JUDGMENT
Vishnu Sahai, J.
1. Through this appeal, the appellants challenge the judgment and order dated 19-3-1997 passed by the IInd Additional Sessions Judge, Thane, in Sessions Case No. 164 of 1995 whereby they have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- each in default to suffer three months’ R.I. for the offence Under Section 302 read with 34, IPC.
2. Shortly stated the prosecution case as mainly emerging from the recitals contained in the FIR lodged by the deceased Ramnarayan Singh is as under : —
The appellant-Prayag Sinha Bharat Sinha is the father-in-law of the appellants Vedprakasinha Birendra Kumar Sinha and Ashok Kumar Upendrakumar Sinha. The three appellants at some places in the record of the trial Court instead of Sinha have been also mentioned as Singh. At the time of the incident they were residing at Dennis compound, Prayag Sinha Chawl in Karvalo Nagar in District Thane. At that time, the deceased Ramnarayan Singh also referred to as Ramnarayan Sinha at some places in the record of the trial Court and the three eyewitnesses namely Kusum Ramnarayan Singh PW-1, Lalidevi Ramnarayan Singh PW-2 and Anil Kumar Singh PW-4 the daughter, wife and nephew respectively of the deceased Ramnarayan Singh and Dinesh Kumar Singh PW-3 also lived there.
Prior to the incident, the deceased Ramnarayan Sinha and his uncle the appel-lant-Prayag Sinha were running a dairy farm in partnership at Devidayal Park. There was a dispute between them from four years prior to the incident over the ownership of the said dairy farm. There was also a dispute between them Over the chawl wherein Ramnarayan Sinha was residing. Prior to the incident, Ramnarayan Sinha had filed a civil suit against the appellant-Prayag Sinha which at the time of the incident was pending .
On 5-12-1994, at 2.25 p.m. Ramnarayan Sinha had left his house for Kores Company where he was working on printing machine from 1977. At 3 p.m,. Anilkumar Singh PW-4 came to take food at his house. At that time, the appellant-Prayag Singh came and broke the lock of Ramnarayan Sinha’s room. Consequently, Anil Kumar Singh forthwith went to the factory where Ramnarayan Singh was employed and brought him to his room at 3.15 p.m.
At 3.30 p.m. while Ramnarayan Singh was sitting in front of Jagnarayan Pandey’s room, he asked the appellants Vedprakash Singh and Ashok Kumar Singh who were the sons-in-law of his Uncle, the appellant Prayag Singh, as to why they had broken the lock of his room. Thereunpon, the three appellants abused him. The appellant-Vedprakash with a spear and the appellant Ashok Kumar Singh with a knife started assaulting him resulting in his sustaining injuries on various parts of his body and intestines protruding out.
After assaulting Ramnarayan Sinha, the appellants are said to have run away. It is alleged that this incident was seen by Kusum Singh PW 1, Lalidevi Singh PW 2 and Anil Kumar Singh PW 4. When Lalidevi Singh tried to rescue the deceased, she received injuries on her left hand.
3. The evidence of Dinesh Sinha PW 3 shows that when on 5-12-1994 at 3 pm. he came to take lunch at his house, people were shouting. He noticed that Ramnarayan Sinha was lying on a cot in an injured condition. Consequently he, Anil Kumar Sinha PW 4 and Jaganarayan Pandey (not examined) took Ramnarayan Sinha in a rick-‘ shaw to Civil Hospital, Thane.
3-A. The evidence of Dr. Dilip Vaze PW 13 shows that on 5-12-1994 at 4.15 pm. he was working as Chief Medical Officer, Civil Hospital, Thane. At that time, Ramnarayan Sinha came to be admitted at Male Surgical Ward.
4. The evidence of PSO Ramchandra Shinde PW 5 shows that on 5-12-1994 at-3.45 pm. while he was working as PSO at Vartak Nagar police station, a person who did not disclose his name telephoned him that there was a quarrel at Karwalo nagar and the injured had been admitted to Civil Hpspitl. Consequently, he made an entry in his station diary and rushed to Civil Hospital, Thane, His evidence and that of Dr. Vaze PW 13 shows that he enquired from the latter whether the injured was in a condition to speak and when the latter (Dr. Vaze) examined the injured and made the endorsement in the letter produced by the PSO Shinde that the injured was conscious and mentally fit to make a statement, PSO Shinde recorded the statement of the injured (Ramnarayan Sinha).
The evidence of Dr. Vaze shows that when the statement of Rarnanarayan Sinha was recorded by PSO Shinde, he was conscious and he gave an endorsement to the said effect after the statement had been recorded.
The said statement has been recorded In Marathi by PSO Shinde. Since Ramnarayan Sinha died after making it and it is a dying declaration and a vital piece of evidence on which the conviction of the appellant is founded, we are extracting its English trans lation in entirety: —
I, Ramnarayan Sinha Kharban Sinha aged 42 years, occupation: Service, Resident of Kawalo nagar, Prayag Sinha Chawl, Dennis compund, Thane.
I today While being admitted at Civil Hospital, Thane for treatment on enquiry I state as under: —
I have been staying at the above place along with my wife Lalidevi and my four children since last 22 years. I work in Kores Company from 1977 on a printing machine. Prayag Sinha Bhart Sinha resident of Karwalo, nagar, Prayag Sinha chawl, Dennis compound is my uncle. We are running a dairy farm in partnership at Devidayal Park. There is a dispute between myself and my uncle since four years over the ownership of the dairy farm. There is also a dispute between us over the chawl where we are residing. I have filed a civil suit in Thane against Prayag Sinha which is pending.
Today being my second, shift, I left my house at 2.25 pm. and went to the company. My nephew Anil Kumar Sinha came to call me at the house. I came back to my house. At 3.30 p.m. I was sitting in front of Prayag Sinha’s room. At that time, I asked my uncle’s sons -in-law Vedprakash Sinha and Ashok Kumar Sinha as to why they had broken the lock of my room. On that my uncle and his sons-in-law abused me. Vedprakash Sinha with a spear and Ashok Kumar Sinha with a knife started assaulting me. I am bleeding from the injuries which I have sustained, on my nose, right upper arm, left hand thumb, stomach right side below neck, on the left thigh at two places and on right thigh. My intestines have protruded out.
Therefore, today when I was sitting in front of Pandey’s room in my chawl at 3.30 pm. my uncle and his above mentioned sons-in-law abused me and both the sons-in-law have causpd the injuries with a spear and knife on account of the dispute over property and have tried to commit iny murder. Therefore, I have a legal complaint against them. This incident has been witnessed by Pandey and his son.
The statement has been read over to me and is as per my narration.
It is pertinerit to mention that on the said statement, there is a endorsement by Dr. Vaze (5-12-1994 at 4.25 pm.) that the patient was conscious and in a condition to give the statement. After recording the statement, Ramanarayan Sinha signed it.
It is pertient to mention that the evidence of Dr. Vaze shows that the said statement was recorded in his presence.
5. The evidence of PSO Ramchandra Shinde PW 5 shows that on the basis of Ramnarayan Sinha’s statement, C.R. No. 134 of 1994 Under Sections 307/504, IPC was registered at 5 pm at police station Vartak nagar.
At 8 p.m. same day, Ramnarayan Sinha succumbed to his injuries and the case was converted to one Under Section 302, IPC.
It is pertient to mention that on 7-12-1994 at 12.40pm. Dr. Vaze PW 13 medically examined Lalidevi Singh who is alleged to have sustained injuries in the incident and found on her person the following Injuries
1. Abrasion 1 cm x 1 cm over right knee, scab formation present, tender.
2. Linear abrasion 5 cm x 1 cm over lateral part of neck right side, scab formation present, tender.
3. Linear abrasion 4 cm x 0.25 cm over left forearm. 1 cm over the wrist on dorsal aspect, scab formation present, tender.
In the opinion of Dr. Vaze the said injuries were inflicted within 24 to 48 hours and wre atrributable to a hard and blunt object. The injury report of Lalidevi Singh is Exhibit 45.
It is pertinent to mention that, in his cross-examination Dr. Vaze stated that the injuries mentioned in Exhibit 45 could be caused by a fall.
6. The autospy on the corpse of Ramnarayan Sinha was conducted on 6-l0-1994 by Dr. Ramchandra Rode PW 8 who found, on it the following ante-mortem: injuries :–
1. Abrasion on nose 1/2 cm x 1/4 cm.
2. Incised wound on front of neck 4x 1/ 2 cm muscle deep.
3. Incised wound on abdomen right side to umbilicus 2x1cm cavity deep.
4. I.W. on abdomen right side to injury No. 3×1 inch away, 3×1 cm cavity deep.
5. I.W. on left thigh, 5 x 1cmmuscle deep.
6. Ipcised; wound on left eye, 5×1 cm muscle deep.
7. I.W. on right inguinal region. 11/2 x 1/2 cm. muscle deep.
8. I.W. on left palm in between thumb and rear finger 4 x 1/2 cm mucle deep.
9. I.W. on left hand middle finger and ring finger 1/2 x 1/4 cm muscle deep.
10. I.W. on right arm 1 x 1/2. cm mucle deep.
In the opinion of Dr. Rode, injury Nos. 2 to 10 were caused by a sharp object and injury lyo. 1 by a hard and blunt object.
On Internal examination, Dr. Rode found as under:–
(a) Abdominal cavity full of blood nearly 2 litres, injury due to incised wound on anternal surface 1 1/2 x 1/2 cm x cavity deep in conjunction with injury No. 3.
(b) Liver incised wound on posterior surface on lobe right 1/2 x 1/2 x 1/4 cm deep in conjunction with injury No. 4; and
(c) right intestineal region beneath injury No. 7, the femoral artery was having a incised wound 1 x1/4 cm with blood clot around it.
In the opinion of Dr. Rode the probable cause of death was due to shock following injuries to liver, stomach and femoral artery. In his opinion, the said injuries were sufficient in the ordinary course of nature to qause death and were possible by the knife shown to him and article No. 1 (spear).
7. The case was investigated in the usual manner by API Vasantrao Chaudhari PW 14:
On 5-12-1994, he arrested the appellants Prayag Sinha and Vedparakash Sinha vide panchanama Exhibit 50. At that time, the appellant — Prayag Sinha was putting a terricot shirt having blood stains and Vedprakash was putting on a open shirt having blood stains. He seized the said clothes in the presence of public panch Umesh Padwal PW 4 who however, turned hostile during trial.
On 6-12-1994 the appellant Vedparakash stated, that he could produce the spear which he had concealed behind his house. Consequently he sent for the public panchas, out of whom one namely Vithal Chorge PW 10 has been examined and who also became hostile during trial. He recorded the willingness of appellant Vedparakash to have the spear recovered under a panchanama. Thereafter, appellant Vedprakash Sinha led him and the panchas to his house and produced a blood stained spear from his house. The said recovery was effected under a panchanama.
On 6-12-1994, at 4 pm. API Vasaritrao Chaudhri PW 14 arrested the appellant — Ashok Kumar Sinha. On 7-12-1994, the appellant — Ashok Kumar Sinha expressed his willingness to produce the clothes which he had concealed behind the dairy situated at Sanat nagar. Consequently, he sent for the public panchas out of whom one Hemant Mahadit who turned hostile during trial; has been examined as PW 12. In his presence, he recorded his willngness. Thereafter; the appellant Ashok Kumar Sinha led them to his house in Dennis compound where he had concealed his pant and shirt and produced the same. The said recovery was effected under a panchanama.
API Chaudhari sent the recovered articles to the Chemical Analyst, After completing the investigation, he submitted the charge sheet against the appellants.
8. The case was committed to the Court of Sessions in the usual manner where the appellants were charged for the offences punishable Under Section 302 read with 34 IPC to which charge, they pleaded not guilty and claimed to be tried.
During trial, in all the prosecution examined, 14 witnesses. We my straight away mention that the three of them namely Kusum Singh, Lalidevi Singh and Anil Kumar Singh PWs 1. 2 and 4 respectively furnished the ocular account. The prosecution also examined PSO ‘Ramchdndra Shinde who recorded the statement of Ramnarayan Sinha which has been treated to be FIR FIR and which has been adduced as a dying declaration. It also examined Dr. Vaze PW 13 who medically examined Ramnarayan Sinha before PSO Shinde had recorded his statement and found him to be physcially conscious and fit to give the statement. It also exam ined API Chaudhary PW 14 and some public panchas to prove the recoveries effected from the appellants but, in respect of the recoveries, we only have the evidence of API Chaudhari for the public panchas have turned hostile.
The lerned trial Judge accepted the proscution case against the appellants and convicted and sentenced the appellants In the manner stated in para 1.
Hence, this appeal.
9. We have heard learned counsel for the parties and perused the entire record. In our view, this appeal deserves to be partly allowed in asmuch as the appellant — Prayag Sinha Bharatisinha deserves the benefit of doubt.
In the instant case, the evidence of a three-fold nature has been adduced by the prosecution against the appellant namely
(a) the dying declaration of the deceased Ramchandra Singh (Ram Narayana Sinha) recorded by PSO Ramchandra Shinde PW 5;
(b) the ocular account furnished by Kusum Singh PW 1, Lalidevi Singh PW 2 and Anil Kumar Singh PW 4; and
(c) recoveries from the appellants.
We would first like to take up the dying declaration of Ramnarayan Singh (Ramnarayan Sinha) recorded by PSO Shinde. In the earlier part, we have seen that it was recorded in Marathi at 4.25 p.m. on 5-12-1994. Since it is a crucial piece of evidnece, we have earlier extracted is English-translation. Its perusal shows that there was enmity between Ramnarayan Sinha and his uncle, the appellant Prayag Sinha on account of dairy business and a civil suit had been filed by Ramnarayan Sinha aga inst the appellant — Prayag Sinha, Its perusal further shows that on 5- 12-1994, at 3.30 p.m. when Ramnarayan Sinha was sitting in front of Pande’s room and asked the appellants Vedprakash and Ashok Kumar Sinha, the sons-in-law of the appellant — Prayag Sinha as to why they had broken the lock of his room, ‘they and the appellant — Prayag Sinha abused him and thereafter, the appellant Vedprakash with a spear and Ashok Kumar with a knife started assaulting him.
We have gone through this dying declaration and in our view, it inspires implicit confldence. The evidence of PSO Shinde PW 5 and Dr. Vaze PW 13 to which we have referred to earlier, shows that Ramanarayan Sinha was consecious when he made the said dying declaration. A perusal of the Said dying declaration shows that the same bears the endorsement dated 5-I2-.1904 at 4.25 p.m. signed by Dr. Vase that Ramnarayan Sinha was in a consious condition to give the statement.
It is pertinent to mention that the evidence of Dr. Vaze shows that he was present throughout when the statement was recorded.
10. In our considerd view, this dying declaration inspires implicit confidence. We also feel that it squarely shows that the appellant-Vedprakash and Ashok Kumar with a spear and knife respectively in furtherance of their common intention committed the murder of Ramnarayan Sinha. However, in our view, the said dying declaration does not show that the appellant — Prayag Sinha shared the common intention with respect to the murde of Ramnarayan Sinha. It only shows that he was merely present when Ramnarayan Sinha was assaulted by the appellant — Vedparakash and Ashok Kumar. It is well settled that mere presence does not ipso facto attract the application of Section 34, IPC.
To invoke the application of the said provision, it has to be established that the criminal act committed by more than one person was committed in furtherance of their common intention. There is nothing in this dying declaratin to show that the murder of the deceased was committed in furtherance of common intention of the appellant — Prayag Sinha.
11. We now come to the ocular account furnished by Kusum Singh PW 1, Lalidevi Singh PW 2 and Anil Kumar Singh PW 4.
We make no bones in observing that we are reticent to accept the claim of these eye -witnesses of having seen the incidnet. It is pertinent to mention that in the dying declaration, the deceased Ramchandra Sinha has categorically mentioned that the incident was witnessed by Pandey (Jagnarayah) and his son. Had these witnesses witnessed the incident, then in the dying declaration, their names would have been mentioned.
Another circumstance which shpws that they did not witness the incident is that the manner of assault deposed to by them is at variance with that in the dying declaration which being the account furnished by the victim Ramnarayan Sinha himself, deserves higher weightage. Earlier, we have mentioned the manner of assault as set out in the dying declaration. All the three eye witnesses of the incident have described the manner thus : —
After Ramnarayan Sinha on learned from Dinesh Sinha that his lock had the broken came home, he went to the house of the appellant — Prayag Sinha and asked him as to why he had broken the lock. Thereafter he returned to his house and sat on a cot. Thereafter, the appellant — Prayag Sinha armed with a knife came and inflicted an injury on the back side of Ramnarayan Sinha, Appellant Vedprakash inflicted a spear blow on the abdomen of Ramnaryana Sinha, and the appellant Ashok Kurnar snatched the knife from Prayag Sinha, and inflicted and when Lalidevi Singh rushed to the rescue of Ramnarayan Sinha, she sustained injury over her left hand.
It is pertinent to mention that the ocular account for some very obvious reasons cannot be accepted :
(a) there is no injury on the back side of Ramanarayan Sinha;
(b) it only explains the injuries sustained by Ramnayan Sinha on his abdomen and chest region and does not explain the five incised wounds which he had suffered on front neck, left eye, left palm, left hand middle finger and right arm.
The ocular account also militates against the recitals in the deying declaration because in the dying declaration it has not been mentioned that the appellant — Prayag Sinha was armed with a knife and the appellant — Ashok Kumar snatched his knife.
So far as the injuries of Lalidevi are concerned, we are constrained to observe that the less said about them the better it is. ..,
In the first place, they were medically examined by Dr. Vaze PW 13 at 12.30 pm. on 7-12-1994 i.e. nearly forty five hours after the incident (the incident took place on 7-12-1994 at 12.30 pm.
Secondly, had they been genuine Injuries then Lalidevi Singh whose evidence shows that she immediately after the incident rushed to Givil Hospital, Thane where her husband Ramnarayan Sinha was taken and who remained there till 8 pm. on the date of the inevident would have got them medically examined at the said hospital without any loss of time.
Thirdly, they could be caused by a fall as admitted by Dr. Vaze in his cross-examination.
Had Lalidevi Singh really received the injuries in the incident, then the same would have been reflected in the dying declaration. But, to repeat neither her name nor her injuries nor the names of other two eye witnesses are contained in it and specifically it has been mentioned therein that the incident was seen by Pandey and his son.
For the said reasons, in our view, the ocular account which has been furnished by Kusum Singh PW 1 Lalidevi Singh PW 2 and Anil Kumar Singh PW 4 the daughter, wife and newphew of the deceased respectively cannot be accepted.
12. We now come to the recovery evidence. Since the public panchas of recovery have turned hostile and we have the solitary evidence of the Investigating Officer API Chaudhari PW 14, we do not think that it would be safe to accept it.
13. For the reasons, contained in pagraphs 10 to 12 of this Judgment, in our view the appellant Prayag Sinha deserves benefit of doubt. A perusal of paragraph 11 and 12 respectively would show that we have not accepted the ocular account and recovery evidence. A perusal of paragraph 10 shows that we have placed reliance on the dying declaration. But, as we have mentioned in the said paragraph, the dying declaration only shows that the appellant Prayag Sinha was present at the place of the incident and does not show that he shared the common intention in respect of the murder of the deceased. It is pertinent to mention that in the dying declaration no weapon has been assigned to Prayag Sinha and the only overt act assigned to him therein is of absuing the deceased.
A perusal of the dying declaration would show that the common intention to commit the murder of the deceased was shared by the appellants — Vedprakash and Ashok Kumar who assaulted the deceased with a spear and knife respectively.
14. In our view the dying declaration implicitly established the involvement of the appellants Vedprakash and Ashok Kumar who are said to have assaulted the deceased with a spear and knife respectively. We have earlier referred to the evidence of the Autopsy Surgeon Dr. Rode. He stated that nine incised wounds suffered by the deceased could be caused by a spear and knife.
We have earlier seen that the dying declaration inspires implicit confidence. We may mention that in the said dying declaration the appellant Vedparakash has been attributed the role of assaulting the deceased with a spear and the appellant Ashok Kumar the role of assaulting him with a knife and the evidence of Autopsy Surgeon Dr. Rode, to which we have referred to earlier, clinchingly fixes their involvement in as much as Dr. Rode candidly stated that the injuries of the deceased could be caused by a spear and knife.
15. It is well — settled that the conviction can be recorded/sustained on dying declaration simpliciter provided it inspires confidence. See AIR 1958 SC 22 : 1958 Cri LJ 106, Khushalrao v. State of Bombay.
In the instant case, we have seen that the dying declaration was recorded in consonance with law and Ramnarayan Sinha was fit to make it. It should be borne in mind that since the attack on Ramnarayan Sinha was made in broad — day light and the assailants namely the appellants — Vedprakash and Ashok Kumar were the sons-in-law of his uncle the appellant — Prayag Sinlia, he must had no difficulty in recognising them.
16. For the said reasons, in our view the learned trial Judge acted correctly in finding the involvement of the appellants — Vedparaksh Sinha and Ashok Kumar established in the incident.
17. In our view, there is no manner of doubt that the learned trial Judge acted correctly in convicting them for the offence Under Section 302 read with Section 34, IPC. The dying declaration of the deceased Ramnarayan Sinha, to which we have referred to earlier shows that the appellant — Vedprakash with a spear and the appellant — Ashok Kumar with a knife assaulted him.
The Autopsy Report and the evidence of the Autopsy Surgeon Dr. Rode shows that there were nine incised wounds and one abrasion on the corpse of the deceased . The evidence of Dr. Rode shows that the nine incised wounds could be caused by a spear and kinfe, and beneath three of them, namely injury Nos. 3, 4 and 7 there was severe internal damage, in asmuch as there was incised wound on abdominal cavity, incised wound on lobe of liver and cut of femoral artery. The evidence of Dr. Rode shows that the deceased died on account of injuries on liver, stomach and femoral artery and the said injuries were sufficient in the ordinary course of nature to cause death.
Since the appellants — Vedprakash and Ashok Kumar in a concerted manner caused these injuries, we do not eVen have an iota of doubt that they committed the murder of the deceased in furtherance of their common Intention.
Hence, an offence Under Section 302 read with 34 IPC would be made out against them.
18. We would be falling In our fairness If we do not refer to three submissions canvassed by learned counsel for the appellants Mr. A.P. Mundargi.
Firstly, Mr. Mundargi urged that the testimony of the three eye-witnesses cannot be relied upon as Ramnarayan Sinha has expressly mentioned in his dying declaration that Pandey and his son saw the incident and the manner of assault unfurled in the ocular account is at broad variance with that furnished by Ramnarayan Sinha in his dying declaration. We find merit in the said submission. It is pertinent to mention that in para 11 of this Judgment we have recorded a finding that the ocular account can not be relied upon.
However, we wish to emphasise that merely becuse the manner of assault furnished In the dyingdeclaratiorils at variance with the ocular account, it does not mean that the dying declaration would also have to be rejected. In all fairness, we would like to mention that this has not been urged by Mr. Mundargi either.
It is well settled that a dying declaration has to be judged on its own merits. Wemay mention that after judging It on Its own merits we have reached to the conclusion that an offence Under Sections 303/34, is made out against appellants Vedprakash and Ashok Kumar.
19. Secondly, Mr. Mundargi urged that we should not place reliance on the dying declaration because :
(a) there is overwriting in respect of the name of the appellants — Vedparakash and Ashok Kumar in it;
(b) the timing when Its recording started and ended is not mentioned therein;
(c) there are some corrections in it which are not initialled; and
(d) it remained with the police till it was produced by the .prosecution.
We have reflected over the said criticisms and perused the original dying declaration (Exhibit 24) arid we do not find that the so called infirmities effect the worth of the dying declaration.
It is true that there is over writing In respect of the names of the appellants but, what appears is that names originally written were blurred and by over writing have been made clear. We may also mention that a perusal of the dying declaration does’ not show that the only place where the names of the appellant — Vedprakash and Ashok Kumar have been over written. They have also been mentioned earlier. At any rate, on this mere circumstance, the said dying declaration cannot be thrown out specially when no suggestion was made to PSO Shinde. who recorded it that he had Subsequently insereted the names of the said appellants in the dying declaration.
So far as criticism (b) is concerned it is inconsequential. The endorsement of Dr. Vaze contained in the dying declaration shows that the time as 4.25 and the date as 5-12-1994. The evidence of PSO Shinde shows that he took 15 minutes to record it. In the circumstances, it appeas that the dying declaration was recorded around 4.25 pm. Hence, infirmity (b) is also inconsequential.
So far as infirmity (c) is concerned on perusing the dying declaration, we find that there are four corrections in it but, they are inconsequential. We make no bones in observing that PSO Shinde should Have initialled them but, merely because he did not do so, in ourviewwouldnotresultinour rejecting the evidence of the said dying declaration.
So far as infirmity (d) is concerned, we are afraid that there is nothing in evidence to show that the dying declaration remained with the police till it was produced in trial Court. In our view, there is no evidence to back up this submission of the appellant’s counsel.
It should borne in mind that the dying declaration has been recorded In the pres-ence of Dr. Vaze PW 13 and since both he and PSO Shinde PW 5 had no rancour of enmity against the Said appellants they would have been parties to a concocted dying declaration against them.
The circumstance that apart from abusing the deceased. no overt act has been assigned to appelant Prayag Sinha in the dying declaration inspite of the fact that it was between him and the declarant Ram Narayan Singh that there was enmity is a in built guarantee that it is a truthful and not a concocted doument.
20. Finally, Mr. Mundargi urged that the learned trial Judge erred in convicting the appellants Vedprakash Sinha and Ashok Kumar Sinha for the offence Under Section 302 read with S. 34, IPC and instead should have convicted them for one Under Section 326 read with Section 34, IPC. He urged that in the factual matix in which the incident took place as per the dying declaration Ramnarayan Sinha, the assault on Ramnarayan Sinha was made by the appellants — (Vedprakash and Ashok Kumar with a spear and a knife respectively becuase he questioned them for breaking the lock of his room an hour earlier. Mr. Mundargi urged that this motive was not grave enough for us to infer that the said appellants shared the common intention to commit his murder. We regret that we do not agree with this submission. Mr. Mundargi also urged that although the post mortem report and the evidnece of the Autopsy Surgeon show that the deceased sustained 9 incised wounds and one abrasion but, six of the incised injuries sustained by the deceased were simple in nature and the internal damage was only found beneath three of them namely injuries Nos. 3, 4, and 7 Mr. Mundargi urged that the said injuries were not caused in furtherance of the common intention of the appellants but, in excess, of it .He urged that the deceased in his dying declaration has not indicated as to which of the said appellants caused them. He contended that one of the said appellants may have caused them. Hence, he urged that both the appellants should be convicted Under Sections 326/34. IPC. We regret that we cannot accede to his submission. It is pertinent to mention that a perusal of the post mortem report, which we have extracted earlier, shows that six of the in-cised injuries suffered by the deceased were on vital parts of his body. This circumstance coulped with the internal damage suffered by the deceased shows that the said appel-, lants shared the common intention to cause them and commit the murder of the deceased.
We have referred to the internal damage in para 6 of this Judgment, It is massive.
In our view, the act of the appellants would be squarely covered by clause thirdly of Section 300 IPC, the breach of which is punishable Under Section 302 IPC. To atrtract the application of the said clause, two essentials have to be satisfied : —
(a) there should be intention to inflict the injuries inflicted, in contra — distinction to their being accidental; and
(b) the injuries inflicted should be sufficient in the ordinary course of nature to cause death.
As is clear from the material furnished earlier both the essentials are satisfied in the Instant ease. The dying declaration of Ramnarayan Sinha shows that the appellant Vedprakash with a spear and the appellant — Ashok Kumar with a knife intentionally and conjointly assaulted him. The evidence of Dr. Rode the Autopsy Surgeon, makes it categorically clear that the deceased died on account of injuries to liver, stomach and femoral artery and the said injuries were sufficient in the ordinary course of nature to cause death.
In such a situation, the ratio laid down by the Apex Court in Virsa Singh v. State of Punjab, reported in AIR 1958 SC 465: 1958 Cri LJ 818 would have application and the offence made out against the appellants — Vedprakash and Ashok Kumar would be one Under Section 302 read with Section 34, IPC and not one Under Section 326 read with Section 34, IPC as canvassed by Mr. Mundargi.
21. For the said reasons, we partly allow this appeal.
We set aside the conviction and sentence 9f the appellant — Prayag Sinha Bharatsinha for the offence Under Section 302 read with Section 34, IPC and aquit him thereunder. We direct that, in, case he has paid the fine, it shall stand refunded to him. He is on bail. He need not surrender. His bail-bonds shall stand cancelled and sureties discharged.
We however, confirm the conviction and sentence of the appellants — Vedprakash Birendra Kumar Sinha and Ashok Kumar Upendrakumar Sinha for the offence Under Section 302 read with Section 34, IPC and dismiss their appeal. They are in jail and shall serve out their sentence.
