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JUDGMENT 1999 (1) SCR 55 The Judgment of the Court was delivered by SHAH, J. These two appeals are filed against the Judgment and Order dated 3rd September, 1996 in Criminal Appeal No. 14 of 1985 and Criminal Appeal No. 62 of 1985 by which Conviction of original accused nos. 2 and 3 under Section 302 read with Section 34 I.P.C. and that of original accused no. 1 under Section 302 I.P.C. is upheld by the High Court and they all have been sentenced to undergo rigorous imprisonment for life.

It is a prosecution version that on 7th February, 1983 Sambhu Yadav who was working as an employee in the cloth shop at Chanpatia Bazar was returning at about 7.00 p.m. on a bicycle. At about 800 p.m., when he reached about 100 yards north of Ghogha Chowk on the pitch road, he met three persons who abused him and asked him to stop his bicycle. There-after, Paras Yadav (accused no. 1) caught hold of the bicycle and accused nos. 2 and 3, Satan and Tulsi caught both the arms of Sambhu Yadav and started assaulting him with fists and slaps. In the meantime, Paras Yadav gave chhura blow in abdomen. Accused thereafter fled away. On hulla being raised, Jhakhari Yadav (p.w. 9), Bagur Raut (p.w. 8) Basgeet Yadav (p.w. 1), Gogari Yadav and other persons came there. It is the prosecution version that Sambhu Yadav (deceased) stated before the witnesses and the Police Sub-Inspector that he was surrounded by Tulsi, Satan, Munshi and Paras and thereafter Paras stabbed him on abdomen. It is also a prosecu-tion version that there was enmity between the accused person and the deceased on account of land dispute. Sub-Inspector of Police, Shri Dina Nath Singh (p.w. 16) arrived on the spot while he was on patrolling duty along with others and recorded farbdeyan under Section 307 I.P.C. against the three appellants, besides two unknown persons. The victim was shifted to hospital where he succumbed to the injuries at night on 8th February, 1983. Thereafter, offence under Section 302 I.P.C. was added.

The learned Counsel referred to the evidence of P.W. 1, Basgeet Yadav who has stated that at 8.00 p.m., he rushed to the newly built bridge and saw Sambhu Yadav lying there and he was bleeding. Sambhu, on being asked, informed that Paras Yadav, Tulsi and Munshi surrounded him and Paras gave a chhura blow. Similarly, P.W. 2, Bachu Das stated that he alongwith Jagannath was going home on bicycle and when they reached at the distance of 200 yards from Ghogha Chowk, they saw five persons going away. They were Paras, Munshi, Tulsi and Satan and fifth person could not be identified. At Ghogha Chowk, they saw Sambhu falling down in an injured condition. On inquiry, Sambhu told that Munshi, Tulsi and Satan caught hold of him and Paras gave a Chhura blow. The statement to the aforesaid effect was made by Sambhu to Sub- Inspector. Similarly, P.W. 4, Ramchander Raut also stated that he rushed to the place of occurrence after hearing the noise and found that Sambhu had fallen down on the pitch road. On inquiry, Sambhu told that he was stabbed by Paras while Tulsi, Munshi and Satan had caught hold of him. P.W. 5 Kanchan Yadav, deposed similarly and has stated that Sambhu told him that he was sur-rounded by Munshi, Tulsi, Satan and Paras and Paras stabbed him on abdomen. He also deposed it with regard to the enmity between Sambhu and others accused on account of the land dispute.

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"In such cases, the story of the prosecution will have to be examined de hors such ommissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."

In this view of the matter with regard to Paras Yadav, in our view, there is no reason to disbelieve the oral dying declaration as deposed by number of witnesses and as recorded in farbdeyan of deceased Sambhu Yadav. The farbdeyan was recorded by the Police Sub-Inspector on the scene of occurrence itself, within few minutes of the occurrence of the incident. Witnesses also rushed to the scene of offence after hearing hulla gulla. The medical evidence as deposed by p.w. 11 also corroborates the prosecution version. Hence, the courts below have rightly convicted Paras Yadav for the offence punishable under Section 302 I.P.C.

In the result, the appeals are partly allowed, the conviction of original accused No. 1, Paras Yadav is confirmed and the conviction of original accused nos. 2 and 3, that is, Satan Yadav and Tulsi Sonar is set aside. Appellant Satan Yadav and Tulsi Sonar be set at liberty forthwith, unless required in any other case. Ordered accordingly.