IMPORTANT POINTS
(1) F.I.R lodged by deceased can be treated as a Dying Declaration.
(2) Evidence of a prosecution witness cannot be rejected in toto, merely because prosecution witnesses turned hostile.

JUDGMENT :

INDU MALHOTRA, J.

1. The appellants have filed the present Criminal Appeal to challenge the order of conviction under Section 302, IPC and sentence of Life Imprisonment passed vide Judgment and Order dated 04.12.2008 by the Jabalpur Bench of the Madhya Pradesh High Court in Criminal Appeal No.206/1994. The High Court has affirmed the Judgment passed by the Sessions Court.

2. The present appeal arises out of FIR No. 86/1991 lodged on 19.12.1991 at 4:20 p.m. under Sections 341, 323, 325, 307 read with 34 IPC by the deceased – Ghansu himself.

Ghansu, in his F.I.R, stated that on 19.12.1991 he had gone to Ishanagar Police Station to file a Report against appellant No.1 Dayaram Yadav for having beaten his son Chandu. On his way back from the Police Station, at about 3:00 p.m., near Nahar ki Puliya, both the accused viz. Dayaram and Parsu Yadav were hiding in the bushes with lathis. Both of them waylaid him started hitting the deceased with lathis on his head, hands, legs and body which led to severe bleeding. Ghansu fell unconscious. The accused assumed that the Ghansu had died, and threw his body into the canal, and fled from the scene. While Ghansu was in the water, he regained consciousness and cried for help. Ghansu stated that Chouda Chamar – P.W.9, Thakur Sunla Kumar, Lula Kumhar and Ramlal Kumhar reached the site of occurrence and rescued him. Ghansu stated that the beating was given with a motive to eliminate him completely.

3. Ghansu was taken to the Ishanagar Police Station where the F.I.R was lodged. Thereafter, he was taken to the Primary Health Centre, Ishanagar for treatment. The Executive Magistrate P.W.19 recorded the dying declaration of Ghansu at 4:55 p.m. on 19.12.1991, which reads as follows:

“I, Ghansu Yadav son of Judhiya Yadav, aged about 50 years, occupation – cultivation, resident of Pahargaon do hereby state on oath that when I was returning back to my village from Ishanagar, then, in the afternoon at nearby place of the culvert (puliya) of canal in village Pahargaon, Dayaram and Parsu, sons of Durju Yadav, both brothers, assaulted me with lathis. Even prior to it, my son Chandu was assaulted by Dayaram. I had gone to the Police Station to register a Report. But, the Report could not be registered. Thereafter, I, with my son Chandu, was coming back and at that time, Dayaram and Parsu have assaulted me.”

The medical examination of Ghansu was conducted by P.W.14 – Dr. Ramakant Chaturvedi who certified that the dying declaration was recorded in his presence and Ghansu was fully conscious and well-oriented to the time and place at the time of giving his statement.

4. Ghansu was referred to the District Hospital, Chhattarpur due to his critical condition. He succumbed to his injuries at the Hospital.

5. The Post Mortem examination of the deceased was conducted by Dr. Hari Aggarwal – P.W.17 who recorded the following injuries:

(i) Wound on the right forearm –½x½inch – underlying bone broken in pieces.

(ii) Wound on left forearm with contusion on medial border forearm lower 1/3 – underlying bone broken in pieces.

(iii) Deep Wound on right III of 2 x 1 x 1 inches. Underlying bone of II, IV and V metacarpal broken.

(iv) Deep Lacerated Wound on scalp – 2 x ½inches – underlying parietal bone broken, and haematoma collection, subdural and epidural.

(v) Lacerated wound – ½ x½inches size on right leg.

(vi) Parietal bone broken.

The medical report recorded that the cause of death was shock due to head injury and other injuries.

6. The case was registered as Case No. 20/ 1992 before the Sessions Judge, Chhatarpur, Madhya Pradesh (Sessions Court).

P.W.3 – Ram Lal, P.W.4 – Balwant Singh, P.W.7 – Asha Ram, P.W.8 – Arjun, P.W.9 – Chouda Chamar and P.W.15 – Vijay Singh deposed that they heard pother of screaming and shouting of Ghansu. They went towards the canal where Ghansu was lying with severe injuries all over his body. Ghansu told P.W.4 – Balwant Singh and other people who had gathered there that Durju Nata (father of the accus