Judgment

JUDGMENT:- There are three appellants before us. They are original accused numbers 1,2 and 3. They along with 25 others were tried for offences punishable under Section 302 read with 149, Section 323 read with 149, Section 324 read with Section 149, Section 449 read with Section 149 and under Sections 147 and 148, I.P.C. The case rested mainly on the evidence of 4 eye-witnesses and the oral dying declaration spoken to by P.W. 18, P.W. 20 and 3 others. The trial Court rejected the evidence of the three eyewitnesses and also others who spoke about the dying-declaration. The trial Court relied on the evidence of one of the eye-witnesses P.W. 29 only. The conviction of the appellants rests entirely on the oral dying declaration said to have been made to P.W. 18, P.W. 20 and P.W. 29. The trial Judge convicted four accused, viz., the three present appellants and Bindrawan. Against their conviction an appeal was filed in the High Court. The High Court acquitted Bindrawan and rejected the appeal of the present appellants. The State also preferred an appeal against the acquittal of other accused. The Division Bench of the High Court rejected the evidence of P.W. 29, the sole remaining eyewitness. The High Court, however, convicted four other accused u/S. 147 simpliciter accepting part of the prosecution case and allowed the appeal by the State and sentenced them to the period already undergone. We are not concerned with their conviction and sentence since they are not before us. The High Court, however, relied on the evidence of P.W. 18 and P.W. 20 who spoke about the oral dying declaration and since it is alleged that the deceased mentioned only the names of three appellants before them, to that extent the oral dying declaration was accepted and convicted the appellants before us under Section 302 read with Section 149, I.P.C. and sentence of imprisonment for life was confirmed. The High Court acquitted A-6 on the ground that his name was not mentioned by the deceased while making the oral dying declaration.

2. It is submitted before us that the evidence of P.W. 18 and P.W. 20 is highly unreliable since their conduct was unnatural and they have no explanation whatsoever as to why they did not inform the police till the statements were recorded, i.e., on the 3rd day after the occurrence. It is further submitted that having regard to the nature of the injuries and the medical evidence it would have been impossible for the deceased to make any oral dying declaration. We may state facts before we proceed to consider these submissions.

3. The accused are residents of village Bodsara within the limits of Janjgir Police Station. There was a partition of agricultural land of the joint family property between the deceased and his brother which took place some years ago. Thereafter there was a land dispute. Some of the accused are related to other two brothers. The civil dispute led to some criminal proceedings also. One Ramadhar was murdered and the accused No. 1 Ramsai suspected that the deceased in this case, viz., Girdhari had murdered his brother Ramadhar. 8 to 10 days prior to the incident the deceased Girdhari along with his son P.W. 5 came to the village along with cattle. They stayed there for few days. On the day of incident, i.e., on 24-7-71 at about sun rise time P.Ws. 2, 3 and 5 were going towards the tank. Then it is alleged that the 28 accused including three appellants armed with various weapons like lathis, tabbals, bhala etc. attacked the deceased and inflicted multiple injuries. In the said occurrence P.W. 2 also received injury. P.W. 2 went and gave report to the police in which several details are mentioned including distribution of weapons in the hand of the each of the accused. The further case of the prosecution is that the deceased who received injuries, was conscious and was lying at the place of the occurrence. P.Ws. 18 and 20 the Kotwars of the village came there and in the presence of P.W. 13 and two others as