC and sentenced him to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer three months simple imprisonment.
(2.) IN nutshell the prosecution story is that on receiving the information through a postman when the informant Manju Bai (Pw. 1) reached at the place of incident she saw her husband Prabhu Lal (since deceased) lying in an injured condition. Prabhu Lal allegedly told the informant that he was given beating with stick by Dayal (appellant ). Manju Bai submitted a written report at Police Station Atru on September 13, 2002 on the basis of which a case under sections 341, 323 and 307 IPC was registered and investigation commenced. After the death of Prabhu Lal the case was converted into one under section 302 IPC. On completion of investigation charge sheet was filed. IN due course the case came up for trial before the Learned Additional Sessions Judge (Fast Track) No. 2 Baran (Head Quarter Chhabra) District Baran. 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 16 witnesses. IN the explanation under section 313 Cr. P. C. , the accused claimed innocence. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have heard the arguments of learned counsel for the appellant and learned Public Prosecutor and gone through the entire evidence on record. Before we deal with the contentions raised, it will be appropriate to take stock of the injuries sustained by the deceased. As per postmortem report (Ex. P-8) deceased Prabhu Lal sustained following ante mortem injuries:- " 1. Abrasion 4 x 2cm at base of Lt. Middle & ring finger & little finger dorsum aspect with swelling all over hand & wrist. 2. L. W. 1/2 x 1/2 x 1/2 cm with bruise around wound 4 1/2 x 2cm size lower third ext. surface of Lt. F. A. 3. Ab. 1 x 1/2 cm upper third of Lt. F. A. 4. Bruise 8 x 2cm Lt. arm. 5. Bruise 5 x 1 1/2 cm Lt. Shoulder. 6. Ab. 2 x 1 cm Lt. arm. 7. Bruise 6 x 2 1/2 cm Lat. asper Rt. elbow. 8. Ab. 2 x 1 cm post Rt. elbow. 9. Ab. 1 x 1 cm Rt. arm. 10. Swelling all over lower half of Rt. F. A. 11. Ab. 1 1/2 x 1/2 cm Rt. wrist. 12. L. W. 1 1/2 x 1 x 1/2 cm in between Rt. thumb & index finger. 13. Swelling 6 x 5 cm Lt. Lat malleolus. 14. Bruise 14 x 2 cm obliquely Lt. mid back. 15. Bruise 10 x 1 1/2 cm just 2 1/2 cm below & parallel to injury No. 14. 16. Bruise 11 x 2cm verti. Lt. mid back. 17. Bruise 8 x 2cm obliquely Lt. lower back. 18. Bruise 8 x 5cm Lt. Scapula. 19. Bruise (two) 7 x 2cm each Rt. scapula. 20. Bruise (two) 6 x 2cm each parallel Lt. gluti. 21. Bruise 6 x 2cm obliquely lat. aspect of Rt. thorex just 2 1/2 cm below nipples line. 22. Swelling 5 x 2cm Rt. Parietal region skull. The cause of death in the opinion of Doctor Pratap Singh Yadav (Pw. 10), who performed autopsy on the dead body, was coma due to head injury associated with multiple injuries over the body. Learned counsel for the appellant canvassed that deposition of alleged eye witnesses Manju Bai (PW. 1) and Manoj (PW. 2) were not only full of contradictions and omissions but the witnesses fall in the category of interested witnesses and their evidence was legally required to be scanned more thoroughly and vigorously. Learned counsel further contended that the site plan (Ex. P-4) is hit by the law as the place where the witnesses were standing. The prosecution has suppressed the true story and the case was submitted in aggravated form in order to secure conviction of appellant. Learned counsel also contended that since the deceased was unconscious he was not in a position to talk to the witnesses. Learned counsel for the appellant alternatively argued that the deceased sustained only one head injury which according to Dr. Pratap Singh Yadav (PW. 10) could be caused by the fall on hard surface. Dr. Pratap Singh Yadav and Pawan Bansal (PW. 15) also stated that had the proper treatment been given in time, the life of the deceased could be saved. The prosecution thus could not establish the charge under section 302 IPC. According to learned counsel the case does not travel beyond section 304 Part II IPC. Per contra learned Public Prosecutor supported the impugned judgment and argued that the learned trial judge after considering the evidence in greater detail arrived at the conclusion which does not call for interference. A close look at the statement of informant Manju Bai (PW. 1) goes to show that she is not eye witness of the occurrence. In her deposition she stated that on receiving information through Postman Damodar that her husband was lying near the well of Shrilal Patel she reached at the place. When she reached at the indicated place and asked her husband as to who gave beating to him her husband told him that Ram Dayal inflicted injuries on his person with lathi. Her son Manoj was also present at that time. She then hired jeep and took her husband to Police Station Atru. The SHO advised her to take her husband to the hospital. When her husband was brought down of the jeep he was unconscious. She also deposed that Ram Dayal had inimical relations with her husband and Ram Dayal had given beating to her husband earlier also. In her cross examination she stated that her husband was conscious till village Nimoda. She admitted that at the time of instituting the report Advocate Chillu had come to the police station, but she did not have a talk with the Advocate.
(3.) MANOJ (PW. 2) in his deposition stated that on receiving information that his father was given beating he immediately rushed to the spot on cycle and found his father lying near the well of Srilal Mali. His father was conscious and stated that he was given beating by Ram Dayal. This witness identified Ram Dayal in the court. He further stated that their relations with Ram Dayal were inimical. Several reports were lodged against Ram Dayal by them. For some time he had gone the well of Maliyan for some water, when he came back his mother Manju Bai reached there. His mother then arranged for a jeep and his father was taken in the jeep. In his cross examination MANOJ Stated that a newspaper hocker informed him about the incident. He denied the suggestion that Advocate Chillu to lodge the report. Postman Damodar (PW. 3) deposed that he saw Prabhu Lal unconscious, but in the cross examination Damodar stated that Prabhu Lal was making gestures. Damodar was declared hostile by the prosecution. Dr. Pratap Singh (PW. 10) in his cross examination stated that if proper treatment would have been available in time the life of the deceased could have been saved. In regard to head injury Dr. Pratap Singh stated that it could be caused by fall on the hard surface. Dr. Pawan Bansal (PW. 15) also deposed that had full medical facilities been available at Atru Hospital the life of deceased could be saved. Evidently the prosecution case is based on the oral dying declaration made by Prabhu Lal prior to his death to his wife Manju Bai and son Manoj. Under section 32 (1) of the Evidence Act statement made by a person since dead as to cause of his death or the circumstances of the transaction which resulted in his death are admissible in evidence. Although oral dying declaration is a weak type of evidence and ordinarily insufficient for a conviction, but where the informant in the FIR had mentioned about the earlier dying declaration with necessary details and nothing significant had been elicited in his cross examination and the Doctor who examined the deceased did not categorically state that the deceased would have been unconscious immediately after sustaining injuries and could not have been in a position even to speak that the accused person had attacked him and beat him, the conviction of the accused has to be upheld (Vide Vishram vs. State of M. P. , AIR 1993 SC 250 ). In the case on hand as already noticed nothing that could help the appellant, had been elicited and Dr. Pawan Bansal (PW. 15) who examined Prabhu Lal while he was alive, did not say that Prabhu Lal would have been unconscious immediately after sustaining the injuries under these circumstances we see no reason to disbelieve the evidence of Manju Bai and Manoj. ;