Judgment :

RAY, J.

This is an appeal on special leave against the judgment and order passed on February 16, 1919 by the High Court, Madhya Pradesh maintaining the conviction and sentence made by the Additional Sessions Judge in Sessions Trial No. 5/77

2. The prosecution case in brief is that on the night intervening July 14 and 15, 1976 when Dwarka Prasad was sleeping outside his house in village Godha and his wife and two sons Premshankar and Ramashankar were sleeping inside the courtyard, dacoits numbering more than five entered the house and started beating his wife and sons. Accused Subhakaran jumped into the courtyard and he was identified by Phulkali (PW 8), wife of Dwarka Prasad and his son Premshankar (PW 9). Phulkali and Premshanker while running away from the house saw Nanhau Ram standing with a gun and another dacoit grappling with Dwarka Prasad. Nanhau Ram fired a shot from his gun and it struck the dacoit who fell down dead. Then Subhakaran grappled with Dwarka Prasad and dragged him towards the angan. Nanhau Ram fired another shot which hit Dwarka Prasad who fell down. On alarm being raised by Phulkali and her sons, people from nearby villages came and the dacoits fled away. Dwarka Prasad in presence of the people gathered told Lavkushprasad (PW 2) to take down his statement that he recognised the two accused appellants amongst the dacoits. Lavkushprasad scribed the dying declaration made by Dwarka Prasad who put his thumb impression thereon. Lavkushprasad signed it and the same was signed by several villagers present. Dwarka Prasad was then taken to a boat for his treatment in the hospital. But he breathed his last in the boat. Tikamprasad (PW 5) who was present when the statement was made by Dwarka Prasad went to the police station and lodged FIR (Ex. P-4) on July 15, 1976 at about 12.05 p.m

3. The Investigating Officer held inquest over the dead body of Dwarka Prasad as per inquest report Ex. P-5. Another inquest was held on dead body of an unknown dacoit as per inquest report Ex. P-6

4. On July 17, 1976, Dr. A. R. Singh (PW 6) performed autopsy on the dead body of Dwarka Prasad and he found a gun shot wound on his body as per post mortem report Ex. P-5. In the post mortem report Dr. A. R. Singh had stated that "death of Dwarka Prasad is due to haemorrhage shock resulted in after fire arm wound on the right side abdomen enter rite"

5. The defence was that the accused had nothing to do with the dacoity and they had been falsely implicated on account of enmity

6. The trial court relying upon the dying declaration (Ex. P-2) as well as on an appreciation of the evidences came to the conclusion that the two accused persons were present in the dacoity which resulted in death of two persons and accordingly convicted them under Section 395 read with Section 397 of the Indian Penal Code and sentenced them to rigorous imprisonment for seven years. The accused persons were further convicted under Section 302 read with Section 396 of the Indian Penal Code and sentenced to undergo life imprisonment. All the sentences were to run concurrently

7. Against this judgment and order, accused persons preferred an appeal being Criminal Appeal No. 608 of 1977. The said appeal was dismissed by the Madhya Pradesh High Court and the judgment and order of conviction and sentence were upheld

8. It is against this judgment and order the instant appeal on special leave has been filed. It has been submitted on behalf of the prosecution (sic defence) that the dying declaration Ex. P-2 could not be relied upon as the same was not referred to at all in the FIR Ex. P-4 lodged by PW 5 Tikamprasad on July 15, 1976 even though Tikamprasad was one of the signatories to the same and he came to lodge the FIR after hearing the statements of PWs 8 and 9, the wife and son of the deceased, Dwarka Prasad about recognition of the two appellants amongst the dacoits. In the FIR Ex. P-4 Tikamprasad specifically mentioned the statement of Dwarka Prasad befor