DINA Vs. STATE

JUDGEMENT

(1.) THIS is an appeal against the judgment and order, dated 6-2-1980 passed by Sri S. N. Mishra, the then IInd Additional Sessions Judge, Jaunpur in S. T. No. 220 of 1977, whereby he convicted the accused- appellant Dina of the offence under Section 307/34ipc and sentenced him to undergo R. I. for a period of 3 years.

(2.) I have heard the counsel for the parties and have also gone through record.

(3.) THE dying-declaration of Ramanand injured was recorded by Executive Magistrate on 12-1-1977 at 11. 15 a. m. THE statement was to the effect that on the previous day, he was watering to his field, that the evening had fallen, that his brother's two young sons were present there, that his brother asked him to escort these boys to the house as the night is falling, that as soon as he reached near the Dalan of the Pahi of Ram Lochan, Dina accused-appellant caught hold of him and asked them to go in Pahi (Dalan) that in the meantime, Lochan, Kailash, Dina Mangal Wallu's son came there with Gandasa and Tengari used for cutting wood and started assaulting him, that Lochan assaulted him with Gandasi, Dina assaulted him with Tengari, Kailash assaulted him with Danda and Mangal throw him to the ground and mounted on his chest, that his nephew ran and cried, thereupon Rampher, Girja Dayal, Teni and Salik Ram rushed to the spot to save him and the assailants run away. A copy of the dying declaration is Ex. Ka-11. Since the victim survived this dying declaration ceased to be substantive evidence.