LODHA, J. -
(1.)THE Appellants Dhania, Kania and Kojia have been convicted under sec. 302 read with sec. 34, Indian Penal Code, and sentenced to imprisonment for life by the learned Additional Sessions Judge, Jalore by his judgment dated 19 11-1965.
(2.)DHANIA and Kania are brothers and Kojia is their cousin. All the three of them used to reside at the house of one Mangla in village Karada. DHANIA was married to Mangla's daughter and his brother Kana was engaged with another daughter of Mangla. The third accused Kojia is also said to be related to Mangla. Another daughter of Mangla named Anchi (P. W. 2) was married to one Chimna Ram (PW. 1 ). Chimnaram and his father Kachabaram also used to reside in the house of Manglaram. The prosecution story is that a day before the occurrence which took place on 8-10-1964, Kachabaram told all the three accused persons that the former always used to fetch water from the well single handed though it was consumed by all. This led to exchange of hot words between Kachabaram on the one hand and the three accused on the other. Kachabaram warned the accused that he would not allow them to use the water brought by him and that they should bring the water for their own consumption. On the day of occurrence i. e. 9th October, 1964 P. W. 1 Chimnaram went to Jav Singh's field for cutting the 'bajra' crop as he had also share in it. In the after-noon Sukha (P. W. 5) a boy of 8 years, who is the son of Manglaram came to Chimnaram and informed him that the accused Dhannaram, Kanaram and Koja were beating Kachabaram with lathis. On receiving this information Chimnaram went directly to the Police Outpost, Karada and lodged a verbal report which is alleged to have been written down by the Police Munshi but no copy of the report has been filed. The Police Munshi at the Outpost sent Ramlal Police constable with Chimnaram to ascertain the situation. Chimnaram accompanied by Ramlal went to Manglaram's Dhani where his father Kachabaram was lying in an injured condition. A large number of injuries were found on the person of Kachabaram and he was profusely bleeding. The prosecution case further is that Kachabaram then made a dying declaration in the presence of Chimnaram, Police constable Ramlal, Manglaram and Manglaram's wife Rukma (P. W. 3) and stated that the accused Dhannaram, Kanaram and Koja Ram had given him beating with lathis. After some time Kachabaram became unconscious and was taken in a bullock cart to Raniwara Police Station. But on the way between Manglaram's Dhani and Karada village Kachabaram expired. Chimnaram lodged a first information report at the Police Station, Raniwara, which was reduced into writing by the Station House Officer Shri Amar Singh (P. W. 18 ). This report has been marked Ex. P. 15. A. It was signed by Chimnaram. The Station House Officer registered a case under sec. 302, Indian Penal Code and proceeded to the place of occurrence to carry out the necessary investigation. He arrested the accused Kana on 9-10-1964 and Dhannaram and Koja on 10th October, 1964. On the information supplied by the accused thier lathis were also recovered. After completing the necessary investigation the accused were challaned in the Court of Munsiff Magistrate, First Class, Bhinmal who committed the accused for trial under sec. 302, Indian Penal Code.
At the trial the prosecution examined eighteen witnesses in all. All the accused denied having committed the offence, and examined one witness D. W. 1 Hamira in defence.
The evidence produced against the accused by the prosecution can be conveniently divided under the following five heads: I. Direct] evidence. II. Evidence regarding extrajudicial confession made by the accused. III. Recovery of lathis at the instance of the accused. IV. Accused having been seen armed with lathis just before the occurrence. V. Dying Declaration made by the deceased Kachabaram.
We would, now, take up the most important evidence regarding the dying declarations alleged to have been made by deceased Kachabaram. The deceased Kachabaram is alleged to have disclosed the names of his assailants on two occasions. The first statement is alleged to have been made by him in the presence of P. W. 6 Bhagwana, and P. W. 8 Faglu. PW. 6 Bhagwana, states that he asked Kachabaram as to who had beaten the latter and thereupon Kachabaram replied that Dhanna, Kana and Koja had beaten him. Learned counsel for the accused has argued that this witness in the first instance tried to give direct evidence of having seen the alleged beating himself and therefore stated that when he heard the cry of Kachaba-Ram, he went running towards him and saw Dhanna, Kana and Koja beating the deceased and also saw the accused running away when he was at a distance of about 20 to 30 paundas from the place of occurrence. He definitely states that he had seen all the three accused giving beating with lathis to Kachabaram and that he has been knowing these accused for the last 4 or 5 years. A little later the witness admitted that he could not identify the accused. At the request of the Public Prosecutor the witness was permitted to be cross-examined by him. From this the learned counsel argues that the witness is unreliable. If he had really seen the accused actually beating the deceased, then there was no occasion for him to enquire from Kachabaram the names of his assailants. In case the witness had not seen the accused and could not identify them, the witness is certainly a liar inasmuch as he had the audacity to become an eye witness to the alleged beating when he had not actually seen it, and, therefore, it is argued, that this witness in any case is not worthy of belief. Another argument advanced by the learned counsel in respect of this witness is that this witness had not said a word about the dying declaration in his statement under sec. 164, Criminal Procedure Code, which was recorded on 24-10-1964 by the Munsiff Magistrate, Sanchore and it was only later on that he became a witness for the alleged dying declaration. In our opinion, the criticism advanced against this witness is not without force. He seems to be running with the hare and hunting with the hound. He has no regard for truth and we threfore reject his testimony.
Then we come to P. W. 8 Faglu. Faglu too states that he heard the cries of Kachabaram whreupon he went towards the place of occurrence, where he found Kachabaram lying on the ground and Bhagwana was standing nearby. He deposes that the assailants had left the place before he reached there. Kachabaram thereafter said that Dhaniya, Kaniya and Kojiya had given beating to him. In his police statement Ex. P. 5 this witness had stated that he had seen all the three accused giving beating to the deceased Kachabaram and all the three accused were crying that Kachabaram should be done to death. He further states that it was with great difficulty that he and Bhagwana rescued Kachabaram from the accused.
When confronted with the police statement the witness stated that he had made that sort of statement before the police due to fear of the police. He also admitted that he did not know the accused who were present in the Court. During the cross-examination by the defence counsel the witness also admitted that he did not remember the actual words which Kachabaram spoke. The witness also states that Kachabaram had disclosed the names of his assailants of his own accord. As against this it may be recalled that P. W. 6 Bhagwana stated that he had enquired the names of the assailants from Kachabaram. P. W. 8. Faglu also admits that he had not stated a word about the dying declaration in his statement recorded under sec. 164, Criminal Procedure Code. In our opinion the evidence of this witness is also not at all reliable for the same reasons as we have stated above while rejecting the testinomy of P. W. 16 Bhagwana.
Two more witnesses Peera Ram (P. W. 6) and Ratna (P. W. 9) are alleged to have reached the spot soon after Bhagwana and Faglu are said to have come to the place of occurrence. These two witnesses Peera Ram and Ratna have not at all supported the theory of dying declaration put forth by the witnesses Bhagwana and Faglu. In this view of the matter we are not prepared to place any reliance on the evidence regarding the first dying declaration alleged to have been made by the deceased Kachabaram in the presence of Bhagwana and Faglu.
Then, the prosecution case is that after Kachabaram had been brought to the Dhani of Mangla he again made a dying declaration in the presence of P. W. 1 Chimnaram P. W. 14 Ramlal-Police Constable, P. W. 3 Rukma wife of Mangla and Mangla. Mangla has not been produced in evidence.
P. W. 3 Rukma states that Kachabaram was unconscious when he was brought to her Dhani and was not in a position to speak. According to her Kachabaram did not disclose the names of his assailants in the dying "declaration. Thus this witness does not support the prosecution case regarding the alleged second dying declaration. We are then left with the statements of P. W. 1 Chimnaram and P. W. 4 Ramlal. P. W. 1 Chimnaram states that be came to know from his brother-in-law Sukhram that Dhannaram, Kanaram, and Koja had beaten his father with lathis, and upon getting this information he directly went to the police out post, Karada from where the Munshi sent the Police Constable Ramlalwith him. His version is that he and Ramlal came to the Dhani where his father was lying in an injured condition. His father, who was in senses, told him that Dhannaram, Kanaram and Kojararn had beaten him up with lathis and that Faglu, Bhagwana and Ratna had brought him to the Dhani on a cot. In the cross-examination the witness admits that the names of the assailants were disclosed by his father of his own accord and that his father had remained in a conscious state of mind for about an hour after disclosing the names of his assailants. He also states that his father-in-law Manglaram, Mst. Rukma, wife of Mangla, his wife Mst. Anchi and Police Constable Ramlal were present when his father disclosed the names of his assailants. As already stated above, Manglaram has not been produced in evidence and Mst. Rukma has not supported the prosecution case, so also Mst. Anchi (P. W. 2), wife of Chimnaram too has not supported the prosecution case regarding this dying declaration. The other witness to this dying declaration is P. W. 14 Ramlal-Police Constable. He has no dont, stated that when he went with Chimnaram to Mangla's Dhani, Kachabaram was conscious and on his asking Kachabaram said that the accused Dhaniya, Kojiya, and Kaniya had beaten him with lathis. In cross-examination this witness stated that he also enquired the names of the assailants from Mangla & Mangla's wife after Kachabaram had disclosed the names of the assailants to him, even though Mangla and Mangla's wife were sitting nearby when he had a talk with Kachabaram.
We may state here that we are not impressed by the statement of Chimnaram, firstly because his conduct is very unnatural. We cannot believe that having received the information from Sukhram about the alleged beating given to his father he ran straight to the police out post, Karda instead of going to the place of occurrence to look after the victim. He states that he lodged a verbal report at the Police Outpost, Karda which was reduced into writing by the Head Constable of Police. That report has not been placed before us and on enquiries from the learned Deputy Government Advocate we have been told that there is no record of such a report alleged to have been lodged at the Police Outpost Karada. Chimnaram states that his father disclosed the names of his assailants of his own accord whereas Ramlal says that it was as a result of an enquiry made by him that Kachabaram disclosed the names of the assailants. We are also not able to understand why Ramlal made enquiries as to the names of the assailants from Mangla and Mangla's wife after he had a talk in this respect with the deceased Kachabaram specially when Mangla and Mangla's wife were also sitting near Kachabaram when he disclosed the names of his assailants. Ramlal-Police Constable is a Bishnoi and belongs to the same caste to which the accused and the deceased belong and is a resident of village Dedwa in Tehsil Sanchore that is the same part of the country from which the parties came viz. Tehsil Bhinmal. Although no relationship or interestedness of Ramlal with any of the parties has been brought out; one thing is there and this is that he cannot be said to be an altogether stranger to the parties. Be that as it may, the only independent evidence regarding the second dying declaration if at all it can be called independent, is that of Ramlal. In this connection it may be relevant here to refer to the medical evidence. It is clear from the post-mortem report Ex. P. 15 and the statement of P. W. 17 Dr. Swaroop Chand that the deceased had as many as 20 injuries some of which were on the vital parts of the body such as chest, abdomen etc. There were a large number of fractures also such as fracture of 8th, 9th, 10th right ribs, fracture of 9th and 10th left ribs, fracture of right clavical, fracture of scapula, fracture of right humerus etc. The doctor has stated that there was possibility of immediate death of the victim. Learned counsel for the accused has argued that there were very little chances of the victim having remained conscious so as to be in a position to make a dying declaration after receiving a large number of injuries which were found on his body. He has also submitted that the Court cannot be sure as to what the statement of the deadman actually was, because the statement is alleged to have been made in Bishnoi dialect especially when the statement had not even been put into writing. It has also been urged that the Court has to be certain about the identity of the person named in the dying declaration specially so when there is more than one accused named in the dying declaration. The learned counsel has further argued that the deceased was 60 years old and the probabilities are that he may have immediately become unconscious on receiving the injuries. He has submitted that all other evidence relied upon by the prosecution for bringing home the guilt to the accused including the evidence of the eye witnesses has been found to be unreliable and in these circumstances the evidence regarding the dying declaration cannot be considered a sure foundation for maintaining the conviction.
On the other hand Dr. Tiwari, Deputy Government Advocate has argued that the evidence regarding the dying declaration given by P. W. 1 Chimnaram and P. W. 14 Ramlal contains the truthful version as to the circumstances of the death of the deceased Kachabaram and the assailants and the victim and therefore there is no need of further corroboration and it would be perfectly safe to make the dying declaration the basis of conviction even without corroboration. We have given due consideration to the contentions raised by the learned counsel for the appellants as well as the learned Deputy Government Advocate. The law regarding the evidentiary value of dying declaration, it appears to us is well settled by a series of judgments of the Supreme Court. In Ram Nath Madhoprasad vs. State of Madhya Pradesh (1) it was observed that - "it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. " These observations of their Lordships of the Supreme Court came to be considered in a later case, Khushal Rao vs. State of Bombay (2), wherein it was observed that the observations quoted above in the case of Ramnath Madhoprasad vs. State of Madhya Pradesh (1) are in the nature of obiter dicta and after making an exhaustive survey of the law on the subject their Lordships were pleased to observe as follows: - "it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. . . . . . . It was further observed, "in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailant of the victim, there is no question of further corroboration. If on the other hand, the court after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities. " The aforesaid two cases again came to be considered in Harbans Singh vs. State of Punjab (3) and their Lordships were pleased to observe as follows:- - "it is neither a rule of law nor of prudence that adying declaration requires to be corroborated by other evidence before a conviction can be based thereon. The evidence furnished by the dying declaration must be considered by the Judge, just as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of dying declarations which do not arise in the case of assessing the value of a statement made in court by a person claiming to be a witness of the occurrence. In the first place, the Court has to make sure as to what the statement of the dead man actually was. This itself is often a difficult task, specially where the statement had not been into put writing. In the second place, the Court has to be certain about the identity of the persons named in the dying declarations a difficulty which does not arise where a person gives his deposition in Court and identifies the person who is present in court as the person whom he has named. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence but from the fact that the court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities as may be disclosed in evidence in the case. " In Thurukanni Pomplah vs. State of Mysore (4) their Lordships of the Supreme Court laid down the law regarding evidentiary value of dying declaration as follows: - "a dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the court must be satisfied that the declaration is truthful. The reliability of the declaration should be subject to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. " In the above noted case Thurukanni vs. State of Mysore (4) their Lordships found that a material and intergral portion of the deceased's version of the entire occurrence was unreliable and the truthfulness of the dying declaration as a whole was not free from doubt. The eye witnesses produced by the prosecution had been also found; to be unreliable. Thus considering all the circumstances of the case their Lordships were of the view that the dying declarations suffered from an infirmity and were not reliable by themselves and could not safely form the basis of the conviction of the accused without further corroboration which was not forthcoming in the case.
Thus there is no doubt that the conviction can be based on uncorroborated evidence regarding dying declaration provided it is found to be truthful. In this case the evidence regarding the first dying declaration alleged to have been made in the presence of Bhagwana and Faglu is, in our opinion, wholly unreliable and is to be rejected outright. Coming to the second dying declaration deposed to by PW. 1 Chimnaram and P. W. 14 Ramlal we are of the view that Chimnaram's evidence as whole has not appealed to us to be truthful, and we are thus left with the lone statement of Ramlal regarding the second dying declaration. We are not inclined to place implicit faith on his testimony either. The dying declaration is not a written one. From the way in which Ramlal has signed his statement we think that Ramlal could have reduced the dying declaration in to writing and at any rate there was admittedly a Sarpanch living in the village and it was possible for these witnesses to have called the Sarpanch or some other literate person and to have got the dying declaration reduced in to writing. Besides that, Ramlal, it is admitted by the learned Deputy Government Advocate was not examined under sec. 161, Criminal Procedure Code, during the course of investigation. He is also contradicted by Chimnaram on the point whether it was on his asking that Kachabaram made this dying declaration or as stated by Chimnaram he made it of his own accord. Then, as already stated above, we also fail, to understand why Ramlal made enquiries from Mangla and Mangla's wife about the assailants of the victim when he himself had heard the dying declaration in the presence of Mangla and Mangla's wife. There are three accused in the present case. The alleged dying declaration does not disclose the part played by each of the accused, nor it contains any details how the occurrence took place. We fail to understand why the dying declaration consisted merely of one sentence viz. that the three accused had beaten the victim, specially when the victim is said to be in conscious state for about two hours even after he had made the dying declaration. The number of injuries found on the person of the deceased and the evidence of the doctor also lead one to suspect whether the deceased could have remained conscious for 2 to 3 hours after having received such multiple injuries on the vital parts of his body. It is no doubt true that the evidence furnished by the dying declaration must be considered just like the evidence of any witness but we find that there are certain inherent weaknesses in this dying declaration as mentioned above, and the truthfulness of the dying declaration as a whole is not free from doubt. All other evidence produced by the prosecution including that of eye witnesses has been found to be unreliable and after subjecting the dying declaration to a very close scrutiny and keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination, we are not inclined to place reliance on this dying declaration either. Considering all the circumstances of the case, we think that it would not be safe to base conviction of the appellants on the dying declarations which we think suffer from infirmity and are not reliable by themselves, without further corroboration. No such corroboration is forth-coming in this case. Learned Deputy Government Advocate has argued that the accused had a motive for committing the crime as only a day before the occurrence the deceased quarrelled with the accused and warned them that they should not use the water brought by him. In our opinion, this could hardly be a motive for committing the murder of Kachabaram and even if it be so, a possible motive of the murder cannot be treated as corroboration of the dying declaration. In all these circumstances the appellants should be given benefit of doubt and acquitted.
(3.)IN the result, the appeal is allowed, convictions and sentences of the appellants are set aside and they are acquitted. We direct that the appellants be set at liberty forthwith, if not required in connection with any other case. .