Sunder Lal vs State Of Rajasthan

3. Background facts in a nutshell are as under:

4. On 22.8.1998 a 'Parcha Bayan' (Ex.P20) of injured Heeralal (hereinafter referred to as the 'deceased') was recorded by the SHO, Police Station, Chechat, Distt. Kota, wherein it was stated that accused appellant Sunderlal told him as to why he has been abused. He told him that he should remove the stones. Subsequently in the night at about 2 a.m. when he was sleeping in his house, accused Sunderlal inflicted a blow on his head by 'Gandasi' with the intention to kill him and also inflicted injuries on his hand. He also stated that accused Laxmi Narain also inflicted injuries on his legs. When he cried Chaturbhuj, Deva, Rameshwar came but both the accused appellants ran away. On the basis of this 'Parcha Bayan' Police registered a case for offences under Sections 448, 307, 323 and 34 IPC. Subsequently, FIR No.125/1998 (Ex.P.22) was registered on 22.8.1998 itself. The injured was examined in the night itself at about 3 a.m. at Primary Health Centre, Chechat by Dr. Girish Chand (PW-1). The injured succumbed to the injuries at about 7 a.m. His post-mortem was conducted on 22.8.1998 itself by Dr. Ashok Mundara (P.W.22). The I.O. prepared the site plan and recorded the statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short the 'Code') The accused persons were arrested and on the basis of their information, the weapons i.e. gandasi and lathi were recovered. After death of Heera Lal the case was converted for offence punishable under Section 302 IPC. After completion of the investigation, the police filed a challan against both the accused appellants. The case was committed and the trial Court framed the charges against the accused appellant Sunderlal for offence under Section 302 IPC and appellant Laxmi Narain for offence under Section 302 read with Section 34 IPC. Both the accused denied the charges and claimed to be tried.

5. The trial Court found the evidence to be cogent and credible. The dying declaration was found to be reliable. The High Court found the judgment of the trial Court to be in order and dismissed the appeal.

8. The dying declaration was recorded at 3.45 a.m. on 22.8.1998. It was categorically stated that he was sleeping in the night. The appellant came and assaulted him on his head with the gandasi with the intention of killing him and the co- accused Laxmi Narain inflicted injuries on his legs. The dying declaration was treated as the first FIR when the investigation was taken.

10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.

First, it must establish, quite objectively, that a bodily injury is present.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

24. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

27. Considering the fact that the occurrence took place in the night in almost dark conditions with feeble light and attack was made indiscriminately, the appropriate conviction would be under Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of justice.

28. The appeal is allowed to the aforesaid extent.