Judgment

FAZAL ALI, J. :- These appeals by special leave are directed against the judgment of the Punjab and Haryana High Court dated 31st August, 1973 affirming the convictions and sentences passed by the Sessions Judge on the appellants under Section 304 Part II of the Indian Penal Code and sentencing them to three years rigorous imprisonment.

2. The facts of the case have been detailed in the judgment of the Sessions Judge and of the High Court and it is not necessary for us to reproduce the same. It appears that Bhupinder Singh suspected that his sister was poisoned by the mother of Jaspal Singh as a result of which she fell ill, but was ultimately cured. This led to an altercation between the parties and ultimately Jindra one of the appellants apologised and the matter subsided for the time being.

3. According to the prosecution, the deceased Bhupinder Singh along with appellants Jaspal Singh and Harbans Singh had gone to village Chuni for getting their wheat ground. The party had left for village Chuni in the cart belonging to Jaspal Singh. They approached P. W. 7 Ram Karan Dass and after getting the wheat ground the accused purchased liquor. Thereafter Bhupinder Singh and some of the other accused appeared to have consumed lot of liquor and while they were returning home from there they reached a place called Sampli Naddi where Jaspal Singh who was the driver of the cart stopped the cart. Jindra and Harbans assaluted the deceased Bhupinder Singh and put him in front of the wheel of the cart. Thereafter Jaspal Singh drove the cart passing the wheels over the body of the deceased and running him over. Thereafter, they came to the village and brought their bullock cart in front of the house of Harbans Singh from where Bhupinder Singh was put on a cot and carried towards his house. On being brought to the house P. W. 6 Tej Kaur, mother of the deceased tried to put a few drops of water in the mouth of Bhupinder Singh but as he was extremely disturbed and raised shrieks by touching his abdomen. The deceased was then taken to the hospital but the Doctor was reluctant to admit the deceased unless he was sent officially by the police. Two other Doctors cams and persuaded the Doctor on duty to admit Bhupinder Singh. The first Doctor who examined the deceased was Dr. Mohinder Pratap. P. W. I who examined the deceased on 10-8-1971 at about 5 p. m. He however did not note any external mark of injury, Meanwhile, P. W. Harbans Singh want to the Police Station along with Sawan Singh and lodged a F. I. R. on 11-8-1973 at about 7.35 p. m. P. W. 2 Dr. Mrs. Jagdish Sethi performed the post-mortem on the dead body of Bhupinder Singh on the 20th August, 1971 and she found abdomen was slightly distended and death was due to rupture of the bladder and peritonitis, which could have been as a result of the deceased having been run over under the cart.

4. The police after usual investigation submitted a charge-sheet as a result of which the accused were prosecuted and committed to the Court of Session who convicted them as indicated above.

5. The defence of the accused was that they had been falsely implication due to enmity and as Bhupinder Singh was dead drunk he may have died due to excessive drink or to some other cause.

6. We have heard counsel for the parties and have also gone through the evidence led in the case. The High Court relied mainly on the alleged dying declaration of deceased Bhupinder Singh which was recorded by Saudagar Singh, P. W. 12 in the hospital. The Sessions Judge had relied on the evidence of Baldev Singh P. W. 5, Tej Kaur P. W. 6 and Nachater Singh P. W. 11 also in support of the prosecution case Learned counsel for the appellants vehemently contended that the dying declaration made by Bhupinder Singh to Saudagar Singh could not be accepted because although the dying declaration was recorded in the hospital, no Doctor was called upon to testify to the fact that the deceased was conscious and in a position to make a statemen