JUDGMENT 1. - The appellants were the accused in Sessions Case No. 44 of 1993 on the file of Special Judge, Scheduled Castes and Schedule Tribes (Prevention of Atrocities Cases), Ajmer. They were found guilty and convicted as under:- Manoj Mahawar u/s 302/34 I.P.C. - life imprisonment. Sampat U/s. 302 I.P.C. - life imprisonment. 2. Aggrieved by the conviction and sentence the present action for filing the appeal has been resorted to. 3. Brief facts are: (i) On 25.4.92 about 6.15 P.M. informant Madan lal Tak inhabitant of Loha Khan lodged a written report (Ex.P7) with the Police Station Civil Lines, Ajmer stating therein that on 25.4.92 around 5 P.M. he was going towards collectors accompanied by Lal Chand and Laxminarain when he reached near Revenue Board, he saw a crowd in front of Vinay Bhawan, and found his nephew Om Prakash severely injured, lying in a pool of blood near the boundary of the road. A traffic constable in white uniform was also present in the crowd. At the same time S.H.O., Civil Lines, with police constables also reached there. On being asked as to who inflicted injuries, Om prakash disclosed the names of Sampat and Manoj and told that Sampat inflicted knife blows on his person. Om Prakash was taken to the hospital, where he was declared dead. (ii) A case U/s. 302 and 34 of the I.P.C. was registered against the accused persons and investigation commenced. (iii) Charge-sheet U/s. 302 and 34 of the I.P.C. was filed and the case was committed to the court of Sessions Judge, Ajmer which was ultimately tried by the trial Court. (iv) Charges U/s. 302 I.P.C. and 302/34 I.P.C. were framed against accused appellant Sampat and Manoj respectively. The accused appellants denied charges and claimed trial. (v) The prosecution examined as many as 29 witnesses in support of its case and produced 48 documents. Thereafter statements of accused U/s. 313 Cr.P.C. were recorded. The accused examined Dr. Devi Panwar (Dw. 1), Ashok Kumar (Dw. 2) and Sawai Singh (Dw. 3) as defence witnesses. (iv) The learned trial Court convicted and sentenced accused appellants as indicated herein above. 4. Mr. A.K. Gupta, the learned counsel, vehemently contended that names of eye-witnesses have not been mentioned in the F.I.R. but the prosecution has subsequently introduced the eye-witnesses in order to falsely implicate the accused appellants. Ramdeen (Pw. 3) as defence witnesses. (iv) The learned trial Court convicted and sentenced accused appellants as indicated herein above. 4. Mr. A.K. Gupta, the learned counsel, vehemently contended that names of eye-witnesses have not been mentioned in the F.I.R. but the prosecution has subsequently introduced the eye-witnesses in order to falsely implicate the accused appellants. Ramdeen (Pw. 2) has been examined as eye-witness of the occurrence but he was related to the deceased and was an interested witness, he was also a chance witness. He reached the hospital after few minutes of the incident but did not disclose the fact of his chasing the accused persons, to the S.H.O. and A.S.I. who were present in the hospital. Another eye-witness Ram Prasad (Pw. 3) was also related to the deceased and was a chance witness. The testimony of both these eye-witnesses does not inspire confidence. Witness Madan Lal (Pw. 11) was also related to the deceased and he was not a truthful witness. Lal Chand (Pw. 1) was also a chance witness and was related to the deceased. Dying declaration of Om Prakash was fabricated and concocted one and it could not have been relied upon. Witnesses of dying declaration were not the truthful witnesses. Statement of Dr. B.L. Bhatia (Pw. 23) totally demolishes the case of the prosecution. Deceased sustained 44 injuries out of which 35 were caused by sharp weapon and deceased was not in a position to speak and the trial Court has committed illegality in placing reliance upon the dying declaration. Recovery of Katar was also a concocted piece of evidence and the prosecution had failed to connect Katar with the crime as no blood stain was found on Katar. The opinion of the finger print expert also did not connect the accused appellant with the crime. Injuries found on the person of accused Sampat were not explained by the prosecution. The trial Court had not put the questions pertaining to all the material on record from the accused appellants U/s. 313 Cr.P.C. As such the conviction of accused appellant was bad in law. 5. Mr. R.S. Agrawal, the Public Prosecutor for the State and Mr. S.K. Jain and Mr. K.N. Srimal, counsels for the complainant, have supported the judgment of the trial Court. 5. Mr. R.S. Agrawal, the Public Prosecutor for the State and Mr. S.K. Jain and Mr. K.N. Srimal, counsels for the complainant, have supported the judgment of the trial Court. They contended that there was no chance for naming eye-witnesses Ram Prasad and Ramdeen in the F.I.R. The incident had taken place in the evening of 25th April, 29 and postmortem of the dead body was conducted on the next day and the eye-witnesses were busy in the cremation of the dead body of the deceased. The I.O. had recorded their statements on 26th April and there was no inordinate delay in recording their statements. The statement of Dr. B.L. Bhatia (Pw. 23) was properly appreciated by the trial Judge and on the basis of his statement, the testimony of witnesses of dying declaration was relied upon. The deceased was in a position to speak after sustaining knife injuries and the testimony of the witnesses relating to dying declaration could not have been shattered in the cross-examination. Recovery of Katar at the instance of the accused and the statement of finger print expert also connect the accused with the crime. The deceased was brutally murdered in the broad day light and the accused were rightly convicted by the trial Court. 6. We have given our careful consideration to the above submissions. In order to appreciate the arguments, we carefully examined the evidence and other materials on record. The impugned Judgement, under challenge in the appeal, was also gone through by us carefully and minutely. The prosecution, in this case has produced three sets of evidence. First set of evidence is the testimony of two eye witnesses. Ram Prasad (Pw. 3) and Ramdeen (Pw. 2). Second set is the evidence of dying declaration and the third set is the testimony pertains to recovery of Katar at the instance of the accused and the deposition of finger print expert. 7. We are now to determine as to whether the prosecution has proved its case against the accused appellants beyond reasonable doubt. We, therefore, proceed to discuss the origin and the genesis of the occurrence. First, we take up the evidence of the eye-witnesses. 8. Ramdeen (Pw. 2) stated that on 25.4.92, he was coming from market. When he reached near State Bank Chauraha, he met Ram Prasad and thereafter both of them proceeded towards his house situated in Loha Khan. We, therefore, proceed to discuss the origin and the genesis of the occurrence. First, we take up the evidence of the eye-witnesses. 8. Ramdeen (Pw. 2) stated that on 25.4.92, he was coming from market. When he reached near State Bank Chauraha, he met Ram Prasad and thereafter both of them proceeded towards his house situated in Loha Khan. They saw a crowd near Revenue Board and Vinay Bhawan, at about 5 P.M. Sampat Kumar alias Dainy was holding Om Prakash by his hair and had been inflicting Katar blows on his stomach. Manoj Kumar had caught hold of Om Prakash from his back. On being intervened by the witnesses, Manoj Kumar took cycle and fled. Sampat Kumar also attempted to fled by taking another cycle but was not successful in his attempt as the, chain of cycle was not in order and he had to run on foot. He (Ramdeen) and Ram Prasad chased Sampat but could not catch him. When they came back after chase, they found a traffic constable and two other constables, surrounding the place of occurrence and Om Prakash was already taken to the hospital. They went to the hospital where they found Om Prakash dead. Madan Lal who instituted report to the police at the hospital, asked them to go to the house. Other eye witness Ram Prasad (Pw. 3) has corroborated the statement of Ramdeen (Pw. 2). He almost repeated the incident as did by Ramdeen. 9. Mr. A.K. Gupta, the learned counsel, has assailed the testimony of these two eye-witnesses raising following arguments: (i) That they have not been named in the F.I.R. (ii) They reached hospital and met I.O. but their statements were not recorded then and there. As such they are made up witnesss. (iii) According to witness Madan Lal (Pw. 11) they had reached the hospital at the time when Madan Lal was instituting F.I.R. but their names were not mentioned in the F.I.R. (iv) Ramdeen (Pw. 2) and Ram Prasad (Pw. 3) are interested as chance witnesses. We have carefully perused the testimony of Ramdeen and Ram Prasad. Undoubtedly Ramdeen and Ram Prasad are interested and chance witnesses but nothing could be elicited from their cross-examination to suggest that they were not present at the place of incident. To test their veracity we have before us the statement of traffic Constable Gordhan Singh (Pw. 8). We have carefully perused the testimony of Ramdeen and Ram Prasad. Undoubtedly Ramdeen and Ram Prasad are interested and chance witnesses but nothing could be elicited from their cross-examination to suggest that they were not present at the place of incident. To test their veracity we have before us the statement of traffic Constable Gordhan Singh (Pw. 8). Though the prosecution has declared him hostile but he has admitted the presence of Ram Prashad and Ramdeen in his statements U/s. 161 Cr.PC. (Ex. P 17) the portion E to F of the statement given U/s. 161 Cr.PC. is as under:- "Karib 5.15 Per D.T.O. Office Ki Taraf Se Ram Prasad Ji Jo State Bank Main Naukari Karte Hai Mai Apne Ek Saathi Jisne Apna Naam Ramdeen Bataya Aur Ghayal Yuvak Ka Chacha Hona Bataya Dono Hanfte Huai Aaye." (At about 5.15 RM. Ram Prasa serving in the State Bank and his friend Ramdeen came over there, breathing very fast.The presence of traffic constable Gordhan (Pw. 8) is established from the F.I.R. The testimony of Madan Lal could not be shattered in the cross-examination and he has given reasonable explanation for not including the names of Ramdeen and Ram Prasad in the F.I.R. He has corroborated the statements of Ramdeen and Ram Prasad. The prosecution has explained the delay in recording statements of the eye-witnesses under section 161 Cr.PC. Ramdeen (Pw. 2) stated that he was called by the police in the morning but he was busy in cremations as such he could only go in the evening before the Investigating Officer and then he was examined by the police. 10. Mr. Agrawal, the Public Prosecutor has vehemently argued that in this case the F.I.R. was not made by the eye-witness but the person who had the information from another. Under such circumstances it is natural that entire facts could not have been included in the FIR and because of this, suspicion cannot be attached to the statements of eye-witnesses. In support of this contention he has placed, reliance on State of Rajasthan v. Gurjant Singh (A.I.R. 1970 Supreme Court 1305) . As we have discussed hereinabove, the presence of Ram Prasad and Ramdeen at the place of occurrence has been fully established by the prosecution. In support of this contention he has placed, reliance on State of Rajasthan v. Gurjant Singh (A.I.R. 1970 Supreme Court 1305) . As we have discussed hereinabove, the presence of Ram Prasad and Ramdeen at the place of occurrence has been fully established by the prosecution. Their presence at the place of incident is natural and convincing and the fact that their names could not have been included in the FIR does not create doubt about their presence and their eye witness account. 11. Now we take up second set of evidence that is the statements of witnesses of dying declaration. Lal Chand (Pw. 1) has stated that in his presence Madan Lal asked Om Prakash as to who caused injuries: Om Prakash replied that injuries were inflicted by Sampat son of Hanuman Mali and Manoj son of Sohan Lal Mali, Sampat inflicted knife blows on his person. Madan Lal (Pw. 11) has stated that he found his cousin Om Prakash lying in a pool of blood. On being asked as to who caused injuries. Om Prakash told-that Manoj had caught hold of him and Sampat inflicted Katar blows. In his cross-examination he stated that Om Prakash had narrated the incident in a stirring voice. He put his ear nearer to the mouth of Om Prakash and asked him about the incident, then Om Prakash told him that Manoj had caught hold of him and Sampat inflicted Katar blows. For about two minutes he had a talk with Om Prakash, Gordhan Lal, I.O. (Pw. 24) has also corroborated the statement of Madan Lal. He stated that on being informed by Madan lal that his cousin Om Prakash was injured by Sampat and Manoj, he asked Om Prakash as to whether Sampat and Manoj inflicted knife blows? Om Prakash replied this question by nodding his head approvingly. This witness was subjected to lengthy cross-examination but nothing could be elicited from him which could suggest that he was telling a lie.The learned counsel for the appellant, has contended that the statements of Lal Chand (Pw. 1), Madan Lal (Pw.11) and Gordhan Lal (Pw. 24) are self-contradictory and no reliance can be placed on their testimony. He also contended that Traffic Constable Gordhan (Pw. 8) was also a witness of dying declaration but he has not supported the prosecution case. 1), Madan Lal (Pw.11) and Gordhan Lal (Pw. 24) are self-contradictory and no reliance can be placed on their testimony. He also contended that Traffic Constable Gordhan (Pw. 8) was also a witness of dying declaration but he has not supported the prosecution case. The learned counsel has also argued that the deceased sustained as many as 44 injuries out of which injuries No. 27, 39 and 40 were on the right and left lungs of the deceased and he was not in a position to speak as such the evidence of witnesses Lal Chand, Madan Lal and Gordhan Lal is untrustworthy and can not be relied upon.Mr. Agrawal, the learned Public Prosecutor has vehemently opposed the contention of the learned counsel for the appellant. The contention of Mr. Agrawal, the learned Public Prosecutor, is that even according to the testimony of Dr. B.L. Bhatia (Pw. 23) Om Prakash (deceased) was in a position to speak after sustaining injuries. The testimony of Dr. Bhatia was appreciated and carefully examined in detail by the trial Judge and the trial Judge was of the considered view that the deceased was in a position to speak after sustaining injuries. Mr. Agrawal has supported the finding of the trial Judge by referring following extract from "PAGES-350-351 of Parikh's Text Book of Medical Jurisprudence And Toxicology" (4th Edition 1945) by Dr. C.K. Parikh which reads as under:- "The lungs may show numerous injuries depending on the degree of violence. These injuries vary from bruising or laceration of the lungs and massive collapse to rupture, with or without fracture of the ribs. Most cases of laceration of the lungs are due to traffic accidents, fall of heavy weight on the chest, compression of the chest (traumatic asphyxia) and rarely assault. Stab wounds involving the lung are also common. Except sudden vagal inhibition and loss of life due to trivial pleural stimuli in highly emotional subjects, as a rule, death is not sudden, unless injuries to lungs are very severe, or there are associated injuries. The person lives for hours or even days. In case of injuries to the lungs, surgical emphysema over the chest indicates that the person was alive for some time and death was not immediate. Death is due to hemorrhages or asphyxia, or to lung infection at a later period." Mr. The person lives for hours or even days. In case of injuries to the lungs, surgical emphysema over the chest indicates that the person was alive for some time and death was not immediate. Death is due to hemorrhages or asphyxia, or to lung infection at a later period." Mr. Agrawal, the learned Public Prosecutor has also cited an extract from page 198 from "The Essentials of Forensic Medicine and Toxicology" by Dr. K.S. Narain Reddy (12 edition 1990) which reads as under:- "Stab wounds of the lungs are usually not fatal, unless a major pulmonary blood vessel has been severed. Net argument of Mr. Agrawal, the learned PP., is that in the instant case a perusal of post-mortem report goes to show that no major pulmonary blood' vessel of the lungs has been severed as such the stab wounds sustained by the deceased on the lungs were not fata and the deceased was in a position to speak even after sustaining injuries.Mr. Agrawal, the learned P.P. has contended that the statement of I.O. Gordhan Lal (Pw. 24) that Om Prakash replied his question by nodding head approvingly, is admissible in evidence. The act of nodding the head approvingly by deceased Om Prakash constitutes a verbal statement resembling the case of a dumb person. Mr. Agarwal has placed reliance on Alexander Perera v. The King (A.I.R. 1937 Privi Council page 24) in which it was observed as under:- "The victim whose throat was cut by the accused, was lying for some time and being questioned regarding the offence and the person who committed it, she answered the questions by signs and nodes being unable to speak. She described the accused by signs and when she was asked whether the person was the accused, she showed assent by a nod. The question having arose whether her statement was relevant and admissible against accused. Held; that the statement made by the deceased constituted a verbal statement resembling a case of dumb person and was relevant and admissible in evidence." We have given our careful consideration to the arguments advanced before us and we do not find any infirmity in the statements of the witnesses Lalchand, Madan lal and Gordhan Lal S.H.O. We have also carefully scrutinised the statement of Dr. B.L. Bhatia (Pw. B.L. Bhatia (Pw. 23) and we are of the view that Om Prakash (deceased) was in a position to speak even after sustaining injuries and the testimony of Lal Chand, Madan Lal and Gordhan Lal inspires confidence. The statement made by deceased Om Prakash before his death to Lal Chand, Madan lal and Gordhan Lal, is admissible in evidence U/s. 32 of the Evidence Act and it connects the accused appellants with the guilt. 12. The third set of evidence that is with regard to recovery of Katar and testimony of finger print expert. The learned trial Judge has examined in detail the evidence adduced by the prosecution pertaining to recovery of Katar as well as the testimony of finger print expert. The evidence of finger print expert inspires confidence. The cycle and cover of Katar were recovered from the spot Finger Prints of accused Sampat found on cycle were taken in a proper manner and chance prints were examined by the expert Jai Prakash Singh. The evidence of recovery of the said articles corroborates the testimony of eye-witnesses. The injuries found on the person of accused Sampat were explained by the prosecution and the accused appellants were also properly examined under section 313 of the Code of Criminal Procedure. As such we find no force in the arguments of the learned counsel for the appellants and we are of the view that the finding of the learned trial Judge is based on proper appreciation of the evidence and there is no infirmity in the judgment passed by the trial court. 13. Consequently we hold that the accused appellant Sampat and Manoj have been rightly held guilty for committing offence under sections 302 and 302/34 of the IPC. In view of our discussions above, the appeal is dismissed. The judgment of conviction and sentence passed by the trial court is maintained. The appellant Manoj Mahawar is on bail. He should surrender forthwith before the trial court to serve out the sentence. In case he does not surrender, the trial court is directed to take steps for his arrest.Appeal dismissed. *******