SHYAM SUNDER BYAS, J. - (1.) THIS appeal is directed against the judgment of the learned Additional Sessions Judge, Rajsamand, dated March 6, 1982 by which the appellants Ambalal, Bhagwanlal and Motilal were convicted under Section 302/34 IPC and each was sentenced to imprisonment for life with a fine of Rs. 100/ -, in default of the payment of fine to further undergo one month's rigorous imprisonment.
(2.) BRIFLY stated, the prosecution case is that the deceased vitcim Ambalal aged about 55 years was a resident of village Sundercha, Police Station Rajnagar, District Udaipur. The appellants are also residents of the same village. The fileds of the deceased and the appellants are situate adjacent to each others as shown in site plan Ex. P. 6. At about 6.30 a.m. on 14 -3 -1981, deceased Ambalal went to his field to collect the green grass. The appellants also reached there. Accused Moti Lal had an axe while the remaining two Ambalal and Bhagwan Lal were armed with lathis. They made an assault on Ambalal (deceased) and inflicted injuries to him with the weapons they were armed with. As a result Ambalal fell down. There was profuse bleeding from his wounds, His son Satyanarain PW 5 on being apprised of the incident rushed to the field and found his father lying in an injured condition. Ambalal was taken in a bullock cart to the hospital Rajsamand. PW 5 Satya Narain went to Police Station. Rajsamand and submitted a written report Ex. P. 4 of the occurrence at about 9 a.m. on the same day. The police registered a case under Sections 307, 324, 325 and 447 IPC. The Investigating Officer requested the Additional Munsif and Judicial Magistrate, Rajsamand to record the dying declaration of Amba Lal. The learned Magistrate went to the hospital and recorded the dying declaration Ex. P. 17 of Ambalal, The injuries of Ambalal were examined by PW 1 Dr. Surendra Kumar the then Medical Officer Incharge, Primary Health Centre, Rajsamand. He found the following injuries on his person: 1. Swelling 2' in diameter on right parital bone of skull; 2. Bruise 1 1/2' x 1' on right side of forehead; 3. Bruise swelling 1' x 1/2' on back of neck; 4. Abrasion two in number 1/2'xl/2' and 1'x1/2' on right forearm; 5. Lacerated wound and dislocation size not demarcated on back of right wrist joint; 6. Incised wound on index middle and Ring finger of Right hand 1/2 x 1/2 x 1/4 cm; 7. Abrasion swelling 3' x 1/2' on left side of chest; 8. Abrasion 3 in No. 1/2' x 3/4' to 1/4 x 1/2' on left knee joint; 9. Abrasion swelling 4' x 2' on left arm; 10. Abrasion seven in number on back of left forearm and palm; 11. Incised wound 2' x 1' x 3/4' on Right leg 1 1/2' above the Right ankle joint; 12. Lacerated wound with compound fracture 3' x 1 1/2' x 1' on Right leg 2' below right knee; 13. Abrasion 2 1/2' x 1 1/2' on middle part of back; 14. Abrasion 1/2' x 3/4' Ilia creast; 15. Bruise swelling 3/4' in diameter on lower part of back on lumber region area. Despite medical treatment, Ambalal did not survive and passed away at about 1.45 pm on 14 -3 -1981. Dr. Surendra Kumar conducted his post -mortem examination. He was of the opinion that the cause of death of the victim was massive internal and external haemorrhage due to multiple injuries and fractures. The post mortem examination report prepared by him is Ex.P. 2. Due to the death of Ambalal the police added Section 302 IPC during investigation. The SHO PW 18 Mahendra Singh arrived on the scene of occurrence, inspected the site and prepared the site plan. He thereafter went to the hospital and prepared the inquest report of the victim's dead body. The accused persons were arrested and in consequence of the information furnished by them axe and Lathis were recovered. The blood stained clothes of the deceased were also seized and sealed and were sent for chemical examination. On examination they were found stained with human blood. On the completion of investigation the police submitted a challan against the appellants in the court of Munsif and Judicial Magistrate, Rajsamand, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charges under Section 302/34 IPC against all of them to which they pleaded not guilty and claimed to be tried. They denounced the whole prosecution story and claimed absolute innocence. According to their statements recorded under Section 313 Cr.PC they were not in village Sundercha on the day of incident but were at Bombay. They thus pleaded alibi in their defence. In support of its case the prosecution examined 18 witnesses and filed some documents. In defence the accused examined five witnesses. On the conclusion of trial the learned Sessions Judge found the charge duly brought home to the accused and found no substance in the defence plea of alibi. The appellants were consequently convicted and sentenced as mentioned on the very outset. Aggrieved against their conviction, the accused have come up in appeal. We have heard Shri Doonger Singh, learned Counsel for the appellants and Shri N.D. Khan, the learned Public Prosecutor. We have also gone through the case file carefully.
(3.) BEFORE proceeding further, it may be mentioned that the appellants were convicted solely on the basis of the written dying declaration Ex. P 17 recorded by the Judicial Magistrate, Jagdish Singh PW 14. The learned Sessions Judge found the dying declaration Ex. P 17 truthful. Accepting the dying declaration Ex. P 17 as true and the substantial piece of evidence, he convicted the appellants.;