Allahabad High Court
Dhaunkal And Others vs State Of U.P. on 22 March, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:52243-DB Reserved on 24.01.2024 Delivered on 22.03.2024 In Chamber Case :- CRIMINAL APPEAL No. - 680 of 2001 Appellant :- Dhaunkal And Others Respondent :- State of U.P. Counsel for Appellant :- Arvind Agarwal,Rajrshi Gupta Counsel for Respondent :- Govt. Advocate Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon'ble R.M.N. Mishra, J.)
1. The instant Criminal Appeal has been preferred by the convict /appellants against the judgment and order dated 22.02.2021 passed by learned VIth Additional Session Judge, Fatehpur in Case No.405 of 1996, whereby the appellants are convicted for charge under Section 302 IPC read with section 149 IPC and sentenced to imprisonment for life for the said charge. The appellants Dhaukal, Bhaiya Lal, Rajendra and Ram Swaroop are convicted for charge under Section 302 IPC read with Section 149 IPC and sentenced to life imprisonment, and they are also convicted for charge under Section 148 IPC, sentenced to one year rigorous imprisonment for said charge. The appellant Buddhu is convicted for charge under Section 302 IPC and sentenced to imprisonment for life. He has also been convicted for charge under Section 148 IPC and sentenced to one year rigorous imprisonment for said charge. All the sentences are directed to run concurrently.
2. The factual matrix of the case in brief as discerned from the material on record is that FIR in the case was lodged on the basis of written report Ext. Ka-1 of deceased Raju alias Kamta in injured condition which was scribed by one Dharamveer Singh, at Police Station Kishanpur, District Fatehpur on 10.09.1995 at 6:30 PM, wherein he stated that he is a resident of village Rampatiya Ka Purwa, H/o Dariyapur, Police Station Kishanpur, District Fatehpur. His co-villager Dhaukal son of Jodhi had got a criminal case registered against him and his father in which he was bailed out. In view of this enmity the accused, co-villagers Buddhu and Dhaukal sons of Jodhi, Bhaiya Lal son of Ramdev, Rajendra son of Rambhawan and one Ram Swaroop son of Badal, R/o Gokulpur H/o Dariyapur, P.S. Kishanpur, came to him at his agricultural field lying in his village Rampatiya Ka Purwa, where he was weeding, his mother Mantoriya and one Hiruwa son of Kichdu were ploughing the field, as soon as he said to take meal, these persons came near him, and on being given a call by Bhaiya Lal to kill, him come whatever may, he would spend whatever money required, accused Buddhu, fired two shots from his fire arm at him which hit him on his right waist and knee of left leg, he fell down on the spot, the miscreants fled away after the incident. The incident was seen by mother of the injured and witness Hiruwa. As condition of the injured deteriorated, his dying declaration was recorded by Naib Tehsildar (Executive Magistrate) on 11.09.1995 at around 7:45 AM at District Hospital, Fatehpur, wherein he substantially reiterated his version in FIR with variation that in dying declaration he stated that first fire was shot at him by Buddhu, which hit him and thereafter Ramswaroop fired a shot at him by his gun and he fell down. He also stated the accused persons were on inimical terms with him and a scuffle (marpeet) occurred prior to ten days, in which he was sent to jail. The investigation of the case was entrusted to Sub Inspector Kamla Singh, who collected relevant papers including copy of FIR, got the inquest and postmortem examination on dead body of the deceased Rajesh who died during treatment on 17.09.1995 at 04:00 PM at District Hospital, Fatehpur. In postmortem examination report Ext. Ka-3, the cause of death has been shown as Toxemia and Septicemia as a result of ante-mortem injuries. The postmortem was conducted on 19.09.1995 at 04:30 PM and inquest was conducted on 19.09.1995 at 10:00 AM. The Investigating Officer carried out local inspection of the place of incident and prepared a site plan, which is marked as Ext. Ka-4. The medico legal examination of the deceased was conducted in injured condition at C.S.C. Khaga, which is marked as Ext.Ka-2. He was admitted in District Hospital, Fatehpur for his medico legal examination, where he died during treatment. The FIR was initially registered vide Crime No.136 of 1995, under Sections 147, 148,149, 307 IPC at Police Station Kishanpur, District Fatehpur and same was altered into Section 302, 147, 148,149 IPC vide GD Report No.11, time 08:00 hours dated 21.09.1995 on receiving death memo of injured Raju alias Kamta from hospital.
3. The Investigating Officer, received report of Serologist regarding blood stained clothes of the deceased, which is marked as Ext. Ka-17. The Investigating Officer submitted charge-sheet against accused persons on finding their complicity in the offence marked, which is marked as Ext. Ka-5. The learned Civil Judge (Judicial Magistrate, Kharga) District Fatehpur took cognizance of the offence and committed the case to the court of session vide order dated 21.10.1996, where it was registered as ST No.405 of 1996, and was transferred to the Court of VIth the Additional Session Judge, Fatehpur. The learned trial judge, framed charge under Section 147, 148,302/149 IPC against all the accused persons and charge under Section 302 IPC against accused Buddhu simplicitor on 20.02.1997 on commencement of trial.
4. The prosecution examined PW1, Matoriya wife of Shivmohan, father of the deceased, PW3 Dharamveer Singh scribe of written report Ka-1, PW4 Dr. K.N. Pandey, the author of injury report of deceased Raju @ Kamta Prasad during his life time, PW5 Dr. Anil Kumar Shukla, author of postmortem examination report of the deceased, PW6 Sub Inspector Kamla Singh the initial investigating officer of the case, PW7 Sub Inspector Rambahadur Verma, who carried out final investigation in the case, PW8 Gyan Prakash Srivastava, the then Naib Tehsildar/ Executive Magistrate who recorded dying declaration of the deceased. The trial court recorded statements of accused persons under Section 301 Cr.P.C., in which they admitted that they belong to same progeny (khandan) and are resident of same village, except accused Ramswaroop. Accused persons barring Ramswaroop are of same Khandan of which deceased belonged. They also admitted that some scuffle (marpeeth) took place on some date prior to the incident between informant (deceased) and his father and accused persons had lodged a report against deceased and his father regarding said prior incident of marpeeth. However, they denied the incident alleged in the present case and stated that informant/deceased had lodged wrong report against them, they are not aware of the contents of documents proved during trial. Naib Tehsildar, Gyan Prakash Srivastava, had given wrong statement with regard to dying declaration of the deceased. The Investigating Officer had carried out wrong investigation and submitted wrong chargesheet against them. They are falsely implicated in the case due to village Partibandi. Accused persons examined DW1 Sukul Prasad, DW2 Shiv Poojan, DW3 Om Bhihari Shukla, DW4 Hiralal alias Hiru as witnesses of defence. They also filed a copy of chargesheet filed against deceased Raju alias Kamra under Section 25 of Arms act, in Case Crime No.168 of 1990, P.S. Kishanpur, District Fatehpur dated 16.09.1990.
5. Learned trial judge after considering the submissions made by prosecution and defence and appreciating the evidence on record concluded trial regarding conviction and sentences against accused persons as aforesaid. The convict accused persons preferred present Criminal Appeal under Section 374 Cr.P.C. feeling aggrieved by impugned judgment and order.
6. We have heard submissions of Sri Arvind Agarwak and Sri Rajrshi Gupta, learned counsel for the appellants and learned A.G.A. appearing on behalf of the State-respondent and perused the material on record including impugned judgment.
7. Learned counsel for the appellants submitted that the conviction and sentence recorded against the appellants is against weight of evidence appearing on record. No offence is proved against the appellants on the basis of evidence adduced by prosecution, sentence is also severe. The appellants were enlarged on bail in present appeal vide order dated 16.12.2002 passed by this Court, the appeal is pending since year 2001. He further submitted that :
(i) FIR in the case was lodged anti-time, the distance of alleged place of incident to the police station is mentioned as 18 km in the FIR; the first Informant who was injured and admittedly received two gun shot wounds on body parts claims to have walked around to the Police Station which is highly unbelievable. The scribe of FIR as stated in his testimony that he found the injured alongwith his mother wondering about and he had written down the written report at Police Station, Vijaypur Chauki. This facts creates a serious shadow of doubt in the prosecution story, inasmuch as it is difficult to believe that the injured/ first informant having sustained gunshot wounds due village out post and police personnel present there could not make any effort to render medical assistance to him first of all. The said police out post was not situated on way to police station from the place of incident, and there was no occasion on the part of the informant/injured to visit the said police out post for lodging the FIR. The time of incident is shown as 1:30 PM, FIR was lodged at 10:30 hours and medical examination of the injured was conduced on same day at 08:30 PM at CSC, Kharga, which is around 60 kms away from police station Kushangarh. This is inconceivable that in the state of suffering two fire arm injury, the deceased traveled the distance of 18 kms for getting him medically examined.
(ii) There are three dying declarations in the present case, first being the FIR itself which is lodged by the deceased while in injured condition; second being the statement of deceased recorded under Section 161 Cr.P.C. after lodging of FIR, and third the dying declaration dated 11.09.1995 recorded by Naib Tehsildar, Sadar Tehsil, Fatehpur which is marked as Ext. Ka-14, and the alleged dying declaration are in variants with each other with regard to manner and the mode of incident as well as timing and other dates. In FIR the injured has stated that incident took place at 10:30 pm, whereas in his dying declaration he has stated that incident occurred around 10-11 am, moreover, there is variation with regard to manner of assault, author of the injuries as stated in FIR and dying declaration, whereas both are recorded at the instance of the deceased while in injured condition. In FIR both fire arms injuries are attributed to accused Buddhu on extortion of Bhaiyalal, whereas in dying declaration Ext. Ka 14one shot is attributed Buddhu and the other to accused Ramswaroop.
(iii) The Doctor who has allegedly given certificate of fitness, but margin of dying declaration Ext. Ka-14 was not examined as witness during trial and the certificate of fitness has been appended after recording of dying declaration, there is no certificate of doctor prior to recording of dying declaration regarding fitness of the deponent. The dying declaration is shrouded in suspicion and is not reliable.
(iv) PW1 is highly interested and partisan witness who has given contradictory statements about the time of the incident as well as the manner of assault, her statement is full of inconsistency and does not inspire confidence. The independent witness Heera Lal @ Hiru whose name has been surfaced in FIR has not been examined as prosecution prosecution witness and even he was discharged, as prosecution witness at the instance of PW1 to avoid his testimony before the court, and he was subsequently produced as a defence witness (DW4) who has not supported the prosecution version.
(v) There is considerable delay of 14 days in recording statement of PW1 Smt. Mantoriya, the mother of the deceased, which is fitted to prosecution story.
(vi) Motive, introduced by PW2- Shiv Mohan the father of the deceased has not been proved.
(vii) Unlawful Assemble has not been proved by the prosecution has no overt act has been attributed to most of the accused persons. Genesis of the incident is suspected in FIR and prosecution evidence. No weapon of any incriminating article has been affected to any of the accused persons. Even, if this Court comes to the conclusion that death of the deceased Raju was caused by accused appellants, the case does not travel beyond Section 304 (2) IPC due to lack of intention to cause death of the deceased on the part of accused-appellants.
With the above submissions learned counsel for the appellants prayed for acquittal of accused appellants.
8. Per contra, learned A.G.A. appearing for the State-respondent submitted that there is no discrepancy or infirmity in the impugned judgment of learned trial court, whereby the appellants are convicted for charge under Section 302/149 IPC and Section 148 IPC in accordance with law.
9. He further submitted that the strength of the prosecution case lies in the fact that FIR in the case was lodged at the instance of deceased himself, while in injured condition and from police papers also it is established that he appeared on the police station to lodge the FIR by producing police report Ext. Ka.1 scribed by one Dharamveer Singh, his dying declaration is also recorded in formal manner by Executive Magistrate and same has been proved by Executive Magistrate during trial. PW1, is mother of the deceased, who has given an eyewitness account of the incident and there is no reason to disbelieve her testimony. PW2, who is father of the deceased who is not an eye witness, but has proved motive attributed to accused persons for commission of crime. The accused appellants are convicted and sentence by trial court in proper and legal manner. The appeal is devoid of force and deserved to be dismissed.
10. The postmortem examination report, Raju alias Kamta Prasad was prepared on 10.09.1995 at 08:30 PM by PW4 Dr. K.N Pandey at CSC Khaga, who has proved this document as Ext. Ka-2 during his evidence before the Court at PW4. According to injury report of Raju alias Kamta Prasad following ante-mortem injuries were found on the persons of the deceased:-
i. Fire arm wound of entry 1cm x 1 cm right side of back, 7 cm above from hip bone, pellets felt on the left side of lower abdomen under skin 9 cm away from umbilicus. No blackening, no tattooing, fresh bleeding is present.
ii. Multiple fire arm wound in the are of 22 cm x 12 cm on the back side of lower part of left thigh, left knee, joint and upper part o left leg. No exit wound, blackening or tattooing is present.
11. In the opinion of doctors and the injuries kept under observation advice xray referred to District Hospital, Fatehpur. Both the injuries were caused by fire arm, injury No.1 would have been caused from far distance from right side of entry No.2 which was caused from close distance from back side. This injury report was prepared at the instance of police station through Chitthi Majrubi of P.S. concerned.
12. PW4, Dr. K.N. Pandey has sated in his evidence that injury No.1 could be fatal. In cross examination, he stated that xray report of this injury was not brought before him, he has not sent any supplementary report. Injury No.1 was fresh, injury No.2 was also fresh; by the word 'fresh" means within six hours with three hours margin on both sides. He has not written the duration of injuries in his injury report Ext. Ka-2. Injury No.2 was found in leg in the area 12 cm width, this injury was caused by firing from back side on leg, but he could not tell whether the fire was shot from front or back.
13. The postmortem examination report of deceased Raju alias Kamta was prepared by PW5. Dr. Anil Kumar Shukla, who has proved this document as Ext. Ka-3 by his evidence before the Court. The postmortem report of deceased Raju alias Kamta Prasad, reveals that his postmortem examination was conducted on 19.09.1995 at 4:30 PM at District Hospital, Fatehpur. At the time of postmortem following ante-mortem injuries were found on his person:-
i. Stitched wound right side 18 cm long on abdomen, just right to umbilicus, 15 stitches given on vertically place wound.
ii. Stitched would 3 cm horizontally on right side back of abdomen 4 cm above left crest 3 stitches given.
iii. Stitched would with drain of rubber on left side of abdomen 3 cm long 3 stitches given.
14. Initial examination- No abnormality detected in neck, scalp, membranes, brain, skull, vertebra, spinal cord was not opened, no abnormality detected in walls of ribs and cartilage, pleura, trachea, longs, pericardia, both chambers of heart were empty in abdominal cavity 200 ml puss was present, stomach was empty, his small intestine was empty and only gases were present. Multiple repairs were done at different places by calgut, faeces and gas were present in long intestine. In the the opinion of doctor, the cause of death was due to Toxemia and Septicemia, as a result of ante-mortem injuries. The one unwrapped bandage with lucoplast and rubberbands were recovered from dead body and entrusted to police constables who had brought dead body for postmortem. These exhibits were sent to FSL, Mahanagar, Lucknow for scientific examination, in FSL report dated 05.12.1995, human blood was found in large parts of these articles.
15. First Information Report was lodged by the deceased himself in injured condition. The FIR is proved by evidence of its scribe. PW3 Dharamveer Singh, due to death of the author of Ext. Ka-1 deceased Raju alias Kamta Prasad. PW3 has stated in his evidence that about two years ago Raju alias Kamta Prasad met him in injured condition. He got the written report scribed by him, he wrote down the written report as dictated by injured Raju alias Kamta and readover the same to him, after writing this paper, he signed the written report as scribed and got thumb impression of informant Raju alias Kamta Prasad, on this report which is paper No.3A/2 on record, the documents is marked as Ext. Ka1. The witnesses stated that after signing this paper he handed over the same to the informant Raju alias Kamta Prasad. Investigating Officer had interrogated him about this paper. In cross examination this witness has stated that he had visited village Rampatiya Ka Purwa, and village Dariyapur prior to the incident, these villages are situated within ½ km of distance. He drives the tempo from his village Shivpuri to Khaga on the fateful day he was going to his village from Khaga; injured Raju and his mother met him on his way at around 3:00 pm. He scribed the report at police out post Vijaipur in the name of Raju alias Kamta Prasad.
16. PW1 Smt. Mantoriya, has been examined as eye witness of the incident, she is mother of the deceased. She identified the accused persons Buddhu, Dhaukal, Bhaiya Lal, Rajendra and Ram Swaroop before this court and stated that Ramswaroop is resident of village Gokulpur, and a relative of accused Bhaiyalal. Dhaukal and Buddhu are real brothers, Rajendra is nephew of Dhaukal and the accused persons are related to each other.
(i) She further stated in her evidence that the incident occurred two years ago, on the date of incident her son was weeding in his chili field, she had brought his meal in the field at 01:30 pm, suddenly her co-villagers Dhaukal, Bhaiya Lal, Bhuddhu, Rajendra and Ramswaroop appeared, who were armed with lathi, gun and Tamancha (country made pistol). Her son Raju alias Kamta was sitting to take meal, Bhaiya Lal exhorted and called other accused persons to kill him, he will spend whatever money would be required, whereupon Buddhu opened two fired by his gun, the shot fired by Buddhu hit Raju alias Kamata on his right waist and left knee. The incident was seen by Hiruwa who was ploughing his field in the vicinity, she raised an alarm and challenged the accused persons who fled away. Her son went to police station for lodging FIR in injured condition; he was sent to hospital and thereafter to Fatehpur for treatment. Her son Raju alias Kamta Prasad died in District Hospital, Fatehpur due to injuries suffered in the incident, her son had produced written report at police station, he had studied up to class 8th, he got the report prepared at police station. Accused Dhaukal and others had got a case registered against her son and husband in collusion with police, in which her husband and son (decease) were challaned. They were implicated in a case of marpeeth (thrashing) and her sons and husband were released on bail in that case. The accused persons assaulted her son due to this enmity and he died due to injuries suffered in the incident. The Darogaji (Investigating Officer) met and interrogated her.
17. PW2 Shiv Mohan, who is father of the deceased is not an eye witness of the incident; he stated in his evidence that the incident occurred one month prior to two years of his statement before the Court, his son Raju alias Kamta Prasad was shot in the incident. He had gone to visit some relative on that day, where he got the information that accused persons present in the court named as Bhaiya Lal, Dhaukal, Buddhu, Rajendra and Ramswaroop had got his son injured by firing shots due to enmity. He came to hospital at Fatehpur on getting information, his son died in the hospital after 8-9 days of the incident due to injuries suffered in the incident. The scuffle (marpeet) had taken place some days ago between his son Raju alias Kamta Prasad and accused persons, and a case is still proceeding in regard to that incident. The accused Dhaukal and others had got him and his son Raju alias Kamta challaned on the basis of false report, the deceased and the witness were sent to jail in that case and were later released on bail. The accused persons had shot his son Raju alias Kamta Prasad due to enmity. Darogaji visited the village and took him and his wife at the spot of incident and interrogated. He received information of this incident at village Tulsiput and reached at the hospital on the next day.
18. PW3 Dharamveer Singh, has stated that he found Raju alias Kamta Prasad, resident of Rampatiya Ka Purwa in injured condition. He got the written report prepared by him by dictating its contents, he wrote down whatever he dictated, he read-over the written report after scribing this to the informant and got his signature appended on that, on which Ext. Ka-1 is marked. He handed over the report to Raju after scribing this. Darogaji had interrogated him. In cross examination this witness has stated he was returning to his village from Khaga, the injured Raju alias Kamta Prasad and his mother met him at around 03:00 PM, he wrote down written statement at O.P. Vijaipur. In cross examination the witness denied suggestion that he scribed the false report at the behest of Athar.
19. PW4 Doctor K.N. Pandey is author of the postmortem report of the deceased Raju alias Kamta Prasad and has proved the postmortem.
20. PW6, SI Kamla Singh, who is first investigating officer of the case has testified that on 10.09.1995 he was posted as Sub Inspector at Police Station Kishanpur (District Fatehpur). The investigation of the case was entrusted to him on that day, the witness prescribed the steps taken by him in investigation of the case, he stated that he recorded statement of the victim/injured after much efforts. The case was registered in its presence and he had also signed the chick FIR. He conducted raids to apprehend the accused persons, but during the period in which investigation was interested to him they could not be arrested. The investigation was later on resumed by Station House Officer himself. In cross examination the witness stated that injured visited the police station for lodging the FIR, he asked him about eye witnesses of the incident, whereupon he told name of his mother and one Hirwa of his village. He stated to him that these persons had not come to police station, the condition of the injured was very serious, when he visited the police station and for that reason he immediately sent him to hospital for treatment. He did not tried to record his dying declaration at that time, but he recorded his statement under Section 161 Cr.P.C. Chitthi Majrubi was not bearing his signature, as it was left due to inadvertence, Ext. Ka-2 is signed by constable Manoj, when the patient was sent to hospital he did not tried to put his clothes off and take the same in his custody. He visited the place of incident on the date of incident, but had not carried out local inspection, as it was night and none was present in the house of the informant. He did not record statement of eye witness Hirwa, he had not met him on that time. The witness verified the statement of deceased Raju alias Kamta Prasad recorded by him under Section 161 Cr.P.C. in his cross-examination, wherein he stated that on 10.09.1995 he was weeding in his field, his mother Smt. Mantoriya had got meal for her. Witness Hirwa was ploughing the field in the vicinity. The accused persons Dhaukal, Buddhu, Bhaiya Lal, Rajendra and Ramswaroop appeared there in a planned manner and while coming near him Bhaiya Lal and Ramswaroop exhorted to kill, whereupon Buddhu opened fire on him in indiscriminate manner which hit him on right side of waist, lower back and back side of left knee. He visited the spot on the date of incident, as he was lone officer at police station at that time.
21. PW7 SI Ram Bahddur Verma has testified the course of investigation conducted by him as second investigation, who was posted as Station House Officer at P.S concerned. He stated that after preliminary, he recorded statement of witnesses Hira @ Hiruwa and conducted spot inspection and prepared the site plan, which is exhibited as Ext. Ka-4. He also recorded statement of witnesses Chedi and Jagdish proceeded to trace the accused persons. On 13.09.1995 he came to know that accused Ramswaroop, Bhaiya Lal and Rajendra had surrender in the Court on 17.09.1995. He copied dying declaration of Raju alias Kamta Prasad in case diary and later on he went in search of Dhaukal and Buddhu, but could not find them. On 17.09.1995 he received information of surrender of accused Dhaukal in the Court. On 20.09.1995 he again tried to trace out the accused Buddhu and gave report for issuing process under Section 82 and 83 Cr.P.C. against him in the Court. On 21.09.1995 vide GD Report No.11 time 08:00 hours the case was converted from section 307 IPC to Section 302 IPC on account of death of the injured Raju. On 24.09.1995 he recorded statement of Smt. Mantoriya, mother of the deceased and Shiv Mohan, father of the deceased. On 27.09.1995 he recorded statements of the accused persons barring respondent No.2 Buddhu in jail after taking permission of the Court. On 11.10.1995 he received information regarding surrender of accused Buddhu in the court and thereafter he recorded his statement after taking permission of the court. On 18.09.1995 he recorded statements of the witnesses of inquest, on 20.10.1995 he sent the exhibits for scientific examination at FSL. He also recorded the statement of scribe of the written report namely Dharamveer Singh; after concluding the investigation and finding sufficient evidence against accused persons Dhaukal and others and submitted chargesheet before the court against them under Sections 147, 148, 149, 302 IPC. The witness proved the chargesheet as Ext. Ka-5 by the evidence. He also proved Chik FIR as Ext. Ka-6, entries of registration of case vide GD Report No.22, time 18:20 hours dated 10.09.1995 in absence of its author head Moharir Yashwant Singh, as Ext. Ka-7. He also proved modified GD Report dated 21.09.1995 Report No.11 time 08:00 hours by which case was converted into Section 302 IPC, in absence of its author Constable Manoj Kumar who was posted with him and the witness was acquainted with his writing and signature. The modified GD report is exhibited as Ext. Ka-8. The witness also proved the inquest report and papers relating to postmortem of the deceased like Photo Nash, Chalan Nash, letter CMO, letter RI and these papers were exhibited as Ka-9 to 13. The witness also stated that the report of FSL is placed on record.
22. In cross examination, the witness stated that at the time of registration of the case, he was on duty outside the police station, but was not on leave. He came back to police station on 10.01.1995 at 19:45 hours, he received investigation of the case from previous Investigating Officer on 12.01.1995. He tried to record statement of one of the accused Mantoriya in the village, but did not visit the hospital for recording her statement. He could not obtain the clothes worn by the deceased due to his death during treatment. He recorded statement of Mantoriya on 24.09.1995, the incident occurred within jurisdiction of O.P. Vijaipur which was lying within police station headed by him. The place of incident is dacoity infested area. At the time of incident the Gang was operated by one Athar Nian who was resident of village Rahmatpur, situated in the vicinity of police station. During investigation he did not get any information that deceased belonged to a gang of Atharmia, this fact is not stated in site plan that place of incident was 400-500 paces away from the village. The place of incident was an empty agricultural field, in which standing tree of Neem situated. This field belonged to Raju alias Kamta, the injured who later died, he has not shown in the site plan that Chili was planted in the field where incident occurred. He has also not shown the place of weeding (Nirai). He conducted spot inspection on the pointing out of eye witness Hiru alias Hirawa. The witness denied defence suggestion that investigation was carried out in the case was shoddy and was conducted under influence of the injured. The witness proved site plan of the place of occurrence, as Ext. Ka-4 being preferred by him.
23. PW8 Sri Gyan Prakash Srivastava, the then Naib Tehsildar Sadar, District Fatehpur has testified that on 11.09.1995 he visited District Hospital Fatehpur on orders of Sub Divisional Magistrate, Fatehpur where injured Raju alias Kamta prasad son of Shiv Mohan, resident of Rampatiya Ka Purwa, H/o Barar, Police Station Kishunpur, District Fatehpur admitted in emergency ward No.24, after general examination by doctor recorded his dying declaration, which is placed on record. He questioned him, as to what happened to him and why, they he replied on 10.09.1995 at around 10 to 11 hours in a day he was weeding in his chilli field; in the meanwhile his mother brought meal from home and he started eating this, suddenly Buddhu, Dhaukal, Ramswaroop, Bhaiya Lal and Rajendra reached there and Buddhu fired a shot at him which hit him, Ramswaroop also fired a shot which hit him and he fell down, thereafter they fled away. He asked from the injured about enmity with the accused persons to which he replied that all of them were inimical terms with him, the marpeet occurred 10-12 days ago in which was sent to jail. He recorded the statement of the injured and read-over to him on which he affixed his thumb impression, which is attested by him. The doctor has endorsed the fact of fitness of patient after deposition. PW8 also stated that he prepared dying declaration of the deceased in his handwriting, on which Ext. Ka-14 is being marked. In cross-examination the witness stated that no written order of SDM Sadar addressed to him for recording dying declaration, which is placed on record. The order of SDM would be of information sent by hospital to P.S. Kotwali, he did not perused the bed head ticket of the patient, as he did not find its necessity.
24. The accused persons stated in their statement under Section 313 Cr.P.C. that witness has denied and testified against them falsely, they had lodged a two reports against deceased and his father, in which they were challaned, but for that count they had not borne any grudge against the deceased, and the allegations made against them with regard to cause of death of deceased Raju alias Kamta Prasad is false. They were not aware of the evidence of the prosecution papers. The Naib Tehsildar has given false information with regard to the dying declaration of the deceased, the case was falsely registered against them, as deceased was connected with a local gangster Athar, he would have been killed by some other persons. The deceased was the man of criminal antecedents and was held in jail custody also, he falsely implicated the accused Buddhu due to enmity. The accused Ramswaroop stated that there were party bandi in village due to Gram Pradhan election, he was falsely implicated in the case due to village party bandi. Same statement was made by accused Bhaiya Lal.
25. DW1 Shukru Prasad, stated in his evidence that Gram Sabha Barar consists of 8 Purwa including Rampatiya Ka Purwa, he is resident of Roshanpur Purwa. Village Rampatiya Ka Purwa is situated towards north of his purwa. He is acquainted of deceased, his father Shiv Mohan and his family members. The deceased and his brothers, were four siblings. He was residing in Rampatiya Ka Purwa and his brothers are residing in village Simri Khei, he used to wander here and there and had thrown out his wife, he was also an accused in murder case which occurred in another village, he was also arrested alongwith fire arm. He was the member of the gang of Athar Mian, he came to know the fact Raju alias Kamta was shot by fire arm 4-5 days after this incident. The chilli field of Raju alias Kamta was lying north towards of the field of Shivdarshan.
26. DW2 Shiv Poojan testified that he resides in village Gokulpur, which is also included in Gram Sabaha, which is also included in Gram Sabha Barar and consists of 8 villages. The accused Ramswaroop is his brother and his wife Mithilesh is Gram Pradhan. The deceased Raju alias Kamta Prasad was challaned on the charge of possessing Fire Arms 8 years ago, in which he was also a witness. Deceased Raju alias Kamta Prasad had threatened him and warned him to stay away to depose against him. Accused Bhaiya Lal is a relative of Raju alias Kamta Prasad was also exerting pressure on him also to refrain from deposing against him.
27. DW3 Awadh Bihari Shukla, was Lekhpal consolidation who stated in his evidence that he was posted as consolidation Lekhpal of village Barar since 12.01.1996 and used to visit different purwas of Gram Sabha Barar in connection with his official duties. He produced village original map of Mauza Barar, which is proved by his evidence and marked as Ext. Kha-2. He also produced Gunia, on which ME-1 was marked. He inspected site plan Ext. Ka-1 during his evidence and stated that in this site plan plot number or chak number is not mentioned.
28. DW4 Hira Lal alias Hiru is shown as witness in FIR, his statement under Section 161 Cr.P.C. was also recorded by Investigating Officer, in which he supported the prosecution version. However, he was discharged from evidence at the instance of informant on application of the informant, in which he stated that he had been warned her by the accused persons. He deposed as DW4, that his village is situated in Gram Panchayat Barar. He had gone at the field of Raju alias Kamta Prasad at around 12 to 01 hours of the day at the place of incident to quench his thirst, he saw Raju alias Kamta in the shadow of Neem tree in the field, his parents and younger brother were also present there, his mother was weeping and crying that someone assault him. The witness clarified that he neither saw the assailants nor the mother of injured told him the name of assailants. He had taken some agricultural field on batai there. The Investigating Officer had called him after one day of the incident, but he did not point out the place where Raju alias Kamta Prasad was lying. Accused are resident of village Rampatiya Ka Purwa, it is wrong to say that he had stated the true facts to Investigating Officer.
29. Learned counsel for the appellants placed reliance on following judgments of Apex Court in support of defence case:-
(1) Mohd. Muslim Vs. State of Uttar Pradesh 2023 Live Law (SC) 489.
(2) Irfan @ Naka Vs. The State of Uttar Pradesh 2023 Live Law (SC) 698 (3) Shanid Khan Vs. State of Rajasthan 2016 (4) SC 96.
(4) Jafarudheen and others Vs. State of Kerala 2022 (8) SCC 440 (5) Harbeer Singh Vs. Sheshpal and Ors. 2016 (16) SCC 418 The relevant paragraphs of these judgments which are pertinent to this Criminal Appeal are being cited as follows:-
(i) In Mohd. Muslim Vs. State of U.P. (now) Uttarakhand (supra) where there was interpolation in the FIR which suggested that it was anti dated time, the chick FIR was sent to court with a delay of four days, the blanket and cycle alleged to be that of the accused appellant left behind and the site of the incident does not produced before the court; considerable delay in conducting the postmortem of the dead body and difference in name of the weapons of weapon of crime in statement of witnesses and the unnatural behaviour and the conduct of the son and nephew of the deceased reflected that prosecution has merely failed to prove that accused/appellant has committed the offence beyond reasonable doubt.
(ii) In Irfan @ Naka Vs. The State of Uttar Pradesh the Hon'ble Supreme Court while deciding the appeal under Sections 302, 436 and 326-A IPC delve into the scope and evidential value of dying declaration, in that case there were two dying declaration observed as under :
..........43. The juristic theory regarding the acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason, the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross- examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, should always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. [See: Laxman v. State of Maharashtra, (2002) 6 SCC 710]
44. The mode and manner, in which the dying declarations came to be recorded, is also something which creates a doubt, as regards its truthfulness and trustworthiness. Although, the Investigating Officer says that the recording of the dying declarations was video-graphed and the CD has been exhibited in evidence yet it is very important to determine the evidentiary value of the same.
45. We should also look into the genesis of the occurrence from a different angle. It is not in dispute that the three deceased died on account of severe burn injuries. It is also not in dispute that the room in which they were sleeping caught fire on account of which they suffered severe burn injuries. It is also not in dispute that inflammable substance like kerosene was found from the room which ignited the fire. However, the moot question is who set the room on fire? Could it be said that the prosecution has been able to prove beyond reasonable doubt that it was only and only the appellant-convict who set the room on fire by pouring the inflammable substance?
48. The justification for the sanctity/presumption attached to a dying declaration, is two fold; (i) ethically and religiously it is presumed that a person while at the brink of death will not lie, whereas (ii) from a public policy perspective it is to tackle a situation where the only witness to the crime is not available.
49. One of the earliest judicial pronouncements where the rule as above can be traced is the King's Bench decision of the King v. William Woodcock reported in (1789) 1 Leach 500 : 168 ER 352, where a dying woman blamed her husband for her mortal injuries, wherein Judge Eyre held this declaration to be admissible by observing: -
"...the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone: when every motive to falsehood is silent, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn, and so awful, is considered by the law as creating obligation equal to that which is imposed by a positive oath administered in a Court of Justice. (b) But a difficulty also arises with respect to these declarations; for it has not appeared and it seems impossible to find out, whether the deceased herself apprehended that she was in such a state of morality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions. .... Declarations so made are certainly entitled to credit; they ought therefore to be received in evidence: but the degree of credit to which they are entitled must always be a matter for the sober consideration of the Jury, under all the circumstances of the case."
(Emphasis supplied)
51. It is significant to note the observations made by Taylor that "Though these declarations, when deliberately made under a solemn sense of impending death, and concerning circumstances wherein the deceased is not likely to be mistaken, are entitled to great weight, if precisely identified, it should always be recollected that the accused has not the power of cross examination, a power quite as essential to the eliciting of the truth as the obligation of an oath can be, and that, where a witness has not a deep sense of accountability to his Maker, feelings of anger or revenge, or, in the case of mutual conflict, the natural desire of screening his own misconduct, may effect the accuracy of his statements and give a false colouring to the whole transaction. ...". [See: Taylor on "Treatise on the Law of Evidence", 1931, 12th Edition Pg. 462]
52. It is observed in Corpus Juris Secundum Vol XL, Page 1283 that:
"In weighing dying declarations, the jury may consider the circumstances under which they were made, as, whether they were due to outside influence or were made in a spirit of revenge, or when declarant was unable or unwilling to state the facts, the inconsistent or contradictory character of the declarations, and the fact that deceased has not appeared and accused has been deprived of the opportunity to cross- examine him, and may give to them the credit and weight to which they believe, under all the circumstances, they are fairly and reasonably entitled."
53. In India in the relevant provision of Section 32 of the Act 1872, the first exception to the rule against admissibility of hearsay evidence, is as under:
"32(1). When it relates to cause of death. -- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
54. Jon R. Waltz, American Jurist observed that, "It has been thought, rightly or wrongly, that Dying Declarations have intrinsic assurances of trustworthiness, making cross examination unnecessary. The notion is that a person who is in the process of dying, and knows it, will be truthful immediately before departing to meet his Maker. (Of course, the validity of this hearsay exceptions is open to some debate. What about the person who is not deeply religious? What of the person who, as his last act, seeks revenge by falsely naming a life-long enemy as his killer? How reliable is he perception and memory of a person who is dying?)" [See: Waltz, J.R. (1975) Criminal Evidence, Chicago: Nelson-Hall. pp.75-76]
55. The Privy Council in Neville Nembhard v. The Queen reported in (1982) 1 AII ER 183, on Section 32(1) of the Act 1872 opined that the evidence of dying declaration under the Indian law lacks the special quality as in Common Law and hence, the weight to be attached to a dying declaration admitted under Section 32 of the Act 1872 would necessarily be less than that attached to a dying declaration admitted under the common law rules.
58. This Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh reported in (2007) 15 SCC 465 and Bhajju alias Karan Singh v. State of Madhya Pradesh reported in (2012) 4 SCC 327 had explained the meaning and principles of dying declarations upon which its admissibility is founded, with the following observations:-
"20. There is a historical and a literary basis for recognition of dying declaration as an exception to the hearsay rule. Some authorities suggest the rule is of Shakespearian origin. In The Life and Death of King John, Shakespeare had made Lord Melun utter "Have I met hideous death within my view, retaining but a quantity of life, which bleeds away, ... lose the use of all deceit" and asked, "Why should I then be false, since it is true that I must die here and live hence by truth?" William Shakespeare, The Life and Death of King John, Act 5, Scene 4, lines 22-29.
Xxx xxx xxx
22. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. This Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.
23. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his creator.
24. There is a legal maxim "nemo moriturus praesumitur mentire" meaning, that a man will not meet his Maker with a lie in his mouth. Woodroffe and Amir Ali, in their Treatise on Evidence Act state:
"when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross- examination are dispensed with".
25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures."
(Emphasis supplied)
59. This Court in Bhajju alias Karan Singh Vs. State of MP (2012) 4 SCC 327 has observed as under:
"23. The "dying declaration" essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man's mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth.
Xxx xxx xxx
26. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. ..."
62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?
63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.
(iii) In Shahid Khan Vs. State of Rajasthan (supra) the accused appellant was convicted of charge under Sections 147, 148, 302/149 and 397 IPC by High Court. There was a concurrent finding of guilt of appellant and co-accused with regard to charge under Section 302/149 and 148 IPC and he was sentenced for these charges. The deceased suffered four stab wounds, two incised wounds and one abrasion in the incident. He was declared brought dead "on reaching the hospital". He died on injuries sustained in homicide violence allegedly authored by the appellants and co-accused. The statement of main witnesses of facts was recorded after three days of the offence in the opinion of Apex Court no explanation is forthcoming as to why they are not examined after three days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The court further observed that the delay in recording the statements of witnesses during investigation caused serious doubt about there being eye witnesses to the occurrence, it may suggests that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case to the eye witnesses to be produced. The circumstances in this case lend such significance to this delay in view of unexplained silence and delayed statements of main witnesses PW25 and PW24 to the police, in view of their unexplained silence and delayed statement to the police does not appear to us to be wholly reliabale witnesses. There is no corroboration of their evidence from any other independent source either. Therefore, it was found unsafe to rely on their evidence only to approach conviction and sentence of the appellant. The High Court has failed to overt the contentions raised by the appellants and reappreciate the evidence thereby resulting in miscarriage of justice. The case against the appellants has not been proved beyond reasonable doubt, consequently the appeals are allowed and conviction of sentence to the appellants setaside.
(iv) In Jafarudheen and others Vs. State of Kerala (supra) the deceased of the accused belonged to two different political parties, there was an altercation between the affiliated political members on 17.07.2002 prior to main occurrence of the murder of deceased. In the altercation on 17.07.2002 the deceased had reportedly assaulted the accused No.2. The accused were 16 in numbers and assembled at the family house of accused No.5 on the same day at about 7:00 pm and hatched a conspiracy to take out the life of the deceased i.e. three hours of the incident of altercation and resultantly the deceased was done to death by accused persons. The four accused persons were acquitted for charge of conspiring to commit murder of the deceased. However, High court recorded conviction of the appellants setting-aside order of the acquittal passed by trial court.
The Apex Court in appeal against conviction reiterated the law laid down in regard to appeal against acquittal, as laid down in Shivlal Vs. State of Chhattisgarh, 2011 (9) SCC 561 and Rajeevan Vs. State of Kerala (2003) 3 SCC 355, State of Rajasthan Vs. Om Prakash (2002) 5 SCC 745, Shahid Khan Vs. State of Rajasthan (2016) 4 SCC 96, Ganesh Bhavan Patel Vs. State of Maharashtra (1978) 4 SCC 371 and some other important judgments on the subject.
Hon'ble Apex Court observed in paragraph No.36 of the judgment that trial court had the advantage of seeing the witnesses as they deposed. The appellate forum cannot change the conclusion arrived at thereafter by substituting its views. It seems to us that the High Court has adopted the principle of preponderance of probability as could be applicable to the civil cases to the case on hand when more scrutiny is warranted for reversing an order of acquittal. The prosecution has to prove its fundamental facts.
(v) In Harbeer Singh Vs. Sheeshpal and others (supra) the two appeals were filed, one of State and other by son of the deceased against judgment of High Court dated 25.11.2011, where by the conviction and sentence recorded by trial court against the respondents was set-aside.
Hon'ble Supreme Court while deciding both the appeals observed as under:-
.....7. However, the High Court gave the benefit of doubt to the Respondents and acquitted them on the ground that the prosecution was not able to prove its case beyond all reasonable doubt since the eye-witnesses were interested in the complainant and hence unreliable, while most other prosecution witnesses were chance witnesses. The evidence of the eye-witnesses both as to the fact of the alleged conspiracy and the murder of the deceased, did not inspire confidence; there were inconsistencies and improvements in the deposition of the prosecution witnesses made over their statements recorded under Section 161 Cr.P.C. Further, there was unexplained delay in recording the evidence of certain prosecution witnesses as well as many important and basic lapses in investigation that made the prosecution case suspicious.
9. In Himachal Pradesh Administration Vs. Shri Om Prakash, (1972) 1 SCC 249, it was held by this Court:-
"In appeals against acquittal by special leave under Article 136, this Court has undoubted power to interfere with the findings of fact, no distinction being made between judgments of acquittal and conviction, though in the case of acquittals it will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court 'acts perversely or otherwise improperly'."
11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242].
18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = 1964 (7) SCR 397, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said:
"There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully........But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence......If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised."
20. However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
23. The defining attributes of a 'chance witness' were explained by Mahajan, J., in the case of Puran Vs. The State of Punjab, AIR 1953 SC 459. It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence.
25. In the light of the above and other reasons recorded by the High Court, we hold that the evidence of the eye witnesses is not truthful, reliable and trustworthy and hence cannot form the basis of conviction. Their presence at the scene of occurrence at the time of the incident is highly unnatural as also their ability to individually and correctly identify each of the accused from a considerable distance, especially when it was dark at the alleged place of occurrence, is itself suspect.
30. On perusal of evidence on record including the impugned judgment passed by learned trial court it appears that incident occurred on 10.09.1995 at 01:30 PM, and FIR thereafter was lodged by the deceased in injured condition himself on same day at 18:30 hours under Sections 147, 148,149, 307 IPC at Police Station Kishanpur, District Fatehpur against the named accuse persons Dhaukal, Buddhu, Bhaiya Lal, Rajendra and Ramswaroop. Accused Ramswaroop in his statement under Section 313 Cr.P.C. admitted that accused Dhaukal and Buddhu are real brothers, Rajendra is nephew of Dhaukal, Bhaiya Lal is cousin of accused Dhaukal, accused Ramswaroop is relative of Bhaiyalal. All the accused persons for the charge under Section 148, 149 IPC, accused Buddhu was charged under Section 302 IPC (simplisitor) and remaining accused persons namely Dhaukal, Bhaiyal Lal, Rajendra and Ramswaroop were charged under Section 302/149 IPC. Prosecution examined PW1 Smt. Mantoriya, the mother of the deceased as eye witness, PW2 Shiv Mohaan, the father of the deceased who is not an eye witness was not present in the village on the day of incident. He stated that accused persons belonged to his own Khnandan, Bhaiya Lal is his relative. Bhaiya Lal is cousin of Dhaukal and Buddhu, Ramswaroop is resident of village Gokulpur. He had gone to the place of some relative and where he was apprised of this incident that his son was shot at by accused persons due to enmity and he was hospitalized in Civil Hospital at Fatehpur, his son died due to injuries suffered in the incident after 8 to 9 days. After getting information of the incident he went to the hospital straightway, he also admitted that he resides in village Chandanapur at the time of this incident. This witness was given a suggestion during cross-examination by accused side. Accused Dhaukal had lodged a report of marpeet against prosecution side of the case in regard to the incident of same day in which his daughter suffered serious injuries and she died next day, due to injuries received in the incident. He has also denied that his son belonged to gang of one Athar of locality and was involved in case of dacoity and murder, the witness denied this suggestion. From evidence of witnesses it appears that barring accused Ramswaroop, other accused persons belonged to same family, and Ramswaroop is related to them.
31. In this case DW3 Hirwa is projected as independent eye witness in FIR itself authored by the deceased Raju alias Kamta Prasad. The Investigating Officer recorded his statement under Section 161 Cr.P.C on 12.09.1995 i.e. after two days of the incident in which he has supported the FIR version. However, he did not appear as prosecution witness and was later examined as DW3.
32. PW7 S.O. Ram Bahadur Varma has stated in his evidence before the court that he conducted spot inspection of the case on the date of incident on 12.09.1995 and prepared site plan of the place of incident at pointing out of witness Hirwa. There is some inconsistency in the stand of prosecution with regard to role assigned to accused Ramswaroop in the offence. In FIR authored by the deceased and scribed by PW3 Dharamveer it is stated that at the time of incident deceased/informant Raju alias Kamta Prasad was sitting to take meal brought by his mother from home in his agricultural field, he was weeding grass and straws from his chili field, when his mother brought meal for him. The accused attacked him while he was sitting to take his meal, Bhaiya Lal exhorted the other accused persons to kill him, whereupon Buddhu opened two fires which hit his right waist and left knee, he fell on the ground being injured and accused took to their heal thereafter. The incident was witnessed by his mother Smt. Mantoriya and one Hirwa son of Kichadoo, who was ploughing the field alongwith the mother of victim Mantoriya. In FIR the injured Raju alias Kamta Prasad has assigned role of exhortation to accused Bhaiya Lal and role of firing two shots to accused Buddhu, he has not assigned any specific role to other appellants in FIR.
33. PW6 Kamla Singh, the first investigating officer stated in his cross examination that he met the deceased (then injured) at Police Station when he came to lodge his report, he told him that his co-villager Hirwa is eye witness. However, no person accompanied him as the condition of injured (Raju) was very serious, he immediately sent him to hospital, he has recorded his statement under Section 161 Cr.P.C. on that day, but he did not make effort to record his dying declaration. On the date of incident Station House Officer was not present in the police station, FIR was lodged in his presence and he has signed the Chik FIR. The witness has proved the statement under Section 161 Cr.P.C of the deceased Raju alias Kamta Prasad, will be treated as a first dying declaration.
34. In Laxman Singh Vs. State of Maharashtra, 2002 (6) SCC 710 the Hon'ble Apex Court held that the situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
35. The Divisoin Bench of this Court in Gulab Singh Vs. State of U.P. 2003 (47) ACC 161 has held that the statement of the victim recorded under Section 161 Cr.P.C. by the Investigating Officer amounts to dying declaration, where statement was recorded after lodging the FIR at the instance of victim himself.
36. In the present case also the statement of victim Raju alias Kamta was recorded under Section 161 Cr.P.C. by the Investigating Officer on the date of incident i.e. 10.09.1995 which also may be treated as his dying declaration which preceded the dying declaration recorded by the Executive Magistrate on 11.09.1995 at 07:45 am (Ext. Ka-14) . PW6 SI Kamla Singh (first Investigating Officer) has proved the statement under Section 161 Cr.P.C. of deceased which amounts to dying declaration during his evidence before the court, in which he reproduced the version of deceased Raju alias Kamta who was injured at that time. In paragraph No.6 of his testimony the Investigating Officer stated that the injured Raju alias Kamta stated to him that he was weeding straw and grass from his field on 10.09.1995, his mother Mantoriya brought meal for her in the field, witness Hirwa son of Kichadoo was ploughing his field nearby his co-villagers Dhaukal, Buddhu, Bhaiya Lal, Rajendra and Ramswaroop resident of Gokulpur came to him in the merely in a planned manner and on reaching near him Bhaiya Lal and Ramsraroop exhorted the the accused persons to kill him, whatever money would be required they would spend, whereupon Buddhu fired two shots at him indiscriminately which hit him on right side of his waist and left knee.
37. The written report Ext. Ka1 which forms basis of lodging of FIR Ext. Ka-6 scribed by Dharamveer Singh and deceased Raju alias Kamta Prasad was its author. The written report bears its thumb impression. In FIR there is slight variation of sequence of events as stated in section 161 Cr.P.C. of the informant. In FIR the informant has stated that on exhortation of Bhaiya Lal, Buddhu opened two fires by his fire arm, whereas in statement under Section 161 Cr.P.C. he has stated that Bhaiya Lal and Ramswaroop exhorted other accused persons to kill him. Ext. Ka-14 dying declaration recorded by Nayab Tehsildar.
38. PW8 Gyan Prakash Srivastava, stated that the statement of victim Raju alias Kamta in reiterated in question answer form. In Ext. Ka-14 it is stated that dying declaration of injured Raju alias Kamta was recorded on 11.09.1995 at 07:45 am who was admitted in emergency ward bed No.24 of District Hospital. The victim stated that on 10.09.1995 between 10 to 11 hours he was weeding out grass and straws from his chili field, his mother brought meal for him at at that time and he started to have a meal, the accused Buddhu, Bhaiya Lal, Rajenddra his co-villagers and Ramswaroop resident of Gokulpur appeared suddenly and Buddhu fired a shot at him by his gun from distance, which hit him and the second fire was shot at him by Ramswaroop, he fell. There was enmity between him and accused persons and marpeet took place between 10 to 12 days before in which he was sent to jail. This dying declaration bears certificate of doctor to the effect that patient Raju alias Kamta was mentally fit to make statement during the whole period of giving his statement.
39. In the facts of the case, certificate of doctor approved on Ext. Ka14 which is proved by the author of dying declaration PW8 in his testimony before the court is sufficient to prove the fact that deceased was in fit state of mind to depose as to the cause of his death or as to circumstances of the transaction which resulted in his death or in other words to make his dying declaration, even in absence of the doctor who has certified his fitness of mind and his ability to speak on margin of dying declaration. This fact has not been disputed that deceased visited the police station to lodge his FIR by way of written statement Ext. Ka-1 and his dying declaration was recorded next day by the Magistrate. He died on 17.09.1995 i.e. after 7 days of the incident during treatment in the hospital. Therefore, the dying declaration recorded and proved by the Executive Magistrate, (PW8) is an admissible and reliable in evidence regarding regarding relevant facts attending to present case.
40. In Magisterial dying declaration Ext. Ka-14, there is slight variation in stand of the deceased in a manner of causing fire arm injuries to him by accused persons from his FIR and statement recorded under Section 161 Cr.P.C. by the Investigating Officer which also amounts to dying declaration. In FIR and statement under Section 161 Cr.P.C. the victim has attributed role of causing fire arm injury to accused Buddhu, whereas in Magisterial dying declaration he has attributed role of causing fire arm injury to accused Buddhu and Ramswaroop and role of exhortation is attributed to accused Bhaiya Lal.
41. In the present case apart from two dying declarations of the deceased Raju alias Kamta Prasad one recorded by Investigating Officer on the date of incident and after lodging of FIR, and the other was recorded by Naib Tehsildar in District Hospital. As FIR in the case was itself lodged by the deceased on reaching at Police Station, it may also be treated as dying declaration. In all these three dying declarations the variation is mainly on point of role attributed to accused Ramswaroop. In FIR it is stated that on being exhorted by Bhaiya Lal, Buddhu fired two shots at informant which hit in right side of his waist and left knee. Statement under Section 161 Cr.P.C. is proved by PW6, the first Investigating Officer, the deceased is stated to have said that on being exhorted by Bhaiya Lal and Ramswaroop, Buddhu fired two shots indiscriminately which hit him on right side of waist and left knee joint. In dying declaration recorded by Naib Tehsildar in the hospital on 11.09.1995 which is duly proved as Ext. Ka-14 by its author, PW8 Sri Gyan Prakash Srivastava, in which deceased has stated that occurrence took place at between 10 to 12 in day hours on 10.09.1995 while he was weeding out straw and grass from his chili field and on being supply meal by his mother he started eating it first fire was shot bv Buddhu and second fire was shot at him by Ramswaroop. The first fire was shot by Buddhu from distance by his gun and second fire was shot by Ramswaroop. Both fires hit him, he fell down and thereafter the miscreants took to their heal. In all the three dying declarations including FIR, name of all the appellants Bhaiya Lal, Buddhu, Ramswaroop and Rajendra has been mentioned.
42. PW1 Smt. Mantoriya, mother of the deceased is projected as eye witness of the incident who is also stated in her evidence that accused persons Buddhu, Bhaiya Lal, Rajendra and Ramswaroop are know to her, except Ramswaroop other co-accused persons are resident of village, Ramswaroop is resident of Gokulpur who is relative of Bhaiya Lal. In examination in Chief PW1 has stated that on being exhorted by Bhaiya Lal, Buddhu opened two fire at his son Raju alias Kamta which hit him on right side of waist and left knee. Her son Raju alias Kamta the injured went to lodged FIR at Police Station, from where he was sent to district hospital, Fatehpur, where he died due to injuries suffered in this incident. PW1 Mantoriya and PW2 Shiv Mohan are parents of the deceased and both have stated in their evidence that there was enmity between deceased and accused persons. In cross examination this witness has stated that she had heard sound of two fire arms, both fires were shot by accused Buddhu, her son had taken meal in the morning before moving to his field, he was conducting weeding by Khurpi from his chili field, she reached at the field at around one and half hours. She is not proficient to read the watch, as his son stated to her that she had brought meal at 1 ½ hours, she came to know that it was one and half hour in the day, the blood was spread at the place where her son received fire arm shots. He was wearing pant and shirt at that time, his clothes got blood stained due to fire arm injuries. He went to police station in same clothes worn at the time of incident. The blood strains might have been washed due to traversing of field by cattle. When her son was challenged by accused he ran towards Ganga, but he was shot at by accused Buddhu while chasing him. First fire was shot by Buddhu and the other fire was shot by Ramswaroop. Thus, inspite of variation with regard to role of firing attributed to accused Ramswaroop in dying declaration the deceased and cross examination of PW1, this is significant that in all these three dying declarations including the evidence of PW1, the role of firing is consistently attributed to accused Buddhu and for that reason he has been convicted for charge under Section 302 IPC simplicitor and other accused persons are convicted for charge under Section 302 IPC read with section 149 IPC by learned trial judge.
43. PW1 has also stated in cross-examination that Buddhu shot two fires at deceased. Her son was speaking even after getting hurt by firearm injury and was conscious. He has stated in cross-examination that she lifted her son from the place of incident and visited the police station alongwith injured. The witnesses Rujanwa, Devtaha and Rajaram also accompanied her, whereas in statement of PW6, the Investigation Officer this fact surfaced that deceased visited the police station alone and was not accompanied by any other person. However, PW6 has stated that condition of the informant was very serious and for that reason he was sent to District Hospital from Police Station, she was sent to hospital just after lodging of FIR.
44. PW1 has stated that at the time of lodging the FIR she was removed from police station, she had spoken to his son in the night. She denied the defence suggestion that Athar Nian (local muscle man) visited her son in the hospital in the night. She was given suggestion by defence that as there was Arhar field near place of occurrence, where Buddhu opened fired. She could not see the firing this suggestion infact fortifies prosecution case alleast with regard to involvement of accused Buddhu in the offence. This witness has also given defence suggestion that at the time of incident wife of Ramswaroop was village Pradhan and she has implicated Ramswaroop only due to influence of Athar Mian. This prosecution evidence with regard to role of firing attributed to Ramswaroop is highly doubtful and version of the deceased and PW1 on that point is not reliable.
45. Investigating Officer, PW7 who conducted spot inspection of the place of incident has stated in his evidence as PW7 that he had carried out spot inspection at pointing out of Hira alias Hiruwa DW4 and prepared site plan in his writing and signature which is marked as Ext. Ka-4. Both witnesses Hira alias Hiruwa deviated from his statement under Section 161 Cr.P.C. recorded by PW6 the first investigating officer, wherein he supported the prosecution case in his testimony as DW4 and has stated as defence witness that he could not see the incident of firing at injured Raju alias Kamta Prasad. Yet he stated that that he visited the place of occurrence to quench his thirst around 12 to 01 hours in the day and found Raju alias Kamta Prasad and his parents present in the shadow of neen tree standing in the field, his mother was weeping saying that some body assaulted Raju, but she did not disclose the name of assailants. Chari was sown in the field, where Raju alias Kamta was lying, but it was harvested at that time, Jawar and Bazra was sown near by his field. PW7 stated that he had not tried to record the statement of Mantoriya by vising the hospital. He recorded statement of witness Hira alias Hiruwa on 12.09.1995, PW6 has stated that a river flows by the side of the village in northern side. Deceased stated name of his co-villagers Hira alias Hiruwa as an eye witness. The circumstances strongly suggests that Hira alias Hiruwa were present on the spot at the time or just after the incident and for reasons best known to him he did not appear as witness of prosecution during trial, otherwise there was not reason that Investigating Officer would have conducted spot inspection on 12.09.1995 at his pointing out.
47. PW7 has stated in cross-examination that the place where deceased was shot was vacant and a neem tree was lying there in this field was belonged to Raju alias Kamta. He has not mentioned this fact that the field where incident occurred was chili field, he has not stated this fact also in site plan that straws were weeded out from this field at the time of incident, as he inspected the place of incident after two days. He did not find any sign of taking meal there, he did not find any wad, empties and blood stained on the place of incident. He has marked the place from where witness Hira alias Hiruwa had seen the occurrence, only due to fact that Investigating Officer had not shown plantation of chili in the field where deceased was shot dead or he was taking meal is expected from the fact that in evidence of PW1 this fact is emerged that on being exhorted by Bhaiya Lal, the injured ran to some extent and he was sought at from behind. Neither in FIR nor the dying declaration the deceased has stated that he was taking meal in the same field where he was weeding. Thus, this statement of investigating officer is not contrary to prosecution case.
48. Despite aforesaid discrepancies pointed out by defence in prosecution evidence, this fact is proved beyond reasonable doubt that accused Buddhu on alleged place date and time of incident fired two shots at the deceased which hit him on his knee, vital parts of waist and knee due to which he received serious injuries which culminated in his death after seven days of the incident at 07:45 PM during his treatment at district hospital and assailant Buddhu was accompanied by accused Dhaukal and Ramswaroop. Bhaiya Lal exhorted the assailant Buddhu at the time of incident and thereafter Buddhu caused two fire arm injuries to deceased Raju alias Kamta Prasad. Although no specific role has been assigned in dying declaration of the deceased or in testimony of eye witness PW1 Smt. Mantoriya to remaining accused Dhaukal and Rajendra, but presence of all the accused persons at the place and time of incident is proved by dying declaration of the deceased and evidence of PW1 Smt. Mantoriya. There is nothing on record which negates their presence on the spot.
49. In Sucha Singh And Anr vs State Of Punjab AIR 2003 (SC ) 3617 the Hon'ble Supreme Court held that even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'.
50. Evidence has been adduced by any of the evidence regarding their presence else where at the time of incident. In a recent judgment of Hon'ble Supreme Court in Parshuram Vs. State of M.P. Criminal Appeal No.524 of 2021 delivered on 03.11.2023 placed reliance on its proved judgment in Masalti Vs. State of U.P. (1964) 8 SCR 133 held as under:-
"........14. It could thus clearly be seen that the Constitution Bench has held that it is not necessary that every person constituting an unlawful assembly must play an active role for convicting him with the aid of Section 149 of IPC. What has to be established by the prosecution is that a person has to be a member of an unlawful assembly, i.e. he has to be one of the persons constituting the assembly and that he had entertained the common object along with the other members of the assembly, as defined under Section 141 of IPC. As provided under Section 142 of IPC, whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly."
51. In Masalti Vs. State of U.P. Hon'ble Apex Court (supra) observed as under:-
"17. .......What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin [AIR 1956 SC 181] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly........"
52. Thus in view of the law laid down by Hon'ble Apex Court in Masalti Vs. State of U.P. (supra) as well as Parshuram Vs. State of M.P. all the five accused persons are vicariously liable for act done by one of them, which is under Section 149 IPC for causing death of deceased on given date time and place and they cannot be exculpated from liability that no specific role has been attributed to two of them in FIR as well as in prosecution evidence. In so far as the charge under Section 302 IPC is concerned, taking into account dying declaration of the deceased, eye witness account of PW1 and medical evidence adduced by PW4 doctor K.N. Pandey, author of the injury report of the deceased in injured condition, PW5 doctor Anil Kumar Shukla, the author of postmortem examination of the deceased, we find that a deadly weapon like gun was used in the offence while causing such bodily injuries to victim Raju alias Kamta Prasad which ultimately resulted in his death. However, this fact cannot be lostsight that in postmortem report, cause of death has been shown as Toxemia and Septicemia as a result of ante-mortem injuries. Onset of Toxemia and Septicemia is not normal phenomenon of gun shot injuries and this symptom of often occurs due to non administration of proper medical treatment. The seats of injury are non vital part of the body i.e waist and knee and there is at least 6 hours duration between the incident and first visit of the injured in hospital as per record. Thus, keeping in view the totality of the facts and circumstances of the case, we do not find it a case where fire arms injuries was caused to deceased by assailant Buddhu with intention to cause death, which is a prerequisite of offence of murder, but from the facts and circumstances of the case it is inferred that the act by which death is caused was done with intention to cause such bodily injuries as is likely to cause death. Thus, the appellant Buddhu who is attributed role of causing fire arm injuries to deceased which proved fatal later on, is liable to be altered from Section 302 IPC to section 304(1) IPC and conviction of appellants Dhaukal, Bhaiya Lal, Rajendra and Ramswaroop from Section 302 IPC read with Section 149 IPC to Section 304(1) IPC read with section 149 IPC.
53. Conviction of appellant Buddhu for charge under Section 302 IPC, and conviction and sentence of other accused appellants for charge under Section 302 read with section 149 IPC is hereby modified/altered to Section 304(1) IPC and Section 304(1) read with Section 149 IPC, respectively.
54. The appellant Buddhu is sentenced to 10 years rigorous imprisonment for charge under Section 304(1) IPC, and Rs.10,000/- fine and in case of default of payment of fine he will further have to suffer eight months additional imprisonment in default. The conviction and sentence awarded to the appellants for charge under Section 148 IPC is hereby affirmed.
55. Other appellants namely Dhaukal, Bhaiya Lal, Rajendra and Ramswaroop are sentenced to seven years rigorous imprisonment and Rs.7,000/- fine for charge under Section 304 (I) read with section 149 IPC. In case of default of payment of fine they are awarded six months default sentence. The period of custody undergone by the appellants will be set-off to sentence awarded in this modified order. All the sentences will concurrently. The appeal stands partly allowed accordingly and conviction and sentence awarded to the appellants in impugned judgment will be deserved to be modified in above manner.
56. Let the copy of the judgment be sent to Sessions Judge, Fatehpur to ensure compliance of this appellate judgment. The appellants who were enlarged on bail in this appeal are directed to surrender before the court concerned to undergo this modified conviction and sentence.
57. Let lower court record be sent back immediately to session judge, Fatehpur for necessary action. In case of non-appearances of appellants before the Court below, they will be taken into custody without any delay by court concerned and sent to jail for undergoing this modified order and sentence.
Order Date :- 22.03.2024 Ashish/-