The central legal point established in the judgment is the interpretation and application of the evidence act to determine the admissibility of the dying declaration and the assessment of the nature and location of the injuries to establish the culpability of the appellant.

( 1 ) THE appellant has called in question legality of his conviction under S. 302 of the I. P. C. sentenced to R. I. for life and fine of Rs. 5,000/-; in default of payment of fine additional R. I. for one year passed by learned Addl. Sessions Judge, rajgarh (Biaora) in Sessions Trial No. 1/ 1992, judgment dated 7-12-1996.

( 2 ) THIS is the appeal of the year 1997. Appellant is on bail. Neither appellant nor his Advocates are present, though, this appeal is being listed for final hearing since 2005. On 24-8-2005 appeal was adjourned because none appeared on behalf of the appellant. Thereafter it was listed on 2-2-2006. On this date, Advocate Shri Vikas Yadav sought adjournment on the ground of sickness of arguing counsel Sr. Advocate Shri jaisingh. The appeal was adjourned for two weeks. Thereafter it was listed on 3-4-2006, 4-4-2006, 5-4-2006, 7-4-2006, 13-4-2006, 21-4-2006, 28-4-2006 and on all these dates none appeared on behalf of the appellant and the appeal was adjourned. On 4-5-2006, 21-7-2006 and 11-8-2006 this appeal was listed for final hearing, but did not reach to board and adjourned. Again this appeal was listed for final hearing on 19-2-2007, 20-2-2007 and on these dates none appeared to argue the appeal. Today also no Advocate is present to represent the appellant. Therefore, in view of Supreme Court Judgments passed in case of Beni Singh v. State of U. P. (AIR 1996 SC 2439) : (1996 Cri LJ 3491)and Kishan Singh v. State of U. P. (1996 (9)SCC 372), this appeal is heard on merit. The respondent is represented by learned Dy. AG Shri G. Desai.

( 3 ) BRIEFLY stated the prosecution case as unfolded before the trial Court is that on 7-10-1991 in the evening at 6. 00 p. m. deceased/complainant Girdhari was returning back to his house with bundle of grass. He was intercepted near the well of one Patel by the appellant and appellant caused lathi blows on his left hand, right toe, right palm and on several parts of the body because of which Girdhari sustained number of injuries. The incident was witnessed by ratansingh and Surajsingh (PW 13 ). The deceased was assaulted by the appellant on account of previous ill-will. Deceased was taken to the police station, Khilchipur where deceased lodged the report recorded in rojnamcha sanha No. 258 by Head Constable rajmangal Singh (PW 18 ). D. S. Sharma (PW 17) Town Inspector registered the crime vide Ex. P. 12 under Ss. 323 and 506 of the I. P. C. Thereafter injured Girdhari was sent for medical examination and examined by Dr. S. K. Jain (PW 10 ). His MLC report is Ex. P. 6. Dr. Jain, after medical examination and primary treatment, referred the deceased for further treatment at District hospital, Rajgarh (Biaora ). In District hospital, Rajgarh, Girdhari died in the noon on 8-10-1991 at about 12'o clock. Dr. O. P. Tripathi (PW 12) sent message (Ex. P. 8) to police regarding death of deceased. On the basis of this report, morgue was registered and inquest proceeding was performed by police of P. S. Khilchipur. Dead body of deceased was sent for post-mortem examination and same was conducted by Dr. J. C. Gupta (PW 11 ). Post-mortem report is Ex. P. 7. Police also seized blood-stained and controlled earth from the spot. The appellant was arrested and on his memorandum statement one lathi was seized. Seized articles were sent for examination to FSL but its report was not filed before the trial Court. After necessary investigation, appellant was charge sheeted under Ss. 302 and 506 of the I. P. C.

( 4 ) THE appellant refuted the charges and his defence was that because of enmity he was falsely implicated. Appellant has not examined any witness in defence. The learned trial Court, after examination of the prosecution witnesses and hearing both the parties, found the appellant guilty of commission of murder of deceased Girdhari and convicted him as mentioned hereinabove.

( 5 ) WE have perused the entire record of the case and learned Dy. A. G. Shri Desai has assisted a