G. K. SHARMA, J. - (1.) THIS appeal has been preferred against the judgment dt 31-3-87 passed by the Addl. Sessions Judge Baran by which, the appellants were convicted and sentenced as under: - Janki Lal : Under Section 302 I. P. C. and all other under Sec. 302/149 IPC and sentenced to life imprisonment and a fine of Rs. 500/- and in default of payment of fine three months rigorous imprisonment. Heera Lal : Under Section 307 I. P. C. and all others under Sec. 307/149 IPC and sentenced to ten years rigorous imprisonment and a fine of Rs. 300/- and in default of payment of fine one month rigorous imprisonment. All the accused appellants u/s. 148 IPC sentenced to one year R. L All the sentences were ordered to run concurrently.
(2.) BANSHI Lal (P. W 13) lodged a report on 22-10-85 at 4 p. m. at Police Station, Chhipa Barod alleging that in the day at 1 p. m. he and all the village people assembled at the Chabutra of Hanumanji for Pooja on the occasion of Vijay Dashmi. Previously some quarrel had taken place between him and Kishan Lal and his two sons and on account of that enmity Mathura Lal S/o Kishan Lal & Sri Lal S/o Manohar Lal started abusing them. He asked them not to abuse. Then Mathura Lal, Heera Lal, Srilal, Kishan Lal, Kanhaiya Lal, Ram Ratan, BANSHI, Ram Singh and Ram Dayal uttered the words while, abusing that he should be finished today. Heera Lal inflicted ballam blow on his chest. Mathura Lal inflicted ballam blow on his buttock. Heera again inflicted another ballam blow on the left hand. Ram Singh & Ram Dayal inflicted lathi blows on his wrist. Kanhaiya Lal inflicted lathi blow on his fight hand. His son Murli came to rescue him but Sri Lal inflicted gandasi blow on his head, Heeralal inflicted ballam blow on the left side of the body and Ram Ratan inflicted gandasi blow on waist and right ribs. Thereafter, Sri Lal S/o Harlal Vaad also tried to rescue them but BANSHI Lal and Sri Lal gave gandasi blows to him. On account of this beating ail the three fell down. Kedar S/o Prabhu Lal brought them to Chhipa Barod in a tractor. This incident was witnessed by BANSHI S/o Onkar, BANSHI s/o Laxman & Nathu s/o Deo Lal. On this report a case u/ss. 147, 148, 307, 323 and 149 IPC was registered. Murli later on died and the case was then converted into Section 302 IPC. Dr. Laxman Singh (PW 6) examined the injuries of Sri Lal, Banshi Lal, Kedar, Kajod and Murli. Dr. Dev Dutt Sharma (PW 15) conducted the post mortem on the dead body of Murli on 23-10-85. The post mortem report is Ex. P. 37. According to this Dr. he died due to haemorrhage and shock as a result of injury to right lung. During investigation the Police arrested the accused persons and recovered blood-stained clothes and weapons. The recovered articles were sent to Forensic Science Laboratory for examination and it's report is Ex. P. 63 and P. 64. After completing the usual investigation the Police submitted challan against 14 accused persons u/ss. 302, 307, 147, 148 & 149 IPC. The trial Court framed charges against all the accused-persons u/ss. 147, 148, 302, 302/ 149, 307 and 307/149 IPC. All the accused-persons have denied the charges and claimed trial. The prosecution has examined 18 witnesses to establish it's case. The version of accused is mere denial. No defence evidence has been laid by the accused persons. The trial Court found the appellant guilty of the charges, and sentenced them as mentioned above. The learned counsel for the appellant argued that the learned trial Court has committed error in holding the accused appellants guilty. All the accused persons along with the villagers were present at the place due to festival of Dashera. This is an admitted position that the people had collected on account of the festival armed with weapons. So occurrence took place suddenly without premeditation and no case is made out u/s 148 IPC. There is no evidence to prove that the accused-persons had common object to commit murder of Murli. Banshi Lal who is injured and who has lodged the report has named only 9 persons in the F. l. R, and he did not mention the names Janki Lal, Dhanna Lal, Sheo Lal, Trilok Chand and Chanda @ Ram Chandra. It was also argued that the witnesses have changed their version intentionally and deliberately in the Court statement. The witnesses have also changed the sequence of beating. The witnesses have denied to have given certain portion of their statements in the Police. The oral evidence is not corroborated by medical evidence as far as Murli is concerned. The trial Court has committed error in believing the prosecution witnesses. It was further argued that the conviction has been passed on the dying declaration of Murli which is Ex. P. 8. The trial Court has placed much reliance on the dying declaration. The argument is that this dying declaration is not worth reliable and should not be believed. The learned Public Prosecutor argued that the incident had taken place at 2 pm. on 22-10-85 and the report was lodged at 4 p. m. So, there was immediate report. It was argued that in F. l. R. only 9 accused persons have been named but this F. l. R. cannot be treated as conclusive and Banshi who was injured might have forgotten to name remaining 5 persons. Regarding dying declaration it was argued that this dying declaration was recorded by Dr. Laxman Singh (PW 6) in presence of Manna Lal (PW 5 ). Gulab Chand (PW 7), Banshi (PW 9) and Iqbal Ahmad PW 18 ). A. S. I. All these witnesses prove that Murli gave this dying declaration and the learned trial Court has not committed error in placing reliance of this dying declaration. Regarding contradictions in the statements of the prosecution witnesses it was argued that the contradic-tions are minor one and on such count their statements cannot be discarded. The accused persons formed an unlawful assembly and in furtherance of their common object they committed this offence. They were armed with deadly weapons hence, they were correctly found guilty.
(3.) WE have considered the arguments at length and perused the statements of the prosecution witnesses minutely. Banshi Lal (PW 13) lodged the F. l. R. Ex. P. 17. In this F. l. R. he has mentioned the names of 9 accused, persons. He did not mentioned the names of Janki Lal, Dhanna Lal, Sheo Lal, Trilok Chand and Chandu. These 5 accused persons were impleaded in the statements of the prosecution witnesses. Banshi Lal gave a detailed report at the police Station. In the report he has specifically mentioned about the individual act of the accused persons. Who inflicted injury to whom and with what type of weapon has been clearly mentioned in the report. It means that Banshi Lal was in full senses when this report was lodged. WE see no reason that the person who gave such a detailed F. l. R in which he named 9 accused persons and also mentioned the individual act of these persons will fail to mention the names of other persons. It means that these 5 persons were added in the Police statements recorded u/s. 161 Cr. P. C. Even, no specific overt- act has been assigned to these 5 accused-persons, whose names were not mentioned in the FIR. This shows that they have been falsely implicated in this incident. Jankilal has been found guilty u/s. 302 IPC while others have been found guilty u/s. 302/149 IPC. Thus,, according to trial Court Janki Lal is the main accused who fatal blows to deceased Murli. WE fail to understand that Banshi Lal would forget the name of Janki Lal who is main assailant. Jankilal is the person who inflicted fatal injuries to Murli which resulted in his death but he will not be named while the F. l. R. was lodged. This clearly shows that Janki Lal has been impleaded later on and a case has been concocted against him. Similarly the remaining 4 persons whose names have not been mentioned in the F. I R. have been falsely implicated by the witnesses in their statements u/s. 161 Cr. P. C. The dying-declaration Ex. P. 8 is an important document, on which much stress has been laid by the learned counsel. We have perused the dying declaration Ex. P. 8. This dying declaration was recorded by Dr. Laxman Singh PW 6. The doctor has proved this document. In this statement Murli has stated that he was inflicted injuries by ballam by Heera, Shri Lal, Ratan and Jankilal. It means that these 4 persons inflicted ballam injuries to Murli. So there are four injuries on the body of Murli by ballam. But when we see the medical report Ex. P. 4, we find that there are only two incised wounds and one lacerated wound. So this statement is not corroborated by the injury report Ex. P. 4. This shows that the statement of Murli is not correct because the names of Heera, Shri Lal and Ratan had been mentioned in F. I. R. but he name of Janki Lal was not mentioned in the F. I. R. Mentioning the name of Janki Lal in this dying declaration Ex. P. 8 also indicates that he has been falsely implicated in this case. Janki Lal who inflicted ballam blow according to Murli Banshilal must have noticed Janki Lal's presence. Why his name was not mentioned? This indicates that Janki Lal has been falsely impli-cated in this case and has been found wrongly guilty u/s 302 IPC simplicitor, We fail to understand how Janki Lal was found guilty by the learned trial Judge. In the dying declaration the names of the persons who were present when it was recorded, have been mentioned. Banshi S/o Onkar (PW 9) was present when the dying-declaration Ex P 8 was written, but this witness Banshi has not stated in his statement that in his presence Murli gave the dying declaration Ex. P 8. This statement was recorded in the hospital. Other persons were also injured and their injuries were medically examined in the hospital but none of these injured has stated that dying declaration of Murli was recorded by Dr. Laxman Singh. When they were present in the hospital this dying declaration must have been recorded in their presence Dr. Laxman Singh has stated that he recorded this dying declaration at the request of Iqbal Ahmad, ASI. Murli was in a fit condition to give his statement and when his statement was recorded Sarpanch Manna Lal, Banshi S/o Onkar, Gulab Chand S/o Harlal and Iqbal Ahmad were present. The time has been mentioned in this dying declaration Ex. P 8 and according to this statement it was recorded at 7. 30 p. m on 22-10-85 Banshi Lal PW 13 in his statement has stated that they came in the tractor to Chhipa Barod Police Station and lodged the report and then they went to hospital. Murli's injuries were also examined along with his own injuries. At that time the condition of Murli was very serious and at the end of the day they took Murli in the car to Kota. It means that before setting the day Murli was taken to Kota hospital. The statement was recorded at 7. 30 pm. In the month of October the sun sets nearly about 6 pm. Murli was taken in the car to Kota. He could not be present in the hospital at 7. 30 pm. when the statement was recorded by the doctor. Banshi Lal PW 13 has not stated that the dying declaration of Murli was recorded by the doctor. Banshi Lal was the informant and he accom-panied Murli to Police Station as well as hospital. If the dying declaration Ex. P 8 was recorded in the hospital at 7. 30 pm. , then Banshi Lal PW 13 should have been present there. Another person Manna Lal PW 5 was present when Ex. P 8 was recorded. He has stated that as the condition of Murli was serious he was taken to Kola. He also accompanied him to Kota and after reaching Kota after 3-4 hours Murli died. He has not stated in his statement-in-chief that dying declaration was recorded in his presence. In the cross-examination this question was asked and he has stated that the doctor recorded the statement of Murli. This witness has signed at portions C to D of Ex. P. 8 but his signatures were not proved by him when he was in the witness-box. All these discussions indicate that the dying-declaration Ex. P. 8 is a false document. It was not recorded as stated by Dr. Laxman Singh PW 6 or as stated by the prosecution witnesses: The learned trial Court has not understood properly this dying declaration and it failed to arrive at the correct conclusion about the genuineness of this document. We are of this opinion that Murli was not in a position to give any dying declaration and this dying declaration could not be recorded by the doctor at 7. 30 pm. because Murli had already left that place prior to sun set. So this dying declara-tion Ex. P 8 is a conected document and the learned trial Court has committed error in placing reliance on this document and convicting the accused persons on this basis. ;