PATIL, J. ( 1 ) THE State has filed this appeal questioning the legality and correctness of the judgment and order of acquittal passed by the 1st Additional Sessions judge, Belgaum acquitting accused- respondent of the charge of offence of murder levelled against him. ( 2 ) ONE Jeevappa Chougule of Hattargunji village in Khanapur Taluk, Belgaum district, is the deceased. PW.-1 Laxmibai is his Wife. The marriage between them took place some 10 years prior to the incident which took place on 7-12-1964, which was a Monday. The accused-Parashuram who has also been referred as Parsha is no other than the younger brother of the deceased. Both deceased and accused lived together cultivating a small piece of land as its tenants. Round about the time of the incident they were carrying on sowing operations in the land. Pea-nut seeds being short, the deceased gave Rs. 2/-to the accused to purchase the same, but the accused who went away with the money did not return back to the house. After days work, the deceased came back to the house. Being exhausted he lied down in the bed by the side of his child. His wife PW. 1-Laxmibai was sitting by the other side of the deceased feeding breast milk to her other child. A Chimney lamp was kept burning. At about 9 P. M. , the accused suddenly entered inside the house with a sickle in his hand and gave two blows one after the other and immediately went away running with the sickle in his hand. PW. 1 saw him so coming and going away running after assaulting the deceased. As the deceased cried out saying his brother has assaulted him, she went out crying saying that the accused having assaulted the deceased with the sickle, had gone away running. Hearing her cries when PW. 2-Mathru gurav and PW. 3-Manjula Gurav came out of their house and questioned her as to what was the matter, she told them the same. When they advised her to go to the house of the police patil, she proceeded ahead. On the way she met kallappa Gurav, Mathru and PW. 4-Ganapati agnoji. She told them also the same. She informed about what had happened to the police patil. They went to the house of the deceased and found the deceased was lying injured. One mallappa (CW-11) bandaged the injuries sustained by the deceased. On the way she met kallappa Gurav, Mathru and PW. 4-Ganapati agnoji. She told them also the same. She informed about what had happened to the police patil. They went to the house of the deceased and found the deceased was lying injured. One mallappa (CW-11) bandaged the injuries sustained by the deceased. When questioned, the deceased told before them that his brother-accused Parashuram, had assaulted him with the sickle and had ran away The police patil prepared a report regarding the occurrence which is marked as Exhibit P-1 and taking the deceased in a bullock-cart went to the police station at Khanapur. He gave the report to the PSI, Khanapur, who immediately referred the injured to the hospital and registered a case in crime No. 55/64 and issued FIR to the court, it was about 4-30 A. M. At about 5 A. M. when the deceased was produced before the Medical Officer, Khanapur, pw. 15-Dr. Ramprasad who was then serving as a Medical Officer, Khanapur, found although the deceased was conscious, the whole of the body except some portions of the palm, had become cold. The deceased was struggling for breath and the condition was serious. He gave first aid treatment by giving 500 C. C. Glucose drip to combat shock. He also gave coramin injection to pump up the heart and he sent for the Tahsil- dar, Khanapur with a requisition to record the dying declaration of the deceased. At about 5-15 A. M. , on 8-12-1964, p. W. 14-Ramachandra the Acting tahsildar went to hospital and after ascertaining from the medical Officer about the mental state of the deceased, and himself satisfying that the deceased was conscious and able to make the statement, he questioned him and recorded his statement as per Exhibit P-11. When he was questioning last as to why he had been so assaulted, the deceased became unconscious and he obtained the thumb impression of the deceased. At about 6-45 A. M. when the deceased died in the same unconscious state of mind, the dead body was removed to the mortuary. The PSI, Nadaf (since deceased) took up further investigation. He went to the village and instructed his subordinates to trace out the accused. He prepared the panchanam of the scene of offence. At about 6-45 A. M. when the deceased died in the same unconscious state of mind, the dead body was removed to the mortuary. The PSI, Nadaf (since deceased) took up further investigation. He went to the village and instructed his subordinates to trace out the accused. He prepared the panchanam of the scene of offence. He went to the hospital and held inquest proceedings over the dead body of the deceased and made over the dead body of the deceased to the Medical' Officer for post mortem examination. ( 3 ) PW. 15-Dr. Ramaprasad conducted post mortem examination over the dead body of the deceased and found that the deceased had sustained the following 2 external injuries: 1. There was a liner incised wound situated on the right side of the front of the chest starting from sternum downwards and laterally 5" x 3" and through and through cutting 6th rib as well as stomach, liver, and lower portion of the right lung. Contents of the stomach were poured out little. 2. A transverse line incised wound situated on the. middle 1/3rd of the anterior portion of the right arm which was about 4 x 1/4 inch x 24 through and through cutting the banian and underlying muscles and structure. Wound was bleeding. ( 4 ) ON dissection he also further found the 6th rib was cut. Lower portion of the pleura was ruptured. Similarly lower portion of the right lung was cut and was conjested. Abdominal wall, peritonium and stomach were ruptured. Medial lobe of the liver was cut internally by 3" x 1 " x 3. All the injuries were ante mortem and injury No. 1 corresponding to external injuries in the thorax and abdomen were fatal and sufficient in the ordinary course of nature to cause the death. In his opinion the death was due to shock and haemorrhage. He later on issued post mortem report as per Exhibit P-7. He also issued injury certificate as per Exhibit P-8. ( 5 ) THE accused was found absconding. All attempts to trace out proved in vain. Ultimately a charge sheet was sent showing him absconding. The case was transferred to long pending file. 18 years after the incident, the police got clue that the accused was residing in betse village in Goa. ( 5 ) THE accused was found absconding. All attempts to trace out proved in vain. Ultimately a charge sheet was sent showing him absconding. The case was transferred to long pending file. 18 years after the incident, the police got clue that the accused was residing in betse village in Goa. When he was apprehended and produced, he was arrested and was sent to Court for trial. The defence of the accused was one of total denial. The further defence tried to be made out at the trial was that pw. 1 Laxmibai had developed illicit- intimacy with Dhanappa Gurav, husband of PW. 3-Manjula Gurav, and he Dnanappa Gurav having assaulted the deceased, PW 1, in order to save her paramour had got foisted a false case on him. ( 6 ) THE learned Sessions Judge appreciating the evidence in a casual manner thought the deceased who was sleeping was unable to identify the assailant. PW- 1 Laxmibai was also probably unable to identify the assailant as there was no light and in that view he having rejected the ocular evidence given by her, and the evidence regarding the dying declaration, he came to the conclusion that the prosecution had failed to prove the case beyond all reasonable doubt. In that view, he having acquitted the accused, the State has filed this appeal. Mr. B. R. Nanjundaiah, learned Additional State public Prosecutor, taking us through the evidence of the material witness argued that the appreciation of the evidence made by the Session Judge is wholly erroneous and therefore the order of acquittal passed by the Sessions judge cannot be sustained. He submitted not only a chimney lamp was kept burning when the incident took place, , but immediately after the incident PW. 1 had also named the accused as the assailant of the deceased. He submitted not only a chimney lamp was kept burning when the incident took place, , but immediately after the incident PW. 1 had also named the accused as the assailant of the deceased. The deceased who had an opportunity to see the accused running away after asseulting had also named the accused as his assailant not only before those who came to the house immediately after the incident but also in his dying declaration statement before the Tahsildar and the dying declaration statement made by the deceased which has been recorded almost in his own words is a truthful account of the happening and that the Sessions judge was wholly in error in acquitting the accused and the order deserves to be set aside and the accused deserved to be convicted. ( 7 ) MR. Gunaki, learned counsel for the respondent, on the other hand, supporting the judgment and order of acquittal passed by the Sessions Judge submitted: in all probability, as contended by the accused, Dhanappa Gurav being the assailant of the deceased cannot be ruled out. He further submitted that although PW. 1-Laxmibai had stated that chimney lamp was burning but no such chimney was seized when the investigating officer made the panchanama of the scene of offence and the chimney lamp came to be, saizsd later on as an after thought, therefore the learned Session Judge was, justified in reaching the conclusion that there being no light, PW. 1 had no opportunity to see the assailant. At any fate, he submitted the evidence placed on record and the admission made. by 'pw. 1 herself showed that the accused was hardly aged about 15 years at the time of the incident and he being juvenile offender, the trial was without jurisdiction and therefore the proper course is to set aside the acquittal and remit the matter back to the Sessions Judge to decide in the first instance, the question of the age of the accused and dispose of the , matter in accordance with law. ( 8 ) WE are unable to accept this contention. There is no force in the contention that the, accused was aged below 16 years when the incident took place. The so called admissions given by PW. 1 relied upon by Mr. Gunaki to sustain his contention are in no way helpful to him. PW. ( 8 ) WE are unable to accept this contention. There is no force in the contention that the, accused was aged below 16 years when the incident took place. The so called admissions given by PW. 1 relied upon by Mr. Gunaki to sustain his contention are in no way helpful to him. PW. 1 was aged about 40 yeers when she was examined at the trial in january, 1983. She has stated that har marriage with the deceased took place some 10 years prior to his death. She has also stated that at the time of the marriage she was aged about 15 years and the accused was also of the same age. That being so, PW. 1 was aged about 15 years, the accused was also roughly aged about aged about the same age when the incident took place and not being below 16 years of age, the sessions Judge had every jurisdiction to try the case. Therefore, there is no merit in this contention- coming to the merits of the case there is no dispute Whatsoever that the deceased died a homicidal death on account of the injuries found to have been sustained by him. The nature of injuries described by the Medical Officer and the cause of death leave no room for doubt that the deceased had died on account of the injuries sustained by him. ( 9 ) THE question however is whether the accused was responsible for indicting the injuries sustained by the deceased and whether he did so with intention of causing his death, or causing of such injuries as would be sufficient in the ordinary course of nature to cause his death. In order to establish these aspects of the case, the prosecution has not only relied upon the ocular evidence as given by PW. 1, as corroborated from the earlier statement made by her before pws. 2, 3 and 4, but also on the oral declaration made before PWs. 2 and 3 as also the dying declaration statement exhibit P-11 made before PW. 14 in the presence and hearing of PW. 15 as also the conduct of the accused making himself scarce till he came to be arrested almost 18 years after the incident. PW. 1 has given evidence of the occurrence consistent with the prosecution version of the story as narrated earlier. 14 in the presence and hearing of PW. 15 as also the conduct of the accused making himself scarce till he came to be arrested almost 18 years after the incident. PW. 1 has given evidence of the occurrence consistent with the prosecution version of the story as narrated earlier. She has stated in detail how the accused went away with money and did not return back, and how after night fall when the deceased was lying by the side of the other child and she was sitting near his feet feeding breast milk to her other child, the accused suddenly appeared and assaulted the deceased with a sickle and went away running. She has stated that there was a burning chimney lamp and she saw the accused so coming and going away running after the assault. There is absolutely no reason watsoever to disbelieve the evidence given by her in this behalf. Although it was night time, she was quite awake and sitting feeding breast milk to her child. It would appear the deceased having returned from the land was lying in bed, probably he had not taken his night meal. Therefore having regard to the incident having taken in the house, the competency of PW 1 to speak to the circumstances under which the incident took place cannot be doubted. The Sessions Judge it appears was in error in holding that the deceased was sleeping and there was probably no light and they had no opportunity to see the assailant. The evidence given by PW. 1 showed that there was a burning lamp when the incident took place. The evidence given by PWs. 2 and 3 also showed that soon after the incident, on hearing the cries, when they went to the house of the deceased, the chimney lamp was burning; both PWs. 2 and 3 who came out on hearing the cries saw PW. 1 coming out crying, saying the accused had assaulted the deceased. When they questioned her, she told before them that it is the accused who had assaulted the deceased with the sickle and had ran away. She has also stated the same before PW-4 and the police patil and others who came to the house later on. 1 coming out crying, saying the accused had assaulted the deceased. When they questioned her, she told before them that it is the accused who had assaulted the deceased with the sickle and had ran away. She has also stated the same before PW-4 and the police patil and others who came to the house later on. This earlier statement made by her at about the time and place of incident is quite relevant and very important piece of evidence, admissible in evidence as res gastae under S. 6 as also under S. 157 of the Evidence Act. Therefore, it appears, there are no reasons whatsoever to disbelieve or discard her evidence when she has stated it is the accused who had assaulted the deceased. Merely because the chimney lamp was not seized under the panchanama of the scene of offence but it came to be seized later on is not by itself sufficient to hold either the deceased was sleeping or PW-1 and the deceased had no opportunity to see the assailant. ( 10 ) COMING to the evidence regarding the dying declaration, PW-2 Matharu who went to the house of the deceased has stated that whan he went to the house of the deceased he was lying injured in the drawing room and has sustained bleeding injuries on his right arm and chest and when questioned he told that his brother Parashuram (accused) assaulted him with sickle. PW-3 Manjulabai gurav has also stated not only she heard the deceased screaming saying that he was assaulted by the accused unceremoniously but when she went there she also heard the deceased telling before others that he was unceremoniously assaulted by the accused. Of course PW-4 Ganapati has stated that the deceased was lying unconscious when he went to the house, but it may be noted that he came to the house as stated by himself long after the police patil and others had gone to the house. May be, by the time he came there, tha deceased was not able to speak but PWs. 2 and 3 who went to the house of the deceased immediately after the incident have stated that ha was able to speak and had stated that the accused had assaulted him with sickle. ( 11 ) THE evidence given by the Medical officer-PW. 15 Dr. 2 and 3 who went to the house of the deceased immediately after the incident have stated that ha was able to speak and had stated that the accused had assaulted him with sickle. ( 11 ) THE evidence given by the Medical officer-PW. 15 Dr. Ramprasad showed although when the deceased was produced before him the pulse beat was feeble and the whole of the body except some portions of the palm had also become cold and the deceased had Chain stroke respiration but he was still conscious. He has stated he noticed the injuries sustained by the deceased and having sutured the wounds gave 500 C. C. Glucose drip to combat the shock and 2 c. C. Coramin injection to pump tha heart and ha summoned for the Tahsil- dar. Khanapur to record the dying declaration. The evidence given by PW.-14 ramachandra showed that it was about 5. 15 A. M. whan he went to the hospital and the Doctor who was attending also told that the deceased was fit to make a statement and he therefore questioned and recorded his statement. He has stated that he recorded the statement of the deceased in the same words in which he made the statement. The statement made by the deceasad is in Marati language when translated into English, it reads as follows :-"monday night came to the house from the land at 9 and due to tiredness laid down. At that time Parsha my brother (meaning thereby the accused) present in my house assaulted with sickle on my chest and upper arm. He gave me thus 2 blows without questioning or talking and immediately I screamed 'you have betrayed me'. He saw him, when he was going back after assaulting me. My wife Laxmibai was sitting by my side, once she bowled out and started shouting my husband died. At that time neighbours mathru-PW. 2, Kallappa - (C. W. 8} came running to my house. My wife went running to the house of the police patil. " ( 12 ) AFTER recording the above statement when he (P. W. 14) questioned him fur ther in the same Marati language known to the deceased as can be seen from the statement Exhibit P-11 "can you give the reasons for doing so" it would appear the deceased became unconscious, the Medical Officer-PW. " ( 12 ) AFTER recording the above statement when he (P. W. 14) questioned him fur ther in the same Marati language known to the deceased as can be seen from the statement Exhibit P-11 "can you give the reasons for doing so" it would appear the deceased became unconscious, the Medical Officer-PW. 15 not only testified to this deceased being in a state of making statement but he has stated that the dying declaration came to be recorded in his presence. He has also endorsed below Exhibit P-11 to that effect. This evidence of dying declaration satisfies the tests as laid down by their Lordships of the Supreme court in various cases including the case of K. . Ramachandra Reddy and Another v the Public Prosecutor (AIR 1976 (3) SC 1994 ). The learned Sessions Judge was wholly in error in rejecting the evidence of dying declaration solely on the ground that the deceased had no opportunity to see his assailant. As stated earlier, the evidence given by most of the witnesses who were present and who appeared on the scene of offence showed that the chimney lamp was burning. The accused being not a stranger there could not have been any difficulty for the deceased to identify the accused as his assailant. ( 13 ) THE evidence adduced on behalf of the prosecution also showed, the accused who ran away after the incident was not to be found at all. It would appear that the police were unable to trace him out and the warrants and attachment orders issued proved in vain. This conduct on the part of the accused making himself scarce also lends assurance to the testimony of the eye witness and the evidence of dying declaration. In spite of the proclamation issued the accused did not appear. That shows the guilty conscientiousness. Therefore, the conclusion reached by the Sessions Judge that the prosecution has failed to prove the case beyond all reasonable doubt cannot be accepted. But for the suggestions put to the witnesses in their cross-examination and stoutly denied, there is absolutely on other material to support the defence version of the case. There is nothing in the evidence to show that either P. W. 1 was given to such easy virtues or that she had developed any such illicit intimacy with Dhanappa Gurav. The evidence of the occurrence as given by pw. There is nothing in the evidence to show that either P. W. 1 was given to such easy virtues or that she had developed any such illicit intimacy with Dhanappa Gurav. The evidence of the occurrence as given by pw. 1 corroborated from the earlier statement made by her before others immediately after the incident and the evidence of dying declaration statement mace leave no room for doubt that accused and accused alone was responsible for inflicting the injuries sustained by the deceased. The fact that the accused went armed with sickle and assaulted the deceased when he was lying down and gave fatal blows one on the chest arid the other on the hand of the deceased, shows he either intended to cause the death of the deceased or cause such bodily injuries as would be sufficient to cause the death of the deceased. Therefore, the offence, committed was one of murder. Therefore we allow the appeal and set aside the order of acquittal dated 22-2- 1983 passed by the 1st Additional Sessions judge, Belgaum in S. C. No. 93 of 1982 and hold the accused guilty of the offence of murder punishable under section 302 IPC and sentence him to suffer imprisonment for life thereon. The Sessions Judge shall issue non-bailable warrants and secure the accused end detain him in jail. --- *** --- .