The reliability and admissibility of dying declarations as evidence, the mental state of the deceased, and the sufficiency of evidence to establish guilt.

JUDGMENT :

Farjand Ali, J.

1. The instant appeal has been filed under Section 374(2) of Cr.P.C. against the judgment of conviction and order of sentence dated 08.11.1989 passed by learned Sessions Judge, Jalore in Sessions Case No. 35/1988 whereby the appellants were held guilty for the offence under Section 302/149 IPC and they were sentenced to suffer imprisonment for life and a fine of Rs. 200/-; in default of payment of fine, they were ordered to further undergo one month rigorous imprisonment. In addition, they were also convicted for the offence under Section 148 IPC and were sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 100/-; in default of payment of fine, they were to further undergo one month rigorous imprisonment. Both the sentences were to run concurrently.

2. During the course of appeal, seven out of the 10 appellants have passed away and therefore, the appeal to their extent stands abated by this Court vide orders dated 09.08.1999, 20.07.2015 and 28.07.2016. As per the police report dated 29.07.2022, appellant No.1-Raysa S/o Badra, appellant No.2-Moda S/o Shri Pratapa and appellant No.3-Moda S/o Shri Bhoora survive and are residing in Dhumbdia village presently. Thus, the appeal is now being heard to the extent of appellant No.1-Raysa S/o Badra, appellant No.2-Moda S/o Shri Pratapa and appellant No.3-Moda S/o Shri Bhoora.

3. The facts of the case in a nutshell are that PW-2 Ira used to live in village Dhumbdia with his two younger brothers, namely Ganesha and Dana. On the fateful day of the incident, i.e. 12.08.1988, Ganesha had gone to fetch water and Dana was cooking food. Upon hearing fervent cries of Ganesha; Dana, Ira and Ira’s son -Bhopa rushed towards the sound. After covering a certain distance, Ira and Bhopa saw from the hedge (baad) that the accused persons were beating Ganesha and Dana with lathis. PW-2 Ira went to the Police Out-Post at Narsana where his Parcha Bayan was recorded by the Sub-Inspector. Subsequent to this, they returned to the place of incident and found that Dana and Ganesha were in a severely injured state. The Sub-Inspector-Devisingh (PW-8) boarded Ganesha as well as Dana, along with Ira and Bhopa, in his jeep and took them to the hospital where they reached at around 09.00 p.m. While Ganesha was alive, the Sub-Inspector recorded his statement (Exhibit P-12) wherein, he stated that the accused persons had thrashed him and Dana. As many as ten accused persons were named in the statement (Exhibit P-12), including the three surviving appellants. Almost identical account of the incident was reiterated in the statement of Ganesha (Exhibit P-1) recorded by the medical officer. Both Dana and Ganesha succumbed to the injuries received by them during the assault. On the basis of the Parcha Bayan, an FIR (Exhibit P11) was lodged against the accused-appellants for the offence of committing murder of the deceased Dana and Ganesha under Section 302 as well as for the offences under Sections 147, 148, 149 and 341 of IPC.

4. As per the prosecution, the police inspected the spot, prepared the memos, recorded statements of the witnesses and arrested the accused named in the report. During the course of investigation, the accused made disclosure statements under Section 27 of the Indian Evidence Act and in pursuance thereof, the murder weapons-'lathis’ were recovered at their instance. After usual formal investigation, charge-sheet was submitted against the ten accused persons before the Magistrate.

5. Learned Magistrate took cognizance of the offence and made an order of committal and thus, the matter was received by the learned Sessions Judge, Jalore who framed charges against the accused persons under Sections 302 r/w 149 and 148 of IPC after hearing the parties. The accused denied the charges and claimed trial.

6. During the course of trial, eight witnesses were examined and reliance was placed on certain documents which got exhibited in the trial.

7. Thereafter, an explanatio