S. K. SHARMA, J. - (1.) THE appellant was tried by the Additional Sessions Judge (Fast Track) Chhabra District Baran in Sessions Case No. 05/2002. Learned Judge vide judgment dated December 10, 2002 found the appellant guilty of the charge under section 302 IPC and sentenced him to suffer imprisonment for life and fine of Rs. 5,000/-, in default to further suffer two years rigorous imprisonment.
(2.) THE prosecution story as unfolded during trial is that SHO Police Station Atru District Baran on November 16, 1999 at 6. 50 PM directed Pawan Kumar, ASI (PW-12) to reach to the Govt. Hospital Atru where injured Satya Narain was admitted. Pawan Kumar rushed to the Hospital and at 7. 00 PM recorded parcha bayan (Ex. P. 8) of Satya Narayan, wherein he stated that on that day around 6. 30 PM while he came form his shop and was sitting at Choraha. Om Prakash (appellant) arrived. Seeing Om Prakash when he got up and decided to proceed. Om Prakash sarcastically told him "aur Dada Kya Hal Hai" and inflicted knife blow on his abdomen. Another blow with knife was dealt with by Om Prakash on the left side of his ribs. Akil then intervened and rescued him by catching hold of knife. In the meanwhile his brother and other persons also assembled. Om Prakash used to create nuisance after consuming liquor therefore some three four days back there was altercation between them and because of that reason Om Prakash gave beating to him. On that parcha bayan a case under sections 307 and 324 IPC was registered and investigation commenced. During investigation Satya Narayan succumbed to his injuries and section 302 IPC was added. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Chhabra District Baran. Charge under section 302 IPC was framed against the appellant, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 13 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellant claimed innocence and examined himself as DW 1. Learned trial judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. Death of deceased Satya Narayan was indisputably homicidal in nature. As per post-mortem report (Ex. P. 11) he received following ante mortem injuries:-      " 1. Stitched wound 4cm x 10cm obliquely over Lt. side thorax 10-11 intercostal space and axillary line. On exploration the wound was incised directions medially and was abdomen deep. 2. 2-1/2cm x 10cm stitched wound on chest at post axillary line transversally at level of nipple. On exploration Incised wound 2-1/2 x 1 cm x deep to pleura cavity going medially & downward. 3. Stitched wound 20 cm long vertically RTO paramedial region from costal margin to umbilicus. 4. Incised 1/2 x 1/2 cm x pleura cavity deep Lt. side thorax 6 cm lat. to nipple with stitched mark both side at wound. In the opinion of Dr. Pratap Singh Yadav (PW-11) the cause of death was traumatic and hemorrhegic shock due to lung, spleen and intestinal injuries. Akil Mohd. (PW-1), the star witness of the prosecution in his deposition stated that on November 16, 1999 at 6. 30-7 PM while he was at his shop somebody cried and asked to save him. Akil rushed to the spot and saw Om Prakash inflicting knife blow on the abdomen of Satya Narain. One knife blow had already been inflicted by Om Prakash on the abdomen. When On Prakash made attempt to inflict third blow he (Akil) intervened as a result of which knife hit his right shoulder and caused abrasion. Satya Narain was removed to the Hospital from where he was referred to Baran where he died after two days. Akil was subjected to searching cross-examination but his testimony could not be shattered. Pawan Kumar, ASI (PW-12) deposed that on receiving direction from the SHO Atru he rushed to General Hospital Atru where he found Satya Narain in an injured condition. He recorded Parcha Bayan (Ex. P. 8) of Satya Narain in the presence of Dr. N. D. Irani (PW-13) who put his signatures marked C to D on Parcha Bayan.
(3.) WE see no reason to disbelieve the dying declaration (Ex. P. 8) of Satya Narain which was recorded by Pawan Kumar, a police officer in the presence of Dr. N. d. Irani. The dying declaration is a very important document because it amounts to a statement of the deceased verba dicta. A dying declaration made to a police officer during the course of investigation is taken out of the limitations imposed by sub-section (2) of Section 162 Crpc. The relevancy and admissibility of a dying declaration is governed by Section 32 (1) of the Evidence Act, according to which a statement written or verbal of the Evidence Act, according to which a statement written or verbal of relevant fact, made by a person who is dead, is relevant when it is made as to the cause of his death, or as to any of the circumstance of the transaction which resulted in his death in cases in which the cause of that person's death comes into question. Such a statement is relevant whether or not the person making it was at the time under expectation of death and this is so irrespective of the nature of the proceeding in which the cause of his death comes into question. Without going into judicial literature on the point as to whether the dying declaration can be made sole basis of conviction, it may be observed that in order to determine the trustworthiness and value of dying declaration it is incumbent on the court to bear in mind the capacity and opportunity of the person making the declaration to observe the incident and to identify the guilty, his faculty to remember the facts observed by him and to reproduce them, the opportunity and likelihood of his having been tutored or otherwise influenced by other circumstances or persons. A dying declaration should be closely scrutinised because having been made in the absence of accused its veracity is not tested by cross-examination. Having closely scanned the dying declaration (Ex. P. 8) of deceased Satya Narain and the statements of Pawan Kumar ASI (PW- 12) and Dr. N. D. Irani (PW-13), we find the dying declaration untutored and worthy of belief. It also gets corroboration from the testimony of Akil Mohd. (PW-1 ). The defence version introduced by the appellant (DW-1) in the capacity of defence witness that Satya Narain and Akil made assault on him with knives and it was the knife blow of Akil that caused injuries to Satya Narain, has no legs to stand. Neither the prosecution witnesses were given such suggestion in the cross-examination nor in the explanation under section 313 Crpc, such a defence plea was raised. Learned trial Judge, in our opinion, has rightly convicted and sentenced the appellant. ;