BRIJ MOHAN Vs. STATE

JUDGEMENT

(1.) THIS Criminal Appeal under Section 374 Cr.P.C. has been filed against the judgment dated 11.11.2003 passed by the learned Additional Sessions Judge, Kotputli, Jaipur in Sessions Case No.19/2000 whereby the present appellant has been convicted and sentenced for the offence under Sections 302 and 379 IPC as under:

(2.) THE short facts of the case are that on 14.07.2000, the statement of Mahaveer son of Mali Ram has been recorded at BDM Hospital, Kotputli, Jaipur by PW 16 Ranmal S.I. wherein it has been stated that Mahaveer is the resident of village Alampur, Chirawa, District Jhunjhunu, three four days back, he came with Brij Mohan to purchase diesel pump. On 14.07.2000 at 04.00 am in the morning,when he was sleeping in Brij Mohan's Room, he gave beatings with lathi and none was there to save him. Brij Mohan also took Rs.2,500/ cash and his papers. Thereafter, Brij Mohan asked him to wash the blood. Mahaveer asked him to bring some medicines because he has received injuries. When the appellant went to bring the medicines, he ran away. He received injuries on leg, hand and head. On this statement, FIR No.456/2000 has been registered for the offence under Section 323, 342, 389 and 307 IPC. On 16.07.2000, Mahaveer died and offence under Section 302 IPC has been added. After investigation, charge sheet was filed against the appellant. The case was committed and transferred to the Additional Sessions Judge, Kotputli, Jaipur. The learned court below framed the charges against the appellant for the offence under Section 302 and 379 IPC. The appellant denied the charges and claimed trial. The prosecution examined PW 1 Chandrabhan, PW 2 Sushil Kumar, PW 3 Dilip Singh, PW 4 Mahendra Kumar Sharma, PW 5 Madan Singh, PW 6 Kayam Singh, PW 7 Om Prakash, PW 8 Jagan Prasad, PW 9 Jai Ram, PW 10 Krishan Kumar Bhojwani, PW 11 Rajendra Kumar, PW 12 Dr. Birbal Yadav, PW 13 Sampat Ram, PW 14 Ratiram, PW 15 Ramji Lal and PW 16 Ranmal Singh to support its case and also relied on Ex.P/1 to Ex.P/19 documents. Statement of the appellant under Section 313 Cr.P.C. has been recorded. No oral or documentary evidence has been produced by the accused in his defence. After conclusion of the trial, the present appellant has been convicted and sentenced as stated above. Hence this appeal.

(3.) PER contra, the contention of the learned Public Prosecutor is that the dying declaration is trustworthy and voluntary and the learned court below has rightly relied on the same. If the dying declaration is voluntary and truthful, conviction could be based on it alone. There are attending circumstances also. Prosecution witnesses have stated that the deceased Mahaveer was living with appellant from last three four days. Stick has been recovered which was found blood stained and blood group has matched with the clothes of the deceased. The conduct of the appellant is also relevant as he was not going at his job since 14.07.2000 and there is no infirmity in the reasoning and conclusion of the learned court below.