An oral dying declaration must be trustworthy and free from blemish to form the basis of conviction. Recovery of evidence must comply with the requirements of Section 27 of the Evidence Act. The prosecution must prove the origin and blood group of bloodstains on seized articles to establish a link to the crime.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under Section 374(2) of CrPC is directed against the impugned judgment dated 28/02/2012 passed in Sessions Trial No. 55/2010 whereby learned Additional Sessions Judge, Mungeli, Distt. Bilaspur has convicted the appellant herein for offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and fine of Rs. 2000/­ and in default of payment of fine further R.I. for 1 year.

2. Case of the prosecution, in brief, is that Gangaram (deceased), a student in the school where the appellant was serving as a Teacher, had seen the appellant in a compromising situation with P.W.­11 and on that account, on 02/10/2010, in between 09:30 AM to 05:00 PM, the appellant, with the intention of causing death of Gangaram, assaulted him with knife and threw his body into a ditch, due to which the appellant sustained injuries on his face and body and ultimately, succumbed to death.

3. Further case of the prosecution is that on 02/10/2010, Sitaram (P.W.­14), grandfather of deceased Gangaram, and his wife Kavribai found the body of Gangaram lying in the field of Babaji in an unconscious position. Thereafter, they firstly took deceased Gangaram to Jarhagaon Police Station. In between, on the way to Police Station, Kashiram (P.W.­13), uncle of deceased Gangaram, also joined them and found that Gangaram was in an unconscious position and was unable to speak and he had suffered injuries on his face and body. After reaching the Police Station, Kashiram (P.W.­13) lodged First Information Report at 05:45 PM vide Ex. P/16 and thereafter, they took Gangaram to Community Health Center, Mungeli for treatment wherein Dr. Sudesh Ratre (P.W.­9) examined him at 06:10 PM and he found that injuries were inflicted upon him with a hard and sharp object. In his statement before the Court, Dr. Sudesh Ratre (P.W.­ 9) has stated that when he examined Gangaram, he was in an unconscious position and he was unable to speak and since he had already lost a lot of blood, after primary treatment, he was referred to SIMS Hospital. However, it is the case of the prosecution that when the deceased was in Mungeli Hospital, he had given oral dying declaration to his father Tularam (P.W.­2) and had stated that Sharma Sir (appellant) has assaulted him. Thereafter, while Gangaram was being escorted to SIMS Hospital, he succumbed to death on the way.

4. After the death of deceased Gangaram, merg intimation was registered on 03/10/2010 vide Ex. P/20 and after issuing summons to the witnesses under Section 175 of CrPC vide Ex. P/1, inquest was conducted vide Ex. P/2 and his dead body was subjected to postmortem, which was conducted by Dr. Manish Shrivastava (P.W.­10) and the postmortem report has been filed as Ex. P/14 in which cause of death is said to be coma due to head injury and nature of death is said to be homicidal. Pursuant to the memorandum statement of the appellant vide Ex. P/5, recovery of t­shirt worn by the appellant as well as one nokia mobile was made vide Ex. P/6. Nazri Naksha was prepared vide Ex. P/11. The seized articles were sent for chemical examination and FSL report has been brought on record as Ex. P/26 in which blood was found on the t­shirt worn by the appellant but the origin of blood or its blood group could not be ascertained due to disintegration of blood. After due investigation, the appellant was charge­sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for hearing and disposal in accordance with law. The appellant abjured his guilt and entered into defence.

5. In order to bring home the offence, prosecution examined as many as 25 witnesses and exhibited 26 documents. The statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt and examined 2 witnesses and exhibited 2 documents in his defence.

6. Learned trial Court, after appreciation of oral and documentary