B.R. Arora, J. - (1.) This appeal is directed against the judgment dated 30.11.88, passed by the Additional Sessions Judge No. 2, Jodhpur, by which the learned Additional Sessions Judge convicted the appellant for the offences under Sections 302, 307, 201, 326 and 324 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergone two months' rigorous imprisonment for the offence under Section 302 Indian Penal Code; eight years' rigorous imprisonment and a fine of Rs. 300/- and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 307 Indian Penal Code and two years' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo fifteen days' rigorous imprisonment for the offence under Section 201 Indian Penal Code. The learned Additional Sessions Judge, however, did not impose separate punishment for the offences under Sections 326 and 324 Indian Penal Code.
(2.) Appellant Rela Ram was cried by the learned Additional Sessions Judge No. 2, Jodhpur, for the offences under Sections 302, 307, 201, 326 and 324 Indian Penal Code for committing the murder of his s6n Dhalia (aged about ⅞ months) and causing the disappearance of the evidence of this murder, as well as for inflicting simple and grievous injuries to his wife Smt. Kasumbi. The case of the prosecution, which resulted in his trial and conviction, is that on 29.9.83, Smt. Kasumbi (wife of the appellant) was cooking food in her house and was serving it to the appellant. Dhalia - the younger son of the accused-was in the lap of Smt. Kasumbi. Some altercation took place and the appellant became furious and asked Smt. Kasumbi that he will beat her. After saying this, the accused got-up and picked up a Kulhari. Smt. Kasumbi asked the appellant that if he wants to beat her then beat her with Lathi instead of Kulhari because if the Kulhari will be used in her beating then it may result in her death. Thereafter the accused inflicting injuries to Smt. Kasumbi by Kulhari. One of the blows fell on Dhalia, also, who was in the lap of his mother Smt. Kasumbi, which resulted in his death. The accused concealed the deadbody of Dhalia in the field situated in the periphery of Phalodi town. The injuries of Smt. Kasumbi were dressed. This incident was witnessed by PW 2 Lalki and PW 3 Mangalki - the two daughters of the accused, who were present, at that time, in the house. PW 2 Lalki thereafter went to her uncle Chatra Ram and informed him about the incident. Chatra Ram went to Police Station, Phalodi and lodged the report on 30.9.83 at 3. 30 p.m. The prosecution, in support of its case, examined fifteen witnesses. PW 2 Lalki (aged about eight years) and PW 3 Mangalki (aged about eleven years) are the two daughters of the accused and the eye witnesses of the occurrence. PW 1 Chatra Ram is the brother of the accused- appellant who, on being informed by PW 2 Lalki, went to the Police Station and lodged the report. All these three witnesses are closely related to the accused and they have not supported the prosecution case and were declared hostile. PW 4 Abdul Shah, PW 5 Bacchu Khan, PW 10 Bhom Raj Thanvi, PW 12 Kayamdeen, PW 13 Sumer Khan and PW 15 Abdul Sattar are the Motbir witnesses while PW 7 Bhanwar Singh, L.C. PW 8 Awatar Singh Gill, Deputy Superintendent of Police and the Circle Officer and PW 16 Dr. P.D. Purohit are the witnesses regarding the dying declaration made by Smt. Kasumbi. PW 16 Dr. P.D. Purohit, also, conducted the autopsy on the deadbody of Dhalia and, also examined the injuries of Smt. Kasbmbi. PW 6 Dr. Kamal Kumar Sabbarwal was the Radiologist posted in M.G. Hospital, Jodhpur, who took the X-ray of survival of Smt. Kasumbi on 30.10.83 on being referred to him by Dr. S.P. Chauhan, the Medical Jurist, M.G. Hospital, Jodhpur, and found a fracture of right frontal bone as well as of spinal process. PW 11 Kishore Singh was the L.C. and the Incharge of the Malkhana of Police Station, Phalodi, with whom seven packets of incriminating articles were deposited by the Investigating Officer PW 14 Laxman Singh, S.H.O., who gave these seven sealed packets to PW 9 Zalam Singh. PW 9 Zalam Singh was the Foot Constable posted at Police Station, Phalodi, who took the seven sealed packets from PW 11 Kishore Singh on 20.10.83 and after obtaining the forwarding letter from the Office of the Superintendent of Police, Jodhpur, deposited the same for F.S.L. examination in the State Forensic Science Laboratory, Jaipur. PW 14 Laxman Singh is the Station House Officer and investigating officer, who conducted the investigation and presented the challan. From the evidence of PW 9 Zalam Singh and PW 11 Kishore Singh as well as from the evidence of PW 14 Laxman Singh, it is established that the seals on these articles remained intact through-out sin.ce the time of their recoveries till they reached the Laboratory. The accused did not examine any evidence in his defence. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused-appellant as stated, above. 4. Though there were two eye-witnesses of the occurrence, viz., PW 2 Lalki and PW 3 Mangalki - the daughters of the accused but these three witnesses have not supported the prosecution case and turned hostile. PW 1 Chatra Ram, who lodged the FIR, has, also, not supported the prosecution case. Though the evidence of the eye-witnesses is not wiped off from the record merely because they have been declared hostile and that part of their evidence can be relied upon which can be sifted out, but in the present case these witnesses have completely denied the prosecution case and have specifically stated that they never gave any statement to the police and have completely denied their statement recorded during the investigation. Their evidence is, therefore, of no avail to the prosecution. 5. The prosecution case, therefore, mainly rests upon the circumstantial evidence, namely, dying declaration Ex. P. 10 made by Smt. Kasumbi on 30.9.83 at 11.30 p.m. in the Government Hospital, Phalodi which is sought to be corroborated from the recovery of the deadbody of Dhalia on the information and at the instance of the accused-appellant as well as the recoveries of the blood-stained Kulhari vide Ex. P. 13 and the Dhoti of the accused stained with 'B' Group of human blood, which was the blood-group of Smt. Kasumbi. 6. Now, it has to be seen whether these circumstances, which have been relied upon by the prosecution and believed by the trial Court, have been established to the hilt and whether these circumstances are of definite nature pointing towards the guilt of the appellant only and exclude any other hypothesis. 7. The first circumstance relied upon by the prosecution and believed by the learned trial Court is the dying declaration made by Smt. Kasumbi. Dying declaration is a statement, written or verbal, of the relevant facts, made by the person under expectation of death, relating to the cause of his/her death or as to any of the circumstances or transaction which resulted in death, in the cases in which the cause of death of such person comes to the question. Section 32 of the Indian Evidence Act is an exception to the general rule of criminal law that the evidence of a person who was not subjected to or given an opportunity to the accused for cross-examination, would be inadmissible in evidence, makes it admissible the statement, who dies, if the statement relates to the cause of his death or it relates to any of the circumstances or transaction which resulted in his death, in case where the cause of death of such person is in question. The statement of a person, who dies, is admissible in evidence under Section 32 of the Indian Evidence Act only with respect of his/her own death but is not admissible with respect to the question of death of other person. Even otherwise, when a person, who has made a statement in expectation of his death, later on survives then the statement made by that person cannot be treated as a 'dying declaration' and is not admissible under Section 32 of the Indian Evidence Act. That statement can, however, be used for the purpose of corroboration and contradiction. Ex. P. 10 was the statement made by Smt. Kasumbi. Her statement regarding the cause of death of Dhalia cannot be treated as a 'dying declaration' with respect to the death of Dhalia because according to Section 32 of the Indian Evidence Act, the statement made by a person as to the cause of his/her own death, is admissible in evidence in the cases in which the cause of death of that person only is in question. The statement made by one dying person is not admissible in evidence with respect to the question of death of another person. The learned trial Court was, therefore, not justified in accepting the statement of Smt. Kasumbi as the dying declaration with respect to the murder of Dhalia. Even otherwise, the statement of Smt. Kasumbi cannot be treated as the 'dying declaration' because though the statement was recorded in the expectation of her death but she survived and she was taken to the M.G. Hospital, Jodhpur, where the X-ray of her bones were taken on 31.10.83. There is no evidence on record to show that this transaction of giving beatings by her husband resulted in her death. The prosecution has not placed any evidence on record to show that Smt. Kasumbi has died at the hands of the accused nor is there any evidence to show that the injuries inflicted by the accused-appellant were the proximate result of her death. Even the evidence regarding her death has not been produced, though in the cross-examination PW 2 Lalki and PW 3 Mangalki have stated that their mother is not alive. In this view of the matter, the statement made by Smt. Kasumbi cannot be treated as the 'dying declaration' as Smt. Kasumbi survived thereafter. Though Ex. P. 10 is not admissible under Section 32 of the Indian Evidence Act because it is not a dying declaration as Smt. Kasumbi survived thereafter and secondly that the statement of one dying person is not relevant with respect to the question of cause, of death of another person and on merit, also, we are of the opinion that the statement Ex. P. 10 made by Smt. Kasumbi does not inspire confidence as it has been recorded in the suspicious circumstances and was dictated by PW 8 Awatar Singh Gill - the Deputy Superintendent of Police - and was recorded by PW 7 Bhanwar Singh. Though it has been mentioned in Ex. P. 10 that it was recorded by the doctor, but PW 7 Bhanwar Singh and PW 8 Awatar Singh Gill have specifically stated that it was recorded by PW 7 Bhanwar Singh, L.C. PW 7 Bhanwar Singh, who has written the dying declaration has specifically stated that the questions were put to Smt. Kasumbi by PW 8 Awatar Singh Gill and not by the doctor. PW 10 Dr. P.D. Purohit has admitted that some questions were put to the witnesses by him and some by the investigating officer PW 8 Awatar Singh Gill while PW 8 Awatar Singh Gill has stated that all the questions were put to the witness by the doctor. The attending circumstances, in which the dying declaration Ex. P. 10 has been recorded, raises a suspicion about the truthfulness and veracity of the dying declaration and it does not inspire confidence. There is a Court of Munsif and Judicial Magistrate as well as the Court of the Sub-Divisional Magistrate in Phalodi town. PW 10 Dr. P.D. Purohit has stated that he sent a peon to call the Magistrate but without waiting the arrival of the Magistrate, the statement Ex. P. 10 was recorded in the presence of PW 8 Awatar Singh Gill - the Deputy Superintendent of Police. The condition of Smt. Kasumbi was not serious as she had only four injuries - three of them were simple and one was grievous. She survived for considerably a long period. It is not clear whether she died of these injuries. The X-ray of the bone-injuries was taken on 31.10.83 in M.G. Hospital, Jodhpur, which suggests that by this time she was alive. The investigation officers are naturally interested in the success of their investigation and, therefore, the practice of recording dying declaration by the investigation officer during the investigation should be depricated and it should be recorded by the Magistrate in case he is available and in other circumstances by the doctor. It was held by the Supreme Court in Dilip Singh v. State of Punjab, AIR 1979 SC 1173 as under:- "Although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Evidence Act yet in view of the exception provided in Sub-section (2) of Section 162 Criminal Procedure Code., it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by the Magistrate or by a doctor. The practice of the investigating officer himself recording the dying declaration during the course of investigation ought not to be encouraged. This is not to suggest.that such dying declarations are always untrustworthy but what has to be emphasised is that better and more reliable method of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method." The statement Ex. P.10, therefore, cannot be treated as the 'dying declaration' and is not admissible in evidence. No conviction of the accused can safely be founded on this statement. 8. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the deadbody of Dhalia on the information and at the instance of the accused-appellant from his field. PW 5 Bacchu Khan and PW 15 Abdul Sattar are the two Motbir witnesses to this recovery memo. As per the statements of these two witnesses, the recovery of the deadbody of Dhalia was made from the sand-dune in the field of the accused, over which a stone was put. The accused removed the stone and the sand by his hands and took out the deadbody. According to these two witnesses, it was a deadbody of a boy. One Banshi Lal was, also, present, who took the delivery of the deadbody, but he has not been produced in evidence. According to these witnesses, the deadbody was of a boy aged about seven-eight months. The investigation officer has, also, stated so. The prosecution, also, came with a case that the appellant murdered his son Dhalia but PW 10 Dr. P.D. Purohit, in his statement, initially stated that the deadbody recovered was that of a girl (baby). Though he later on tried to give his statement to fit-in in the prosecution case but his statement is contrary to the post-mortem report prepared by him. In the post-mortem report Ex. P. 20 it has been specifically mentioned that it was a baby aged about 11/2 years. In the column of remarks by the Medical Officer, it has, also, been mentioned that baby Dhalia has died due to coma. The alleged murder was of a boy. According to PW 14 Laxman Singh, PW 5 Bacchu Khan and PW 15 Abdul Sattar, the deadbody of a boy was recovered while the doctor performed the autopsy on the deadbody of a girl. There is a difference in the age of the deadbody recovered and the age of deceased Dhalia. The attending circumstances, therefore, clearly show that Dr. P.D. Purohit has actually not conducted the autopsy on the deadbody recovered but prepared the report Ex. P. 15 on the information supplied to him by the investigation officer. There is, also, a difference in the age of the deadbody recovered and the age of Dhalia. The place wherefrom the deadbody was recovered and the manner in which it was made and the other circumstances raise a suspicion in this regard. We are, therefore, of the opinion that this recovery of the deadbody cannot be read as an incriminating circumstance against the accused-appellant. 9. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the blood-stained Kulhari on the information and at the instance of the accused-appellant. The two Motbir witnesses to the recovery of blood-stained Kulhari are : PW 10 Bhom Raj Thanvi and PW 12 Kayamdeen. PW 10 Bhom Raj Thanvi has stated that the recovery of the Kulhari was made from a place situated at a distance of fourteen to fifteen kilo-metres from Phalodi town while the field of the accused-appellant is situated at a distance of only six kilo-meters from Phalodi. PW 12 Kayamdeen has, also, stated that the Kulhari was given by the children of the accused and was not recovered on the information and at the instance of the accused-appellant. He has, also, stated that he was asked by the investigating officer that if somebody asks him then he should inform him that the Kulhari was got recovered by accused Rela Ram. The exact words stated by this witness are as under:- ...[VERNACULAR TEXT OMITTED]... In the cross-examination it has been stated by this witness that:- ...[VERNACULAR TEXT OMITTED]... The recovery of this Kulhari, which is alleged to have been stained with 'B' Group of blood and is the alleged weapon of the offence, cannot be said to have been made on the information and at the instance of the accused. Moreover, as per the prosecution case, the recovery of the Kulhari was made from the bushes in an open place and it was not found concealed. When the place is open and accessible to all then the possibility of plantation cannot be ruled-out and the recovery cannot be said to have been made on the information and at the instance of the accused-appellant and this recovery does not connect the accused-appellant with the crime. 10. The next circumstance relied-upon by the prosecution and believed by the trial Court is the recovery of the Dhoti of the accused which was found stained with 'B' Group of human blood which was the blood-group of Smt. Kasumbi. The accused is/was the husband of Smt. Kasumbi. His wife sustained injuries and it is just possible that he might have attended her. PW 14 Laxman Singh, S.H.O., has admitted that the accused was sitting near Smt. Kasumbi when he went there. The possibility of obtaining blood-stains from the injuries of Smt. Kasumbi on his Dhoti while attending her cannot be ruled-out. Even otherwise, also, this sole circumstance cannot be taken as a connecting circumstance against the appellant. 11. There are some other aspects of the case. According to the prosecution, though the accused was named by PW 1 Chatra Ram in the report but his name does not find place in the FIR and the column "Name of the Accused" is blank. PW 14 Laxman Singh has stated that due to inadvertance the name of the accused could not be mentioned in the FIR. The non- mentioning of the name of the accused in the FIR raises a suspicion that the FIR is ante-dated. The investigation in the present case has been conducted by PW 14 Laxman Singh in a most perfunctory manner and whenever a question was put to him, he answered that due to inadvertance it could not be mentioned. It is expected from a Police Officer of the rank of Station House Officer that he should act with responsibility and not to conduct the investigation in a perfunctory manner as has been done in the present case by the investigating officer. According to PW 14 Laxman Singh, the FIR was lodged at 3.30 p.m. on 30.9.83 and he reached at the place of the incident immediately thereafter at 5.00 p.m. The accused was present there but still the accused was not arrested till 9.10.83. This shows that the FIR is ante-timed. 12. As discussed above, we are of the opinion that the prosecution has failed to establish any incriminating circumstance against the accused-appellant and the learned Additional Sessions Judge No. 2, Jodhpur, was, therefore, not justified in convicting and sentencing the accused- appellants and the judgment dated 30.11.88, passed by the learned trial Court, therefore, deserves to be set aside and the accused-appellant deserves acquittal. 13. In the result, the appeal, filed by accused-appellant Rela Ram, is allowed. The judgment dated 30.11.88, passed by the learned Additional Sessions Judge No. 2, Jodhpur, convicting and sentencing the appellant for the aforesaid offences, is set-aside and the appellant is acquitted of all the charges levelled against him. The appellant is in jail and he shall be released forthwith if not required in any other case. Appeal allowed.;