Case: Vithal Somnath Kore  Vs.  State Of Maharashtra &amp; Others

deceased was also running towards them and naturally the distance would have been shortened so that the witnesses could have contacted the deceased in no time. 5. We fully agree with the High Court that there was no good reason to distrust the evidence of P. Ws. 2 and 6. We have perused their evidence and we think they have deposed in a straightforward manner and their evidence contains a ring of truth. Thus the evidence of these witnesses is sufficient to convict the appellants for the offence of murder. But the evidence of eyewitnesses was further corroborated by the oral dying declarations said to have been made by the deceased to P. Ws. 2 and 6 and also to his brother. P.W. 5 which finds place in F.I.R. also. 6. Another very important document is the dying declaration Ex. 29 recorded by Dr. Doshi which does not appear to have been considered by the learned Sessions Judge at all. Dr. Doshi had appears as a witness and had testified on oath that the deceased was fully conscious and had made the statement before him. This dying declaration does not suffer from any infirmity at all and that is why the learned Sessions Judge has not dealt with it but has excluded it from consideration. This was undoubtedly a serious error of law which was committed by the learned Sessions Judge. The we have dying declaration, Ex. 43, which in our opinion may be excluded from consideration because there is an endorsement of the Doctor that the patient was not answering the questions. Although it is not clear as to when this endorsement was made but having regard to the circumstances of this case we feel it safe to exclude this dying declaration from consideration. Even apart from this there appears to be sufficient evidence against the appellants to sustain the charge of murder. The last dying declaration is Ex. 40 which was recorded by an Honorary Magistrate, P.W. 13 at General Hospital at about 2.10 p.m. The learned Sessions Judge seems to have discarded this dying declaration on three grounds. In the first place the Sessions Judge thought that it was not coherent. Secondly, he was of the view that the deceased tried to improve upon the case of the prosecution by falsely implicating his daughter-in-law Mukta, who was mentioned in his dying declaration. Thirdly, the learned Judge assumed that the deceased was unconscious because he died about two hours later. On a perusal of the dying declaration along with evidence of P.W. 13, who being an honorary Magistrate, was a very independent and respectable witness, we find that the reason given by the Sessions Judge cannot be sustained. In the first place reading dying declaration as a whole, we do not find that this is incoherent. There are a few lapses and a few questions have been missed but by and large the deceased appears to give a complete narrative of the manner in which he was burnt. He has named the two accused in his dying declaration and also mentioned the enmity resulting from the partition suit. One important statement in this dying declaration which has been missed by the Sessions Judge was that the deceased himself stated that he was feeling much better and was fully conscious. It is true that the deceased had mentioned the name of his daughter-in-law Mukta but he does not either assign any role to her nor does he try to involve his daughter-in-law in his assault. It may be possible that Mukta may have come to the spot on hearing alarm and that is why the deceased mentioned her name here. It was suggested that the deceased was suffering from intermittent fits of unconsciousness. There is, however, sufficient evidence to show that the deceased was fully conscious when he made the dying declaration before the Honorary Magistrate. It is well settled that a dying declaration if believed by the Court, is sufficient to sustain a conviction. In the case of Lallubhai Devchand Shah v. The State of Gujarat, AIR 1972 SC 1776 it was held that if the truthfulness of a dying declaration is accepted, it can always from the basis of conviction of the accused. In the instant case we find that even though there was some enmity between the father and the son, yet if A-1 was not the real assailant it is most unlikely that his father would in his dying moment try to falsely implicate his own son. This circumstance, therefore, appears to be a sufficient guarantee of the truth of the dying declaration made by the deceased. 7. Having, therefore, considered the evidence of the eye-witnesses and the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the High Court. 8. We would like to mentioned here that in the first instance A-2 had filed the appeal before the Supreme Court but later we directed learned counsel appearing amicus curiae to move A-1 also to file an appeal to this Court if he so desires. And, therefore, A-1 also filed an appeal which has been registered as a separate appeal. Mr. Ganpule, counsel for the appellants states that Superintendent of Jail had written to him that he was entitled to Rs. 250/- for drafting the petition of appeal from Jail. This is indeed a most extraordinary conduct on the part of Superintendent of Jail. We do not understand under what law he can make such a demand. We, however, do not wish to say anything more on this aspect as the learned counsel appearing for the State has assured us that he will take up this matter with the Government.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. We fully agree with the High Court that there was no good reason to distrust the evidence of P. Ws. 2 and 6. We have perused their evidence and we think they have deposed in a straightforward manner and their evidence contains a ring of truth. Thus the evidence of these witnesses is sufficient to convict the appellants for the offence of murder. But the evidence of eyewitnesses was further corroborated by the oral dying declarations said to have been made by the deceased to P. Ws. 2 and 6 and also to his brother. P.W. 5 which finds place in F.I.R. also7. Having, therefore, considered the evidence of theeyewitnessesand the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the High Court7. Having, therefore, considered the evidence of theeyewitnessesand the evidence furnished by the dying declarations we are satisfied that the High Court was right in reaching the conclusion that the prosecution had proved its case against the appellants beyond reasonable doubt. This was not a case where another view was reasonably possible. The order of the Sessions Judge was based on pure speculation and was manifestly wrong and was rightly set aside by the HighCourt.8. We would like to mentioned here that in the first instance2 had filed the appeal before the Supreme Court but later we directed learned counsel appearing amicus curiae to move1 also to file an appeal to this Court if he so desires. And, therefore,1 also filed an appeal which has been registered as a separate appeal. Mr. Ganpule, counsel for the appellants states that Superintendent of Jail had written to him that he was entitled to Rs. 250/for drafting the petition of appeal from Jail. This is indeed a most extraordinary conduct on the part of Superintendent of Jail. We do not understand under what law he can make such a demand. We, however, do not wish to say anything more on this aspect as the learned counsel appearing for the State has assured us that he will take up this matter with the Government.