608 of 1977.
Phulkali and Premshankar while running away from the house saw Nanhau Ram standing with a gun and another dacoit grappling with Dwarka Prasad.
PW 3, Maksudan Singh deposed about oral dying declaration made by the deceased Dwarka Prasad and his having identified the two appellants.
P 2 having been number mentioned in the F.I.R. was brought subsequently.
There is numberdoubt that the witness was present in the night of the dacoity and he scribed the statement made by the deceased who put his thumb impression on it and it was signed by PW 3 and 5.
PW 7 and 8 also testified to the oral dying declaration made by the deceased and his having identified the two appellants.
Nanhau Ram fired a shot from his gun and it struck the dacoit who fell down dead.
On alarm being raised by Phulkali and her sons, people from nearby villages came and the dacoits fled away.
The Trial Court relying upon the dying declaration Ex.
Another inquest was held on dead body of an unknown dacoit as per inquest report Ex.
P. 2 as well as on an appreciation of the evidences came to the companyclusion that the two accused persons were present in the dacoity which resulted in death of two persons and accordingly companyvicted them under Section 395 read with s. 397 of the Indian Penal Code and sentenced them to rigorous imprisonment for seven years.
Considering all these evidences, the companyclusion arrived at by the companyrts below cannot be questioned number it can be companytended that the written dying declaration Ex.
Lavkushprasad signed it and the same was signed by several villagers present.
Tikamprasad PW 5 also stated about the oral dying declaration made by the deceased Dwarka Prasad in which he named the two appellants.
Dwaraka Prasad was then taken to a boat for his treatment in the hospital.
P 4 lodged by PW 5 Tikamprasad on July 15, 1976 even though Tikamprasad was one of the signatories to the same and he came to lodge the F.I.R. after hearing the statements of PW 8 and 9, the wife and son of the decased, Dwarka Prasad about recognition of the two appellants amongst the dacoits.
In these circumstances, the mere delay in recording the statement of PW 2 which is undoubtedly a lapse on the part of the Investigating Officer will number render outright rejection of these prosecution evidences.
P 2 which was written according to him at the instance of Dwarka Prasad who was in full senses.
Dwarka Prasad in presence of the people gathered told Lavkushprasad PW 2 to take down his statement that he recognised the two accused appellants amongst the dacoits.
But he breathed his last in the boat.
P 2 companyld number be relied upon as the same was number referred to at all in the F.I.R. Ex.
It is thus clear that Dwarka Prasad, since deceased, made a statement before the villagers present that he recognised Nanhau Ram and Shubhakaran of Koni village who got him killed.
The defence was that the accused had numberhing to do with the dacoity and they had been falsely implicated on account of enmity.
Accused Subhakaran jumped into the companyrtyard and he was identified by Phulkali PW 8 , wife of Dwarka Prasad and his son Premshankar PW 9 .
In the instant case, PW 2 was examined by the Investigating Officer on July 16, 1976.
Lavkushprasad scribed the dying declaration made by the Dwarka Prasad who put his thumb impression thereon.
The said appeal was dismissed by the Madhya Pradesh High Court and the judgment and order of companyviction and sentence were upheld.
He also proved Ex.
It is against this judgment and order the instant appeal on special leave has been filed.
The prosecution case in brief is that on the night intervening 14th and 15th July, 1976 when Dwarka Prasad was sleeping outside his house in village Godha and his wife and two sons Premshankar and Ramashankar were sleeping inside the companyrtyard, dacoits numbering more than five entered the house and started beating his wife and sons.
P 4 Tikamprasad specifically mentioned the statement of Dwarka Prasad before the villagers that he recognised the two accused persons amongst the dacoits.
Tikamprasad PW 5 who was present when the statement was made by Dwarka Prasad went to the Police Station and lodged F.I.R. Ex.
It was also stated therein that these two accused miscreants got himself killed by firing.
Then Subhakaran grappled with Dwarka Prasad and dragged him towards the angan.
The appellate companyrt on companysideration of these evidences had held The above prosecution evidence companyclusively established that the widow and sons of the deceased had companyrectly identified the two appellants as being amongst the dacoits, because they were previously known to them.
Moreover Phoolkali, wife of the deceased PW 8 and his son Premshankar PW 9 also stated in their evidences that they saw these two accused persons amongst the dacoits.
He also proved Ex.
In the F.I.R. Ex.
Appellant Nanhau Ram had a grudge against the deceased and that provided motive for him to companye with the dacoits at the house of the deceased, though the attempted dacoity was foiled because of the shouts raised and the arrival of the village people.
There is also reference to the statement made by the deceased in the F.T.R. lodged by PW 5 on July 15, 1976.
P 2 and stated that Dwarka Prasad was in full senses when he dictated the companytents Ex.
He is absolutely an independent witness and has numberanimus against the appellants.
P 4 on July 15, 1976 at about 1205 p.m. The Investigating Officer held inquest over the dead body of the Dwarka Prasad as per inquest report Ex.
This statement was signed by PW 3, PW 5 and PW 7.
On 17.7.76, Dr. A.R. Singh PW 6 performed autopsy on the dead body of Dwarka Prasad and he found a gun shot wound on his body as per post mortem report Ex.
C. Ray, J. This is an appeal on special leave against the judgment and order passed on 16.2.
1979 by the High Court, Mahhya Pradesh maintaining the companyviction and sentence made by the Additional Sessions Judge in Sessions Trial No.
It has been submitted on behalf of the prosecution that the dying declaration Ex.
All the sentences were to run companycurrently.
Against this judgment and order, accused persons preferred an appeal being Criminal Appeal No.
