SHARMA, J. - (1.) IN order to extract truth from the lips of dying man, a procedure has been laid down in Rule 6. 22 of the Rajasthan Police Rules, 1965. But Prahlad Singh ASI of Police Station Mangrol conducted himself in such a manner as if he was above the law. Ignoring the procedure, he himself shouldered the responsibility of recording last statement of Raghunath (deceased) and nabbed the appellants, five in number, who were indicted before the learned Additional Sessions Judge (Fast Track) Baran. Learned Judge vide judgment dated September 28, 2002 convicted and sentenced the appellants as under:- Shiv Narayan, Chaturbhuj, Bhawani Shankar, Janki Lal and Nathu Lal: u/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for six months. u/s. 447 IPC: Each to suffer simple imprisonment for one month and fine of Rs. 100/-, in default to further suffer simple imprisonment for seven days. u/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months. Sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on June 25, 2001 Prahlad Singh, ASI (PW. 8) reached at Mangrol hospital and recorded Parcha Bayan (Ex. P. 10) of injured Raghunath, according to which on the said day around 9-10 AM while Raghunath was going to field he was belaboured by Shiv Narayan, Dhanraj, Bhawani Shankar, Chaturbhuj, Nathu s/o Dhanna Lal, Nathu s/o Gordhan Mali, who were armed with lathis, Gandasis and Dharias. All of them caused injuries on the head, hands and other parts of the body of Raghunath and fled away. On that parcha bayan a case under Sections 147, 148, 149, 307 and 323 IPC was registered and investigation commenced. During the course of investigation injured Raghunath succumbed to his injuries and Section 302 IPC was added. Autopsy on the dead body was performed, necessary memos were drawn, statement of witnesses were recorded, appellants of arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Baran. Charges under Sections 147, 148, 447, 302, 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. In the explanation under Sec. 313 Crpc, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. We have reflected over the rival submissions and with the help of learned counsel, weighed the material on record. As per injury report (Ex. P. 49) Raghunath had sustained following injuries:- 1. lacerated wound 4 cm x 2 cm x 2 cm middle scalp mid line 2. Lacerated wound 2 cm x 2 cm x 2 cm above & lateral right side face. 3. Swelling no exact measure encircling right arm. 4. Swelling no exact measure encircling right forearm & hand. 5. Bruise 4 cm x 2 cm x right thigh 6. Swelling no exact measure right leg lower 2/3 7. Swelling no exact measure left arm hand 8. Swelling no exact measure left thigh. Autopsy on the dead body was performed by Dr. Pratap Singh Yadav (PW. 7), who drew postmortem report (Ex. P. 9) according to which the cause of death was shock due to head injury associated with fracture with formatic & hemorrhage. At the outset we deem it necessary to narrate the principles governing admissibility of dying declaration, laid down by the Apex Court in the various judgments. They are as under:- (i) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination (K. Ramchandra Reddy vs. Public Prosecutor (1976) 3 SCC 618 ). (ii) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rashid Beg vs. State of MP (1974) 4 SCC 264 ). (iii) A dying declaration which suffer from infirmity cannot form the basis of conviction. (Ram Manorath vs. State (1981) 2 SCC 654 ).
(3.) A Police Officer is required to follow Rule 6. 22 of the Rajasthan Police Rules, 1965 in letter and spirit. Rule 6. 22 provides as under:-      " 6. 22 Dying declaration (1) A dying declaration shall, whenever possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (3) If no Magistrate can be obtained, the declaration shall, when a gazetted officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. It is in view of the above parameters that we have to adjudge the acceptability of the alleged dying declaration recorded by Prahlad Singh ASI (PW. 8) who was posted as ASI at Police Station Mangrol. In his statement Prahlad Singh deposed that on receiving telephonic message that persons of Mali community had a quarrel and one injured person was taken to the hospital, he rushed to the Hospital and recorded Parcha Bayan (Ex. P. 10) of injured Raghunath. In his cross examination Prahlad Singh stated thus:- ....Vernacular Text Ommited.... (Judicial Magistrate Sahib reside in Mangrol. I did not make request to Magistrate Sahib to record Parcha Bayan ). ;