MISHRA, J. - (1.) THE accused-appellant has been convicted by the Additional Sessions Judge No. 1 Kota by his judgment dated 27th August, 1993 for the offence Under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs. 500/- and in default of payment of fine he has to go under a further rigorous imprisonment for two months. Against this conviction and sentence, the appellant has preferred this jail appeal. As he could not engage any counsel Shri Jinesh Jain was appointed as Amics Curiae, who has argued the case on behalf of the appellant.
(2.) THE incident out of which the case arises took place on 21. 2. 1991 at about 5. 00 p. m. in the town of Kota in Sakatpura area where there are some shops. The deceased Ramesh had gone to the shop of P. W. 1 Murli Nai for shave and it was at that time that a knife wound was inflicted upon him as a result of which subsequently he died. According to P. W. 1 Murli, owner of the shop, he had at the time of the incident gone to fetch water as his water had been taken by Dr. Gyanesh and on his return he found Ramesh smeared with blood standing near the gate of his shop in an injured condition. He made enquiries from P. W. 15 Dr. Gyanesh Sharma but he could not give any information. He and Rajendra Kumar Gupta P. W. 7 were sent on Dr. Gyanesh's scooter to report the matter at the police station, where Rajendra gave information to the police, P. W. 1 Murli has also stated that he informed at the house of Ramesh about the incident. We may here state that P. W. 1 Murli and P. W. 15 Dr. Gyanesh have not given out the name of the assailant. There are other shops in the area and even according to P. W. 4 Ram Gopal, father of the deceased, a crowd had collected there but no one has come forward to name the accused. The only evidence on the basis of which the appellant has been convicted is the dying declaration made by Ramesh deceased before P. W. 4 Ram Gopal and P. W. 12 Smt. Lad Kanwar, who is the wife of the deceased. We have to examine whether on basis of the oral dying declaration said to have been made by the deceased before these two persons, the appellant can be convicted. Whether the dying declaration is such which can inspire confidence and whether the dying declaration is sufficient to prove the guilt of the accused and it can be acted upon without any corroboration, as the rule of seeking corroboration is only a rule of prudence. However, it will depend upon the facts and circumstances of each case whether the dying declaration can be sufficient to hold the accused guilty. With this in view we will now look into the statements of P. W. 4 Ram Gopal and P. W. 12 Smt. Lad Kanwar. Ram Gopal P. W. 4 is himself a shopkeeper having a Kirana shop which is about 500' away from the place of incident. His house in another 500' away from his own shop. His statement is that about 5/6 in the evening his son Mahendra came to his shop and told him that Ramesh had been struck with a knife at the shop of Murli Nai. He ran towards the shop of Murli Nai and on the way Lad Kanwar, wife of Ramesh met him who was also going towards the shop of Murli Nai. When they reached there, Ramesh was standing on the stairs of the shop of Murli Nai and blood was coming out from his chest. Dr. Gyanesh was holding Ramesh and there was a crowd. Some of the persons present have been named. Ram Gopal asked Ramesh as to what happened, then what Ramesh stated may be reproduced in the words of the witness himself: ....Vernacular Text Ommited.... He has further stated that the police came there and when the police made inquiries then also Ramesh told that Dev Karan Luhar who lives in the house of Brij Mohan Keer had inflicted a knife blow. Then Ramesh was taken in the Police Jeep to the hospital and on the way also Ramesh told the police that Dev Karan Luhar had inflicted the knife blow. Now we come to the version of P. W. 12 Smt. Lad Kanwar. She has stated that at about 5. 00 pm. her husband had left home saying that he was going to have shave and Mahendra came there and said that Dev Karan who lives in the house of Keeron Ke Khanna on rent had inflicted knife blow on Ramesh Chand. Saying that he ran towards the shop and on the way she met Ram Gopal and they both reached the shop of Nai where Ramesh Chand was standing and the doctor had kept his hand on his chest but later her husband sat down. At the shop, she did not talk to her husband. Her father-in-law talked him but she has not stated that Ramesh told any thing to them at that timer. Then police took him in the vehicle. She and her father-in-law also sat in the vehicle. In the vehicle Ramesh was asked by them as to who inflicted the blow and at that time Ramesh told that Dev Karan had caused the injury to him.
(3.) ON a plain reading of these statements we find a number of contradictions. According to P. W. 4 Ram Gopal the dying declaration had been first made at the shop before the witnesses then before the police at the shop itself and then in the vehicle on way to hospital. According to P. W. 12 Smt. Lad Kanwar she already knew who was the assailant as Mahendra had give out the name to her. According to her at the shop of Barber, Ramesh did not say any thing as to how and by whom he was injured and it was only in the vehicle on way to hospital that he told that Dev Karan had inflicted blows. There were so many other persons who were present in the shop but no one has been examined in support of the dying declaration made by the deceased. Thus, there is a testimony only of the related witnesses, namely father and wife and no one has come forward to support the dying declaration. When the witnesses are related it becomes all the more important that their statements should be free from contradictions and should be such which can be said testimony of truthful witnesses. This ingredient is missing in this case. The contradictions in the statements of P. W. 4 Ram Gopal and P. W. 12 Lad Kanwar have been seen above. Further the silence of Dr. Gyanesh P. W. 15 and P. W. 1 Murli and other neighbours also weaken the prosecution case. P. W. 5 Mahendra has been examined as a witness but he has been questioned only about panchnama of the dead body of Ramesh Chand and no question has been put to him as to how he came to know who inflicted injuries on Ramesh. Another factor which can be said to be important in this case is that no motive has been shown as to why the appellant wanted to cause the death of the deceased. Absence of motive would not always be fatal to the prosecution case but had there been a motive it could have been a piece of evidence to corroborate the dying declaration but this is also missing in this case. After going through the record of the case and evidence, we are unable to sustain the finding of the learned Addl. Sessions Judge, No. 1, Kota. The appeal is, therefore, allowed. The conviction and sentence of the accused appellant is set aside and he is acquitted of the charge u/s. 302 IPC. He is in jail. He shall be released forthwith. If not wanted in any other case. . ;