Prashant Kumar Agarwal, J. - (1.) Having been convicted and sentenced for the offence under Sec. 302 read with Sec. 34 IPC, the accused -appellants by way of these separate appeals under Sec. 374 Cr.P.C. have challenged the judgment and order dated 23.9.2014 passed by the Additional Sessions Judge No. 2, Jhunjhunu in Sessions Case No. 69/2012. Each of the appellants has been awarded sentence of imprisonment for life and fine of Rs. 5,000/ - and in default of payment of fine, to further suffer imprisonment for six months. The appellants were charged and tried on the premise that they in furtherance of their common intention to cause death of deceased -Shri Mohar Singh inflicted injuries which were sufficient to cause death in the ordinary course of nature on 19.12.2011 at about 8.30 p.m. near a liquor shop in village Natas. It was the case of the prosecution that a lathi and a broken liquor bottle was used by the appellants to cause injuries to the deceased.
(2.) Brief relevant facts for the disposal of these appeals are that informer -PW1 -Shri Rajpal Singh, son of deceased, lodged a written report Ex. P1 on 20.12.2011 at 8.30 a.m. at Police Station Guda Gorji with the averment that on 19.12.2011 at about 8.30 p.m. when his father -Shri Mohar Singh reached near the liquor shop at Village Natas, the present appellants inflicted injuries to him by means of lathis and on information being provided to him about the incident by PW5 -Shri Shravan Kumar, when they reached at the place of incident, they found their father unconscious. It was further alleged that they took Shri Mohar Singh to a Hospital at Jhunjhunu, but the doctor referred him to Jaipur after finding his condition serious. It was further alleged that as a result of injuries caused to his father he died in the way when he was being taken to Jaipur. On the basis of the aforesaid written report, FIR No. 388/2011 came to be registered against the appellants for the offence under Sec. 302 read with Sec. 34 IPC and investigation commenced. During investigation oral as well as documentary evidence was collected and after usual investigation charge -sheet for the aforesaid offence was filed against the appellants. After the case was committed to the trial Court, the appellants were charged accordingly and in support thereof prosecution produced oral as well as documentary evidence. In the statement recorded under Sec. 313 Cr.P.C., each of the appellants denied the prosecution evidence and it was specifically stated by them that they have falsely been implicated but no evidence was produced in defence. Learned trial Court after hearing the parties found the appellants guilty for the aforesaid offence and feeling aggrieved they are before this Court by way of these separate appeals. It is to be noted that the sole eye -witness of the incident PW5 -Shri Shravan Kumar during trial did not support the prosecution case and he was declared hostile. The learned trial Court has found appellants guilty mainly on the basis of oral dying declaration allegedly made by the deceased before informer PW1 -Shri Rajpal Singh and PW4 -Shri Rajendra Singh. As both these appeals arise out of the same judgment and order and are based almost on similar grounds, with the consent of learned counsel for the parties, the same were heard together and are being decided by this common judgment and order.
(3.) In support of the appeals, learned counsel for the appellants jointly raised the following grounds: - "(1) In order to prove the charge framed against the appellants, prosecution produced PW5 -Shri Shravan Kumar as an eye witness, but he did not support the prosecution case and was declared hostile and there is no other credible evidence available on record connecting the appellants with the death of the deceased -Shri Mohar Singh. (2) Learned trial Court has wrongly based the conviction of the appellants on oral dying declaration allegedly made by the deceased before PW1 -Shri Rajpal Singh and PW4 -Shri Rajendra Singh. The written report Ex. P1 lodged by the informer PW1 -Shri Rajpal Singh, son of the deceased, does not contain this material fact and this alone shows that the theory of oral dying declaration is a cooked up story which was developed subsequently during the course of investigation. Although, first information report may not be an encyclopedia of facts about a criminal incident, but if it lacks some material fact about such an incident and if the lodger of the report during the course of investigation or trial develops a new story about such fact, the same becomes suspect unless sufficient explanation is furnished by him regarding the reason for which that material fact could not be mentioned in the report. In the present case, informer PW1 -Shri Rajpal Singh although in his statement recorded under Sec. 161 Cr.P.C. and during the course of trial has tried to state that when they were shifting the deceased from the place of incident to a vehicle he disclosed that appellants are responsible to cause injuries to him by lathis, but no explanation has come from him for not mentioning this material fact in the first information report which otherwise mentions the names of the assailants as well as the source from which he came to know about the assailants. (3) Although, PW4 -Shri Rajendra Singh has claimed to reach at the place of incident alongwith PW1 -Shri Rajpal Singh and he has further claimed that the deceased disclosed before them the name of appellants as assailants but the very presence of this witness at the place of incident is suspicious as his name does not appear in first information report Ex. P1. Admissions made by him during the course of his cross -examination strengthens the position that information about the death of the deceased was received by him some time in the morning of 20.12.2011 and he directly reached hospital where the deceased was brought dead. Shri Rajendra Singh has admitted in his cross -examination that he did not disclose about the incident to any person including his family members before funeral of the deceased was performed and this fact further shows that he neither reached at the place of incident alongwith PW1 -Shri Rajpal Singh in the night of 19.12.2011 nor dying declaration was made by the deceased in his presence. If he would have reached at the place of incident in the night of 19.12.2011 alongwith Shri Rajpal Singh and deceased would have made oral dying declaration in his presence, in the natural course of human conduct, he would have disclosed this material fact atleast to his family members and his name would have mentioned in the FIR. (4) The fact of reaching of Shri Rajpal Singh and Shri Rajendra Singh at the place of incident in the night of 19.12.2011 and shifting of deceased by them to a vehicle is doubtful by this reason also that their blood stained clothes were not recovered by the Investigating Officer. Adverse inference is required to be taken against the prosecution for non -recovery of the blood stained clothes. It must be held that their clothes were not blood stained and this fact rules out shifting by them of deceased from the place of incident to a vehicle. PW3 -Shri Rohitash, a witness to some of the memos prepared by the Investigating Officer, in his cross -examination has said that the clothes of these witnesses were not stained with blood. (5) From the statement of PW8 -Dr.Mohanlal it is clear that as a result of injuries caused to the deceased he instantly became unconscious and there was no possibility of his regaining consciousness and, therefore, making of oral dying declaration by the deceased in the presence of aforesaid witnesses is totally ruled out more particularly in view of the fact that in the written report Ex. P1 also it is specifically mentioned that when PW1 reached at the place of incident he found his father unconscious and both these witnesses in their statements recorded during trial have admitted that the deceased after making dying declaration again became unconscious. (6) PW1 -Shri Rajpal Singh and PW4 -Shri Rajendra Singh being close relatives of the deceased are highly interested and partisan witnesses and their evidence is liable to be discarded being unreliable for the aforesaid reasons. (7) From the evidence available on record and more particularly from the admissions made by PW4 -Shri Rajendra Singh in his cross -examination it is clear that a written report about the incident was submitted by PW1 -Shri Rajpal Singh to a Police Officer who came to the Hospital at Jhunjhunu, but that report was neither recovered during investigation nor it was produced before the Court alongwith the charge -sheet and a material evidence has deliberately been withheld from the Court without any explanation and, therefore, adverse inference has to be taken against the prosecution to the effect that if that report would have been produced before the Court that would have gone against the prosecution case. (8) Statements of PW1 -Shri Rajpal Singh and PW4 -Shri Rajendra Singh to the effect that when they reached at the place of incident appellants were present there and they ran away when they saw them are liable to be discarded. As per prosecution case Shri Rajpal Singh reached at the place of incident on being informed by PW5 -Shri Shravan Kumar and therefore, some time have definitely been taken by the witness to reach at the place of incident and, therefore, it is beyond imagination that after inflicting injuries to the deceased the appellants were present there till the aforesaid witnesses reached and gave opportunity to them to saw them. Presence of appellants at the place of incident till Shri Rajpal Singh and Rajendra Singh reached there further becomes doubtful by the reason that this material fact is not mentioned in the First Information Report Ex. P.1 as well as in their statements recorded during investigation under Sec. 161 Cr.P.C. (9) Recovery of lathi at the instance of appellant Satpal Singh and recovery of a broken liquor bottle at the instance of appellant Suresh Kumar cannot be held to be proved on the basis of evidence made available on record. Otherwise also there is no further evidence to connect the recovery with the incident. (10) No specific enmity between the appellants and the deceased have been alleged even by the prosecution itself and in absence of any reason on the part of the appellants to cause death of the deceased, it was not safe to hold the appellants liable for the death of the deceased but learned trial Court did not consider that aspect of the matter in a proper manner.";