IMPORTANT POINT
In the event of inconsistency between the dying declaration, medico-legal report Ex-PC and the post mortem report Ex-PG, accused cannot be convicted u/s 302 IPC.

JUDGMENT :

SANJIV KHANNA, J.

The impugned judgment dated September 19, 2008 passed by the Punjab & Haryana High Court affirms conviction of the present appellant Satish Kumar and one Dhajja Ram for murder of Shamsher under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the “Code”), for which the appellant has been sentenced to imprisonment for life and fine of Rs. 10,000/-with default stipulation to undergo further rigorous imprisonment for two years. The impugned judgment also affirms conviction of Satish Kumar and Dhajja Ram under Section 506 read with Section 34 of the Code for which they have been sentenced to rigorous imprisonment for one year and fine of Rs. 1,000/-each with default stipulation to undergo rigorous imprisonment for 3 months and under Section 323 read with Section 34 of the Code for which they have been sentenced to undergo rigorous imprisonment for six months and fine of Rs. 500/-each, and in default to undergo further rigorous imprisonment for one month.

2. It appears that Dhajja Ram has not assailed the impugned judgment passed by the Punjab & Haryana High Court. In fact, it was stated before us that perhaps he has been released on grant of remission.

3. As far as involvement of the present appellant in the offences under Sections 302, 506 and 323 read with Section 34 of the Code is concerned, we find no ground and reason to interfere with the findings recorded by the High Court affirming the findings of the trial Court that Dhajja Ram and Satish Kumar had given ‘Lathi’ blows to deceased Shamsher as was stated by the deceased to Surender (PW-2) on his way to the hospital and to ASI Sri Kishan (PW-9), which statements have been relied upon as dying declaration. Bharpoor (PW-7) and Sadhu Ram (PW-8), who had gone to ease themselves, on hearing alarm raised by the deceased Shamsher had returned and witnessed the incident. They have also deposed on the involvement of the appellant. They along with Surender (PW-2) have also deposed as to the reason and motive for the violence, as the appellant and Dhajja Ram had threatened deceased Shamsher on account of their objections to the relations of a woman belonging to ‘Dahiya Gotra’ with a man of ‘Ohlan Gotra’.

4. The primary question which arises for consideration is whether the conviction of the appellant for murder under Section 302 of the Code is justified and correct, or it should be converted to Section 304 Part I of the Code.

5. As per the dying declaration of the deceased, the appellant Satish Kumar had given ‘Lathi’ blows on his waist and below the right knee whereas Dhajja Ram had given ‘Lathi’ blows on his thigh/knee of left leg and left hand. The medico-legal report Ex-PC prepared by Dr. Jai Mala (PW-3) on 20th March, 2002 at about 9:15 a.m., had observed the following injuries on Shamsher, when he was alive:

“1. A bruise reddish bluish in colour, 3 cm x 1cm in size was present on posterior aspect of left forearm in middle part along with swelling. No bleeding was present. Tenderness was present. Advised for X-ray left forearm, A.P. lateral view.

2. A bruise reddish in colour, 10 cm x 1 cm in size was present on upper border of the right buttock region.

3. A bruise 4 cm x 1 cm in size, reddish in colour was present below right knee along with diffused swelling involving right knee. No bleeding was present. Tenderness was present. Advised X-ray right knee, A.P and later view.

4. A bruise reddish in colour 4 cm x ½ cm in size was present on right upper back region. Advised X-ray chest right side.”

6. Subsequently, condition of Shamsher had deteriorated and he was referred to Post Graduate Institute of Medical Sciences, Rohtak where he died on 21st March, 2002. Dr. R.K. Nandal (PW4) had conducted autopsy of Shamsher on March 22, 2002 at about 12:05 p.m. and his post-mortem report Ex-PG, records:

“1. A contusion on left forearm, mid part posterior side, on dissection, infiltration of blood in surrounding tissues was present.

2. Ther