M. C. Jain, J. - (1.) -Two respondents Ramesh and his son Suresh together with one Lakshi alias Lakshman (also son of Ramesh) were tried before the learned trial Judge for the murder of one Sohan Lal. All the three were acquitted by the impugned judgment dated 30.9.1988, passed by Sri Prakash Chandra, the then Special Judge, Mathura. The State has come up in appeal against two of them Ramesh and his son Suresh.
(2.) THE incident allegedly took place on 22.11.1986 at about 7.45 p.m. near the chak of one Jayanti situated in village Naya Bas, P.S. Raya, District Mathura. THE report was lodged by deceased's son Hari Gopal P.W. 1, the same night at 8.40 p.m. THE parties were residents of the same village and the relations of the deceased with the accused Lakshi alias Lakshman were alleged to be strained. On the fateful day and time the deceased Sohan Lal after closing his shop situated at tri-junction (tiraha) of Kumha on Hathras Road was returning to his home. When he reached near the chak of one Jayanti at about 7.45 p.m. in village Naya Bas, he was surrounded by the three abovenamed accused and two others. Ramesh was armed with an axe,. Suresh and Lakshman each had pharsa and the two unknown others were armed with country-made pistols. THE axe and pharsa bearing assailants assaulted Sohan Lal by their respective weapons causing injuries on various parts of his body. He raised alarm which attracted Hari Gopal P.W. 1, Bhik Chand P.W. 2 and Suresh Chand son of Kali Charan P.W. 3 who were working at that time in their fields and few others. Unknown culprits armed with country-made pistols fired shots towards Hari Gopal and others to scare them away. THE assailants then made their escape good. Hari Gopal P.W. 1 then arranged a cot and took his injured father Sohan Lal to the police station accompanied by Bhik Chand P.W. 2, Suresh Chand P.W. 3 and others. THE F.I.R. was got written by him in the way. On the lodging of the F.I.R., a case was registered. However, the victim died before any medical aid could be given to him and was declared as 'brought dead' in hospital where he was taken from the police station. THE investigation was conducted by Gautam Singh P.W. 7 who also professed to have recorded his dying declaration before sending him for medical examination and treatment. Apart from formal witnesses, the eye-witnesses were Hari Gopal P.W. 1, Bhik Chand P.W. 2 and Suresh Chand P.W. 3. Post mortem was conducted over the dead body of the deceased by Dr. P. P. Pathak, P.W. 4 on 24.11.1986 at 2.45 p.m. The prosecution evidence did not commend itself to the learned trial Judge who recorded acquittal. All the accused denied to have committed any offence and ascribed their false implication due to enmity. Accused, respondent Suresh was a constable and also took the plea of alibi that on the date and time of the alleged occurrence he was present at the residence of one Bangali Singh, M.L.A. from Sasani Constituency of Aligarh in village Ladpur within police station Hathras Junction in connection with his security duties. Certain defence witnesses were also examined in support of the plea of alibi.
(3.) WE have heard Sri S. K. Paul, learned A.G.A. and Sri A. B. L. Gaur learned counsel for the complainant in support of the appeal. Sri Rajul Bhargava has been heard from the side of respondents in opposition. WE have also carefully gone through the record of the case which has been summoned before us. We are of the firm opinion that there are two most formidable reasons which justify the finding of acquittal. The prosecution relied upon two types of evidence in support of its case. The first was the so called dying declaration of the deceased recorded by the Investigating Officer at the police station before he was sent for medical examination and treatment after lodging of the F.I.R. by his son. Indeed, it is of great importance to find out as to whether the deceased was in fit mental state and was capable to make the dying declaration. It would be profitable to relate below the ante-mortem injuries found on his person at the time of his post-mortem which are as under : "(1) Incised wound 4 cm. 1 cm. muscle deep on medial side of left lower leg obliquely placed. (2) Incised wound of size 9 cm. 5 cm. bone deep on left leg. upper part of bone cut underneath. (3) Abrasion 2 cm. 1 cm. on the back of left side chest upper part. (4) Abrasion 1 cm. 1 cm. on the left side of chest, 2 cm. below injury No. 3. (5) Lacerated wound 5 cm. 2 cm. bone deep on right side (lateral) of right eye-brow. (6) Incised wound 3 cm. 1.5 cm. cartilage on the top of nose, bone cut underneath. (7) Multiple abrasion in an area of 15 cm. 3 cm. from top of shoulder to lateral side of middle of chest right side, size 1 cm. 1 cm. .5 cm. (8) Multiple abrasion 12 cm. 6 cm. on left side of chest and middle of chest, size .2 cm. 1 cm. 1 cm. (9) Traumatic swelling 8 cm. 8 cm. 1 cm. on the back of right fore arm. (10) Two abrasions in an area of 6 cm. 1 cm. on the lateral side, right side of chest, size 1 cm. 1 cm.";