RADHESHYAM BANSHILAL Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 2nd March, 1985, passed by the Sessions Judge, Hoshangabad, convicting the appellants for having committed an offence under Section 325 read with Section 34 of the Indian Penal Code and sentencing them to R. I. for 4 years each. The appellants were tried for an offence under Section 302, Indian Penal Code but were found guilty of offence under Section 325 read with Section 34, Indian Penal Code only. They were found to have caused grievous injuries to Bonder-deceased on 18-12-1985 some time in the afternoon in a field in village Mohari. Bonder died that very evening as a result of his injuries. But the trial Court observed that since there was no intention to kill and none of the injury was individually fatal on vital part of the body, the offence was found only under Section 325 read with Section 34, Indian Penal Code.

(2.) THE trial Court has based its finding on the guilt of the accused on the basis of oral dying declarations made by the deceased before his wife Phulia Bai, daughter Resham Bai, Jhagdu Kotwar, Imrat Kotwar and then to Suresh, his son. These dying declarations are in the form of oral information, as to who had hit him (Bonder), made by Bonder at the same moment one after the other. Bonder succumbed to his injuries within 11/2 hours thereafter. The trial Court found that there was some civil litigation about land between the deceased and the accused persons. Postmortem examination of the deceased on 19-12-1985 at 8 P. M. by Dr. Akbar Ali had revealed the following injuries :

(3.) ARGUMENT of the learned counsel for the appellants is that there is no corroboration to the dying declaration, nor corroboration to the fact that Bonder made such a dying declaration, that the important witness like Jhagdu, to whom the dying declaration was made initially has not been examined as a witness, that narration of the dying declaration by Phulia Bai, Resham Bai and Suresh is only by the close relatives of the deceased who are interested in the deceased and against accused due to civil litigation between the parties, that even Suresh while giving the first report to the police at police station along with Jhagdu, did not disclose that the dying declaration has been made by his father and only said that these two accused appellants had caused injuries to his father. He simply named the accused-appellants as the assailants of his father, but did not say as to how he learnt about this fact. So at the first instance, he did not disclose of the dying declaration. He might have been speaking on suspicion. It is urged that initially Radhey Shyam had informed Phulia Bai that Bonder was lying in an injured condition under a banyan tree and Bonder had informed him to ask Phulia Bai to take him home. Radhey Shyam has not stated that Bonder had informed him as to who had caused injuries. Similarly Phulia Bai does not say, if Bonder had told Radhey Shyam who had caused injury. It is argued that the information given by Suresh at Police Station has to be treated as the first information report in this case, as he had stated that these two appellants had caused injuries to Bonder who was lying injured in a field under the tree. The later narration of event in Dehati Nalishi, - report by Phulia Bai to police officer, in which she disclosed about the dying declaration made by Bonder, cannot be treated as the first information report, as it was later in time. So it does not have-the evidentiary value for corroboration. Thus, the argument is that important witnesses have not been examined and so the presumption should be that, if examined, they would not have supported the prosecution case, that the dying declaration was not referred to at the first available opportunity by Suresh, that the testimony of these relatives is totally uncorroborated and further that they cannot be said to be sufficiently reliable witnesses to base conviction on their testimony. The argument is that these appellants have been named by the witnesses merely because there was an enmity between them arising out of a litigation about the agricultural land. That litigation was long drawn and there was an injunction in favour of the accused and against Bonder. Alternate argument is that if the injured was lying in a field of the accused, then he must have trespassed on that land and the assault might have been the result of right of private defence of property. It is urged that the evidence of dying declaration by partisan witnesses is too frail for basing conviction without corroboration. It may be noticed here that one Tej Ram P. W. 6 was examined as an eye witness of the incident, but he was disbelieved by the trial Court for various reasons given in the judgment. Some other witnesses, who were projected as eye-witnesses to the occurrence became hostile to the prosecution in the witness-box and only claimed that they had not seen the incident.