Kanta Bhatnagar, J.
1. The respondents were tried for the offences under Sections 148, 342/149 and 452, Indian Penal Code by the Additional Sessions Judge, Sirohi, who by his judgment dated May 25, 1970 acquitted all the five respondents of the charges levelled against them. Dissatisfied with the judgment of acquittal the State of Rajas than has preferred this appeal.
2. Briefly stated the facts of the case leading to the trial of the respondents are under: The thrashing-floor belonging to Achla (p.w.9), at village noza Navakheda was being used by the deceased Amar Singh. In the year of occurrence, that is, 1967, Achla gave that thrashing floor to respondent Sardara for `lata' and this led to bad blood between Amar Singh and Sardara as a result of which on March 12, 1967 at about sun-set the five respondents armed with `Dharia, Chhuris' and sword left for the house of Amarsingh deceased. On the way, they met Bhoor Singh (p.w.2), outside his house. Considering him to be an associate of Amar Singh, the respondents gave a beating to him and caused injuries on his person. Then they entered the house of Amar Singh, who was at that time lying on a cot in his `Dhalia' Sona caught hold of Amarsingh and the remaining respondents caused injuries to him with the weapons, they had. Amarsingh fell down on the ground, Kishore Singh alias Kesharsingh (p.w.3) nephew of Amarsingh, who was tying the cattle in the nearby `Bada' rushed to the scene of occurrence. On hearing the cry of `Mare-re-Mare-re' Jhunja (p.w.3), who was passing by the way went to the spot and witnessed the occurrence. Jhunja's outcry arrested Jodha (PW 5), who was also passing outside the house. Jodha also went inside the house. The five respondents then took to heels. Kishore Singh was sent to the feld of Chhatar Singh to call the latter. Chattar Singh was not available there. Kishore Singh informed Padamsingh, brother of Chhatarsingh, about the incident. Padamsingh (PW 8) took Isarsingh (PW 1) and one Lumba, who were working, at the field of Chhatar Singh and all of them went to the house of Amarsingh, where he was lying in an injured condition. Being interrogated by Padamsingh, Amarsingh narrated the incident and asked him to take him to the hospital immediately. Isarsingh, Padamsingh and Lumba took Amar Singh to Takhatgarh hospital and got him admitted there, Isar Singh went to the police station, Takhatgarh and lodged an oral report, which was reduced to writing by Kasheo Lal, Head Constable (PW 15). The same is Ex P. 1. Kasheo Lal went to the hospital and recorded the statement of Amar Singh, which is Ex P. 7. Amar Singh died at about 5.30 A.M on March 13, 1967 in the hospital. Dr. Ashok P. Ram Chandani (PW 18) conducted the autopsy over the dead body at 8.30 A.M. on March 13, 1967. Multiple Injuries were found on the body of Amar Singh. In the opinion of the Doctor the death was caused due to bard and sharp weapon causing out wounds on the chest and abdominal waive, lungs, spleen, heart and stomach leading to severe haemorrhage, shock and death. He prepared post-mortem examination report Ex. P. 27.
3. Dr. Ashok P. Ramchandani also examined the injuries of Bhoor Singh on 13-3-1967 and found two abrasions and one contusion on his body all the three on con-vital parts.
4. According to the doctor the duration of injuries was 36 to 48 hours at the time of examination and all the injuries could be caused by a blunt object or by a fall or dragging on hard floor. The injury report of Bhoor Singh is Ex. P. 28.
5. It may be stated, here, that the accused Sardara and Peera also went to police station, Bali on 12-3-1967, where Sardara lodged a written report Ex. D. 9 before Narpat Singh Station, House Officer (DW 1) at 11.00 P.M. A case under Sections 307 and 326, Indian Penal Code, was registered, on their report. The injury reports of Sardara and Peera Ex. D. 11 and Ex. 12 were prepared by the Station House Officer, Sardara and Peera were sent for medical examination. Sardara was admitted in Bali Hospital Ex. D. 9 is copy of the report made by Sardara, Ex. D. 14 is his injury report and Ex. D. 15 is the recovery memo of sword produced by Peera at police station, Bali. These were sent by the Station House Officer-Narpat Singh to the police station, Takhatgarh.
6. Kesheolal, Head Constable arrested Peera on March 13, 1967 at 10.15 p.m. vide memo Ex. P. 12. Ex 11 'Dhoti' and Ex.12 'Angarki' and a pair of shoes of Peera stained with blood were taken possession of by the Investigating Officer. On March 15, 1967 he arrested Sona, Moti and Jetha vide arrest memos Ex. P. 13, 21 and 22 respectively. Ex. 14 'Dhoti' and Ex. 15 'Angarki' of Sona were taken possession of as they were found blood stained. On March 18, 1967 Kesheolal arrested Sardara vide memo Ex. P. 20 Sardara furnished information to the Investigating Officer for getting recovered 'Chhury'. The information was reduced to writing and is Ex. P. 23 In pursuance of that information the Investigating Officer recovered 'Chhury' Ex 16 from the kitchen of the house of Sardara which was taken possession of vide memo Ex. P. 14. On March 19,1967 Peera furnished information to get recovered 'Chhury', 'Dang' of bamboo and one belt. The informations reduced to writing are Ex. P. 24, 25 and 26 respectively. In pursuance of those informations the Investigating Officer recovered 'Chhury' Ex. 17, bamboo 'Dang' Ex. 18 from the 'pol' of his house, and one watch with strap Ex. 4 from underneath the tiles of his house. All these articles were taken possession of vide memos Ex P. 15, Ex P. 16 and Ex. P. 17 respectively. From the search of the house of Sona 'Dharia' Ex. 19 was recovered vide memo Ex. P. 18. The blood stained clothes of Sardara were taken in possession on March 21, 1967 vide memo Ex. P. 19. The investigation was then entrusted to Shri Purshottam, Station House Officer (PW 16) on March 27, 1967, who completed the investigation.
7. After completion of investigation charge-sheet against the respondents was filed in the court of Munsiff Magistrate, Bali. The learned Magistrate conducted the preliminary enquiry and finding a prima facie case commuted the respondents to the Court of Additional Sessions Judge, Sirohi to stand their trial.
8. The learned Additional Sessions Judge charge sheeted the respondents for the aforesaid offences and recorded their plea. All of them denied the charges and claimed to be tried. To substantiate its case prosecution examined 18 witnesses in all. In their statements under Section 342, Cede of Criminal Procedure (old) Jetha and Mod totally denied the allegations. Sardara stated that on the night Amar Singh, Datar Singh and Bhoor Singh came to his house and gave him a beating. Amar Singh had a sword, Bhooria and 'Aari', and Datar Singh a slick at that lime. That, in an attempt to ward off the attack he sustained injuries in his palm and fingers. He also sustained injuries on his shoulder and cheek. Sona rushed to his rescue. Kishna was also there and in order to save him, he and Kishna inflicted blows to Amar Singh. Peera also reached there. Arjun Singh and Amar Singh's wife took Amar Singh to his house. The cause for the occurrence given by Sardara is that he was informed by Kishna four days prior to the incident that Amar Singh was falsely defaming him so he may make him understand. On his attempting to do so Amar Singh got annoyed and the incident took place.
9. Peera has stated that he went to the rescue of his, brother Sardara, that about an hour before that Amar Singh, Datar Singh had Bhoor Singh had picked up quarrel with him and Sardara had come to his rescue and therefore the quarrel took place later on, and that he had produced the sword of Amar Singh at the police station.
10. Sona deposed that he had gone to rescue Sardara and sustained injuries at the hands of Amar Singh.
11. Two defence witnesses have been examined, One of them is Narpat Singh, Station House Officer, who had received the report Ex. D. 9, produced by Sardara and prepared the injury reports of Sardara and Peera and sent them for medical examination. Another defence witness Dr. Raj Narain Calla (DW2) has been examined to prove the injury report of Sardara Ex. D. 14.
12. The learned Sessions Judge did not place reliance on the testimony of the eye-witnesses. The evidence about the oral dying declaration was also not considered to be true. Ex P. 7 the written dying declaration of Amar Singh was also not relied upon. On the other hand, he held the defence version to be plausible and observed that Sardara, Sona and Peera bad sustained injuries at the bands of Amar Singh and the place of occurrence was the house of Sardara. In this view of the matter, he held that Sardara, Peera and Sona had caused injuries to Amar Singh in exercise of their right of private defence and consequently acquitted the accused.
13. Mr. N.S. Acharya, learned Public Prosecutor hat assailed the judgment of the learned trial judge on a number of grounds. It has been strenuously contended by him that the motive of the respondents to commit the crime has been proved by the prosecution. There is direct evidence of three witnesses supported by the oral dying declaration of Amar Singh, and also the written dying declaration recorded by the investigating officer Mr. Acharya also urged that there befog no evidence about the quarrel having taken place at the house of Sardara, the (sic)liding of the leaned Additional Sessions Judge that the deceased and his associates were aggressors and the act of the respondents was in exercise of right of private defence can not be said to be justified. Controvesting these arguments Mr. M.C. Bhandari, learned Counsel for the respondents, pointed cut various in fir(sic)mitles in the prosecution case, in the testimony of the witnesses and the dying declaration Ex. P 7. It has been emphatically argued by biro that the injuries of Sardara, Sona and Peera have not been explained by the prosecution and therefore the defence version being plausible, the finding of the learned trial Judge cannot be said to be unreasonable.
14. Prosecution has led direct as well as circumstantial evidence to connect the respondents with the commission of the crime. It has also tried to prove enmity between Sardara and Amar Singh leading to the said incident.
15. We will first of all take the evidence about the motive.
16. There are two parallel stories coming through the statements of various prosecution witnesses about the enmity between Sardara and Amar Singh. Initially the case brought forth was about the thrashing fleer of Achla was used by Amar Singh one year before the incident, but during the time of the incident accused had used it as their thrashing floor. Boor Singh has given a different version. According to him in the year of occurrence, Sardara had told him that he will make thrilling floor on the land of Achla, but Amar Singh had already done to about 5 or 6 days prior to the occurrence, and had told him that he would not allow Sardara and others to make the thrashing floor there, and this was the cause of quarrel Juhara (PW 6) has deposed that Amar Singh used the land of Achla for three jeers as thrashing floor but in the year of incident Achla had given that land for `lata' to accused Sardara about a month prior to the occurrence. Amar Singh was not happy with this and bad asked him to remove the accused party from that land. As the land belonged to Rebari he expressed his inability to do so. Achla the owner of the land had deposed that he had previously given the land to Amar Singh, but in that year he had left it end therefore he gave it to Sardara. Amar Singh did not pretest against, it. Achla has of course been declared hostile by the prosecutor, but there is the testimony of other witnesses Isar Singh and Juhara to the effect that the accused had taken the land from Achla that year to use it as thrashing floor which annoyed Amar singh. This being the position, the learned trial judge, in our opinion, has rightly held that it there was any cause of grievance, Amar Singh had it and not Sardar and other respondents, as the latter were already in possession of the land.
17. The other story attempted to be brought en record is that Amar Singh was spreading scandal about Juhara having illicit relations with his son Kisha's wife. Juhara has of course c(sic)ented it but he has a(sic)comitee that after 5-6 or 10-11 days of the occurrence his son Kishna committed suicide by jumping into an empty well. In the dying declaration Ex. P. 7 there is nothing about any dispute regarding the ground of Achla being used as threshing floor rather it has been mentioned that 2 or 3 days prior to the occurrence deceased Amar Singh bad to tell some thing to Julara and therefore the accused abused him and gave a beating. Relevant it is to rote that Juhara has been examined by the police after about a foil night of the occurrence. None of the two stories, that is, the quarrel about tile thrashing-floor or Amarsingh spreading scandal against Juhara has been proved by the prosecution.
18. Motive is the subjective condition of the mind and doers of the act alone can know as to what led them to commit a particular act in a particular way. Hence absence of proof of motive in itself is not sufficient to disbelieve the prosecution case if the crime can be proved by other evidence. All that can be said in this case is that prosecution could not bring forth convincing evidence about the motive of the respondents to commit the crime.
19. It has been duly proved that on the date of the incident Amar Singh and Bhoor Singh had sustained injuries on the one side and Sardara, Peera and Sona on the other side. Injuries of Amar Singh have been proved by post-mortem examination report prepared by Dr. As hole P. Ramchandani. That very doctor examined the injuries of Bhoor Singh. Narpat Singh, Station Home Officer (D.W. 1) of police station, Bali has deposed that on March 12, 1967 report Ex. D.9 was produced by Sardara He was accompanied by Peera Both of them had injuries on their persons. He prepared the injury reports Ex. D.11 and Ex. D. 12 and sent them to hospital for medical examination. The medical report about the injuries of Peera has not been produced but Dr. Raj Narain (D.W. 2) has proved the injury report of Sardara Ex D. 17. He had examined Sardara at the request of the police on March 12, 1967 in the night and noted the following injuries on his person:
1. Incised cut wound 1 1/2' x 1/2' on the right side of face starting from right angle of the mouth towards the cheek.
2. Gut wound 5' x 1 1/2' starling from 1' below the wrist joint left side on the dorsal side-wound starting from lateral side going obliquely to the dorsal aspect of left ring finger cutting the matacarpal bone of middle finger and distal phalyx of ring finger obliquely Head of the matacarpal bone of middle finger and distal phalynx of the middle finger was also cut obliquely. This Incised wound went deep on to the palm in between ring and middle finger cutting the palm from the web of above two fingers upto middle of palm-extending in the palm upto 2 1/2'. Compound fracture of the bones discussed above.
8. Cut wound on the medial side of left thumb oblique and transverse 1' skin deep.
20. These injuries were caused by a sharp weapon. Injuries Nos. 1 and 3 were simple and injury No. 2 was grievous. At the time of his arrest Sona had Injuries on his person and therefore he was got medically examined. Dr. Ashok P. Ramchandani examined Sona on March 16, 1967 at 9.15 a.m., and found the following Injuries on his person.
1. Abrasion 1/2' in length on the right palm horizontally curved near the base of right index finger. It was simple and could be due to fall on rough surface.
2. Abrasion 1/2' in length on the right palm vertically curved sear the lateral boarder of hand near the base of right index finger. Simple and could be caused due to fall on rough hard surface.
3. Lacerated 1 1/2' x 1' on the lower end of right fore-arm upto wrist line on its medial side on its supine position, Simple by blunt object.
4. Incised wound 1 1/2' x skin deep on the left fore-arm obliquely placed 2' above wrist line in supine position. Simple, by sharp hard weapon.
5. Abrasion 1/2' x 1/2' on the left palm on its medical aspect 1' behind base of little finger. Simple and could be due to fail on rough surface.
21. According to the doctor the duration of injuries Nos. 1, 2 and 3 was about four days and that of injury No. 4 about two days. These injuries could be caused by a blunt object tike a 'lathi' or by dragging or by fall.
22. Keeping in view the injuries sustained by five persons on the day of occurrences we will now discuss whether the case of the prosecution that the incident had taken place at the house of Amar Singh, and Bhoor Singh sustained injuries outside his own house is correct or there is strength in the defence version that Amar Singh, Bhoor Singh and Dattar Singh had gone to the house of Sardara and caused injuries to him, and Sona and Peera also sustained injuries at the hands of the assailants in their attempt to rescue Sardara. The learned trial Judge believing the defence version held that the case of the respondents tell within the ambit of exercise of right of private defence.
23. It is pertinent to note that prosecution has not at all cared to explain the injuries of respondents. Jhunja (PW 3), the alleged eye-witness has denied to have silent any injury on the person of Sardara Jodha (PW 5) is silent on the point. Kesharsingh (PW 4) has stated that Sardara had blood of Amarsingh on his hand and not en account of any injury. The argument of Mr. Bhandari is that the failure on the part of the prosecution to explain the injuries of the accused fatal to it and on this count alone the defence version should be believed. On the other hand Mr. Acharya has submitted that it is not in all cases that prosecution has to explain the injuries of the accused and its failure to do so will not invariably damage its case if it is otherwise proved against the accused.
24. It will always depend on the facts and circumstances of a particular case as to what weight should be attached to the failure of the prosecution to explain the Injuries of the accused. To have a guideline it will be profitable to refer to two Supreme Court cases.
25. In the case of Bankeylal and Ors. v. The State of UP : 1971CriLJ1540 their Lordships have been pleased to observe that 'where prosecution witnesses have not deposed truly in all respects, court should scrutinise their evidence with care. But simply because prosecution did not explain injuries en the person of accused, court cannot discard the entire prosecution evidence.'
26. In the case of Lakshmi Singh and Ors. etc. v. State of Bihar : 1976CriLJ1736 it has been laid down as under:
1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a moist material point and therefore their evidence is unreliable;
3. That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case..
There may be cases where the non explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
27. In the present case the injuries of the accused were not superficial only and therefore the failure of the prosecution to explain those injuries is a serious infirmity of the prosecution case.
28. When persons on bath the sides have sustained injuries it become a point of considerable importance as to what cractly the place of occurrence was. The reason is that if the place of occurrence is the home of Sardara, the defence version is to be relied on and if that is not the place of occurrence, then it will have to be seen whether the prosecution has succeeded in proving that the accused party forming an unlawful assembly had gone to the house of Amar Singh and the incident took place in the manner the three eye-witnesses have professed to have witnessed.
29. The learned trial Judge has believed the version that the place of occurrence was not the house of Amar Singh One of the reasons for such finding is that Bhoor Singh mutt not hive received injuries in the manner and at the place stated by him and if so the defence version that Bhoor Singh had accompanied Amar Singh to the house of Sardara, where the latter was injured, is more probable.
30. Sardara's deposition is that Amarsingh's wife and Arjun Singh had taken Amar Singh from the place of occurrence, i.e. from the house of Sardara to his house in injured condition. Amar Singh's, wife, though her pretence has been admitted in the house at the time of the occurrence has not been examined by the prosecution Sher Singh the motbir to the memos prepared by the police at the time of the site inspection had stated that there was no blood on the cot rather it was at a distance of about 15' from the cot and the piece of scabbard was lying at a distance of about 8' from the place where the blood was found. In order to arrive at a conclusion as to what the place of occurrence was, Bhoor Singh's statement will have to be care-fully examined because he is said to have been injured by the accused party on that very day. According to this witness the accused went to his house first and shouted that he being the associate of Amar Singh should be finished first and then all the five accused grappled with him. He was injured by Sonia with 'Dharia' on his left wrist, left ankle and left shoulder. Relevant it is, to note that the injuries stated by him not tally with his injury report. The witness has stated that he rushed inside his house and the accused hurling abuses proceeded towards the house of Amar Singh. According to the witness only the family members knew about his beating. None of them has been examined. The house of Bhoorsingh (sic) only at a distance of about 20 paundas from that of Amar Singh. If the accused party had attacked Bhoor Singh with an idea to finish him, they should not have felt satisfied by causing only simple injuries to him. As stated earlier the description of injuries given by him as different from that appearing in his injury report proved by Dr. Ashok P. Ramchandani. His conduct in not raising an alarm and asking neighbours to go to the rescue of Amar Singh is also very unnatural.
31. From the perusal of the statement of Bhoor Singh and the circumstances of the case it is not believable that there were two incidents, one relating to Bhoorsingh's sustaining injuries at the hands of the accused party outside his house, and the other Amarsingh's sustaining injuries at the hands of the accused inside Amarsingh's house. The defence version may or may not be true but this much can be inferred from the circumstances of the case that the prosecution has not brought the real picture before the Court and some embellishment is evident so far as Bhoor Singh's injuries are concerned.
32. The argument of Mr. Bhandari that Bhoor Singh and Amarsingh sustained injuries at one time and place is not devoid of force. But at the same time merely for that reason it cannot be said that if has been established that the place of occurrence was Sardara's house. Although there is an record the report Ex. D. 9 filed by Sardara in the same night and also the evidence about Sardara, Peera and Sona sustaining injuries but there is nothing to point out as to what happened to that cross case. The Investigating Officer Kesheolal has neither been asked by the defense counsel as to what investigation was done by him regarding the cross case nor any question was put to him as to whether there was any blood found in or outside the house of Sardara. There is also no evidence about any trial of blood from the house of Sardara to the house of Amar Singh so as to give strength to the defence version that after being injured Amarsingh was brought to his house from that of Sardara.
33. This being the situation we are unable to agree with the learned trial Judge that Amar Singh and his party were aggressors and Sardara, Sona and Beena being beaten at the house of Sardara Singh of self defence had accused to theme. It is not sufficient for the accused to raise a plea of self defence to have any benefit on that (sic)on in rather, they should add (sic)ee evidence to make their story plausible. Even in cases where the accused fail to take such a plea or prove the same, if from the material on record, it can be spelt out that there was reason for the accused to exercise right of private defence, they can claim benefit. In the present case from the record all that can be learnt is that Sardara, Sona and Peera sustained injuries in the same night and promptly a first information report was filed by Sardara at police station, Bali. This is also well established from the statements of Dr. Raj Narain that one of the Injuries sustained by Sardara was grievous in nature. Sona's injury report shows proof of injuries on his person. The origin of the quarrel not being known and the defence failing to establish that the quarrel had taken place at the home of Sardara and Amarsingh and his companions were aggressors no definite opinion can be expressed about the defence taken by the accused. With this discussion it may be added that in criminal cases prosecution has to stand on its own legs and only when the prosecution case is proved beyond reasonable doubt, verdict of guilt can be passed. Prosecution cannot take advantage of the weakness of the defence.
34. In the present case, as stated above, the accused could not substantiate their contention about the place of occurrence and they being victims at the hands of Amarsingh and his party their defence, may be a week one still in order to hold them guilty duty of the prosecution to establish its case against them remains the same.
35. The most important evidence against the respondents is the testimony of the three eye witnesses viz. Jhunjha, Kishan and Jodha.
36. The learned trial Judge has disbelieved the direct evidence. In order to find out whether those witnesses have been rightly disbelieved, we have to carefully examine their statements.
37. Jhunjha (p.w. 3) has stated that he was coming from Padarli to Nawa Kheda at the time of sun-set when he heard tome altercation inside the house of Amarsingh. He went inside and saw Sona catching hold of Amarsingh and the other four accused causing it juries to him with 'Churi' and `Pharsi'. The learned trial Judge has considered him to be a chance witness for the reason that he could not say for what purpose he had gone to Padarli that day. Besides being a chance witness Jhunjha also happens to be interested in Amarsingh because he is the 'Hali' of Chhatar Singh, cousin or Amarsingh (Amarsingh s father's sister's son). Chhatar Singh is a retired Sub Inspector. His interestedness in the prosecution is evident from the fact that the same night Lumba was sent from Takhatgarh to call Chattar Singh. Kishore Singh in his committing court's statement Ex D. 4 has stated about Chattar Singh reaching the house of Amarsingh in the same night along with Police Officers. Though Kishore Singh has disowned that part of his statement which relates to Chhatar Singh being there and had only admitted about the police reaching the house of Amar Singh in night, still Chatar Singh's interest in the prosecution cannot be denied. Jhunjha's presence outside the of Amarsingh not being in the natural course of events his testimony it quires a close scrutiny.
38. In his statement at the trial he has deposed that on hearing the altercations he went insane house, whereas in his statement Ex D. 3, recorded under Section 164, Code of Criminal Procedure, he has stated that when he saw the accused going inside, he also entered the house to see as to why they had gone inside. According to this witness, Kishore Singh was already there when he reached inside the house. Kishore Singh has contradicted him on use point by stating that he came out, when the accused had left, on the call of Jhunjha. Jodha has stated that he had seen Kishore Singh thereafter when the accused had left the place and that Kishore Singh had come out from the inner apartment of the house when accused party had left. If Kishore Singh had come after the accused had left at the call of Jhunjha then Jhunjha would net have seen anybody beating Amarsingh. The reason for this conclusion is that according to Jhunjha Kishore Singh was already there. At the trial Jhunjha has stated that Amarsingh did not become unconscious on account of beating. In portion A to B of his statement Ex. D. 2 recorded in the committing court, he his stated that at the time Amarsingh smeared with blood was lying in the court-yard. In cross examination about portion C to D he has further stated that when the accused had 1 ft. Amarsingh was still unconscious. At the trial he has stated about Peera having 'Chhuri' whereas at portion A to B of his statement Ex. D. 3 he had stated that Peera bad 'Chhuri' and one 'Gedi' with him There are a number of discrepancies in his statement at trial and in hit previous statement Ex. D. 2 and Ex. D. 3, regarding the injuries caused by each individual assailant when the attention of the witness was drawn to those portions, the only explanation given by him is that he had forgotten those details. The statement of the witness taken as a whole, clearly indicates that he has improved his statement in order to fit it in with the prosecution case. For example in his previous statement he has stated about the injured being unconscious, whereas, he had given different statement at the trial so that the prosecution case about the oral dying decoration of Amar Singh may get strength. The witness was specifically asked about the injuries on the person of Sardara, and he denied to have seen any Injury. If the eyewitness denies the presence of the injuries on the persons of the accused. It can be inferred that he is lying on most material point, and therefore his presence at the site creates suspicion Yet another fact throwing doubt on the presence of this witness is regarding one 'Ghasia' (Rali) which was taken possession of by the police next day. It has been stated by Ishar Singh and Padam Singh that part of the body of Amar Singh was on the 'Ghasia' on the ground. According to Jhunjha there was no blood on the cot and Amar Singh was lying at a distance of one and a half feet from the cot on the ground.
39. The 'motbir' of the site-plan prepared by Kishore is Sher Singh (PW 10). He has stated that the cot was lying at a distance of 15' from the place, where blood stains were found on the ground. The statement of Jhunjha read together with the statement of other two alleged eye-witnesses at well as with his own previous statement is quite discrepant and inconsistent and In our opinion his testimony has rightly been discarded by the court.
40. The next eye witness is Kesar Singh alias Kishore Singh. He is a child witness. Apart from it, deceased being his real uncle he falls within the category of an interested witness. We are alive to the principle that the family members are expected to be present at the scene of occurrence, if the same is the house, and merely because they are Interested and relatives, their testimony should not be discarded rather should be scrutinsed carefully. While discussing the evidence of Jhunjha we had referred to certain portions of the statement of Kishore Singh to point out the discrepancy between the two statements. According to this witness, when beating was going on, Jhunjha and Jodha came there, and on arrival of Jodha accused ran away from the spot. In cross-examination he has stated that he came out when the accused had left on the call of Jhunjha. Jodha (PW 5) hat deposed that he saw Kishore Singh thereafter the accused had already left the place, and Kishore Singh had come out from the inner apartment of the house, when Jhunjha called him out. These portions of the statement of the witness show that Kishoresingh did not see the actual occurrence. The witness has tried to avoid Chhattar Singh's accompanying the police in the night bus when his attention was drawn to his committing court's statement Ex. D. 4 where at portion A to B he had stated about Chhattar Singh coming with the police In the same night, the witness stated that statement was true except that Chhattar Singh had not come there. In his statement at the trial he has deposed that Amar Singh had 'Ghasia' beneath hit body when he was lying on the ground. He disowned portion G to H of his committing court's statement Ex. D. 4 where he had deposed that Amar Singh was not permitted to stand up and blows with 'Chhuris' were inflicted en his person while he was sitting and thereafter on account of those injuries he fell to the ground. If this version is true, then there should have been blood on the cot and also on the ground near it. This version is altogether different from the statement of Shersingh (PW 10) 'motbir', that bleed was at a distance of 15' from the cot. At the trial he has stated that Sardara had bleed of Amarsingh on his hanes, and not on account of any injury, whereas at portion 1 to J of Ex. D. 4 he has admitted that he bad stated in his police statement Ex. D. 1 that blood had come from the hand of Sardara. On being consented with that part, the witness stated that statement was given by him but he cannot say as to what type of injury was which caused the blood to come out. This type of version given by the witness, who is a child, and the real nephew of the deceased, coupled with his own statement and that of Jodha that he had come out on he call of Jhunjha when the accused had left the house, throws doubt about his actually seeing the occurrence.
41. The third eye-witness examined from the prosecution side is Jodha (PW 5). Though he bed professed to have seen the actual commission off the crime, he is belied by the other two witnesses. Kishore Singh has deposed that on arrival of Jodha the accused ran away from the spot. Similar is the statement of Jhunjha to the effect that on the arrival of Jodha all the five accused ran away from the spot. This clearly shows that Jodha was not there at the time of the actual beating. Relevant it is to note that Jodha also is a chance witnesses he had deposed that he was returning from his field and on reaching near the house of Amarsingh he heard some cry from inside and went there. In cider to fit his statement with the prosecution case regarding the (sic)cralcying declaration the witness has improved upon his (sic)commitung court statement Ex. D. 5. At the trial be has deposed that Amar Singh mentioned names of all the five accused at his assailants when asked Padam Singh whereas at portion I to J of Ex. D. 5, he has stated that Amar Singh became unconscious. A very significant fact to be noted is that c(sic)ospite the witness being there on the next day of the occurrence and attending the funeral of Amar Singh he was not examined by the police for about a month. There is no explanation for this delay in recording his statement. It police is net particular no examine the alleged eye witnesses at an early date, there is every reason for the defence side to raise the contention that the witness must have been introduced as an eye-witness subsequently.
42. From the above discussion we are inclined to hold that the statement of two chance witnesses Jhunjha and Jodha do not inspire confidence and the relative child witness Kishore Singh had not stood well the test of a truthful witness.
43. It is also to he noted that wife of Amar Singh whose prerence in the house had been admitted by Kishore Singh has not been examined by the prosecution for the reason best known to it. The explanation given by the station House Officer Purshottam that she was not feeling well and therefore could not be examined is not appealing. Thus the direct evidence deserves to be discarded. We are now left with the oral dying declaration and the written dying declaration of Amar Singh.
44. The witnesses to the oral dying declaration are Ishar Singh (PW 1) and Padam Singh (PW 8). At the very outset we may observe that bath these witnesses fall within the definition of interested witnesses. Padamsingh happens to be the real brother of deceased Amar Singh. Ishar Singh is the 'Hail' of Chattar Singh and the latter is the cousin (father's Sister's son) of AmarSingh and Padamsingh Chhatarsingh had gone to village Kurna on the day of occurrence and in the same night Lumba was sent in a car from Takhatgarh to call him. Kishore Singh had denied the arrival of Chhatar Singh in that night at the house of Amar Singh but his attention was drawn to portion A to B of his committing court's statement Ex. D. 4 wherein he has deposed that in the same night Chhatar Singh along with the police men came to the house of Amar Singh. On his attention being drawn to that portion Kishore Singh stated that it is true except that Chhatar Singh had not come there. Chhatar Singh accompanied this child witness to the court when his statement was recorded When Chhatar Singh being a relative is so much interested then Ishar Singh being his servant (Hali) would naturally have some interest in Amar Singh. This being the position the statements of Ishar Singh and Padam Singh are to be scrutinised carefully, in regard to the oral dying declartion of Amar Singh.
45. As discussed above, the eye witnesses have tried to convince that Amar Singh was conscious and in a fit condition to speak when Ishar Singh and Padam Singh had reached there. They in their previous statements have specifically deposed that AmarSingh had become unconscious.
46. Ishar Singh has stated that he had stated to the police in the first Information report what he had seen and what he had heard from Amar Singh when asked by Padam Singh. He has stated that he did mention to the police about weapons possessed by the accused. According to this witness when Padam Singh asked Amar Singh of to what had happened, Jhunjha and Jodha were present there. Padam Singh had stated that he asked Amar Singh as to what had happened and the latter informed that be was sleeping on a cot in the 'Dhalia' when Sardara first came and grappled with him then the other four came with 'Chhuri' and sword, Sardara inflicted 'Chhuri' blows Moti inflicted sword blows. In his examination in chief, Jhunjha is silent about any such oral dying declaration and has only stated that after the arrival of Padam Singh Ishar Singh and Lumba, Amar Singh was taken in a 'Chhakra' by them to Takhatgarh hospital. In cross examination he has stated that it is a fact that Amar Singh disclosed the names of all the five accused to Padam Singh as his assailants. He further deposed that as he was not asked before so he had not given the details about what he told. Kishore Singh has stated nothing about this oral dying declaration. Jodha has deposed that Padam Singh asked Amar Singh about the beating & Amar Singh mentioned the names of all the five accused as his assailants. He had not given the other details of the alleged oral dying declaration. It requires to be repeated here that initially it was the contention of the prosecution witnesses that Amar Singh had become unconscious on sustaining injuries. If it was so, his giving any statement before Ishar Singh and Padam Singh on their reaching there about after an hour was not possible. Ishar Singh has stated in the first information report about Amar Singh being unconscious, his attention being drawn to that portion, he stated that because there was likelihood of his becoming unconscious as his condition was very serious, he has mentioned (sic)sson the first information report. The explanation is not satisfactory. In this connection we may also refer to Ex. P. 7 the alleged written dying declaration of Amar Singh wherein after the description of injuries caused to him he has stated that there was profuse bleeding and he became unconscious There is no mention about Ishar Singh and Padam Singh reaching the house and the injured telling them what had happened with him. In order to take assistance from oral dying declaration prosecution has to bring on record through trustworthy witnesses the exact words uttered by the deceased. In the present case except Padam Singh the real brother of the deceased no body gives the details of what Amar Singh stated Ishar Singh's version in the first information report about Amar Singh being unconscious coupled with the omission in the dying declaration about this part of the prosecution story leads us to conclude that the oral dying declaration has not been proved so as to create a circumstance against the respondents.
47. The direct evidence and the oral dying declaration having thus been discarded we are now left only with the written dying declaration of Amar Singh Ex. P. 7.
48 Kesheo Lal (P.W. 15) has stated that he recorded the statement of Amar Singh at hospital in the presence of 'motbirs' and the medical officer. Dr. Ashok P. Ramchandani has supported this version. Ishar Singh has stated that Amar Singh's statement was recorded by the Head Constable when he arrived at the hospital Shersingh, 'motbir' to Ex. P.7 has deposed that at about 10.30 a.m. Amar Singh's statement was recorded in his presence by the Head Constable Kesheo Lal.
49. Mr. Acharya has emphasised that Ex. P. 7. contains the names of the assailants as well as the part played by each of them & is corroborated by the medical evidence as well as by the statements of the eye witnesses. A perusal of Ex. P.7 shows that not only the names of the assailants but their parentage and residence also have been mentioned therein In order to base a conviction on the dying declaration certain important factors are to be kept in view. Ordinarily coroboration is sought to make the dying declaration the basis of conviction However in case the dying declaration inspires confidence and it can be held that it was voluntarily made and at that time the maker of it was mentally and physically fit to narrate the incident, the dying declaration can be acted upon even without any corroboration. The sanctity of dying declaration need not be emphasised because the maker of it being on the verge of death is not likely to tell lies or to implicate an innocent person. It is this principle which has been enunciated in the case of K. Ramchandra Reddy and Anr. v. The Public Prosecutor : 1976CriLJ1548 . At the same time courts are expected to be on guard against the statement of the deceased, for the reason that the maker may be in a state of mental and physical confusion and in case he is surrounded by relatives and friends chances of tutoring or prompting cannot be ruled out. It is also pertinent to note that the declaration is not made on oath, and it not being subject to cross-examination a minute scrutiny is required to conclude whether it was recorded in the manner and circumstances that without there being any corroboration, conviction can be based on it?
50. We will new examine Ex. P.7 from the point of view as to whether it is a faithful recording by the Head constable of what the deceased has uttered, and whether he was at the time mentally and physically fit to understand what he was saying. It will be profitable to have guidance from certain authorities propounding the principle to be kept in view on the point.
51. In the case of Khushal Rao v. State of Bombay : 1958CriLJ106 their Lordships have been pleased to observe 'it cannot be laid down as an absolute rule of law that a dying declaration cannot be the sole basis t f conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.... the court has to keep in view, the circumstances like the opportunity of the dying man to remember the facts stated, had not been by circumstances beyond his control'. Their Lordships further observed that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination.
52. While discussing the evidentiary of the dying declaration their Lordships of the Supt erne Court observed as under in the case of Lallubhai Devchand Shah and Ors. v. The State of Gujarat : 1972CriLJ828 :
A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light the surrounding facts and circumstances of the case, bearing in mind on the one hand, that the statement is by a person who has not been examined in court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent persons falsely.
53. In the light of these principles we will now scrutinise Ex. P. 7. The most important fact to be noted in examining the dying declaration is the mental and physical condition of the deponent. Kesheo Lal, the scribe of Ex. P. 7, has stated that when he recorded the statement, Amar Singh was completely in his senses and was talking. Dr. Ashok P. Ramchandani, on the other hand, states that Amar Singh was unconscious when he was brought to the hospital. After treatment he improved. He further stated that patient was given drips and treatment to bring him to normal condition so that he was able to reply to the questions. There is no endorsement about the capacity of Amar Singh to give statement, at the top of the statement, but at the bottom there is an endorsement by the doctor as under:
;g budks Ikdj lquk;k x;k ejht vk/kk csgks'k gS] ;g buds dgus ds vuqlkj fy[kk x;k A
54. The doctor has admitted to have written that portion I to J in Ex. P. 7, and explained it in the way that the patient was regaining consciousness only after having drips end he was relapsing so he again had to give him treatment in order to maintain consciousness and that this treatment (drips) was going on when his statement was being recorded.
55. Sher Singh (PW 10), the 'motbir' to Ex. P. 7 has stated that before recording the statement Amar Singh was not completely unconscious and at the time of recording his statement he was a bit unconscious. In the first Information report lodged by Ishar Singh immediately after the Injured being taken to the hospital, it has been mentioned ^^ og csgks'k gS ^^. He has shown his presence at the time when Amarsingh's statement was recorded by the Head Constable. His attention was drawn to the portion ^^ og csgks'k gS ^^ appearing in the first information report and a strange explanation comes forth that when he left the hospital, the condition of Amarsingh was very serious, he had not become unconscious but there was a likelihood of his becoming unconscious sometime after-wards and therefore he had mentioned In the first information report that ^^ og csgks'k gS ^^.
56. Mr. Bhandari has stressed that in so appears that at the time of first Information report was lodged Amar Singh was unconscious but in order to make the dying declaration appear genuine this improvement in the prosecution case hat been made by the various witnesses. An important test of the reliability of the dying declaration Is the satisfaction of the person recording it, that the deceased was in a fit state of mind. Ishar Singh, according to the prosecution, was with the deceased since the time of the incident till the statement was recorded but for a short period, when he went to the police station, Sher Singh has stated that he has accompanied Amar Singh from the bus-stand when he was taken to Takhatgarh hospital and remained there throughout the night and was the attesting witness to the dying declaration.
57. In the case of Balakram and Anr. v. State of Uttar Pradesh : 1974CriLJ1486 in view of the facts and circumstances of that case their Lordships were pleased to observe that as the declarant was in the midst of friends and admirers right since the time of the Incident until dying declaration was recorded by the Sub-divisional Magistrate, such dying declaration can have hardly any evidentiary value. In that case the dying declaration was recorded by the Magistrate while in the present case It having been recorded by the Investigating Officer it stands on a weaker footing. In that case there were three dying declarations: one an oral one before a witness, second to the Investigating Officer and the third before the Sub-divisional Magistrate. All the three were considered to be of no evidentiary value for the reasons given in the judgment. So far as the dying declaration before the Investigating Officer was concerned their Lordships were pleased to observe that 'Investigating Officers are keenly interested in the fruition of their efforts and though we do not suggest that any assumption can be nude against their varacity, it is not prudent to base the conviction on a dying declaration made to an Investigation Officer'. That statement In that case was of course recorded in haste and the signatures of the deponent and witnesses were not taken. In the present case, it is not so but the physical and mental condition of Amar Singh as appearing in the endorsement at the bottom of Ex. P. 7 and also in the statement of the doctor cannot be said to be quite good so as to enable him to give the statement in such details.
58. About the method of recording Ex. P. 7 the statement of Dr. Ashok P. Ramchandani is as follows:
Myself and the police were putting the questions to the patient and he was replying each question which were being recorded. I cannot say as to how many questions I had put to the patient. I was the main Interrogator and I dictated the statement to the police. The Head Constable only asked 2-3 questions to him. I do not remember in what language the patient was answering to my questions.
59. Kesheolal's deposition on the point is of different type when he states 'I took down this statement as deposed by him and not by way of Interrogation'. According to this witness Amar Singh was speaking in 'Marwari'. It is not evident whether Dr. Ashok P. Ramchandani understood 'Marwari' so as to translate it in Hindi, while giving the dictation to the Head Constable. The statement according to the Head Constable was not by way of interrogation while according to the doctor the statement was by way of replies to the questions put by doctor to the witness. Had the doctor recorded the statement, it would have been a different matter but here, as doctor's version goes, it was his dictation and not the direct narration by the deceased. This strange type of recording, in view of the different versions by the Head Constable and the doctor coupled with the physical and mental state of victim constrain us to think that the statement was not volitional by the injured and it cannot be said that he was in such a fit state so as to give all these details as appearing in Ex. P. 7.
60. Mr. Acharya has placed reliance on the principle enunciated in that case of Rabi Chandra Padhan and Ors. v. State of Orissa 1979 Cr. LR (SC) 633 wherein it has been held that conviction can be found on dying declaration representing truthful version of occurrence even in the absence of independent corroboration. There is no dispute on this settled proposition of law but as observed above the court should, in view of the facts and circumstances of the case, be convinced about the truthfulness of the dying declaration. In the case referred to just above their Lordships were In agreement that after close and searching scrutiny the dying declaration represented a truthful version of occurrence and therefore it was held that it should afford a reliable basis far founding a conviction thereon.
61. In the case on hand from tile various circumstances discussed above, that is, condition of the injured, his being surrounded by his own men since beginning to end, the statement being recorded by the investigating Officer and that too on the dictation of the doctor lead to the conclusion that it cannot be said to be a truthful version of the occurrence so as to bring home the charge against the accused.
62. In this view of the matter, there being no sufficient and reliable evidence direct or circumstantial against the accused we find no reason to interfere with the judgment of acquittal bf the court below.
63. Consequently the appeal filed by the State of Rajasthan has no merits and is therefore dismissed. The respondents are on bail. Their bail bonds stand discharged.