PANKAJ MITHAL, J.

1. Heard learned counsel for the parties.

2. Four persons namely Manja alias Amit Mishra, Jitendra Kumar Mishra @ Jittu, Gledwin alias Banti Isai and Ajay alias Ajayya were convicted to life imprisonment under Section 302 r/w 34 IPC with a fine of Rs.5000/- each, and in default of payment of Digitally signed by RAVI ARORA Date: 2024.01.05 18:09:13 IST Reason:

Signature Not Verified fine with a further rigorous imprisonment for six months in Sessions Trial Number 378 of 2007 vide judgment and order dated 15.09.2008 passed by the 13th Additional Session Judge (Fast Track), Jabalpur, M.P.

3. On appeals, i.e., Criminal Appeal No.2031 of 2008 preferred by Manja @ Amit Mishra and Jitendra Kumar Mishra @ Jittu together and Criminal Appeal No. 2237 of 2008 preferred by Gledwin @ Banti Isai and Ajay @ Ajayya together, the conviction and sentence awarded by the Session Trial was upheld and both the appeals were dismissed by the High Court.

4. It is in connection with the aforesaid Sessions trial and the conviction of the appellants under Section 302/34 IPC that the present appeals have been preferred one by Manja @ Amit Mishra and Jitendra Kumar Mishra @ Jittu and another by Gledwin @ Banti Isai and Ajay @ Ajayya. Both the appeals were tagged and leave to appeal was granted on 08.07.2011. During the pendency of the appeal, one of the appellants, namely, Manja @ Amit Mishra in Criminal Appeal No. 1348 of 2011 died. Therefore, the said appeal is being pressed only on behalf of the appellant- Jitendra Kumar Mishra @ Jittu.

5. The incident is of 08.06.2007 which probably took place around

08.45 pm in the night, in front of Machchu Hotel which is located near Shukla Hotel within the jurisdiction of Police Station Ghamapur, Jabalpur. In the said incident, one Pappu alias Rajendra Yadav had died. It is alleged that when he along with his friends Virendra Verma and Amit Jha was coming out of the Machchu Hotel, he was beaten and assaulted by all the four accused with knife and other weapons such as sickle and kesia.

6. The information of the alleged incident of beating and assaulting the deceased Pappu was given by one Virendra Kumar (PW-1) at about 09.00 PM to the brother of the deceased, i.e., Rajkumar Yadav and his mother Usha Rani Yadav. On receiving the said information, both Rajkumar Yadav and his mother rushed to the place of occurrence and found the deceased Pappu Yadav lying on road in a pool of blood. The mother of the deceased took the head of Pappu Yadav in her lap whereupon clothes were tied on his wounds by Rajkumar probably to stop bleeding. They took the deceased in a rickshaw to the Police Station Ghamapur. After Rajkumar Yadav (complainant) lodged the report (FIR exhibit P/2 at 09.30 PM), he took the deceased to the Victoria Hospital, Jabalpur for treatment where he was declared dead.

7. The prosecution is based upon the dying declaration of the deceased. The said dying declaration is in oral form. It was made by the deceased to his brother Rajkumar Yadav and mother Usha Rani Yadav who have reached the place of occurrence on being informed that the deceased was being beaten and assaulted by the accused persons near Machchu Hotel. The dying declaration as revealed by Rajkumar Yadav was made by the deceased on the asking of the mother as to what had happened? It is in response to the above query that the deceased stated that the Banti Isai, Manja, Ajay have assaulted him with knife, dagger and kasia respectively whereas Jittu caught both his hands. The above dying declaration is in the shape of an answer to the question asked by the mother of the deceased as to what had happened to him when she saw him lying on the road in a pool of blood.

8. The statement of the mother of the deceased PW-5 also contains a similar dying declaration of the deceased.

9. In addition to the above dying declaration, reliance has been placed upon the testimony of one of the eye witnesses, Rahul Yadav (PW-13). The said