IMPORTANT POINT
There is no question of recording of dying declaration of patient in a critical condition.

JUDGMENT

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated 07.02.2006, passed by the High Court of Karnataka in Criminal Appeal No. 1055 of 1999 whereby the High Court has allowed the appeal filed by the State, and reversed the judgment of acquittal passed by the Additional Sessions Judge, Shimoga, in Sessions Case No. 40 of 1998.

2. Prosecution story, in brief, is that PW-16 Niranjanappa (complainant) was elder brother of accused No. 1 M.G. Eshwarappa. Accused No. 2 M.G. Shivaraj and accused No. 3 M.G. Girish are sons of M.G. Eshwarappa. Accused No. 4 Hebballi Shivappa is brother-in-law of accused No. 2 M.G. Shivaraj. There was a family dispute between the complainant and his brother Eshwarappa pertaining to immovable property, and reaping of fruits of tamarind tree in the backyard of the complainant's house. There used to be quarrel every now and then between the families of two brothers. Prior to the incident, on 03.03.1998 at about 3.00 p.m. the accused persons, armed with deadly weapons, came to the house of the complainant objecting to the plucking of tamarind fruits by the complainant's family, and threatened them of dire consequences. With the intervention of the neighbours dispute got pacified temporarily. Thereafter, as the accused persons went away, the complainant along with his son Basavaraj (deceased) and daughter Rajeshwari (PW-1) went to Honnali to consult their legal counsel, and to get the complaint lodged against the accused. The three left the village Marigondanahalli at about 5.00 p.m. for Honnali, but the counsel was not found at his residence. On this, complainant Niranjanappa (PW-16) asked his son and daughter to return to the village as he wanted to wait for the arrival of the counsel. At about 6.30 p.m. Basavaraj and Rajeshwari left Honnali on way back to their village. When the two had covered a distance of about two kilometers, and were only one kilometer away from their village, four accused namely - M.G. Eshwarappa, M.G. Shivaraj, M.G. Girish and Hebballi Shivappa intercepted them. Eshwarappa (A-1) was armed with club, Shivaraj (A-2) was armed with Kandli (heavy sharp edged weapon), and Girish (A-3) and Shivappa (A-4) were armed with iron rods. The first blow was given by Shivaraj with Kandli on the head of Basavaraj on which he fell down. His sister Rajeshwari (PW-1) to save her brother lied down on him and requested the accused to leave her brother. On this Shivaraj (A-2) dragged her on one side. In the process she also suffered minor injuries. Thereafter Girish (A-3) and Shivappa (A-4) assaulted already injured Basavaraj with iron rods. Basavaraj started bleeding from the injuries received by him. The accused persons presuming that the injured is dead left the place. PW-1 Rajeshwari started crying. One Kammar Rudresh, who was returning on a bicycle from Shimoga after selling his flowers, asked her as to what had happened, and then left for the village to inform his family members of the injured in order to get some bullock cart. This incident occurred around 7.30 p.m. There was moon light. At about 8.00 p.m. Parvathamma (PW-29) mother of the injured, along with other villagers reached at the spot and injured Basavaraj was first taken to Chellur. After some time Niranjanappa (PW-16) also reached there, and after engaging a motor van, the injured was taken to Shimoga hospital, where he was admitted at 10.45 p.m. However, Basavaraj could not be saved and succumbed to the injuries soon after midnight at about 0040 hrs. A report (Ext. P-5) was given at the nearest Police Station Doddapet on which PW-28 M. Gopalappa (Station House Officer) rushed to the hospital. He sent intimation (Ext. P-6) to the jurisdictional Police Station Nyamathi, where the same was registered as Crime No. 49 of 1998. PW-33 S.G. Patil (Police Inspector) took up the investigation and, after taking the dead body in his possession, prepared the inquest report (Ext. P-28) and interrogated witnesses includ