A.I.S. Cheema, J.

1. Original accused No.1 Shaikh Maheboob, accused No.2 Shaikh Salim and accused No.3 Shaikh Lalu Shaikh Pasha have filed these criminal appeals against their conviction for the offence punishable under Section 302 r.w. 34 of the Indian Penal Code, 1860 (“IPC” in brief), by Additonal Sessions Judge, Parbhani in Sessions Trial No. 46 of 2011, vide judgment and order dated 5.8.2011 for committing murder of one Gautam Kishanrao More (deceased). They have been sentenced to suffer imprisonment of life and to pay a fine of Rs.500/- each and in default to suffer simple imprisonment for three months.

Case of Prosecution.

2. (a) P.W.2 Motiram Madhavrao Dhumal wanted to get some trees cut, which were in his land Gat no. 498 in the Shivar of Singnapur , Tq. and District Parbhani. He gave contract to one Jigya @ Mustafa, who engaged the three accused and deceased Gautam for the said work. The work started on 12.12.2010 and these persons stayed at the “Akhada” (a place for stay of labour) on the field. The incident of accused assaulting (deceased) Gautam occurred on 13.12.2010. In the evening P.W.2 Motiram was informed by Mustafa about the incident of quarrel taking place. P.W.2 Motiram went to the field and saw (deceased) Gautam lying injured and from Gautam, he came to know about the incident. He informed the Police Patil who in turn rang up the police at police station Daithana. P.W.8 (Probationary) Dy. S. P. Vishal Gaikwad reached the spot alongwith one police head constable Chate and Gautam was taken to civil Hospital at Parbhani and he was admitted there. While he was taking treatment, Dy. S.P. Vishal Gaikwad recorded dying declaration of Gautam at 02.00 a.m. on 14.12.2010 and on the basis of the same, offence came to be registered as Crime No. 103 of 2010, for the offence punishable under Section 307 r.w. 34 of I.P.C. P.W.8 Dy. S.P. Gaikwad further investigated the matter. Spot panchnama was recorded and samples of blood mix mud and simple mud were seized and sealed. The three accused came to be arrested at 6.10 a.m. of 14.12.2010 and their clothes were seized. While in custody, accused No.1 Shaikh Maheboob on 15.12.2010 gave voluntarily statement and axe was recovered from the bushes near zizipus tree at some distance from the spot.

(b) Meanwhile, (deceased) Gautam was shifted from Civil Hospital, Parbhani to the Government Hospital at Nanded. While at Government Hospital, Nanded supplementary statement in the nature of dying declaration was recorded by P.W.8 Dy. S. P. Vishal Gaikwad on 18.12.2010. While under treatment, Gautam expired on 22.12.2010. The inquest panchnama was drawn. Post mortem was done by P.W.6 Dr. Sanjay Bhuktar. The cause of death was recorded as “septicemia due to stab injury to chest and abdomen”. The offence was converted into one under Section 302 r.w. 34 of I.P.C.

3. After completion of investigation, charge sheet was filed before the J.M.F.C. Parbhani. The matter came to be committed to the Court of Sessions. The prosecution examined in all 8 witnesses and also brought on record necessary documentary evidence. The defence of accused is of denial. The accused persons came to be convicted, as mentioned above. The Appeals and contentions raised.

4. The appeals have been filed raising various grounds and arguments. It has been argued by the learned counsel for the accused that death took place due to septicemia due to stab injury to chest and abdomen, after about 9 days. Doctors did not specifically say that injuries were sufficient in ordinary course of nature to cause death. The intention of the accused No.1 was not to kill. The accused Nos. 2 and 3 did not run away and tried to help by taking injured Gautam to the Hospital. The role attributed to accused Nos. 2 and 3 does not show that they had intention to kill. There was no need to record second dying declaration. There is variance in oral and written dying declarations. Looking to the evidence of P.W.2 Motiram and P.W.8 Dy. S.P.