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2009 DIGILAW 1090 (MP)

RAYLA s/o PANGLA BHIL v. STATE OF M. P.

2009-09-03

S.R.WAGHMARE, S.SAMVATSAR

body2009
JUDGMENT : S. SAMVATSAR, J. 1. This appeal is preferred by two accused assailed the judgment dated 9-4-1999 passed by First Additional Sessions Judge, Alirajpur, District Jhabua in Sessions Trial No. 506/98; whereby; the Sessions Court has convicted the present appellants for commission of offence under section 302/34 of Indian Penal Code and sentenced them to imprisonment of life. 2. The prosecution story in brief is that on 11-9-1998 at about 15.30 hours Namliya S/o Hemtiya lodged a report to the police station Chandpur that he has brought his injured younger brother Saniya, who was unconscious stating that when he, his brother Saniya and mother Khapari were sitting outside of their house, at that time appellants Rayla S/o Pangla and Gemla S/o Pangla came there. They were having bow and arrows with them. Immediately after entering Rayla told Saniya why he has quarrelled with him at the time of Diwasa and why you do not want to live him in village and told him that he will kill him today. Then Rayla caused an injury by arrow in the back of Saniya, which passed through the body of Saniya. He caused second injury by arrow in the chest of Saniya. Other co-accused Gemla also caused two injuries to Saniya by arrow. The first arrow caused injury in the left elbow and second in the left thigh of Saniya. Saniya fell down. Namliya (complainant) started crying. After hearing cry, Namliya s/o Bhawla came there and saw both the accused running away. The report of the incident (Ex.P/1) was recorded by Bhagwan Singh (PW/1), Head Constable for commission of offence under sections 307 and 451 of Indian Penal Code under Crime No. 103/98 against accused-appellants. Injured Saniya was admitted to the hospital; where, MLC (Ex.P/13) was done by Dr. K. C. Gupta (PW/8). This doctor has also recorded dying declaration (Ex.P/15) of the deceased Saniya. This doctor found five injuries on the body of injured Saniya. All were incised and penetrating wounds. As per the statements of this doctor these injuries can be caused by sharp and edged weapon like arrow. The dying declaration of the deceased was recorded by the doctor at 4.45 pm on 12-9-1990. Saniya died on the same day in the hospital. After death of Saniya, offence under section 302/34 of Indian Penal Code was registered against the accused. The police after investigation filed challan against the accused. The dying declaration of the deceased was recorded by the doctor at 4.45 pm on 12-9-1990. Saniya died on the same day in the hospital. After death of Saniya, offence under section 302/34 of Indian Penal Code was registered against the accused. The police after investigation filed challan against the accused. The matter was committed to the Sessions Court. The Sessions Court after framing charges against the appellants under section 302 and in alternative section 302/34 of Indian Penal Code and after recording the evidence and appreciating the same convicted both the accused-appellants, hence this appeal. 3. Counsel for the appellants contended that the Sessions Court has committed an error in convicting the appellants as out of two eye witnesses P/2 Namliya and PW/7 Khapari Bai, the evidence of Khapari Bai was disbelieved by the Sessions Court in para 22 of the judgment. Hence, the only evidence is that of the statement of PW/2 Namliya. As per counsel for the appellants, his statement is also not corroborated by the dying declaration (Ex.P/15). Counsel for the appellants submits that as per the statement of PW/2 Namliya s/o Hemtiya, the first arrow was shot by Gemla, which caused injury in stomach of deceased. The second arrow was shot by Rayla, which caused injury in chest of Saniya. Third arrow was shot by Gemla, which caused injury in left leg of Saniya. The other arrow shot by Rayla caused injury in the hand of Saniya. Counsel for the appellants submitted that this version of statement of Namliya is contrary to the dying declaration (Ex.P/15) of the deceased Saniya, in which deceased has stated that first injury in his stomach was caused by Rayla, second and third injuries in his chest and left thigh were caused by Gemla and fourth injury in his hand was caused by Rayla and thus, there are contradictions in the dying declaration and the statement of PW/2 Namliya and therefore, the statement of PW/2 Namliya could not have been believed by the Sessions Court. 4. They also submitted that the dying declaration also is not a reliable evidence. In the dying declaration the deceased has implicated two more persons other than the accused-appellants for causing injuries to him. 5. In the present case to appreciate the arguments of learned counsel for the appellants, it is necessary to refer to the evidence. 6. 4. They also submitted that the dying declaration also is not a reliable evidence. In the dying declaration the deceased has implicated two more persons other than the accused-appellants for causing injuries to him. 5. In the present case to appreciate the arguments of learned counsel for the appellants, it is necessary to refer to the evidence. 6. In the present case prosecution has examined two eye-witnesses i.e. PW/2 Namliya and PW/7 Khapari Bai. So far as the evidence of PW/7 Khapari Bai is concerned, she is disbelieved by the Sessions Court by appreciating her statement in para 22 of the impugned judgment. Hence, the only evidence remains for consideration are the MLC report (Ex.P/13), post-mortem report (Ex.P/12), dying declaration (Ex.P/15) and the statement of PW/2 Namliya. 7. It is true that there are certain discrepancies in the statement of PW/2 Namliya and the dying declaration (Ex.P/15) that which injury was caused by which of the accused. As per Namliya (PW/2) injury in the chest of deceased was caused by Rayla while as per the dying declaration the injury in the chest is attributed to Gemla. But this minor contradiction itself is not sufficient to disbelieve the dying declaration. Even it is assumed that PW/2 Namliya is disbelieved on this point, still the dying declaration remains. The Apex Court in the case of Laxman vs. State of Maharashtra, JT 2002(6) SC 313 has held that the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremely, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. Thus, this Court has to assess the truthfulness of the dying declaration. 8. In the present case, as per dying declaration both the accused have caused one injury each to the deceased in his chest and elbow. The MLC report (Ex.P/13) shows that the deceased has sustained five injuries. All were incised and penetrating wounds. Thus, this Court has to assess the truthfulness of the dying declaration. 8. In the present case, as per dying declaration both the accused have caused one injury each to the deceased in his chest and elbow. The MLC report (Ex.P/13) shows that the deceased has sustained five injuries. All were incised and penetrating wounds. Thus from the MLS report, the story of the prosecution that deceased was hit one arrow by each of the accused in his chest and elbow is proved. These injuries are further corroborated by post-mortem report (Ex.P/12). Thus, the injuries on the body of deceased, which are attributed to the present appellants by dying declaration and the statement of Namliya (PW/2) are medically corroborated and the dying declaration cannot be disbelieved merely on account of the statement of Namliya (PW/2), who has also attributed four arrow shots to these two appellants and therefore, we do not find any error in the impugned judgment to call for interference. Hence, this appeal is dismissed and the sentences imposed by the Sessions Court against the present appellants for commission of offence under section 302/34 of Indian Penal Code is affirmed. The accused-appellants are in jail, hence no further orders are necessary in this regard.