GANESH Vs. STATE OF M P

JUDGEMENT

(1.) Additional Sessions Judge, Chhindwara in Sessions Trial No. 26/91 vide impugned judgment dated 24-10-1991 recording conviction of appellants under Section 307/34, I. P. C. sentenced them to undergo R. 1. for a period of 5 years and to pay fine of Rs. 400/- each, in default to suffer further imprisonment for a period 4 months. Being aggrieved, appellants have preferred this appeal under Section 374(2) of Cr. P. C.

(2.) Prosecution case in brief is that on 3-5-1990 complainant Tukadya with Natthu (P.W.3) was waiting for a bus. Meanwhile, appellants Ganesh Gond, Mahadev Gond along with one other person armed with lathis came and started beating to Tukadya with intention to kill him. Report (Exhibit P-14) was lodged by Tukadya at Police Station Pandurna and he was sent for medical examination treatment. Dr. Ratanchand has examined Tukadya and suggested for Forensic Expert as per report (Exhibit P-2I. Dr. S.Z, Shorte (P. W. 13) has taken the X-ray of Injured Tukadya on 4-5-1990. As per X-ray report (Exhibit P-19) he found many lacerated wounds and also fractures on right elbow and left leg of complainant Tukadya. Completing the investigation, appellants have been charge-sheeted under Section 307, I. P. C. Appellants abjured the guilt. However, the Court below vide impugned Judgment held that accused/appellants have inflicted Injuries to Tukadya as such, recording conviction under Section 307, I. P. C. sentenced them to undergo R. I and to pay fine in default to suffer further imprisonment for the period said above.

(3.) Learned counsel on behalf of the appellants has strenuously argued that learned Additional Sessions Judge has erred In holding that F. I. R, (Exhibit P-14) should be treated as dying declaration under Section 32 (1) of Evidence Act, 1872 because complainant Tukadya died after three months of the Incident due to some other cause, Learned Additional Sessions Judge in paras 25 and 26 of the impugned Judgment has held that the F. 1. R. (Exhibit P-14) alleged to have been lodged by complainant Tukadya and his statement under Section 161 recorded on 3-5-1990 by Jagmohan Koshta (P. W. 12) have evidentiary value under Section 32 (1) of Indian Evidence Act, 1872. He has placed reliance on the Judgment i.e. Munnu Raja and another v. State of Madhya Pradesh, AIR 1976 SC 2199 : [1976 Cri LJ 1718) and Hari Chunnilal v, State of Madhya Pradesh, 1977 MPLJ 321. I would like to quote Section 32(1) of the Evidence Act. 1872 :-