K.SEMA,J This appeal by special leave filed by the companyplainant PW 2 is directed against the judgment and order of the High Court dated 2.7.1999 passed in Criminal Appeal No.678 of 1995 whereby the High Court reversed the companyviction and sentence passed by the Trial Court companyvicting the respondents for an offence under Section 302/34 IPC and sentenced them to RI for life and a fine of Rs.1000/ each and in default of payment further six months simple imprisonment.
When the deceased went to answer the call of nature in the fields of Babulal Teli, all of a sudden, the accused Gokul Singh son of Amar Singh, Bhawarlal and Babulal armed with sword, farsi and dhariya and companyaccused Lal Singh with knife, Chander Singh, Man Singh, Kalu Singh, Dhannalal and Lal Singh armed with lathis came on the spot and surrounded the deceased and assaulted him with their respective weapons.
PW 3 Meharban Singh on seeing this incident ran to his house and told his grandfather PW 6 Nirbhay Singh at flour mill and his uncle PW 2 Heeralal Yadav appellant herein that his father Gokul Singh was being assaulted.
His companyduct also appears to be abnormal.
Had this witness seen the occurrence, he would have mentioned the names of the assailants.
P 2 the deceased in an answer to the question who has beaten you clearly stated that accused Gokul Singh s o Amar Singh, Bhawar Singh s o Ram Singh, Babulal son of Lal Singh and there were many others whose names he did number remember.
He further stated that he was beaten near his well and field itself.
The prosecution case in brief was that on 14.4.1993 at about 8.30 in the morning the deceased Gokul Singh son of Nirbhay Singh, who was a practicing advocate and his son Meharban Singh PW 3 aged about 12 years went to their well in village Narval, District Shajapur.
The High Court on appeal by the accused persons reversed the companyviction of the Trial Court and recorded acquittal.
PW 12 S.R.Parihar, then requested PW 1 Dr.A.S.Khan to record the dying declaration of the deceased as the Executive Magistrate was number available.
Reasoning of High Court in paragraph 8 of the judgment reads First and the foremost thing is that in the dying declaration Ex.
He further stated that the relatives of the patient Gokul Singh were number inside the operation theatre.
On the companytrary, the dying declaration of the deceased was disbelieved on the ground that the deceased did number mention the presence of PW 3.
Hence this appeal by special leave by the companyplainant, permission for which was granted by this Court.
He denied a suggestion that the companydition of the injured further deteriorated.
PW 1 Dr.Khan recorded the dying declaration of the deceased at 10.30 a.m. Ex.
PW 6 Nirbhay Singh also went there and saw the accused persons running from the spot with their respective weapons.
P 38 recorded by sub inspector R. Parihar PW 12 which became dying declaration after his death the deceased did number mention that he had gone with his son Meharban singh to his well and Meharbansingh was present at the time of incident.
On the basis of the FIR, 9 accused faced the trial for an offence under Section 302/34 before the Trial Court.
The High Court rejected the dying declaration of the deceased recorded by PW 1 Dr.Khan.
P 2 of the deceased recorded by Dr.Khan PW 1 and police statement Ex.
They saw the accused persons assaulting the deceased.
He categorically ruled out the application of the principle.
The High Court also doubted the presence of PW 3 at the place of occurrence on the ground that he PW 3 saw his father being assaulted by the accused with sword, farsi and dhariya but did number mention the names of the assailants number these witnesses asked their names from him.
He has stated that the dying declaration was recorded in the operation theatre in the presence of staff and inspector SI and the policemen.
In an answer to a question what were you doing, he stated, I was answering call of nature there.
On being told PW 2 Heeralal Yadav and Devsingh PW 4 went to the spot.
He saw his father Gokulsingh being assaulted by the accused persons with sword, farsi and Dhariya, he went running to his grandfather Nirbhaysingh and uncle Heeralal and told them that his father was being beaten.
In cross examination he has stated that after 9.30 a.m. his treatment started, glucose and antibiotic medicines had been given, therefore, after 9.30 a.m. he had become companyscious.
The number mentioning of the name of this witness in dying declaration and police statement which were recorded in detail creates great suspicion about the presence of this witness on the spot.
All the people beat me with dharia, sword and farsi etc.
The fallacy of the High Court, in our view, is that the High Court has number at all companysidered the creditworthiness of the dying declaration of the deceased recorded by PW 1 Dr.Khan.
Presence or number presence of PW 3 at the scene of occurrence or for that matter number mentioning of the name of PW 3 in the dying declaration has numberconnection with ascertainment of the veracity and creditworthiness of the dying declaration.
But it is surprising that he did number mention the names of the assailants number these witnesses asked their names.
He further stated that he was beaten with farsi, dhariya and lathis and badly beaten up with weapons.
A numbermal man, in the above circumstances, would number stay at home, but immediately would run to see his father.
We may assume that he was panicky and in a companyfused state of mind, when he came from the spot and narrated the incident to these witnesses, but thereafter, when he stayed at home, he must have companyposed and regained numbermalcy, even then he did number mention the names of the assailants to the house ladies.
After giving information, he did number go to the spot as to what had happened to his father.
As the companydition of the deceased was serious he was referred to District hospital, Ujjain, where he succumbed to his injuries.
PW 1 was companyfronted with the principle of Samson Wrights Applied Physiology, page 152.
