S. J.Hyder, J. - (1.) APPELLANTS Baijnath, Jagar Nath and Hari Nath alias Hari have been convicted by the Sessions Judge, Ghazipur for the offence punishable under Sec. 302/34 IPC. Each of them have been sentenced to undergo life imprisonment on that count. The appellants have now approached this Court by filing this criminal appeal.
(2.) THE prosecution case, shortly stated, is that one Thagga, resident of village Salarpur Police Station Karandai District Ghazipur, was married to one Smt.Jiria. A son named Sewak was born from this union. THEreafter Thagga died and Smt.Jiria was taken as a wife by Sohar, deceased in the instant case. This Sohar was also resident of village Salarpur. A son Hawaldar was born to Smt.Jiria from Sohar deceased. THE appellants are alleged to be collaterals of Thagga. THEy had got a joint house with Thagga in village Salarpur. One-half of the house was in possession of the appellants while Thagga in his life time was possessed of the remaining house. It is alleged that the appellants sold their half share of the house after the death of Thagga and migrated to village Maudhia. It is stated that three or four days before the occurrence which is said to have taken place in the night between second and third of June,, 1973 in a grove situated in village Salarpur, the appellants again returned to the village and they wanted to sell the remaining half of the house which belonged to Thagga. THEy had also expressed a desire to take Sevak son of Thagga with them. Sohar resisted this attempt on the part of the appellants and he even asked them to take money in respect of the half portion of the house which belonged to Thagga. It is then stated that Sohar was sleeping in a grove at the time of the occurrence which is said to have taken place at 1-00 a.m. He woke up on hearing some suspicious sounds. He flashed his torch and saw the three appellants armed with Gandasa and spears. Sohar raised an alarm but in the meanwhile he had been surrounded by the appellants who assaulted Sohar with their respective weapons. On hearing the cries of Sohar, Smt.Jiria and Ram Narain, brother-in-law of Sohar, also arrived at the scene of occurrence. However, before the arrival of the wttnesses, the appellants made good their escape. It is then stated by the prosecution that Sohar was carried to the police station Karandah by a number of persons on a Charpai. The above version of the incident was narrated by Sohar and was taken down by Head Constable Haridwar Rai (P. W. 4). Before the narration of events could be completed by Sohar, he breathed his last and died. The first information report was recorded by Haridwar Rai, Head Constable in the presence of Nagina Prasad Singh, S. I. (PW 5). The dictation of the first information report was then stopped and a note was affixed at the end of the first information report stating the fact that Sohar had died on the charpai on which he had been brought in the presence of the witnesses who had brought him from village Salarpur. It was further stated that the first information report had been recorded in the presence of those witnesses and the statement recorded in the first information report had been read over to them. Below this note are the signatures of Gopal Kohri son of Gauri Deen Dayal son of Lachhmar Sunder Yadav son of Dal Bhanjan, Hari Shanker son of Sheo Chandra, Satya Narain son of Gyan, Chhakaudi son of Ram Das and Ram Narain son of Sukh Nandan. From what has been stated above, it follows that there was no direct or circumstantial evidence to connect the appellants with the commission of the offence with which they were charged except the alleged dying declaration contained in the first information report. In order to prove its case, the prosecution examined Deen Dayal (PW 1) and Ram Narain (PW 2) who are alleged to be the attesting witnesses of the first information report. It may be stated that Deen Dayal is no other but Dayal son of Lachhman mentioned above. Sri Haridwar Rai, Head Constable (PW 4) and Nagina Prasad Singh, SI (PW 5) were examined to prove the alleged dying declaration. Dr. C. B. Singh who conducted the autopsy on the dead body of Sohar has been examined as PW 6.
(3.) THE Sessions Judge has come to the conclusion that the alleged dying declaration contained in the first information report was sufficient to fasten the guilt on the appellants under section 302/384 IPC. It is in this view of the matter that he has recorded the order of conviction and sentence, as stated above. THE correctness of the view of the Sessions Judge has been strongly assailed before us. It may be stated that after the death of Sohar, Nagina Prasad Singh SI (PW 5) conducted the inquest on the dead body of Sohar at the police station itself. He thereafter sent the dead body for autopsy. THE postmortem on the dead body was conducted by Dr. C. B. Singh on 7-6-1973 at 3-00 P. M. at Ghazipur. We shall state a little later the nature of the injuries sustained by the deceased. At this stage, we may point out that the investigating officer visited village Salarpur and prepared a site plan of the grove in which Sohar is said to have been done to death. He made certain recoveries from the grove which did not include the torch with the light of which the appellants are said to have been identified by Sohar. Deen Dayal (PW 1) and Ram Narain (PW 2) did not support the prosecution case and turned hostile. They categorically stated before the Sessions Judge that no first information report had been dictated by Sohar at the Police Station in their presence. According to them, their signatures were obtained by the Investigation Officer subsequently. The persons, in whose presence the FIR is said to have been dictated by Sohar includes among other these two witnesses. Moreover, Ram Narain is the own brother-in-law of the deceased and yet he is not prepared to support the prosecution case. Further, the prosecution has made no attempt to examine any other witness who is alleged to have signed the first information report in proof of the alleged dying declaration. There is thus no evidence before us about the alleged dying declaration except the statement of Haridwar Rai Head Constable and Nagina Prasad Singh,, SI. The question which falls for consideration is whether in these circumstances it would be safe to base the conviction of the appellants on the alleged dying declaration.;