1. Accused Dursingh was prosecuted for an offeiiee under Section 302, IPC before the Sessions Judge, Ratlam who found him guilty under that section and sentenced him to transportation for life. Aggrieved by this decision, accused has preferred this appeal.
2. Prosecution case is that on 4-6-1952 a she-goat belonging to the accused was found missing. He thereupon set out in search of the same. He had with him a bow and arrows. He reached a place known as Guard Khodari. There he met deceased Bapu along with his two daughters, Bhimabai aged 12 and Basani younger than her. Bapu, it is said had gone that side in search of his own bullock which had strayed. Some talk took place between the accused and the deceased Bnri thereupon Beouned dischfireed about 5 to 7 arrows in succession against Bapu. He was seriously injured. In all. seven injuries were caused to the abdominal cavity and forearm, those on the abdominal cavity being serious. He was taken nome by his brother Gambhira and his sona Daryava.'First information was lodged by Gam-Jfcira on the same night (4-6-1952) at 10-30 P.M. Bapu was taken to Jobat hospital the next morning where he succumbed to his injuries at 4-30 p.m. en 5-6-1952. Prior to his death he Is said to have made a dying declaration which was recorded by the medical officer in charge of the Jobat dispensary. The said officer examined Bapu before his death and his dead body also was subjected to post mortem examination by him. The cause of death was stated to be peritonitis and haemorrhage due to injuries on the abdominal cavity which was punctured. On these facts the accused jkis prosecuted.
3. Prosecution evidence consisted of the statements of the eye-witnesses Bhimabai daughter of Hie deceased aged 12 and his son Daryava who were Hear the scene of the occurrence and his brother Gambhlra who arrived on. the scene of the occurrence on the cry being raised by Daryava, According to Bhimabai P. W. 6 accused Dursingh was concealing his presence in the Khodara (a narrow valley). He then put arrows to his bows and discharged them towards her father who was by the bank of the rivulet. One of the arrows directed against the stomach passed through and through and two arrows struck his right arm. Accused then made good his escape. She, oh seeing all this, raised a cry and Daryavsingh arrived first. He waa followed by Bapu's brother Gambhlra. In the cross-examination she stated that her uncle came on the scene after her brother and after his arrival raised a ery.
4. According to P. W. 7 Daryava, on hearing a cry of his sister that her father was being attacked he went there running and found Durslngh engaged in the act of discharging arrows. The witness asked him to desist from doing so but to spit of this, two arrows were discharged In his presence. Three more had been discharged earlier Dursingh then ran away. Gambhira then arrived on the scene. He pulled out the arrow. According to him Bapu had named Dursingh as the assailant then.
5. According to P. W. 2 Gambhlra, on hearing cry of Daryava he went to the scene of occurrence. The cry was for calling him for help as the accused and deceased were fighting. He found accused Dursingh there with a bow and arrows. Dursingh thereafter ran away. He found Bapu lying with an arrow having passed across his sides. Bapu then walked home. He told him that it was Dursingh who had discharged arrow at him. He then reported the matter to the police. He denied to have seen dead she-goat there. Thus according to all these three witnesses it was the accused who was responsible for discharging arrows which fatally injured deceased Bapu.
6. It is contended by Mr. Gokhale that all these witnesses are the relations of the deceased. This it no doubt true but there is no reason to think that their statements are -vitiated either due to inherent ring of falsehood in them or by other considerations which detract from the value of their testimony. The Wrned Sessions Judge who had the: opportunity of seeing them did not think It right to discard their testimony.
7. Besides the aforesaid evidence there is the statement of Bani widow of Bapu who speaks of the dry raised by her son immediately alter the incident. She had gone to the nearby well to fetch water. On hearing the cry she Went towards-the place of the Incident when she found her son' and brother-in-law bringing Bapu in a woundejt. condition with an arrow running across his sides/ She was informed then by them that it was Dursingh who had struck Bapu with arrows. Bapu was taken to Jobat hospital where he died, the next day.
8. The other piece of evidence put up on behalf of the prosecution is the dying declaration said to have been recorded by Dr. Natekar, Ex. P/2. It appears that Dr. Natekar who had examined the injuries and the dead body and had recorded the dying declaration of deceased Bapu was not examined In the Sessions Court, but, his statement in the Committing Magistrate's Cotjrt was included in the record of the Sessions Case under S. 509, Cr. P. C. This was proper so far. a, it referred to the injuries examined by him as. medical man. But so far as it related to the dying declaration he could only be treated, as' ah ordinary witness and before that piece of evidence could be taken to be proved, he ought to have been examined as a witness in the Sessions Court. This was evidently not done. In these circumstances this piece of evidence will have to be excluded from consideration. It Is held in - 'Nand Singh v. Emperor', AIR 1943 Lahore 101 (A), that deposition of a medical witness on non-medical matters cannot be transferred under S. 509, Cr. P. C.
9. The accused In his statement has denied the incident.
10. It is clear from the evidence indicated above and the statement of the accused that the> prosecution evidence consisting of the statements of Bhimabai, Daryava, Gambhira and Banibai stands uncontradicted and was taken by the-Sessions Judge to be worthy of belief. Therefore, even if we exclude the dying declaration Ex. P/2 from consideration, there is enough material to hold the accused guilty. The conclusion arrived at by the lower court as regards the guilt of the accused is correct and no interference in appeal is called for.
11. Mr. Gokhale wanted to contend that the-accused should be held guilty under S. 304, I. P. C, as it appears that there must have been a quarrel. The circumstances proved on record do not Justify that view.
12. The accused shot number of arrows. One at least has struck on a very vital part of the body. There are no grounds to apply exception 4 to S. 300, I. P. C. Sentence awarded is too proper.
13. The appeal therefore is dismissed.
14. I agree.