- (1.) THIS criminal appeal is against the conviction and sentence dated 8.12.1982, passed by the IInd Additional Sessions Judge, Hamirpur (the ASJ) in session trial No. 172 of 1981, District Hamirpur. THE FACTS
(2.) AN incident happened on 23.11.1980 at 13:00 hours. In this incident Devi Deen (the Deceased) was injured. He lodged the FIR at 15:00 hours and thereafter died in the hospital at 18:15 hours. The FIR was registered as case crime No. 237 of 1980, under Section , and IPC, police station Kotwali Hamirpur, District Hamirpur. 4. The allegations in the FIR are as follows: The Deceased was coming towards his house along with his wife. They met Beta Maharaj, Rajesh (Appellant -1), Gaya Prasad alias Lallan (Appellant -2), Kallu (Appellant -4) (all armed with fire arms) and Ganga Ram (Appellant -3), Jagroop (Appellant -5) (armed with spears) (all are referred to as the Accused) when they reached near the hut of Babu Ram. Beta Maharaj exhorted that they have met the enemy and he should be killed. He fired a shot. Rajesh (Appellant -1) took spear from Jagroop (Appellant -5). He and Ganga Ram (Appellant -3) hit the Deceased with spears. The incident was also seen by Ram Sajeewan and Ram Ratan. 5. The police investigated the case and submitted the charge sheet. The case was committed to the session's Court and was numbered as 172 of 1981. 6. The ASJ framed charge on 28.11.1981. In the FIR six persons were named as accused. However, the charge was framed against five persons as Beta Maharaj had been murdered by that time. Rajesh (Appellant -1), Gaya Prasad (Appellant -2), Ganga Ram (Appellant -3), Kallu (Appellant -4), and Jagroop (Appellant -5) (all are collectively referred to as the Appellants) were charged under Section read with Sections and IPC. 7. Among others, the prosecution filed the following documents: FIR dated 23.11.1980 (Ex Ka -4); Written report dated 23.11.1980 (Ex Ka -3); Recovery memo of blood stained clothes, dated 24.11.1980 (Ex Ka -8); Recovery memo of blood stained & plain earth, 'Lathi & Juta', dated 24.11.1980 (Ex Ka -9); Injury report dated 23.11.1980 (Ex Ka -15); Postmortem Examination report dated 24.11.1980 (Ex Ka -14); Affidavit of Mehtab Singh (Ex Ka 2); Site plan with the index (Ex Ka -10). 8. The prosecution examined the following witnesses: Ram Sajiwan (PW -1): Eyewitness; Rambai (PW -2): Widow of the Deceased and an eyewitness; Jagdev (PW -3): Eyewitness; Ram Ratan (PW -4): Constable Clerk prepared the chick. Dr. VN Mehrotra (PW -5); The doctor who conducted the post -mortem. 9. The accused were examined under Section CrPC on 15.5.1982. They denied their involvement in the incident and stated that they have been implicated due to enmity. 10. Amongst others, the Appellants filed three documents: Copy of the report No. 24, dated 23.11.1980 (Ex Kha -1); Copy of judgment dated 2.9.1980, passed by Tehsildar, Hamirpur, in case Nos. 9 and 12 of 1979 -80, under Section 34/35 of the U.P. Land Revenue Act (Ex Kha -2); Injury report of Smt. Murti, dated 23.11.1980 (Ex Kha -3) 11. The appellants also examined one witness, namely, Kishori Lal (DW -1). He is a compounder in District Hospital, Hamirpur. He proved the injury report of one Smt. Murti (Ex.Kha -3). 12. The ASJ by his judgment dated 8.12.1982 convicted the appellants and sentenced them to; Two years rigorous imprisonment under Section IPC; and Imprisonment for life under Section read with Section IPC. Hence the present appeal. POINTS FOR DETERMINATION 13. We have heard Sri V.P. Srivastava, senior Advocate and Sri Lav Srivastava, Counsel for the Appellants and Sri A.K. Dwivedi, A.G.A. for the State. The following points are raised for determination: (i) Whether the FIR can be treated as a dying declaration; (ii) Whether the Appellants are guilty. 1st POINT: NOT A DYING DECLARATION. 14. In order to prove its case, the provision has produced five witnesses out of these three, namely, Ram Sajiwan (PW -1), Rambai (PW -2) and Jagdev (PW -3) are eyewitnesses and remaining are formal witnesses. 15. The case was investigated by Sri RD Pandey. He was not examined as a witnesses as he died before the evidence was recorded in the trial. The prosecution documents were proved by Ram Ratan (PW -4), who was the constable clerk and had prepared the chick. 16. The FIR has been lodged with a thumb impression of the Deceased. This FIR was scribed by Kailash Chandra Srivastava. The oral evidence in this regard is that after the Deceased was injured he was carried to house to Kailash Chandra Srivastava, who wrote down the FIR on dictation of Devi Deen and thereafter the same was lodged before the police station. 17. The Counsel for the Appellants submitted that: The Deceased was not in a position to speak; Kailash Chandra Srivastava, who wrote down the FIR has not been examined as a witness; This FIR cannot be treated as dying declaration. 18. There seems to be some substance in the submission of the Counsel for the Appellants. 19. Ram Ratan (PW 4) is the constable clerk. He prepared the chick. The FIR was not dictated to him. He had received a written FIR, containing the thumb impression of the Deceased. His statement is silent on the point, whether the Deceased was in a position to speak at the time of lodging of the FIR or not. 20. The ante -mortem injuries of the Deceased are as follows: Punctured would on left side of neck 3 1/2 cm. above the left sterno clavicular joint. Wound is quadrangular in shape. Each side is measuring 1 cm. x 10 cm. deep. Direction is from above downwards in the neck. Punctured wound, quadrangular in shape on right side of chest, each side is measuring 1/2 cm. x chest cavity deep, situated at 10 O'Clock position, 7 cm. from the nipple. Direction is above downwards. Punctured would quadrangular in shape, each side 1/2 cm in length x chest cavity deep just 1 cm. above the injury No. 2. Direction from above downwards. Punctured wound, quadrangular in shape each side is 1 cm. x 8 cm deep (under the skin) over the right arm in front, just above the axilla. Direction right to left horizontal to chest. 21. The internal examination in the postmortem report of the Deceased records, Trachea punctured on left side under the neck. Filled with blood. 22. Dr. VN Mehrotra (PW -5) conducted the postmortem. The court asked him question whether the Deceased could be conscious at that time when he was admitted in the hospital. He answered that the Deceased should be conscious but he could not speak as his trachea was full of blood. 23. Kailash Chandra Srivastava is an Advocate. He is said to be the scribe of the FIR. He was not examined. There is no explanation from the side of the prosecution as to why he was not examined. He was the best person to depose whether the Deceased could speak or not. 24. The aforesaid circumstances, create doubts in our mind whether the FIR was written on the dictation of the Deceased or not. However, this may not affect the merit of the case as there is oral evidence and the question whether the Appellants have committed the crime or not will depend on the credibility of that evidence. 2nd POINT: ALL ARE NOT GUILTY 25. According to the prosecution version the role of all Appellants, is not same. Appellants - 1 and 3 are assigned the role of hitting. It would be proper to consider their case first. Appellants 1 and 3 - Guilty. 26. Rambai (PW -2) is the widow of the Deceased. She deposed that: She along with the Deceased was going towards their house when the Accused met them; Beta Maharaj exhorted and fired a shot. However the shot did not hit the Deceased; The Deceased ran towards the hut of Babu Ram but was apprehended there and was hit by spear by Appellant Nos. 1 and 3; Appellant -1 had taken spear from Appellant -5. 27. Ram Sajiwan (PW -1) and Jagdev (PW -3) are other two eyewitnesses. They have deposed the same thing as Rambai (PW -2) and so far their presence is concerned they have deposed that they were working in the field of Ram Balak, where sun crops were sown. 28. The site plan is Ex Ka -10. The field of Ram Balak is next to the passage being taken by the Deceased and his widow. They could easily see the incident. 29. The oral evidence of the three eyewitnesses proves that: Beta Meharaj fired a shot and thereafter when the Deceased ran towards the hut of Babu Ram; Appellant -1 took the spear of Appellant -5. He and Appellant -3 hit the Deceased was by spear. 30. There is neither any material contradiction in their statement in this regard nor anything on record to disbelieve this part of their testimony. Their evidence clearly proves the involvement of Appellants -1 and 3 in the incident. 31. Dr. VN Mehrotra (PW 5) had conducted postmortem. He has deposed that the injuries were sufficient to kill the Deceased in the ordinary course of nature. These injuries were caused by Appellant Nos. 1 and 3 In our opinion prosecution has proved its case beyond reasonable doubt against Appellants 1 and 3 but same may not be said about the other Appellants. Appellants 2, 4 and 5 - Benefit of Doubt 32. Appellants 2, 4 and 5 are the three other accused in the case. Appellants 2 and 4 are said to be armed with fire arms. It is neither the prosecution case nor there is any evidence that they used their fire arms. 33. Appellant -5 is said to be armed with spear. There is neither any prosecution case nor any evidence that he used the spear. It has come in the oral evidence on behalf of the prosecution that the spear of the Appellant -5 was taken by Appellant -1 and used by him 34. There is no evidence that there was any premeditation to commit the crime or there was common intention or object to commit the crime. Appellant Nos. 2, 4 and 5 are said to be armed with weapons yet they did not use them. This creates doubts in our mind regarding their involvement in the crime. At least it shows that there was no common intention on their behalf to kill the Deceased. 35. It is equally possible that Appellant -5 might have refused to use the spear and it is for that reason, the spear was taken by Appellants and used in causing injuries to the Deceased. 36. There is no evidence on the record to show that there was any exhortation or overt act on part of Appellants 2, 4 and 5. Even, the FIR does not indicate it. This creates doubts in the mind of the Court regarding complicity of their involvement. 37. In our opinion the prosecution has not been able to prove its case beyond reasonable doubt against Appellant Nos. 2, 4 and 5. They are entitled to benefit of doubts. CONCLUSIONS 38. Our conclusions are as follows: The prosecution has not been able to prove its case beyond reasonable doubts against Gaya Prasad alias Lallan (Appellant -2), Kallu (Appellant -4) and Jagroop (Appellant -5); The prosecution has proved its case beyond reasonable doubt against Rajesh (Appellant -1) and Ganga Ram (Appellant -3). They are convicted under Section read with Section IPC. However, they are acquitted under Section IPC. Rajesh (Appellant 2) and Ganga Ram (Appellant 3) are sentenced to life imprisonment for life under Section read with Section IPC. 39. In view of our conclusions, the appeal against judgment dated 8.12.1982 in ST No. 172 of 1981, district Hamirpur is partly allowed: Lallan (Appellant 2), Kallu (Appellant -4) and Jagroop (Appellant -5) are given benefit of doubt. Their appeal is allowed. Their bail bonds are cancelled and sureties are discharged. They need not surrender; The appeal of Rajesh (Appellant -1) and Gaya Prasad (Appellant -3) is dismissed. Their bail is cancelled. They will be taken in custody to serve out their sentences.;