G. S. N. TRIPATHI, J. ( 1 ) CCUSED Pancham Yadav and Chauthi Yadav have been convicted and sentenced to undergo R. I. for a period of 5 years on the charge under S. 304/1, I. P. C. by the then IIIrd Add1. Sessions Judge, Mirzapur by his order dated 3-8-1979. They have preferred this appeal against the same. ( 2 ) THE prosecution case stated initially on the basis of an F. I. R. lodged by Nathu (deceased) on 10-8-78. He has alleged that the incident took place on 9-8-78 at about 2 p. m. in village Lorahuti, Jogini. The cattle of the accused trespassed into the paddy and Kodo crops of the complainant. The complainant asked the accused not to do so. Then they assaulted him with lathies. The witness intervened. He had received injuries on his head, cheek and arm. ( 3 ) ON the basis of this short report, an entry in the G. D. was made on 10-8-78 at about 4 p. m. A case under Section 323/426, I. P. C. was registered but it was kept as a non-cognizable case. ( 4 ) THE complainant Nathu was medically examined by Dr. B. P. Singh on 10-8-78 at 4. 40 p. m. The following injuries were found on his person :- injuries :1. Contusion 7 cm x 3. 2 cm on the left temporal region of head, 7 cm from median line of head and 1 cm behind the forehead. Red in colour with margins irregular. 2. Abrasion 4 cm x 1 cm on the lateral surface of left arm, 10 cm above the left elbow joint. Type of Injuries : (1) and (2) injuries are simple in nature. Type of weapon used (1) and (2) injuries are caused by blunt edge weapon. Duration of wound : (1) and (2) injuries are about one day old. ( 5 ) IT appears that after the examination, the complainant went home. After few days, he developed some trouble and undertook treatment but he died on 21-8-78. ( 6 ) AFTER receiving information, the I. O. took the dead body in possession, prepared Panchayatnama and other documents and got the dead body sealed and sent it for post mortem examination. ( 7 ) THE post mortem examination was done by Dr. G. D. Barnwal on 23-8-78. ( 6 ) AFTER receiving information, the I. O. took the dead body in possession, prepared Panchayatnama and other documents and got the dead body sealed and sent it for post mortem examination. ( 7 ) THE post mortem examination was done by Dr. G. D. Barnwal on 23-8-78. He collected the following : middle aged man of average built Rigor mortis passed off. Eyes closed. Eggs of fly seen at places Blisters present. The decomposition of body advancing. Face bloated and tounge protruding, skin of upper half of body is highly bluish black. Cuticle peels off on slight touch, left side of head is swollen and bluish black. No apparent injuries could be seen due to decomposition of body. ( 8 ) ON internal examination, he noted the following 1. Scalp skull bones (vetex ). Big subcutenoues haematoma on left side and back of head near temple area in 12 x 15 cm area. The left parietal and temporal bones fractured. There is extradural haematoma on left side in 8 x 5 cm area. The subcutenoues and extradural haematomoes are connected through the fractured fissures of skull bones. Brain is compressed and congested. Middle cronni cranial fossa got fractured. He was of the opinion that the deceased had died on account of shock and coma due to cranial injuries, ( 9 ) AFTER usual investigation, the chargesheet was submitted by the I. O. ( 10 ) THE prosecution examined PW 1 Jairam, who is the nephew of the deceased Nathu. He was at his fields nearby when he heard the alarm. He went near the field of the complainant who showed him the recent damage done by the cattle of the accused. He wanted to take them to the cattle pound but the accused assaulted him with lathies. Thereafter he took him to his house and after some time the deceased met his end. ( 11 ) PW 2 Babau has also made the same statement. ( 12 ) PW 3 Smt. Kabutari is the wife of the deceased. She was also present at that time when the accused assaulted her husband, when he insisted on taking the cattle to the cattle pond. She has further stated that she took him to the police station and even for medical examination. She was also taking treatment for her husband at private places but ultimately he could not recover and died. She was also present at that time when the accused assaulted her husband, when he insisted on taking the cattle to the cattle pond. She has further stated that she took him to the police station and even for medical examination. She was also taking treatment for her husband at private places but ultimately he could not recover and died. ( 13 ) OTHER evidence is formal. ( 14 ) P. W. 5 is Radhey sham Pandey, the I. O. ( 15 ) P. W. 6 is shri Ram Kanwal Yadav, the Head constable. ( 16 ) SHEO Ram Singh, S. I. is P. W. 6 who is the person who recorded the statement of Nathu under S. 161, Cr. P. C. on 12-8-78. He has proved that statement which has been used by the prosecution as a dying declaration. ( 17 ) P. W. 8 Dr. G. D. Barnwal had conducted the post mortem examination and PW 9 is Dr. B. P. Singh who had conducted the ante mortem examination of the deceased. ( 18 ) THE accused in their statements have denied the allegations and have said that on account of enmity they have been falsely implicated. Accused Chauthi has additionally said that PW 2 Babau was trying to scale over his boundary wall. The accused prevented him from doing so. That is why he has given false evidence. Jairam PW 1 was inimical because he had appeared as a witness against him in a dacoity case. He was further inimical to Sri Ram at whose house the daughter of the deceased was working. That is why Smt. Kabutara has appeared as a witness against him. ( 19 ) THE accused have led no evidence in defence. ( 20 ) AFTER evaluation of the entire evidence and circumstances, the learned lower Court concluded that the prosecution case was correct. He convicted the accused accordingly and sentenced them as noted above. ( 21 ) FEELING aggrieved, the accused have filed this appeal. ( 22 ) I have heard the learned counsel for the parties at stretch and gone through the record. I find that there is no force in this appeal and it deserves to be dismissed. ( 23 ) THE fact that Nathu had received injuries on 9-8-78 is established from the injury report as noted above. Dr. B. P. Singh, PW 9 has proved the injury report. I find that there is no force in this appeal and it deserves to be dismissed. ( 23 ) THE fact that Nathu had received injuries on 9-8-78 is established from the injury report as noted above. Dr. B. P. Singh, PW 9 has proved the injury report. Further he has stated at that time both the injuries appeared to be simple to him. It could be likely that there might be a fracture underneath the contusion on the head but apparently the injuries appeared to be simple to him and he could not detect any fracture. These injuries could have been caused on 9-8-78 around 2 p. m. but they could not be caused on 9-8-78 at about 11 p. m. This statement of Dr. Singh clearly establishes that the suspicion sought to be created by the accused that in the night Nathu might have received injuries is totally unfounded. It is also established that on 9-8-78 Nathu had received injuries, and these very injuries turned to be fatal on 21-8-78. Thus the existence of the injuries as alleged by the prosecution is proved. ( 24 ) P. W. 8, Dr. G. D. Barnwal had conducted the post mortem examination. He has clearly stated that as the dead body had developed a state of decomposition, therefore, he could not detect the nature of injuries but all the same he found haematoma on the head. The left parietal bones were fractured and there was deposit of blood in an area of 8 cm x 5 cm in the membrance of the brain. The scalp was fractured and there was deposit of blood there also. Further in paragraph 9, he has honestly stated that the injury No. 1 detected by Dr. B. P. Singh was the same which resulted in the death. He has honestly admitted in para 10 that ordinarily it might have been suspected to be fatal but there was likelihood of death on account of this injury. This is what the prosecution case is. Hence from the statement of these two Doctors who have remained totally unscathed in the crossexamination, it is established that Nathu died as a result of the injuries received by him on 8-8-78. ( 25 ) ALTHOUGH the accused have alleged that there was enmity between them and the PWs. This is what the prosecution case is. Hence from the statement of these two Doctors who have remained totally unscathed in the crossexamination, it is established that Nathu died as a result of the injuries received by him on 8-8-78. ( 25 ) ALTHOUGH the accused have alleged that there was enmity between them and the PWs. , although not established, there was significantly no allegation that there was any enmity between Nathu, the deceased and the accused. So there is no reason why Nathu would lodge a false report against the accused. ( 26 ) THERE are two types of evidence led by the prosecution. One is ocular testimony of Jairam, PW 1 Babau, PW 2 and Smt. Kabutari, PW 3. The other evidence is the statement of Nathu under Section 161/154, Cr. P. C. which is the dying declaration. ( 27 ) I proceed to examine the ocular testimony first. ( 28 ) PW 2 is Babua Kole. He has been named in the FIR and also in the dying declaration of Nathu. He is a totally unrelated person neither affiliated to the deceased nor inimical to the accused. He belongs altogether to a different class and is a Scheduled Tribe. He has said that it was about 2 p. m. when the incident took place near the fields of the deceased, Nathu. He himself was watching his field when he heard an alarm from a distance of about 45 lathas. He rushed to the spot. He saw the cattle of the accused. Both the accused were quarrelling with the complainant near his Mahua tree. He also saw that the crops of Nathu worth Rs. 10. 00 had been recently grazed and damaged by the cattle. He saw the accused Chauthi assaulting Nathu with a lathi on his head. Pancham assaulted him after Nathu had fallen down. Nathu became little unconscious after receipt of the injuries. Accused took away their cattle and bolted. In the cross-examination a large number of questions have been put regarding the topography and the witness has answered those questions very clearly and without any hesitation. He further says that amongst the cattle in possession of the accused, apart from their own, their were cattle of other persons also which were being grazed under the supervision of the accused. In the cross-examination a large number of questions have been put regarding the topography and the witness has answered those questions very clearly and without any hesitation. He further says that amongst the cattle in possession of the accused, apart from their own, their were cattle of other persons also which were being grazed under the supervision of the accused. Nathu was trying to take the cattle to the cattle pound which was not relished by the accused and they assaulted him. The nephew of the deceased showed him the crops damaged by cattle of the accused. The marpit took place at about 20 paces of the Mahua tree. The witness has faced gruelling and lengthy cross-examination but nothing material has come out from the same and I find that the solitary statement of Bahua, P. W. 2 is sufficient to record conviction against the accused. ( 29 ) P. W. 1 is Jai Ram. He has not been named in the FIR but he has been named in the dying declaration. His presence is admitted by Babua. He, therefore, says that the deceased was his uncle. The deceased was residing in the cottage built by him near his field. The witness was watching his field nearby when at about 2 p. m. , he saw the accused quarrelling with the deceased. The deceased was trying to take the cattle away and complaining that the cattle has damaged the crops. Thereupon the accused assaulted him. He has said in para 9 that as it had rained heavily in that night so he could not dare to go to the police station. Moreover, as the deceased regained consciousness may be shortly thereafter and there did not appear to be any injury which was likely to be fatal immediately, everybody including the Doctor B. P. Singh had been taking the injuries as very simple and ordinary, that is why nothing was done soon after the incident. Moreover. Abadi of the village is 3 kms from the spot. This witness went to the Abadi and thereafter he returned. By that time it was night and it started raining at about 8 p. m. Hence the passage between the police station had become watery and muddy so the distance was negotiated on the following day. The witness has been cross-examined in detail. This witness went to the Abadi and thereafter he returned. By that time it was night and it started raining at about 8 p. m. Hence the passage between the police station had become watery and muddy so the distance was negotiated on the following day. The witness has been cross-examined in detail. No doubt, he is the real nephew of the deceased but that is no ground to reject his testimony. It has to be seen with great care and caution as to whether he is telling the truth. Once he passes this acid test, relationship will be no bar in accepting his testimony. Regarding the date, time and place of occurrence, he has given a uniform statement. Regarding the genesis of the marpit, he has given an ocular testimony. He says in para 23 that as there was no one else at his house, so he could not delay himself for long. In para 24 he says that before the incident, he had very cordial relations with the accused. He has denied that the deceased had received injuries at night. I may again refer to the statement of Dr. B. P. Singh, who has repudiated the suggestion that the injuries could have been caused at about 11 p. m. on 9-8-78. The police stations distance is about 8 kms. according to this witness. He has denied that he has implicated the accused after consultation. ( 30 ) AFTER critical analysis of the statement of this witness, I find that he had spoken the whole truth and nothing but truth. There is no reason to discard his testimony. ( 31 ) PW 3, Smt. Kabutari has not been mentioned in the F. I. R. as a witness but in the dying declaration she has been made a witness. Moreover the deceased was an old man. He was a Harijan. In this community, ladies work with their husband in fields and then only they are able to meet their daily family needs and that too with difficulty. Hence when she says that she was in the cottage at the fields when the occurrence took place, there is nothing unnatural. She admits that during nights, she used to reside in the Abadi house but during the day time, she stayed with her husband and worked in the fields. Her presence on the spot cannot be disputed in this manner. She admits that during nights, she used to reside in the Abadi house but during the day time, she stayed with her husband and worked in the fields. Her presence on the spot cannot be disputed in this manner. Moreover, in the cross-examination, nothing could be found on the basis of which her presence could be doubted. ( 32 ) SHE is the wife of the deceased. Therefore, her statement deserves to be taken with great amount of caution. She has narrated the entire story in the order in which it took place. She also states about the rain during the night. Next day, she took her husband to the police station. She was also taking private treatment for her husband for about a week. Ultimately her efforts failed. She admits that Jai Ram is her nephew. The marpit took place near the Mahua tree as shown by the I. O. in the site plan. Further she says that the cattle of the accused had trespassed into her fields and caused damage to her crops. She was also helping her husband in collecting the cattle for taking them to the cattle pond, when the accused assaulted her husband. There was a suggestion that the deceased might have fallen upon some rocky ground and received injuries. Although there was no such question put to Dr. B. P. Singh or Dr. Barnwal or even to any other witness. In para 6, this question was attempted on this lady. But she has said that there was no hilly or rocky substance on the ground upon which her husband fell after receiving injuries at the hands of the accused. So even this fishy question could not help the accused. In para 17, she clearly admits that her husband invariably resided in the cottage near her fields but she used to cook food at her house in Abadi and bring the same for him. In para 20 she says that there was no enmity between the accused and her family members prior to this incident. It is wrong to say that her husband received injuries during night. Further in para 21, she says that her husband did not bleed after receipt of injuries. ( 33 ) THUS I find that every sentence of Smt. Kabutari Devi finds corroboration from independent sources is evidence on the record. It is wrong to say that her husband received injuries during night. Further in para 21, she says that her husband did not bleed after receipt of injuries. ( 33 ) THUS I find that every sentence of Smt. Kabutari Devi finds corroboration from independent sources is evidence on the record. It finds support from the F. I. R. from the G. D. from the dying declaration, from the medical reports and also from the statements of Jai Ram and Babau. After keeping this caution in mind that she is the widow of the deceased, I find no reason to discard any part of her statement. I hold that she is a reliable witness. When her statement is used along with other evidence on record, it becomes an impregnable substance and invaluable asset to the prosecution. The learned lower Court was perfectly justified in accepting the statement after scanning this evidence and rightly held that Smt. Kabutari Devi is a reliable witness. ( 34 ) THUS from the ocular testimony available on record it is proved beyond doubt that the witnesses produced by the prosecution are reliable and conviction can be passed on their testimonies. ( 35 ) NOW the other type of evidence is dying declaration recorded by the I. O. on 9-878 under Section 161, Cr. P. C. As seen earlier, the condition of the deceased was not deplorable on the date of the F. I. R. or even thereafter, specially on the date when the dying declaration was recorded. Everybody was asking this case very lightly. So there was neither any genuine apprehension of death nor there was any such expectation that Nathu might die. Till then it was a petty case under S. 323, I. P. C. so nobody was interested in embellishment of the case or making improvements in it for conviction of the accused. At that time nobody even could imagine that the case would see the doors of the Court. In this background, I find that the I. O. who recorded the statement under S. 161, Cr. P. C. would not have tried to make any improvement. PW 6 Sheo Ram Singh SI went to the spot on 9-8-78 for the first time and recorded the statement of Nathu. He made the verbatim record of the same and that is Ex ka 2 on the record. P. C. would not have tried to make any improvement. PW 6 Sheo Ram Singh SI went to the spot on 9-8-78 for the first time and recorded the statement of Nathu. He made the verbatim record of the same and that is Ex ka 2 on the record. In the cross-examination, he says in paragraph 6 that although Nathu was under some physical pain but his condition was not abnormal. He himself came to the spot on his own feet. When he reached there he remained throughout conscious. He was lying in his cottage. He got up after seeing him. So the statement of this I. O. is clearly acceptable on the point that Nathu was in a sound and alert mental state and he could give his statement under S. 161, Cr. P. C. In this background when we approach the dying declaration we find it to be avertible asset for the prosecution. In this statement the declarant has mentioned the date, time and place of occurrence and names of the accused, their weapons, the genesis of the marpit, damage to the crops, the names of the witnesses examined etc. Further the reason why he reached late to the PS to lodge the report is also there. He has thus proved the dying declaration Ex Ka 2 in totality. ( 36 ) AFTER a close scrutiny I find that this document is very relevant under S. 32 of the Evidence Act. This fact solely constitutes the basis for recording the conviction of the accused. There is another dying declaration in the shape of the FIR Ex Ka 1 lodged by the complainant. In it he has said that the cattle of the accused had damaged his crops. He asked the accused not to allow it to be done so. They did not desist and assaulted him with lathies. He has also described the injuries on his head as well as on the arm. This document has been proved on the record by P. W. 6 H. C. Ram Kanwal Yadav. He has deposed that Nathu dictated the F I. R. and he scribed the same. He had seen the injuries on the person of the deceased and referred him for medical examination. In the cross-examination, deficiency if any, in the Examination-in-Chief, was made good. He has deposed that Nathu dictated the F I. R. and he scribed the same. He had seen the injuries on the person of the deceased and referred him for medical examination. In the cross-examination, deficiency if any, in the Examination-in-Chief, was made good. In para 7 the witness was made to say that whatsoever was said by Nathu was scribed by him in his language. Nothing was left out. So this document has been proved to be a statement of the deceased Nathu and this too can be used as a dying declaration for recording conviction against the accused. ( 37 ) THUS after a thread-bare analysis of the prosecution case, evidence and circumstances on the record, I find that the learned Sessions Judge has come to a correct conclusion and I do not find any discrepancy in the judgment recorded by him. I accordingly concur with the findings recorded by the learned Sessions Judge. ( 38 ) LASTLY it was urged that the sentence is severe. I do not agree. If there is any defect in the judgment of the learned lower Court, it is on this point only that he has shown extreme leniency to the accused persons. They had taken law in their own hands. Without any justifiable reason they assaulted the deceased and ultimately made his wife an orphaned widow, which she never deserved. Further leniency cannot be extended to these accused. It is a broad day light incident, unless the accused are punished in a deterred manner, such incidents shall be multiplied and there will be a rule of jungle in the society. ( 39 ) THE appeal is dismissed. The judgment and order passed by the learned lower Court is made absolute. The accused are on bail. Their bail bonds and surety bonds are cancelled. They shall be taken into custody forthwith and sent to jail for serving the sentence awarded by the learned IIIrd Addl. Sessions Judge, C. J. M. , Mirzapur shall get the accused arrested without any delay and send the compliance report within 2 months from today. Appeal dismissed.