JUDGMENT

CRIMINAL APPEAL NO.1166 of 2001

Dr. ARIJIT PASAYAT, J.

1.Challenge in this appeal is to the judgment of the Madhya Pradesh High Court at Jabalpur upholding the conviction of the appellants for offence punishable under Section 304 Part I read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') and the award of sentence of 7 years rigorous imprisonment as awarded by the trial Court.

2.Prosecution version in a nutshell is as follows:

On the morning of 26th April, 1987 Ramesh (hereinafter referred to as the 'deceased') was returning from the house of Ismail Khan. He was waylaid by the three accused persons who attacked him with knife, lathi and rod. Ramesh sustained numerous injuries on his person. Rakesh Kumar and Bittu alias Gurdeo Singh intervened. The incident was witnessed by his mother Khargi Bai (PW-1), maternal grandmother Tulasa Bai (PW-22) and others. Ramesh was taken to the Police Station where he lodged the first information report (Ex.P.10) which was recorded by Head Constable Santosh Kumar (PW-20). Ramesh was immediately taken to the District Hospital at Bina where Dr. Rajnish Shrivastava (PW-11) examined him. He found as many as 18 injuries on his body as per his report Ex.P.16. Ramesh was admitted in the hospital. On the following day he was referred to District Hospital, Sagar for X-ray and further treatment. There he breathed last on 30.4.1987. Dr. M.C. Jain (PW-16) performed the autopsy on the next day. Postmortem report is Ex.P.28.During the course of investigation knife article 'B' was recovered from the possession of accused Dashrath alias Champa on the basis of the information supplied by him. Accused Govind also made a disclosure statement leading to recovery of lathi article 'D' and accused Satish made a statement leading to the recovery of rod article 'C'.On completion of investigation, a challan was put up against the three accused persons for commission of offence punishable under Section 302 read with Section 34 IPC.

3.The three accused persons were tried. Seven witnesses were examined as eye-witnesses to further the prosecution version. They included the mother (PW-1) and grand mother (PW-22) of the deceased. The other five eye-witnesses produced were Laxmi Bai (PW-2), Asgari Begam (PW-4) and neighbours of the deceased and Santosh Singh (PW-17), Rakesh (PW-18) and Bittu (PW-19). But none of the witnesses admitted to having seen the incident. Therefore, the prosecution with the permission of the Court cross examined them. The trial Court was of the view that these witnesses were deliberately making false statements and concealing the truth. But the First Information Report (Ex.P10) was recorded by the Head Constable Santosh Kumar (PW-20) on the information given by the deceased. The said Head Constable had also recorded the statement of the deceased under Section 161 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). His statement is marked as Ex.P.32. Learned Additional Sessions Judge treated both the statements to be statements under Section 32(1) of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). Relying on those statements and the medical evidence, the trial Court found that Ramesh had died as a result of the injuries inflicted upon him by the accused persons. But since none of the injuries was found on the vital organs of the deceased it was held that the offence committed was covered under Section 304 Part I IPC. The accused persons challenged correctness of the judgment before the High Court by filing an appeal which was dismissed by the impugned order.

4.Learned counsel for the appellants submitted that there was no material evidence to connect appellants with the crime and, therefore, both the trial Court and the High Court were not justified in finding the accused persons guilty. It is submitted that considering the nature of injuries sustained, it would have been impossible for the deceased to make any statement.

5.Learned counsel for the Sta