C.M. Lodha, C.J.
1. This is an unfortunate case in which the appellants Tolaram and Dana Ram are alleged to have murdered their father Nyolaram and brother Noranglal, with the assistance of a third person-Tejaram, brother of Tolaram's wife. The motive behind the murders is alleged to be strained relations between Tolaram and Danaram on the one hand and the deceased Nyolaram and Noranglal on the other.
2. Nyolaram had five sons, viz. Tolaram, Danaram, Noranglal (deceased), Banna Ram and Dungar Ram. Except Dungar Ram the other four brothers lived in village Nuvan. Nyola Ram was residing with Tolaram but his relations with Tolaram were not happy. Danaram used to side with Tolaram. On November 19, 1973 Tolaram and Danaram gave beating to Nyolaram. The next day the deceased Nyolaram went to Ratangarh with Noranglal for treatment. The prosecution case is that when froth the deceased were returning in a bullock cart in the evening from Ratangarh to their village Nuvan, situated at a distance of seven miles from Ratangarh, they were way-laid at about 8.30 p.m. by the three accused viz. Tolaram, Dana ram and Tejaram brother-in-law of Tolaram. Tejaram and Tolaram were armed with 'lathis', and the accused Danaram was armed with a 'chosangi', i.e. an iron pronged lathi. All the three accused inflicted multiple injuries on Noranglal and Nyolaram. The victims raised a hue and cry which attracted the attention of PW 6 Jeewan Singh, who came to the spot, but did not stay there out of fear and ran to the village and informed PW 1 Banna Ram of the incident. PW 11 Madanlal and PW 18 Chhaganlal brothers and one Jankilal, who were in a hut, nearby also came to the spot on hearing the cries of the victims. They could not identify the assailants but when Madanlal and Chhaganlal reached the spot, they found both the victims lying in a pool of blood. Noranglal told them that his brothers Tola Ram and Danaram, and Tolaram's brother in law had beaten them. Madan Lal and Chhaganlal brought both the injured on the bullock cart to the village and took them to the house of Noranglal. PW 2 Likhmaram, PW 4 Tejaram, and PW 13 Pura Ram came to the house of Noranglal along with other villagers to look after the injured, and before these witnesses as well as before PW 5 Mst. Naraini, daughter of Noranglal and PW 2 Mst. Bhanwari Bai, widow of Naranglal, the injured stated that they had been beaten by the three accused. Since the condition of both the injured was serious, PW 2 Likhmaram went to Ratangarh to bring a vehicle. However, by the time Likham Ram returned with a vehicle from Ratangarh, Nyolaram had breathed his last and consequently Noranglal was taken to the hospital, at about 4 in the night. PW 14 Dr. B.N. Bhargava examined Noranglal and finding his condition serious, he sent a letter Ex P 29 to the Station House Officer, Ratangarh to come to the hospital to record the dying declaration of Noranglal On receipt of the letter, PW 16 Nagarmal started for the hospital, but on the way he received another letter from Dr. Bhargava, marked Ex. P. 30, stating that since the condition of Noranglal deteriorated, and he died shortly before, he had himself recorded the dying declaration of Noranglal (Ex P. 17), which was also sent along with the letter. PW 16 Nagarmal went to the hospital, and placed the dead body of Noranglal in the mortuary, and thereafter went to village Nuvan, where the dead body of Nyolaram was lying. From village Nuvan he went to the place of occurrence and after carrying out the necessary investigation at the spot, he handed over the investigation of the case to PW 17 Bhopal Singh on November 22, 1973. PW 17 Bhopal Singh recorded the information given by the three accused regarding the weapons of offence and made recoveries of the same at their instance. The information given by Teja Ram is Ex. P 40. The recovery memo of the 'lathi' Article 15, pointed out by Tejaram, is Ex P. 25. Ex. P. 39 is the information memo, whereby Tolaram gave information regarding the 'lathi' used by him and the recovery of the same is Ex P. 26. Danaram also gave information regarding the 'Chosangi', weapon of the offence used by him. Ex. P. 41 is the information memo and Ex P. 22 is the recovery mean of 'Chosangi'. Both the 'lathis' and the 'chosangi' were sent for chemical analysis. The Chemical Analyser's report is Ex. P 42 and the Serologist's report is Ex. P. 43. All the three weapons were found to be stained with human-blood. Thus after the investigation had been completed, all the three accused were prosecuted to stand trial for the offences of committing murders of Nyolaram and Noranglal.
3. The three accused, in the course of their statements, denied having committed the offence, and produced four witnesses in defence.
4. The Additional Sessions Judge, Churu, found that the accused Tolaram had been identified at the spot by PW 6 Jeewan Singh He accepted the evidence regarding dying declaration made by the deceased Noranglal to Madan Lal at the place of occurrence as well as to PW 2 Likhma Ram, PW 4 Teja Ram, PW 5 Mst. Naraini, PW 2 Mst. Bhanwari Bal and PW 13 Pura Ram, at the house of Noranglal, in village Nuvan The learned Additional Sessions Judge also found that the dying declaration Ex P. 17 vide to Dr. Bhargava, at the hospital in Ratangarh, was also proved He also relied upon the recovery of the 'lathis' and the 'Ghosangi' at the instance of the accused. He disbelieved the defence evidence of alibi. In the result, he came to the conclusion that the offences of murders of Nyolatatn and Noranglal had been fully established against all the three accused. Consequently, he convicted them under Section 302/34, Indian Penal Code, and sentenced each of them to rigorous imprisonment for life.
5. Mr. Arora, learned Counsel for the appellants, has strenuously urged that none of the assailants were identified at the spot and the accused have been falsely implicated on account of the previous day's incident and the strained relations between the parties He has also submitted that the evidence regarding dying declaration is not reliable and at any rate the dying declaration Ex P 17 is inconsistent with medical evidence. Learned Counsel has also argued that the recovery cannot be relied upon, in as much as, none of the weapons recovered can cause incised wounds found on the body of Nyola Ram.
6. It is fully established by the prosecution evidence that Nyolaram Noranglal died on account of the injuries caused to them, on the night of November 20, 1973, while they were coming to their village in a bullock cart from Ratangarh On this point there is over-whelming evidence. PW 6 Jeewansingh, PW 11 Madanlal and PW 18 Chhaganlal are the witnesses, who had seen both the deceased lying seriously injured, on the way between Ratangarh and village Nuvan. PW 6 Jeewan Singh informed PW 1 Banaram of the occurrence PW 11 Madanlal and PW 18 Chhaganlal took them in a bullock cart to their house in village Nuvan. PW 2 Likhmaram took Noranglal to the Government Hospital at Ratangarh. PW 14 Dr. Bhargava examined the injuries of Noranglal and recorded his dying declaration. Dr. Bhargava also performed autopsy on the dead bodies of both the deceased. Thus from the above evidence, it is conclusively proved that both the deceased were brutally belabaured as a result of which they received a number of injuries, and ultimately died. The important question is, whether the three accused or any one of them were among the assailants?
7. The case against the accused rests on three types of evidence:
(1) Identification at the spot,
(2) Dying declarations made by the deceased, and
(3) Recovery of the weapons of offence, on the information supplied by them, and at their instance.
8. We propose to deal with the aforesaid evidence ad-seriatim:
9. Except Tolaram, no other accused was identified at the spot. PW 6 Jeewan Singh states that be could not identify the other two assailants, but he had identified Tola Ram. Leaned counsel has urged that since it was a dark night, it was not possible for Jeewan Singh to have identified any of the assailants PW 6 Jeewansingh states that on the night of occurrence he had seen Noranglal and Nyolaram going towards village Nuvan, in a bullock cart and he also saw Tolaram accused going that way with a lathi in his hand. Suspecting him to be Teiaram, the witness asked him, whether he was Tolu? but Tolaram did not give any reply, and shortly thereafter he stopped the bullock-cart in which the deceased were going. In the course of cross-examination the witness has stated that when he called 'Tolu', he answered in the affirmative 'Hoon', but he had no other talk with him. He states that he saw also two persons beating Noranglal and Nyolaram, but he could not recognise them. He further states that out of fear, he ran away. It appears to us that the witness bearing the hue and cry made by Nyolaram & Noranglal, went near them It further appears that be was able to recognise Tolaram only, in as much as, he immediately ran to the village and informed PW 1 Banna Ram that Nyolaram and Noranglal had been beaten by Tolaram and two others. The evidence of this witness is thus conoborated by the statement of PW 1 Bannaram. The conduct of the witness is also most natural in as much as he lost no time in informing the next of kin of the deceased of the occurrence. If at all, the witness was out to tell a lie, then he could have deposed regarding the identification of the other two accused also, but he has not done so. Consequently, we are persuaded to believe that there is a grain of truth in the statement of this witness. Tolaram is said to have passed by his side and therefore it was not difficult for him, known as he was from before, to recognise him. The lower court has accepted the testimony of PW 6 Jeewan Singh and we also do not see any ground for discarding it. Thus the presence of Tolaram at the place of occurrence has been proved by PW 6 Jeewan Singh. Of course, there is no evidence regarding the identification of the other two accused at the spot.
10. This brings us to the evidence regarding dying declaration recorded by Dr. B.N. Bhargava. Ex P 17 is the dying declaration recorded toy Dr. B.N. Bhargava. Translated into English, it reads as under:
Yesterday, when I was going home from the hospital and was about one mile away from the village, Dana, Tola and Tola's brother-in-law ('sala') beat me and my father with 'lathis'. What happened thereafter, I do not know, I have pain in my stomach. My hands aid legs were broken. They beat with 'lathis'. I had dispute with them. Previously, also they had beaten.
11. PW 14 Dr. Bhargava has stated the deceased Noranglal had been brought to the hospital on 21-11/3 at 4.45 A.M. with multiple injuries and since his condition was critical, he sent letter Ex P 29 to the Police, for recording his doing declaration, but thereafter the condition of the patient deteriorated and therefore he recorded his dying declaration (Ex P 17) and sent it to the police under covering letter Ex. P 30. He further states that after having written the dying declaration, he obtained the thumb-impression of the deceased on it. The dying declaration was witnessed and attested by Babulal-compounder. He has also proved his own signatures on Ex P 17. He further states that the dying declaration was recorded at 4.50 A.M., and the victim died at 5.25 A.M. Nothing has been brought out in the cross-examination of this witness to discredit his testimony. The evidence of Dr. Bhargava is further corroborated by PW 7 Babulal-compounder, who attested it. PW 16 Nagarroal received it soon after while he was proceeding from the police station to the hospital Thus the genuineness of the dying declaration is beyond doubt Learned Counsel has, however, urged that Noranglal may have made the dying declaration after consultation, which may have taken place between him and his relations at village Nuvan before he was brought to the hospital, and further that he might have implicated the accused on account of strained relations We are, however, not prepared to accept this contention. There is nothing on the record to show that there was consultation between Noranglal and his relations regarding the assailants to be named. On the other hand, we have it in the evidence of PW 2 Likhmaram, PW 4 Tejaram, PW 5 Mst. Naraini, PW 12 Mst. Bhanwari Bai and PW 13 Pura Ram that Noranglal had named the assailants to them, at his house The dying declaration Es P. 17, therefore, cannot be said to be a result of prior discussion and consultation.
12. It is true that the relations between the deceased Noranglal and his brothers Tolaram and Danaram accused were strained and an incident of beating had taken place previous day, but for that reason it cannot be said that Noranglal while struggling between life and death would have falsely named his own brothers as the assailants for such a serious crime On the other hand, the likelihood is that on account of the strained relations between the parties Tolaram and Danaram committed this heinous crime against' their own father and brother.
13. As to the inconsistency between the medical evidence and the dying declaration, pointed out by the learned Counsel, it may be stated that so far as Noranglal is concerned, he had not received any injury by a sharp-weapon. It may also be borne in mind that the incident took place at night and, therefore, if any weapon, other than 'lathis' was not mentioned by the deceased, in his dying declaration, it cannot be said that the declarant was telling a lie. 'Chosangi', it may be pointed out here, is also a sort of stick with iron prongs at one end In these circumstances, while the deceased was in the jaws of death, if he made mention of 'lathis' as the weapons and forgot or omitted to make mention of 'Chosangi' in his dying declaration, it cannot be said that the dying declaration is false.
14. Then it is argued that the incised wounds would not have been caused either by 'chosangi' or by 'lathis' and, therefore, the dying declaration should not be believed. In our opinion, the presence of incised wounds on the body of Nyola Ram does not in any way detract from the evidentiary value of the dying declaration regarding the complicity of the assailants mentioned therein. As stated above, the occurrence took place in the night, the deceased were caught unawares and at any rate the dying declaration cannot be interpreted like a legally drafted document so as to contain minute details. On reading the dying declaration as a whole an impression is left on our minds that it contains substratum of truth.
15. At this juncture, we may refer to the previous oral dying declarations alleged to have been made by Noranglal. The earliest one was made to PW 11 Madanlal, at the spot, when Madanlal reached there, on hearing the cries of the victims. Madanlal has clearlv stated that Noranglal told him that he and his father had been beaten by Tolaram, Danaram and Tolaram's 'sala' Tejaram. We have carefully read the statement of Madanlal and do not find any infirmity in it. His statement appears to be firth-right. He was the person, who had taken the victims to their house in village Nuvan. This dying declaration was made by the deceased at the earliest possible opportunity in respect of which even the argument of tutoring is not open to the defence, and we are persuaded to believe it on account of its corroboration by the dying declaration Ex P. 17. Mr. Arora has been at pains to show that PW 18 Chhaganlal, who accompanied Madanlal to the place of occurrence has not deposed to the fact of Noranglal making a dying declaration to Madan Lal. It is sufficient to point out that Chhaganlal may have been a little away from Madanlal and Noranglal, at the time the dying declaration was made, and may not have heard it. Chhaganlal does not deny that Madanlal had a talk with Noranglal. In any view of the matter, the fact of dying declaration having been made by Noranglal to Madanlal is fortified by Ex. P. 17. There is further corroboration of this dying declaration, in as much as, as many as five witnesses : PW 2 Likhmaram, PW 4 Teja Ram, PW 5 Mst. Naraini, PW 12 Mst. Bhanwari Bai and PW 13 Pura Ram have stated that in the village Noranglal made such a dying declaration in their presence. We do not see any ground for rejecting their testimony. Thus it is not a case where there is uncorroborated evidence of a single dying declaration, even though conviction can be based on the sole evidence of dying declaration.
16. We may, now, consider the evidence regarding the recovery of the 'lathis' and the 'chosangi'. Both the 'lathis' and the 'chosangi' have been found to be blood-stained. Their recovery, on the information supplied by the accused, is established. We are alive to the fact that this recovery by itself cannot connect the accused with the crime, but so far as Tolaram and Dana Ram are concerned, we have the evidence of the dying declaration against them Again so far as Tolaram is concerned, there is the evidence of identification against him Learned Counsel for the accused has urged that the 'chosangi' vas recovered from an open field though both the 'lathis' were recovered from 'Bada'. It is argued that the places from where the recoveries were made, are accessible to all and sundry, and therefore, the recovery should not be believed. It is true that the places from where these articles were not in exclusive possession of the accused, but since they have been recovered on their information and at their instance, it would not be unreasonable to presume that they had placed them. There is no suggestion by the defence that th's evidence was implanted against the accused. However, as pointed out earlier, we are not basing our conclusion on this recovery alone but are treating it only as a corroborative piece of evidence.
17. The last contention of the learned Counsel has been directed against the conviction of Tejaram. It is submitted that Tolaram had three 'salas' (brother in laws) as deposed by PW 5 Mst. Naraini and PW 12 Mst. Bhanwari and the name of Tejaram has not been mentioned In the earliest dying declaration made by Noranglal, at the spot to Madanlal, nor in Ex P 17. On the other hand, all that is mentioned is 'Tejaram ''Sala' '. Consequently, it is argued by the learned Counsel that the possibility of any other 'Sala' of Tolaram being among the assailants cannot be excluded, and hence. In the circumstances, benefit of doubt must go to the accused Tejaram. No doubt, Tejaram is said to have been named by Noranglal in the dying declaration, alleged to have been made by him in the village at his house but in the absence of his name in Ex P 17 some doubt is created as to whether Tolaram's' 'sala' referred to in Ex P 17 was the accused Tejaram Consequently, to be on safer side, we deem it proper to give benefit of doubt to Tejaram.
18. Accordingly, the appeal filed by Tolaram and Danaram is dismissed, and their convictions under Section 302 read with Section 34, Indian Penal Code, and sentence of life imprisonment awarded to each of them is maintained.
19. Tejaram's appeal is allowed, the conviction and sentence passed against him are set aside. He is on bail, and need not surrender.
20. The appeal is partly allowed to the extent mentioned above.