Judgment:
1. Heard the learned counsel for the appellants and the learned Public Prosecutor for the State, perused the record of the case and considered the judgment delivered by the learned lower Court. 15 persons including the six appellants were committed to the Court of District and Sessions Judge, Banswara for trial. They were charged under Sections 302, 147, 302/149 I.P.C.
2. On their pleading not guilty to the charges, the prosecution adduced evidence in support of its case, the statements of the accused under Section 313, Cr. P.C. were recorded, and in defence no witness was examined.
3. After hearing the parties, the learned District and Sessions Judge convicted Mohammad Indris, Heera, Velia alias Velji, Dhanji, Dungar and Bhurji under Section 302 read with Section 149, I.P.C. and sentenced them to imprisonment for life and to pay a fine of Rs. 50/- each and undergo rigorous imprisonment for one month in default of payment of fine. The appellants were also convicted under Section 147, I.P.C. and sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 1OO/- each and to undergo one month's rigorous imprisonment in default of payment of fine. The remaining 9 accused persons were acquitted of the charges framed under Sections 147 and 302/149, I.P.C. The State has not filed any appeal against the acquittal. Feeling aggrieved by the judgment of conviction as well as sentence the six appellants have come to this Court in appeal.
4. Learned counsel for the appellants has submitted that there is no evidence to connect the accused-appellants with the alleged crime except the oral dying declaration alleged to have been made by the deceased Heerji after a lapse of 9 hours to P.W. 2 Kanji, P.W. 3 Manji, P.W. 4 Chandana and P.W. 6 Maneg and other villagers who were collected at the place where the deceased was lying after the incident. It is submitted by the learned counsel for the appellants that the depositions of the above named prosecution witnesses which are to the effect that on enquiry the deceased told them that he was assaulted by the six appellants are not reliable because it was impossible for the deceased to have remained in conscious state after 9 hours in spite of the fact that he had a very serious injury on his brain, which in the opinion of Dr. Balwant Singh P.W. 10 who conducted the post-mortem examination of the deceased was, of such a nature that the injured could not have remained conscious for more than half an hour after receiving the injury. Therefore, it is submitted by the learned counsel for the appellants that the prosecution story about the making of the oral dying declaration by deceased Heerji is completely false and concocted as being improbable.
5. The learned Public Prosecutor has submitted that the learned Sessions Judge has preferred. to rely upon the statements of the prosecution witnesses and this was permissible and, therefore the decision given by the learned lower Court should be maintained.
6. We have carefully considered the rival arguments. The crucial question to be decided in this case is whether the testimony of the prosecution witnesses named above regarding the making of oral dying declaration by the deceased is or is not trustworthy. According to the testimony of Dr. Balwant Singh P.W. 10 the injury found on the head of the deceased was grievous and it was fatal and the deceased could not have remained conscious for more than half an hour after receiving the injury. We have gone through the statement of Dr. Balwant Singh P.W. 10. There is nothing in his cross-examination to suggest that the opinion which he has expressed is open to doubt. The learned lower Court has discarded the opinion given by Dr. Balwant Singh P.W. 10 on the sole ground that when the prosecution witnesses have deposed that a dying declaration was made in their presence, the opinion of the doctor does not matter. In our opinion, this approach of the learned lower Court is not justified.
7. It is true that the opinion of a doctor or other expert if its probability is of lesser degree can be ignored, if the prosecution witnesses are of sterling character or the version given by them is held to be proved. The reason for discarding the opinion of the doctor in such case is the fact proved by the trustworthy witnesses. But where the question is whether the prosecution witnesses are trustworthy or not. The Court cannot start with the presumption that their version is gosspel truth because it is for the purpose of scrutinising their statements the Court has to make an enquiry in all the attending circumstances. In other words, so long the Court does not come to the conclusion that the statements given by the witnesses are trust worthy, the opinion given by the doctor cannot be rejected on the ground that the witnesses have deposed contrary to the opinion given by the doctor. In such cases the Court has to look at the attending circumstances for the purpose of finding out whether the depositions made by the witnesses before the Court are reliable or not. In this case, the crucial question is whether the deceased Heerji made the alleged dying declaration before the prosecution witnesses named above. On the prosecution witnesses, namely, Chandana P.W. 4 has not supported the prosecution version. He has been declared hostile. Another witness Khema P.W.8 has deposed that in his presence the deceased Heerji did not talk to any one and that he was not speaking at all. In these circumstances what the prosecution witnesses have said cannot be taken as correct without enquiry.
8. The attending circumstances having a bearing on the credibility of the prosecution witnesses are the circumstances showing that the injured was grievously injured on the head and according to the testimony of Dr. Balwant Singh P.W. 10 he could not have remained conscious for more than half an hour. The incident is alleged to have taken place at 10 P.M. Therefore, if the testimony of Dr. Balwant Singh P.W. 10 is accepted to be correct then the deceased could not have remained conscious beyond 10.30 P.M. and in such an event it was impossible for him to have remained conscious up to 7 A. M. on the next day when the prosecution witnesses reached near him. Dr. Balwant Singh P.W. 10 is not an interested witness, he is a medical expert and ordinarily he can be presumed to have a fair amount of forensic knowledge and practical experience of dealing with the patients suffering from brain injuries or brain diseases and, therefore, his opinion cannot be discarded lightly.
9. It is true that the opinion given by the medical expert is not the last word and every fact on which the Court proposes to rely must be a fact which the Court believes to be existing and, therefore, the authority of the Court to form its own opinion cannot be doubted. But the authority of the Court is ajudicial one and whatever opinion the Court forms must be formed on some material which is admissible. We have seen the postmortem report carefully, considered the seriousness of the injury received by the deceased on his head and we are of the opinion that the statement given by Dr. Balwant Singh P.W. 10 that the deceased could not remain conscious for more than half an hour after receiving the injury cannot be discarded as untenable/The learned District and Sessions Judge certainly had the jurisdiction to discard the opinion of the doctor provided there was sufficient material before him to arrive at a different finding. In this case, there is no material on the record on the basis of which it may be said that the opinion given by Dr. Balwant Singh P.W. 10 is wrong or deserves to be discarded. We, therefore, hold that the opinion given by Dr. Balwant Singh P.W. 10 is reliable and, therefore, it can be used as a premise for evaluating the remaining evidence. The deceased could not have remained conscious for more than half an hour after the incident. Therefore it was not probable for him to have remained conscious upto 7 A.M. on the next day and, therefore, it was highly improbable that the alleged dying declaration was made by him to the prosecution witnesses.
10. For the reasons stated above, the entire prosecution evidence relating to dying declaration made by Heerji is unreliable must be discarded.
11. There is no other evidence to connect the accused-appellants (sic) that the injuries which ultimately resulted in the death of deceased Heerji. Therefore, the appellants are entitled to be acquitted.
12. Consequently we accept this appeal, set aside the verdict of conviction and sentence imposed on the appellants under Sections 147 and 302 read with Section 149, I.P.C. The appellants are on bail. Their bail bonds are hereby discharged. They need not surrender.