Raghubar Dayal, J.
1. Moti Singh and Jagdamba Prasad, appellants, together with five otherpersons, were convicted by the Sessions Judge of Unnao of offences under s.148, 302 read with 149 and 307 read with 149 I.P.C. Each of them was sentencedto life imprisonment under s. 302 read with s. 149 I.P.C.
2. On appeal, the High Court acquitted the other five persons of the variousoffences. The conviction of the appellants under s. 148 I.P.C., was also setaside, but their conviction for the offences under Sections 302 and 307 read with s.149 were altered to conviction for offences under Sections 302 and 307 read with s.34 I.P.C. On the application of Krishna Kumar, brother of one of the personswho had been murdered, the High Court enhanced the sentence of the appellantsfor the offence of murder to death. Moti Singh and Jagdamba Prasad havepreferred these appeals respectively, after obtaining special leave from thisCourt.
3. It is not necessary to detail the facts of the incident in which severalpersons lost their lives and for participation in which incident the appellantswere convicted, as we are of opinion that the conviction cannot be maintainedon the basis of the evidence on record as appreciated by the High Court.
4. All the eye witnesses of the incident deposed in practically identicalterms about the progress of the incident in which it was alleged that themembers of the accused party fired with guns and pistols both from inside andoutside the room on one side of the passage and also from the seori (cattleshed) on the other side of the passage when the victim party passed along thepassage. The High Court felt doubtful about the firing of the shots from thecattle shed, and consequently acquitted Sheo Shankar, Jagjiwan and ShankarDayal who were said to be mainly the persons who had fired from that place.
5. The High Court, however, believed the prosecution version of the firingfrom the room and later from the platform. It appears that the High Courtbelieved this version because the prosecution witnesses stated so and becausethe statements exhibits Kha 5, Kha 8 and Kha 75 mentioned about the shots beingfired from those places. Statement ex. Kha 75 does not say so. It says thatfiring took place from the front and that these people fired shots with guns.Statements exs. Kha 5 and Kha 8 were made by Ram Shankar and Jageshwar, whowere examined as Court-witnesses 1 and 2 respectively. Ram Shankar andJageshwar have been disbelieved by the Sessions Judge and it appears that theHigh Court did not take any more favourable view of their deposition in Court.It however seems to have relied on their statements exs. Kha 5 and Kha 8respectively, recorded by a Magistrate at the hospital. In this it was inerror. Those statements could have been used only in either corroborating or contradictingthe statements of these witnesses in Court. If those witnesses were not to bebelieved, their previous statements could not be used as independent evidencein support of the other prosecution evidence.
6. In considering the complicity of individual accused in the firing fromthe room and later from the chabutra, the High Court said that Raj Kumar, P.W.11 and Chandra Kumar, P.W. 15, were partisan witnesses whose evidence had to beexamined with caution, that Shyam Lal, P.W. 12 and Gopi Singh, P.W. 14, werenot quite independent witnesses, and that there was nothing particular againstLal Singh, P.W. 17, and Sardar (P.W. 16) who had received gun shot injuries. Itfurther said :
'While considering the evidence of the prosecutionwitnesses we have to bear in mind the rule that the evidence has to be examinedwith caution.'
7. It also considered it necessary to refer to the statements exs. Kha 5 andKha 8 which, as already stated, could not be used as substantive evidence, andthe statement ex. Kha 75 of Gaya Charan, deceased.
8. The High Court fully relied on the alleged dying declaration ex. Kha 75of Gaya Charan and considered it to be a complete account of the occurrence andthe assailants as seen by him. The view of the High Court about this statementof Gaya Charan may be quoted :
'The dying declaration Ex. Ka-75 (Kha 75) of GayaCharan appears to be a complete account of the occurrence and the assailants asseen by him, for he stated : 'Lallan, Chandu, Raj Narain, Sardar, Sri Prakashwere going to the bazar. Shots were fired from front, Jagdamba, Phunnar, Motiand one man whom I know by face fired gunshots on us'. The statement does notshow that Gaya Charan did not see all the assailants who fired gunshots. It istherefore not possible to hold that any accused not mentioned in the dyingdeclaration of Gaya Charan had also fired shots. At the same time we see noreason to hold that the dying declaration of Gaya Charan is not true. Jageshwaridentified the accused Jagdamba among the assailants. The evidence of theeye-witnesses has therefore to be judged in the light of the statements Exs.Kha 5 and Kha 8 of Ram Shankar and Jageshwar and the dying declaration Ex. Kha75 of Gaya Charan.'
9. Now, the evidence relied on by the High Court for the conviction ofJagdamba Prasad consists of the statements of the prosecution witnesses, thestatement of Jageshwar Ex. Kha 8 and the alleged dying declaration of GayaCharan Ex. Kha 75. It also took into consideration the fact that he remainedabsconding till his arrest on September 30, 1960, the incident having takenplace on February 9, 1960.
10. The evidence relied on for the conviction of Moti Singh consists of thedying declaration Ex. Kha 75 of Gaya Charan and, presumably, also of thestatements of the prosecution witnesses, as the High Court has not specificallystated so. It has said :
'We have also no doubt about the participation ofthe accused Moti in the firing of shots from the east of the galiara. He isnamed in the dying declaration Ex. Kha. 75, of Gaya Charan.'
11. With regard to the criticism for the accused about the indefiniteness ofthe description of Moti in the dying declaration of Gaya Charan when there werethree persons by the name of Moti in the village, the High Court said :
'We have no doubt that he is mentioned in the dyingdeclaration.'
12. How they arrived at that conclusion is not clear from the judgment. Thethree persons with the name of Moti belonged to different castes. The caste ofMoti is not mentioned in the dying declaration of Gaya Charan. It is thereforenot possible to state with any confidence that Gaya Charan must have referredto Moti Singh, the appellant, by the name Moti.
13. In acquitting Sheo Darshan Singh, the High Court said that though therewere strong circumstances against him, he was not mentioned in the dyingdeclaration of Gaya Charan and that therefore his presence among the assailantsbecame doubtful. In acquitting Avadh Behari it again said that his name was notmentioned in the dying declaration of Gaya Charan.
14. Again, in fixing the number of persons who had taken part in the firingfrom the room and the platform, the High Court relied on Exhibit Kha 75, thealleged dying declaration of Gaya Charan as the deciding factor. It said :
'The number of assailants mentioned in the dyingdeclaration Ex. Kha 75 is only four. It is doubtful if the assailants were morethan four in number. No offence under section 148 was therefore committed andsection 149 I.P.C. is not applicable.'
15. It is clear from the above that the High Court mainly relied on thealleged dying declaration of Gaya Charan for determining that Moti Singh andJagdamba Prasad, appellants, fired from the room and the platform and that iftheir names had not been mentioned in this statement of Gaya Charan, they toowould have got the benefit of doubt just as Sheo Darshan Singh and Avadh Beharihave got. There is no other factor for making a distinction between the casesof these two appellants and those two accused as all the prosecution witnesseshad named all the accused as assailants of the victim party. It follows that ifthis alleged dying declaration of Gaya Charan be inadmissible in evidence as urgedfor the appellants, the appeals have to be allowed and the conviction of theappellants set aside.
16. The incident took place on February 9, 1960, Gaya Charan's injuries wereexamined by Dr. Bhatnagar the same day. He found two gun shot wounds of entry1/4' x 1/4' up to the depth of abdomen and considered those injuriesto be caused by gun shot and to be dangerous to life. Gaya Charan left thehospital. He was either discharged on the injuries healding up or he left thehospital before they healed up. There is nothing on record to show in whatcircumstances he left the hospital. He died on March 1, 1960.
17. Sub-Inspector Puttu Lal, P.W. 24, has deposed that it was known on March1, 1960 that Gaya Charan had died in Kanpur and that when he reached theBhairon Ghat he learnt that the dead body of Gaya Charan had been burnt acouple of hours before. There is no evidence on record as to what caused GayaCharan's death. In this state of evidence the finding of the Sessions Judgethat Gaya Charan must have died on account of the injuries received in theincident cannot be held to be a good finding. What he says in this connectionis :
'Gaya Charan had a gunshot wound of entry on theleft hypochondrium region and one gunshot wound of entry on the right lumbarregion. Both the injuries were dangerous to life, according to the Doctor. GayaCharan must have died of these injuries and the mere fact, that no post mortemcould be conducted on his dead body before his cremation, does not show that wecannot rely on his dying declaration.'
18. The mere fact that the two gun-shot injuries were dangerous to life isnot sufficient for holding that Gaya Charan's death which took place aboutthree weeks after the incident must have been on account of those injuries.
19. In this connection our attention was drawn to the fact that Ram Shankarwho was also injured in that incident had received one gun shot wound 1/4'x 1/4' up to the depth of his abdomen 1/2' above the right end ofupper border of Symphysis Pubes Pubes, and that injury was also considered by theDoctor to be dangerous to life, but fortunately Ram Shankar did not succumb tothe inquiry. The High Court did not refer to this question as it appears theadmissibility of the alleged dying declaration of Gaya Charan was not raisedbefore it. That however does not mean that we cannot look into the finding offact about Gaya Charan having died on account of the injuries received in theincident. It is necessary for proving the charge of murder of Gaya Charan thathe had died on account of the injuries received and any finding to that effect,in the absence, of evidence can be looked into by this Court even though theCourts below have confirmed that finding. We find that there is no evidence tosupport that finding and hold that Gaya Charan is not proved to have died dueto the injuries received in the incident.
20. The effect of this finding is that the alleged dying declaration of GayaCharan, Ex. Kha 75, cannot be admissible in evidence. Clause (1) of s. 32 ofthe evidence Act makes a statement of a person who has died relevant only whenthat statement is made by a person as to the cause of his death or as to any ofthe circumstances of the transaction which resulted in his death, in cases inwhich the cause of that person's death comes into question. When Gaya Charan isnot proved to have died as a result of the injuries received in the incident,his statement cannot be said to be the statement as to the cause of his deathor as to any of the circumstances of the transaction which resulted in hisdeath. This is obvious and is not disputed for the respondent State.
21. The result then is that the statement of Gaya Charan Ex. Kha 75 isinadmissible in evidence. It was the mainstay of the judgment of the High Courtupholding the finding of the Sessions Judge that Moti Singh and JagdambaPrasad, appellants, were among the persons who had fired from the room and theplatform. When this evidence is to be ignored as inadmissible, the remainingevidence on the record according to the view of the High Court, wasinsufficient to establish beyond reasonable doubt that these two persons wereamong the assailants. The appellants deserve the benefit of that doubt. Theywould have got it if the High Court had not erroneously relied on the statementEx. Kha 75.
22. We therefore hold that Moti Singh and Jagdamba Prasad have not beenproved to have taken part in that incident on February 9, 1960, which led tothe deaths of Lallan and Matrumal and the causing of hurt to several otherpersons. We accordingly allow the appeals, set aside the order of the HighCourt and acquit Moti Singh and Jagdamba Prasad of the offences they wereconvicted of. We direct that they be released forthwith, if not required to bedetained under any other process of law.
23. Appeal allowed.