Judgement

PALEKAR, J.:- This is an appeal from an Order of conviction and sentence passed by the High Court of Madhya Pradesh reversing the acquittal recorded by the learned Additional Sessions Judge, Raigarh. The appellant have been convicted for the offence of murder under Section 302 - IPC and sentenced to imprisonment for life.

2. The appellants who were about 16 or 17 years old at the time of the offence were students living in a room next door to the Police Station at Shajapur. Appellant no. 1 Gopalsingh is the son of Umraosingh and appellant no. 2 Dulesingh is the son of Bapusingh. Umraosingh and Bapusingh who are brothers were living in village Jaiheda about two or three miles away from Shajapur. The deceased Modsingh was an elderly man about 60 year old and he lived in village Baiheda. Baiheda is about four miles from Shajapur and to the North of Jaiheda.

3. The deceased Modsingh had gone to Shajapur on 9-1-1966 as it was a market day. He was returning by the main road which connected Baiheda and Shajapur and when he was in the jungle portion of the track near Jaiheda he was attacked, according to the prosecution, by four persons with knives and daggers. The time of attack was about 8.00 p.m. and admittedly it was very dark. The first information lodged by the deceased on the next day i.e. 10-1-1966 at Shajapur Police Station says that the assailants stopped him when he was going along the road, dragged him towards a stream close by and there assaulted him with knives on various parts of the body. After the assailants went away the deceased dragged himself to the road and not being able to walk further he sat by the side of the road. Next morning at about 8.00 A.M. Chhotulal, P. W. 7 and Umraodas, P. W. 1 happened to pass by. The deceased asked for water and when the water was being given to him, he mentioned that he had been assaulted by Gopalsingh, Dulesingh, Hatesingh and one other person whose name Modsingh was unable to give. Chhotulal went to the village Baiheda and informed Modsingh s sons Bhagirath, P. W. 2 and Kumersingh, P. W. 5. They brought a cart and took him to the Police Station at about 11.00 A.M. On Modsingh s statement the F. I. R. was recorded as per Ext. P. 28. He was then removed to the Hospital at Shajapur where Dr. Ragunathrao Naik. P. W. 15 noticed that there were 12 incised wounds on various parts of the body of Modsingh. As his condition was serious, arrangements were made to record his dying declaration in the Hospital and the same was recorded by Mr. Shyamlal Shakya, 1st class Magistrate, Shajapur at about 2.00 P.M. It is Ext. P. 4. Later in the afternoon Modisingh died as a result of the injuries and it is not disputed that death was caused by the injuries which he had received.

4. The two appellants and Hatesingh who had been specifically named both in the First information Report and in the dying declaration were arrested by the Police that same afternoon. Next day i.e. on 11-1-66, according to the prosecution, on some disclosures made by the appellants, blood stained clothes were recovered from the room in which the appellants lived. A dagger was recovered from near appellant no. 1 s father s house in Jaiheda. Human blood was detected on the same and principally on this evidence the prosecution charged the appellants. Blood was also detected on the shirt of Hatesingh and on that evidence Hatesingh was also made a co-accused.

5. The learned Sessions Judge did not accept the evidence of the dying declaration as sufficiently identifying the assailants nor was he satisfied with the recovery evidence. He, therefore, acquitted both the appellants and Hatesingh. In appeal against the acquittal the High Court accepted that evidence against the appellants but rejected it so far as Hatesingh is concerned. That is how the appellants have been convicted while Hatesingh s acquittal was confirmed.

6. The learned Sessions Judge had rejected the dying declaration Ext. P. 4 and the alleged statements made by