S.M. Sikri, C.J.
1. In this appeal by social leave the only question that arises is whether on the facts of this case the conviction of the appellants should have been maintained on the basis of the dying declaration alone. In order to determine this question it is necessary to state the relevant facts.
2. The two appellants. Mohd. Ekrarnul and Jethan Mahato were tried along with six others before the learned Additional Sessions Judge. First Court. Monshvr on charges under Sections 148 and 302 read with Section 149. I.P.C. for the murder of one Doraan Mahato of village Lohara within Jamui Police Station. Mohd. Ekrarnul. alone with two others, were further charged under Section 302 read with Section 34. I.P.C. The Trial court acquitted the six co-accused, in respect of all the chaws against them and also acquitted Ekrarnul in respect of the charge under Section 302 read with Section 34. I.P.C. The Trial Court however, convicted the two appellants under Sections 148 and 302 read with Section 149. I.P.C. and each of them has been sentenced to undergo rigorous imprisonment for life.
3. The occurrence took Place at 4 a.m. on October 17, 1964, at a lane outside the darwaia of the deceased Doman Mahto. The prosecution story, in brief, was that Doman. deceased, was sleeping in his house and the two appellants along with the six co-accused, came to the darwaia of Doman and Ekramui called out Doman from outside and the latter came out followed by his son Sarjua (P.W. 5) and wife Kaourba (P.W. 3): at the Instigation of Ekramui Amrit (since acquitted) Bulled Doman by his leg and as Doman fell down. Ekramui struck Doman on his neck with a sword while Zubeir and Waliab (since acquitted) inflicted bhala blows on the chest of Doman: Kapurba (P.W. 3) and Sariuff (P W. 5) raised alarm and the prosecution witnesses arrived from the neighbourhood: Sariug reported the occurrence on the same, day at 7 a. m. at Jamui Police Station, which is five miles away from the place of occurrence: P.W. 10 the officer incharge arrived at village Lohara at 8. 30 a. m. and found Doman lying injured to the west of his darwaza: P.W. 10 found injuries on the deceased which will be described, later: he sent, Doman to Jamui hospital for treatment: he also sent a requisition to the Sub-Divisional Magistrate. Jamui for setting the dying declaration of the injured recorded.
4. The injured was examined on October 17, 1964 at 11 a. m. at Jamui hospital by the Civil Assistant Surgeon. Dr. A. Kabir and he found the following injuries:
(1) Transverse incised wound on the front of the neck extending to both sides 6' x 2' trachea deep with cutting of trachea into two parte at the level of the thyroid cartilage with blood oozing out and few blood clots.
(2) Incised wound on the right side of the chest penetrating below the clavicle 2 1/2 ' x 3/4 ' chest cavity deep with emphysema.
(3) Incised penetrating wound on the left side of the chest in the second inter-costal space vertical in direction 1 1/2' x 1/2' chest cavity with emphysema.
Question: I am a Magistrate. Please let me know who has assaulted you?
Answer: 3-4-5-men have together assaulted me. Dhano Mahto. Jethan Mahto Bohan Mahato. Ekraman Mian and others.
Question: When the assault took place?
Answer: The assault took place in the morning. I was assaulted in that. The assault took place this morning.
Question: With what weapons you are assaulted?
Answer: I was assaulted with sajf. At first Dhano used the weapon. At all the three places I was assaulted by weapon.
Question: Have you anything more to say?
Answer: I have not to say anything.' Doman died at the Patna Medical College hospital on October 30, 1964. The learned Additional Sessions Judge as already stated, convicted the two appellants.
5. The High Court, on appeal has confirmed the conviction but it has based it solely on the dying declaration reproduced above Regarding Mst. Kapurba. P.W. 3. the High Court held that 'it is rather difficult to hold on her evidence that she had seen the actual assault on her husband, and it is probable that she arrived at the place where her husband was lying injured much after the assault, on Doman.' Regarding Sariug (P.W. 5) the High Court held his evidence to be unsatisfactory and undependable. The High Court observed that 'the witness made contradictory statements in the committing court and in the court of Session and tried to suppress facts. The dying declaration of Domaia was recorded by a Magistrate on the same day at Jamui hospital, but this witness evidently on being tutored tried to suppress the fact that his father had made a dying declaration before the Magistrate and stated that his father remained unconscious all the time and till his death he was unable to speak.' The High Court further observed that this witness failed even to identify the signatures of his father, and he also tried to suppress the fact that his father had fought out a series of litigations since long with Ramcharitar Bhagat and others.
6. The High Court, came to the conclusion that the two eye-witnesses had not really seen the actual assault on Doman and it was just possible that the assault having taken place in the very early hours of October 17, 1964 when it was still dark, and since Doman was sleeping on the verandah while P. Ws. 3 and 5 were sleeping inside the two different rooms of the house, they did not wake up when Doman on being called out came outside and was assaulted in the lane and these witnesses found Doman lying injured sometime afterwards when the assailants had actually fled away and the names of the assailants were mentioned in the F.I.R. evidently on suspicion.
7. The High Court also did not place reliance on Anandi Singh. P.W. 1. and Baleshwar Mahto. P.W. 2. who stated that they had heard the names of She assailants from Sariug Evidence of Baleshwar Mahto. P.W. 2. was also discredited on other grounds.
8. The High Court regarding the dying declaration, observed:
I am satisfied from the evidence of Dr. Kabir and of the Magistrate Shri U. S. Singh and from the nature of the statement of the Injured recorded by the Magistrate that it was correct and truthful version of the occurrence correctly recorded by the Magistrate and it suffers from no infirmity and can form the sole basis of the conviction in the case even though It does not find a satisfactory corroboration from any other quarter particularly when I have noticed that the evidence of the two eye-witnesses namely P. Ws. 3 and 5 and of the two supporting witnesses P. Ws. 1 and 2 cannot be depended upon for fixing the Participation of the appellants in the occurrence.
9. We are unable to sustain this finding of the High Court. If the dying declaration is analysed carefully it will be noticed that the only weapon which is said to have been used against the deceased was a saif and according to the deceased himself it was Dhano who first used the weapon. There is no mention of bhallas in the dying declaration and there is also no mention that the two appellants used any other weapon. The deceased attributed all the three Injuries to this very weapon.
10. It is remarkable that Dhano whose part was described specifically in the dying declaration was not prosecuted. It also appears that the prosecution Itself ' fried to discredit the dying declaration : In the evidence led by it. (see the evidence of Sariug. P.W. 5).
11. In the first Information report a completely different version was given by the son Sarjug. The assault was described thus:
Pointing out my father Ekramul asked Amrit as to what he was looking at, he should slaughter the rascal since he was the main root (cause). Amrlt Mahto Dulled my father by his leg. My father fell down Ekramul Mian gave a sword blow on the front portion of the neck of my father and began to rasp Bleeding started. My mother and I raised alarm loudly. Juber Mian and Wahab Mian hurled Bhala.
12. We find that on this evidence it is not safe to convict the appellants. This dying declaration is not of a type on which a conviction can be based solely on its basis, especially in view of the other circumstances of the case.
13. In the result the appeal is allowed, the judgments of the High Court and fee Additional Sessions Judge set aside and the appellants acquitted, They shall be released forthwith.