JUDGMENT Paul, J. -- 1. This criminal appeal filed under section 374(2) of the Code of Criminal Procedure, 1973 (In short ‘Cr.P.C’) takes exception to the judgment dated 30.8.2012 passed in Sessions Trial No.255/10 by the learned 4th Additional Sessions Judge, Tikamgarh whereby the appellants were held guilty for committing certain offences and directed to undergo sentences which are mentioned in a chart as under:- Conviction under section Sentenced to undergo 302/149 of I.P.C. Imprisonment for Life and fine of Rs. 1,000/- in default to suffer R.I. for six months. 323/149 (two counts) of I.P.C. R.I. for six months and fine of Rs. 200/- in default to suffer R.I. for one month (on each count). 148 of I.P.C. R.I. for one year and fine of Rs. 500/- in default to suffer R.I. for two months. 342/149 of I.P.C. R.I. for six months and fine of Rs. 200/- in default to suffer R.I. for one month. With the direction that all the sentences shall run concurrently. 2. In short, the case of the prosecution is that on 18.7.2010 the complainant Swami Prasad Dheemar (deceased) was traveling on his bicycle to his village Chhotapoha. Soon he reached in front of the house of Babulal Dheemar, Ashok Dheemar and Babulal Dheemar caught hold of him and forcibly took him inside their house, closed the door and thereafter all the appellants/accused persons started assaulting him by means of lathi, luhangi etc. The complainant shouted for help and upon hearing his cry, Kailash Raikwar (PW/1) and Ram Singh Raikwar (PW/2) reached to the place of the incident. PW/1 and PW/2 knocked the door of Babulal and asked him to open the door. The family members of Babulal (since deceased) did not open the door and they started abusing PW/1 and PW/2 from inside and also started throwing stones/bricks from inside. 3. The aforesaid prosecution witnesses, left with no option, informed the police and in turn, police reached the scene of crime. At police’s instance, the doors of the said house were opened and both the witnesses found that complainant Swami Prasad was lying on the Courtyard of the house of Babulal Dheemar in injured condition. 4. Indisputably, in the instant case the FIR was lodged on 18.7.2010 (Ex.P/25) by the victim Swami Prasad himself at 20.30 o’clock. He died on the same day. 5. The police after conducting the investigation, filed the chargesheet. 4. Indisputably, in the instant case the FIR was lodged on 18.7.2010 (Ex.P/25) by the victim Swami Prasad himself at 20.30 o’clock. He died on the same day. 5. The police after conducting the investigation, filed the chargesheet. In turn, the matter travelled before the Sessions Court. All the appellants abjured the guilt and pleaded innocence. 6. The Court below framed six questions for its determination and recorded statements of 13 prosecution witnesses and 5 defence witnesses. After recording the evidence, by impugned judgment, the Court below held the appellants as guilty for committing offence and directed them to undergo the sentence as mentioned in Para -1 above. Contention of appellants :- 7. Shri R.S. Patel, learned counsel for the appellants submits that during the pendency of this appeal, appellant Babulal Dheemar died. appellants No.2, 3 and 4 are family members of Babulal. It is submitted that the FIR was lodged by Swami Prasad on 18.7.2010. The FIR was recorded by A.S.I. Pheran Singh Rajput. Since Pheran Singh Rajput died during the pendency of trial, he could not enter the witness box. Learned counsel for the appellants submits that in absence of his deposition, appellant could not cross-examine him regarding fitness of Sami Prasad who lodged the FIR. In addition, it is argued that when MLC was recorded by Dr. Vinod Bajpai (PW-12), he clearly admitted in para-18 that at the time of preparation of MLC, Swami Prasad Dheemar was not in a fully conscious state. Only his eyes were moving but he was not totally conscious. 8. Considering the aforesaid, it is submitted that there is no material to show that when FIR was lodged by Swami Prasad, he was in a fit state of mind to lodge the FIR. For this reason, appellants deserve acquittal as there is no material on the strength of which the FIR can be treated to be a dying declaration. 9. Shri R.S. Patel, Advocate confined his arguments to the extent indicated hereinabove. Stand of prosecution :-- 10. Shri Arvind Singh, learned G.A. for the State supported the impugned judgment by submitting that the Court below has considered the evidence on the basis of permissible parameters. There are many eye- witnesses to the incident, whose statements will show that they have stated about the ‘oral dying declaration’ given by Swami Prasad to them. Stand of prosecution :-- 10. Shri Arvind Singh, learned G.A. for the State supported the impugned judgment by submitting that the Court below has considered the evidence on the basis of permissible parameters. There are many eye- witnesses to the incident, whose statements will show that they have stated about the ‘oral dying declaration’ given by Swami Prasad to them. In view of the incident, the Court below has rightly convicted the appellants and sentenced the appellants. 11. No other point is pressed by the learned counsel for the parties. 12. We have heard the learned counsel for the parties and perused the record. Findings :- 13. The body of Swami Prasad was found inside the house of the appellants on 18.7.2010. On the date of incident itself, Swami Prasad lodged the FIR in the police station. The two important eye-witnesses entered the witness box in support of the prosecution story. Firstly, Kailash Raikwar (PW-1) categorically deposed that when he heard the cry of Swami Prasad for help, he immediately rushed to the place of incident and found the door of the house of Babulal locked from inside and Swami Prasad was crying for help from inside the said house. He knocked the door and made several requests to the appellants to open the door but the door was not opened. In turn, he called the police and only police could open the door of the house of Babulal. Inside the house, in the Courtyard of appellants’ house, Swami Prasad was lying in an injured condition. 14. This witness Kailash Raikwar (PW-1) categorically deposed that upon asking, Swami Prasad informed him that Babulal, Ashok, Rakesh, Chhotu and Ram Kumar had assaulted him by means of Lathi and Luhangi. 15. Ram Singh (PW-2) deposed his statement in the same line in which statement of Kailash Raikwar (PW-1) was recorded. His statement also shows that there exists an oral dying declaration wherein Swami Prasad informed him about the nature of incident, the weapons used and the assault made by the aforesaid accused persons. The above statements of PW-1 and PW-2 could not be demolished during cross-examination. 16. The statements of these two eye-witnesses were further supported by Raj Kumar (PW-3) and Sewak Raikwar (PW-5). Raj Kumar (PW-3) has taken a different view about overt act of appellant No.2-Ashok Raikwar. The above statements of PW-1 and PW-2 could not be demolished during cross-examination. 16. The statements of these two eye-witnesses were further supported by Raj Kumar (PW-3) and Sewak Raikwar (PW-5). Raj Kumar (PW-3) has taken a different view about overt act of appellant No.2-Ashok Raikwar. Otherwise rest of his statement about the overt act of other appellants is in tune with the statement of Sewak Raikwar (PW-5). A cumulative reading of statements of eye-witnesses namely Kailash Raikwar (PW-1), Ram Singh Raikwar (PW-2), Rajkumar (PW-3) and Sewak Raikwar (PW-5) makes it clear that all of them have mentioned about the role of appellants with utmost clarity. Beni Bai (PW-4) also deposed that Swami Prasad was assaulted by appellants by means of axe and Lathi. The appellants did not open the door of their house, instead they started pelting stones on this witness. The door could be opened only when police made efforts and at that point of time, he found the body of his grandfather lying at the Courtyard of their house. 17. The statement of Prafull Shrivastava, Sub-Inspector (PW-13) contains a note (appended by the Court) wherein it is mentioned that ASI, Pheran Singh Rajput who recorded the FIR is no more. In para-8 of this statement. the witness clearly deposed that the FIR was indeed lodged by ASI, Pheran Singh Rajput. This police officer produced the FIR from official custody and identified the signature of his fellow employee ASI, Pheran Singh. No amount of cross-examination could demolish this statement and therefore, we find no reason to disbelieve the genuineness of the FIR. We are unable to persuade ourselves with the line of argument of Shri R.S. Patel, Advocate that FIR cannot be believed because the person who has recorded it was not produced in the Court. Non-production of the said witness because of his death, has not caused any prejudice to the appellant. Moreso, when averments of the FIR find support by statements of two eye-witnesses namely Kailash Raikwar (PW-1) and Ram Singh Raikwar (PW-2). 18. It is noteworthy that in AIR 1999 SC 3361 (Jaiprakash v. State) the statement of deceased was recorded in the nature of a complaint by the police officer in the hospital. The said statement was lateron treated as dying declaration. The apex Court opined that failure to obtain certificate of mental fitness from the Doctor was inconsequential. 18. It is noteworthy that in AIR 1999 SC 3361 (Jaiprakash v. State) the statement of deceased was recorded in the nature of a complaint by the police officer in the hospital. The said statement was lateron treated as dying declaration. The apex Court opined that failure to obtain certificate of mental fitness from the Doctor was inconsequential. In view of this judgment, the argument of Shri R.S. Patel, learned counsel for the appellant regarding the aspect of fitness of Swami Prasad at the time of lodging of FIR must fail. 19. A document is admissible under section 35 of the Indian Evidence Act if following conditions are satisfied : (i) It should be in the nature of entry in any public or official register; (ii) It must state fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of duty specially enjoined by the law of the country, and (iv) all persons concerned indisputably must have an access thereto. [See : AIR 2006 SC 2157 (Ravinder Singh Gorkhi v. State of U.P.)] 20. This view is consistently followed by the Supreme Court in catena of judgments (See: AIR 1983 SC 684 ( State of Bihar v. Radha Krishna Singh), AIR 1982 SC 1057 (Umesh Chandra v. State of Rajasthan), AIR 2011 SC 1691 (Murugan v. State of T.N.) and AIR 2010 SC 2933 Madan Mohan Singh v. Rajni Kant.) 21. So far probative value of the document / FIR or contents thereof are concerned, suffice it to say that in the peculiar facts and circumstances of this case, two eye-witnesses Kailash Raikwar (PW-1) and Ram Singh Raikwar (PW-2) have categorically deposed about oral dying declaration given to them by Swami Prasad wherein role of present appellants was made clear. Thus, FIR cannot be disbelieved nor its probative value can be questioned. 22. In view of foregoing analysis, in our opinion, the FIR must be treated as a ‘dying declaration’. The FIR clearly shows that because of previous enmity relating to land, Swami Prasad was assaulted by the accused persons. Thus, there existed a motive for assaulting Swami Prasad. The incident is an outcome of a pre-meditation. It is not outcome of any sudden quarrel. The FIR clearly shows that because of previous enmity relating to land, Swami Prasad was assaulted by the accused persons. Thus, there existed a motive for assaulting Swami Prasad. The incident is an outcome of a pre-meditation. It is not outcome of any sudden quarrel. Indeed, the appellants with clear understanding and planning has forcibly taken Swami Prasad inside their house, locked the house from inside and assaulted him on various parts of his body. Thus, there existed a motive for assaulting Swami Prasad. The incident is an outcome of a pre-meditation. It is not outcome of any sudden quarrel. Indeed, the appellants with clear understanding and planning has forcibly taken Swami Prasad inside their house, locked the house from inside and assaulted him on various parts of his body. The injuries found on the person of deceased as per autopsy report is as under:- ^^pksV Øekad 1 & ,d fNyu 3 xq.kk 1 lsŒehŒ nkfgus Vkax ds mijh fgLls ijA pksV Øekad 2 & ,d QVk gqvk ?kko 1 xq.kk 1@2 xq.kk 1@2 lsŒehŒ nkfgus Vkax ds fupys fgLls ijA pksV Øekad & 3 nkfgus Vkax ds fupys fgLls dk vkdkj fcxM+k gqvk FkkA vlkekU; :Ik ls eqM jgk FkkA pksV Øekad & 4 ,d QVk gqvk ?kko 2 xq.kk 1@2 xq.kk 1@2 lsŒehŒ cka;s Vkax ds fupys fgLls ijA pksV Øekad 5 & ,d QVk gqvk ?kko 1 xq.kk 1@2 xq.kk 1@2 lsŒehŒ cka, Vkax ds fupys fgLls ijA pksV Øekad 6 & ,d fNyu 3 xq.kk 2 lsŒehŒ cka;s dksguh ds fiNys fgLls ijA pksV Øekad 7 & ,d fNyu 02 xq.kk 02 lsŒehŒ cka;s dksguh ds fiNys fgLls ijA pksV Øekad 8 & ,d QVk gqvk ?kko 3 xq.kk 1@2 xq.kk 1@2 lsŒehŒ fupys gksB ds vanj ds fgLls ijA mDr lHkh pksVs l[r o HkkSrjs gfFk;kj dh Fkh o 06 ?kaVs ds vanj dh FkhA pksV uEcj 1] 2] 3] 4 ,oa 5 ds fy, ,Dljs dh lykg nh FkhA pksV uEcj 6] 7 o 8 lk/kkj.k FkhA ejht dks vkxs gsrq esMhdy dkWyst tkus dh lykg nh FkhA mldh ijh{k.k fjiksVZ ÁŒihŒ&21 gSA ftlds , ls , Hkkx ij mlds gLrk{kj gSA ¼19½ MkWŒ fouksn cktisbZ ¼vŒlkŒ&12½ us vius U;k;kyhu dFku esa ;g Hkh cryk;k fd fnukad 19-7-10 dks lSfud dk’khjke Øekad 302 Fkkuk fuokM+h }kjk LokehÁlkn iq= pSus jSdokj ds ‘ko dks ijh{k.k gsrq yk;k Fkk mlds }kjk 'ko dk ijh{k.k fuEukuqlkj fd;k x;k Fkk %& ckg~; ijh{k.k%& 'kjhj lh/kk j[kk gqvk Fkk 'kjhj ij txM+u FkhA lQsn 'kVZ] yky vMajfc;j Fkk vka[ks [kqyh Fkh eqag vk/kk [kqyk Fkk thHk nkarksa ds Hkhrj FkhA e`rd ds 'kjhj ij fuEu pksVsa FkhA pksV Øekad & 1 ,d fNyu 3 xq.kk 1 lsŒehŒ nkfgus Vkax ds mijh fgLls ijA pksV Øekad 2 & ,d QVk gqvk ?kko 1 xq.kk 1@2 xq.kk 1@2 lsŒehŒ nkfgus Vkax ds fupys fgLls ijA pksV Øekad 3 & nkfgus Vkax ds fupys fgLls dk vkdkj fcxM+k gqvk FkkA vlkekU; :Ik ls eqM jgk FkkA pksV Øekad 4 & ,d QVk gqvk ?kko 2 xq.kk 1@2 xq.kk 1@2 lsŒehŒ cka;s Vkax ds fupys fgLls ijA pksV Øekad 5 & ,d QVk gqvk ?kko 1 xq.kk 1@2 xq.kk 1@2 lsŒehŒ cka, Vkax ds fupys fgLls ijA pksV Øekad 6 & ,d fNyu 3 xq.kk 2 lsŒehŒ cka;s dksguh ds fiNys fgLls ijA pksV Øekad 7 & ,d fNyu 02 xq.kk 02 lsŒehŒ cka;s dksguh ds fiNys fgLls ijA pksV Øekad 8 & ,d QVk gqvk ?kko 3 xq.kk 1@2 xq.kk 1@2 lsŒehŒ fupys gksB ds vanj ds fgLls ijA mDr lHkh pksVsa e`R;q iwoZ dh Fkh o l[r o HkkSrjs gfFk;kj ls iagqpk;h x;h FkhA vkarfjd ijh{k.k%& Nkrh dh 6oha 7oha nkfgus o ckabZ ilfy;ka VwVh gq;h FkhA nkfguk o cka, QsQM+k dVs QVs FksA Nkrh ij nksuksa rjQ [kwu Hkjk FkkA isV ds vanj v/kipk HkksT; inkFkZ FkkA nkfguh fVfc;kfQcqyk vfLFk VwVh gq;h FkhA** 23. A plain reading of nature of injuries shows that there were multiple injuries on the person of deceased and cause of death was excessive bleeding. As per the autopsy report (Ext-P/22), Swami Prasad died due to injuries in his lungs and excessive bleeding. It was clearly established that the death is homicidal in nature. 24. In view of the aforesaid discussion, it is clear that the appellants with common object assaulted Swami Prasad, because of which, he died. Thus, on the basis of evidence on record, in our opinion, the prosecution could establish its case beyond reasonable doubt. The Court below has appreciated the evidence on the basis of permissible parameters. No perversity or illegality could be pointed out. In appellate jurisdiction, if Court below has taken a plausible view, this Court is not obliged to interfere in the judgment. 25. Accordingly, we find no reason to interfere in the impugned judgment. Resultantly, the judgment dated 30.8.2012 is affirmed. The appeal is dismissed.