Sheo Dan v. State — 1950 DIGILAW 166 (RAJ)

Dutt, J.—These are four appeals by four convicts, No, 32 of 1950 by Sheo Dan, No. 33 of 1950 by Ram Dan, No. 34 of 1950 by Bahadar Dan, and No. 3.5 of 1950 by Hetu Dan, arising out of the same judgment delivered in a murder case on the 5th of April 1950, by the learned Sessions Judge, Nagour. All the four appellants were convicted and sentenced to rigorous imprisonment for life under section 302 M.P.C., for causing the death of Ganesh Dan, and to one years rigorous imprisonment under section 148 M.P.C. In addition to the above mentioned sentences, Sheo Dan appellant was further convicted and sentenced to seven years rigorous imprisonment under section 304 Part (2) for causing the death of Kalyan, and Bahadar Dan appellant was further convicted and sentenced to one years rigorous imprisonment for causing injuries to Fateh Dan. 2. The occurrence took place on the morning of the 7th of December 1948 in front of the main gate of the Raoli Pole, situated in the village of Tokarla. According to the story, as related by the prosecution witnesses, Ganesh Dan deceased and Kalyan Dan deceased, along with Fateh Dan, P.W. 6, and Jagannath Brahmin P.W. 8 were sitting on a Chabutri of the common fire place, just adjacent to the main gate of the Pole, inside which the houses of both the deceased are situated. Ganesh Dan was cleaning his teeth with a datoon. Mst. Kalyan Kanwar P.W. 16, Ganesh Dans daughters daughter, came out of the Pole and requested her maternal grand father to come to the he use and take his tea. Ganesh Dan asked her to wait so that he may finish with his datoon. After a few minutes she again asked Ganesh Dan to make haste. In the meantime, while she was pressing him to come to the house, all the four appellants, along with four others, Manohar Dan S/o Sumer Dan, Kan Dan S/o Mahesh Dan, Gurnan Dan S/o Pusa Dan and Badri Dan S/o Lal Dan, heavily armed with unsheathed swords in their hands, emerged from a lane just adjacent to (the Pole. No sooner these eight persons reached the spot, they began to strike blows with swords in their hands, on Ganesh Dan. No sooner these eight persons reached the spot, they began to strike blows with swords in their hands, on Ganesh Dan. Ganesh Dan tried to run away from the place, but he was over-powered by the assailants, was brought to the ground, and was very badly injured by the simultaneous sword blows given by all of them. Kalyan Dan and Fateh Dan rushed to rescue Ganesh Dan,but they were also attacked by the assailants, and were given severe sword cuts, as a result of which Kalyan Dans hand wan cut off and severed from his fore-arm; The assailants then ran away from the place of occurrence to their houses. 3. It is, more or less, admitted by both the parties, that there were two hostile camps at Tokarla, and that both the deceased and all the assailants, belong to the opposite camps. Although some litigation civil and criminal, was going on between the parties since a pretty long time, but the immediate cause, that annoyed and prompted the assailants to commit the offence, was the help given by Ganesh Dan deceased, to Bhura Ganchi P.W. 1, against Ram Dan convict, in the prosecution of the latter for an indecent assault committed by him on the niece of the former. It is stated by the prosecution witnesses that about twenty days before the occurrence, the above mentioned indecent assault was committed, and Ganesh Dan, in order to take his enemies, prompted Bhura to report the matter to the police, and he himself actually accompanied Bhura to the police station for lodging the report, the result of which was that Ram Dan was arrested by the police and challaned for the offence of outraging the modesty of the girl. Ram Dan was admitted to bail by the Magistrate and only one or two days after his admission to bail, the present occurrence took place. 4. About half an hour after the occurrence, Bhura Ganchi P.W. 1 and Badri Dan s/o Fateh Dan were sent by Ajit Dan P.W. 10 to the Police Station at Magartalao, to lodge the report of the incident. Ajit Dan is the brother of Ganesh Dan, who reached the spot just after the occurrence when the assailants had made their escape. About half an hour after the occurrence, Bhura Ganchi P.W. 1 and Badri Dan s/o Fateh Dan were sent by Ajit Dan P.W. 10 to the Police Station at Magartalao, to lodge the report of the incident. Ajit Dan is the brother of Ganesh Dan, who reached the spot just after the occurrence when the assailants had made their escape. Magartalao is at a distance of four miles from Tokarla and Bhura Ganchi and Badri Dan reached the Police Station at 10 a.m. i.e., only about two hours after the occurrence. The Sub-Inspector, Police, Magartalao, Sultan Khan P.W. 18 and the head-Constable were both out of station at that time, and Sunder Lal P. W. 5 a constable, was incharge of the Thana, Bhura Ganchi and Badri Dan, related verbally to Sunder Lal all the facts that were known to them, and Sunder Lal recorded these facts in the Rojnamcha a copy of which is Ex. P. 30. On being told by Sunder Lal that the Sub-inspector and the head-Constable were out of station and had gone to Desuri, Bhura Ganchi and Badri Dan returned to their village in order to apprise Ajit Dan and others of the fact that Sub-Inspector was at Desuri. An intimation was, however, sent by Sunder Lal to the Sub-Inspector at Desuri through two Sowars, Lal Mohammed and Sakhat Singh when Bhura and Badri Dan were returning to their village, they met Ajit Dan and others in the way, who were taking the injured persons to the Police Station. On being apprised of the fact that the Sub-Inspector was at Desuri, Ajit Dan and others diverted their way to Desuri which is at a distance of 8 or 10 miles from Tokarla. In the way, Ganesh Dan succumbed to his injuries when the party reached near Desuri, they were met by the Sub-Inspector Sultan Khan, who was going to Tokarla. The Sub-Inspector stopped right there and took the party to the hospital. At about 8 p.m. a written version of the occurrence, which is Ex.P.1, was handed over by Ajit Dan to the Sub-Inspector Police, Sultan Khan. Ex. P.1 was got by Ajit Dan to be written by Champa Lal P.W. 15. The Sub-Inspector at once sent this written report to the Police Station Magartalao with the direction to register it. At about 8 p.m. a written version of the occurrence, which is Ex.P.1, was handed over by Ajit Dan to the Sub-Inspector Police, Sultan Khan. Ex. P.1 was got by Ajit Dan to be written by Champa Lal P.W. 15. The Sub-Inspector at once sent this written report to the Police Station Magartalao with the direction to register it. At about 10 p. m. on the same day i. c. 7th December 1948, a dying declaration of Kalyan Dan which is Ex. P. 35, was recorded by the Sub-Inspector, Sultan Khan P. W. 18, because the Magistrate, Desuri was out of Station on that day. Kalyan Dan succumbed to his injuries at 4-30 p. m. on the 8th December 1948. On the 9th of Dec. 1948 at 6 p. m., a statement of Hetu Dan and Sheo Dan convicts, confessing the guilt, was recorded by the Police in the Rojnamcha. This statement, which is nothing less than a confession of the accused before the police, is Ex. P. 31, In this confession, a clue of two swords was given by the convicts to the police. On the 10th of December, 1948, two blood stained swords were discovered by the police, at the instance of Sheo Dan convict, from the bed of a river, Smor, which flows at a distance of about two miles from the village of Tokarla. Sheo Dan took the police party to the stream, and pointed out the place in the bed of the stream where the swords were burned. Sheo Dan himself dug the place, above two feet deep, and brought the swords out. 5. All the four appellants have denied the charge and have pleaded not-guilty. Hetu Dan and Sheo Dan convicts have admitted their presence on the Chabutri when fatal injuries were inflicted on the bodies of Ganesh Dan and Kalyan Dan, but they have set up quite a different story of the occurrence. The following is the verbatim reproduction of the , relevant parts of the statements of these two convicts :— Statement of Hetu Dan : "On the alleged date and time, I was sitting on the Chabutri5 of the Pole with Ganesh Dan, Gopal Dan, Kalyan Dan and Fateh Dan. There broke out a quarrel between Ganesh Dan and Kalyan Dan about a house and both struggled with each other. There broke out a quarrel between Ganesh Dan and Kalyan Dan about a house and both struggled with each other. Gopal Dan brought a sword and gave a blow with it on Ganesh Dan but he could not be saved. Then Ajit Dan, real brother of Ganesh Dan, came and gave a sword blow on Kalyan Dan. Gopal Dan ran away, we also ran away. Gopal Dan gave two sword-blows on Ganesh Dan, and Ajit Dan also two on Kalyan Dan". Statement of Sheo Dan: "On the alleged date and time, I was also present, on the chabutri of Kan Dan along with Kalyan Dan, his son Gopal Dan, Ganesh Dan, Fateh Dan and Hetu Dan. Kalyan Dans and Ganesh Dans houses are adjoining each other. Ganesh Dans window overlooked the premises of Kalyan Dan. Kalyan Dan told Ganesh Dan to close up the window as it disturbs his privacy. Ganesh Dan refused to close the window. On this, both abused each other. Gopal Dan went inside the house. Kalyan Dan had an axe with him. He struck Ganesh Dan on his head with that axe. Mean-while, Gopal Dan also came with the sword and began to beat Ganesh Dan with his sword. Ajit Dan also came with a sword. Ajit Dan gave two sword blows to Kalyan Dan. Ganesh Dan ran inside. I and Hetu Dan caught Ajit Dan. He also, then went away. There was enmity between Ganesh Dan and Kalyan Dan". 5. The learned counsel for the appellants Mr. Than Chand has veriably put the case of the defence before us. His contentions are that the prosecution has utterly failed to prove the case against the four appellants, that the eye-witnesses pre wholly unreliable, that the reliance has been placed by the learned Sessions Judge, on documents, which are inadmissible in evidence, and which stand unproved no the file, and that an attempt was made, by the prosecution, from the very beginning,to implicate innocent persons of the other party, in the case. The learned counsel pas discussed separately the evidence of each and every eye-witness. 6. There are five-witnesses in the case: Mst. Kalyan Kanwar P.W. 6, Jagannath Brahmin P.W. 8, Mst. Sun-dar P.W. 7 and Ramla P. W. 3, Mst. The learned counsel pas discussed separately the evidence of each and every eye-witness. 6. There are five-witnesses in the case: Mst. Kalyan Kanwar P.W. 6, Jagannath Brahmin P.W. 8, Mst. Sun-dar P.W. 7 and Ramla P. W. 3, Mst. Kalyan Kanwar and Fateh Dan supported the story of the prosecution, in full, and named al!l the eight assailants who came to the spot, heavily armed with swords, and inflicted injuries on the persons of Ganesh Dan, Kalyan Dan and Fateh Dan. Jagannath P.W. 8 deposes that he was present at the time of the occurrence, seven or eight persons armed with swords, came to the spot and began to inflict injuries with their swords on Ganesh Dan, he became nervous and ran away from the place, he could recognise only four, Sheo Dan, Hetu Dan, Ram Dan and Badri Dan the present appellants. Mst. Sunder P.W. 7s house is just near the place of occurrence. She says that she did not see any body striking blows on the bodies of injured persons. She, on hearing the cries, opened her door and saw Ganesh Dan lying injured on the ground and also saw some persons Manohar Dan, Kan Dan, Hetu Dan, Ram Dan and Sheo Dan who had swords in their hands, running away from the place of occurrence. Ramla P.W. 3s evidence is that he heard the cries of Kalyan Kanwar when he was in his house, which is situated at a distance of forty panwdas from the place of occurrence [and that, on hearing the cries, he opened his door and saw from a distance of two panwdas from him, the accused Hetu Dan, Bahadar Dan, Ram Dan, Sheo Dan, Badri Dan and Manohar Dan, with blood strained unsheathed swords in their hands, running at a full speed towards Gandhi-yon-ki-gali. 7. Out of these five witnesses, none lodged the first information report with the police. There are two docu-ments on the file, Ex. P. 30 and Ex.P.1, which claim to be the F. I. R. in the case. Ex. P. 30 does not contain the names of the assailants and was given at 10 a.m. on the 7th of December 1948 by Bhura Ganchi. Ex. P.1 contains the names of eight assailants and was given by Ajit Dan at 8 p.m. on the same day. Ex. P. 30 does not contain the names of the assailants and was given at 10 a.m. on the 7th of December 1948 by Bhura Ganchi. Ex. P.1 contains the names of eight assailants and was given by Ajit Dan at 8 p.m. on the same day. The learned counsel for the appellants, has attacked both of these documents as being inadmissible in evidence, and as unworthy of being used as corroboratory evidence in the case. 8. Ex. P. 30 is attacked on two grounds:— (1) It is not signed by Bhura Ganchi as required by the law, and hence it is inadmissible in evidence. (2) It has not been proved, as it was never put to Bhura Ganchi when he gave his evidence. 9. The answer to the first objection is very simple. The execution of a document has nothing to do with, the admissibility of the document in evidence. If a document is not drafted according to the rules laid down by the law of procedure, it does not become inadmissible on account of this reason. This is right that according to s. 154 of the Cr.P.C., every information, relating to the commission of a cognizable offence, given to a police officer, shall be signed by the person giving it, but S. 154 of the Code is after all a rule of procedure laid down by the legislature, to. be observed by the police in recording the first information report. If this rule of procedure is not adopted, the question of the admissibility of the report will not be affected even the least. The failure to adopt the proce-dure, as laid down in s. 154 Cr.P.C., may affect the credit that is to be given to the report, but nevertheless, the report will be admissible in evidence. First information report is not a substantive piece of evidence in the case, it has only a corroboration value, and there is every possibility of its losing that value,if it was not recorded according to the procedure as laid down in the Code. In Mir Aman v. Emperor, reported in A.I.R. 1935 Peshawar 165 it was held that failure by the police to observe the procedure laid down in s. 154 Cr.P.C. does not make the statement inadmissible." 10. As far as the proof of Ex. In Mir Aman v. Emperor, reported in A.I.R. 1935 Peshawar 165 it was held that failure by the police to observe the procedure laid down in s. 154 Cr.P.C. does not make the statement inadmissible." 10. As far as the proof of Ex. P. 30 is concerned there is no force in the argument of the learned counsel for the appellants. The report was recorded by Sunder Lal constable P.W. 5, and Sunder Lal has proved it. In producing Bhura Ganchi in the court, as a witness for the prosecution, a full opportunity was given to the defence, for contradic-ting the witness from the report Ex.P. 30, if so desired. The result is that Ex. P. 30 cannot be declared inad-missible or unproved, and it can be used for or against the prosecution up to the limits permissible under the circumstances. 11. With regards to Ex.P.1, the learned counsel for the appellants, has contended that it is also inadmissible as it was given twelve hours after the lodging of the first information report, Ex. P. 30, and hence, was late in point of time. This second report Ex. P.1 was proved by the prosecution, and Ajit Dan P. W. 10 who lodged it was also contradicted from it by the defence. The questions of the admissibility in evidence of first information reports, specially where there are more reports than one, frequently arise, and are frequently misunderstood by the trial magistrates. We consider that an exposition of the law on the matter is desirable. 12. In criminal trials, the rules of evidence to be observed, are of two kinds, general and special. General rules of evidence are contained in the Evidence Act, oral evidence must be direct i.e., it must be given by the witness who saw, heard or perceived the fact of which the evidence is given. Under this rule, it is the deposition of witness, given at the trial, that can be treated as a substantive evidence in the case. No other previous statements given by him can be treated so. But previous statements of witnesses can be used for corroborating purposes by the prosecution and for contradicting purposes by the defence under s. 157 and 155 of the Evidence Act, respectively. No other previous statements given by him can be treated so. But previous statements of witnesses can be used for corroborating purposes by the prosecution and for contradicting purposes by the defence under s. 157 and 155 of the Evidence Act, respectively. S. 157 Evidence Act permits a former statement of a witness to be proved in order to corroborate his testimony, S. 155 Evidence Act allows the former statement of witness to be proved in order to contradict his evidence. So, under these two sections, any statement of a witness given before a police officer can be used at the trial for the purposes of corroborating and contradicting the testimony of that witness, as the case may be. But there is a special rule of evidence laid down in s. 162 of the Criminal Procedure Code, which is to the effect, that statement made to a Police Officer, in the course of an investigation shall not be used for any purpose at an enquiry or trial in respect of any offence which is under investigation at the time the statement is made. Hence, according to this section, it is only the statements made to a Police Officer during the course of an investigation of an offence, that are excluded from the operation of s. 157 and 155 of Evidence Act. All other statements made to a Police Officer before the commencement of the investigation are admissible at an enquiry or trial for the purposes of corroboration or contradiction. To put it in a nut-shell, statements to a Police Officer can be of two kinds:— (1) Those given before the commencement of the investigation. (2) Those given during the course of the investigation. 13. The term F.I.R. is not defined anywhere in the Code. Any statement recorded under s. 154 Cr.P.C. is termed as F. I. R. section 154 Cr.P.C. lays down only a procedure as to how an information of the commission of an offence is to be recorded. It does not say that the first information recorded, with regards to the commission of an offence, will be considered to be the only F.I.R. in the case. Hence, all statements whether one, two or three, relating to the commission of a cognizable offence, made to the police, before the commencement of the investigation, are admissible in evidence at an enquiry or trial for the purposes of corroboration or contradiction. Hence, all statements whether one, two or three, relating to the commission of a cognizable offence, made to the police, before the commencement of the investigation, are admissible in evidence at an enquiry or trial for the purposes of corroboration or contradiction. All such statements can very well be designed as first information reports. 14. In the present case, we are simply to see whether Ex, P. 1 was male by Ajit Dan to the Sub-Inspector Police, Sultan Khan before the com-mencement of the investigation or afterwards? 15. Ex.P.30 was lodged by Bhura Ganchi at to a.m. at the Police Station Mahatalao, and it was recorded in the Rojnamcha by Sunder Lal constable P.W. 5. Just after the record of Ex. P. 30, two sowars Lal Md., and Sakhat Singh were sent to Desuri in order to intimate the Sub-Inspector of the occurrence. Lal Mohammed and Sakhat Singh reached Desuri at any time during the day of the 7th of December 1948, and informed the Sub-Inspector that "in Tokarla, one Ganesh Dan has been injured with sword-blows" the Sub-Inspector at once left Desuri for Tokarla, and at some distance from Desuri near the village of Lambi, he met Ajit Dan and his party, who were conducting the injured persons, and were taking the dead body of Ganesh Dan to the police. In reality, the investigation of the offence commenced just at the time the Sub-Inspector left for Tokarla. The Sub-Inspector must have taken charge of the dead body of Ganesh Dan somewhere near Lambi. It was his duty. He must have made oral enquiries from Ajit Dan and others with regard to the occurrence. The party was escorted by the Sub-Inspector to the Desuri Dispen-sary, and reached there pretty long time before the lodging of the report Ex. P.1. The dead body of Ganesh Dan was handed over to the doctor at 7 p. m. on 7.12.48, who conducted the post-mortem examination on the next day. In the very beginning of the postmortem examination report Ex. P. 7 there is the following note to this effect:— "Post-mortem examination of the body of a Hindu male named Ganesh Dan S/o Mukan Dan, caste Charan, aged about 45 years, resident of village Tokarla., District Desuri, sent by S.I.P., Magartalao, under the custody of P.C. Hukma Ram No. 510. In the very beginning of the postmortem examination report Ex. P. 7 there is the following note to this effect:— "Post-mortem examination of the body of a Hindu male named Ganesh Dan S/o Mukan Dan, caste Charan, aged about 45 years, resident of village Tokarla., District Desuri, sent by S.I.P., Magartalao, under the custody of P.C. Hukma Ram No. 510. Body arrived at about 7 p. m. on 7.12.48 and the post-mortem examination was conducted at 9 a. m, on 8.12.48 in the presence of P.C. Hukma Ram." 16. The report Ex. P. 1 was written by Champa Lal P.W. 15. Champa Lal deposes in his statement, that "he was called as a motbir by S.I.P. Magartalao on 7.12.48 near Desuri Dispensary." and he was shown "the injuries on the bodies of one deceased Ganesh Dan and also his blood-stained clothes." Champa Lal further deposes that "Ajit Dan was quite unknown to him", and he "does not remember whether the report was written in my shop or in the thana." The report Ex. P. 1 was written on 8 p.m. by a person who was called by the S. I. P. to act as a motbir in the investigation. Doubtlessly, it can be said that the report Ex. P. 1 was lodged with the police during the investigation of the offence, and hence, it is inadmissible in evidence in the case. But notwithstanding of its being inadmissible as F. I. R., it is a statement of a prosecution witness, taken by the police during the investigation of the offence, and it can be used by the accused for the purpose of contradicting the testimony of a witness, and it has been so rightly used for the purpose. 17. Apart from the oral testimony of the prosecution witnesses, there is another important document on the file and that is Ex. P. 35, the dying declaration of Kalyan Dan deceased. Ex.P. 35 was recorded by the Sub-Inspector Police, Sultan Khan at 10 p. m. on the 7th of December 1948, in the hospital at Desuri, in the presence of Jethmal P.W. 11 and one Sohanlal. Sultan Khan and Jethmal were examined in the Sessions Court by the prosecution, in proof of the dying declaration. The learned counsel for the appellants has vehemently attacked Ex. P. 35 and has contended that it is inadmissible in evidence. Sultan Khan and Jethmal were examined in the Sessions Court by the prosecution, in proof of the dying declaration. The learned counsel for the appellants has vehemently attacked Ex. P. 35 and has contended that it is inadmissible in evidence. His argument is that it was not actually written by deceased himself and as it did not bear the signature of the deceased, it is not the written statement of the deceased within the meaning of Sec. 32, Evidence Act, and is, therefore, inadmissible in evidence. He further - contends, that as none of the witnesses, produced to prove Ex. P. 35 has repeated, while giving evidence, in his own words, what the deceased had said while giving the statement, the dying declaration does not stand proved on the file and is not worthy of being acted upon in a murder case. The learned counsel in support of his arguments has referred us to Bhagwan v. Emperor, 23 I.C., 195. 18. The dying declaration of Kalyan Dan was proved in court by the testimony of Sultan Khan, Sub-Inspector, P.W. 18, and Jethmal P.W.11. The relevant portions of their statements are as follows:— Sultan Khan:—"I myself recorded the dying declaration in the presence of Divani and Fauzdari Mohurers and Potedar of Hakumat Desuri. That dying declaration is Ex. P. 35, and whatever had been taken down in the dying declaration were the actual words used by Kalyan Dan." Jeth Mal:—"The Sub-Inspec-tor recorded the dying declaration of Kalyan Dan in our presence. He then took our signatures on it. The statement which was recorded in our presence is a true statement of what Kalyan Dan orally stated before us. This statement is Ex.P.35." 19. We have gone through Bhagwan vs. Emperor, 23, I.C., 195. It is a single bench ruling. The learned Additional Judicial Commissioner, Nagpur observed as follows:— "The dying declaration, not reduced to writing, must be proved by oral evidence of any person who heard it. When a Police Officer is testifying to such a declaration, he can refresh his memory by reference to the notes he might have made or read at that time. Such notes, to be themselves admissible in evidence as proof of the statements made by the dying person, must bear the signature of the deponent." 20. When a Police Officer is testifying to such a declaration, he can refresh his memory by reference to the notes he might have made or read at that time. Such notes, to be themselves admissible in evidence as proof of the statements made by the dying person, must bear the signature of the deponent." 20. No doubt, this ruling, to some extent,supports the argument advanced by the learned counsel for the appellants, but I respectfully differ from the view taken in it. 21. The view taken in Bhagwan v. Emp., is an old one. The Judgment, in this case, was delivered in the year 1913; and upto that time, the view of most of the High Courts, on this point, was the same. The learned Judge did not cite any authority in support of his view, and perhaps, the reason was that it was a universal view of the law at that time. In the year 1881, the Calcutta High Court ruled in Emp. v. Samurudin, 8 Cal., 211, that the witness, proving a dying declaration, should say from memory,what he heard from the deceased and in doing so, refresh his memory under S. 159 of the Evidence Act, by referring to the record of the statement prepared by him. This ruling was followed by the Madras High Court in the year of 1912 in Public Prosecutor v. Bulanagi-redi, 15 I.C., 308, but in the year of 1916, the ruling was dissented from by a bench of the Madras High Court in re Karuppan Saman 31, I.C., 359, and the view was taken, that a dying declaration can be proved by the testimony of a witness, who swears that the written statement correctly reproduces the words used by the deceased. Such a statement on oath, of a witness who heard the deceased making the statements will be considered sufficient to prove, that the deceased did use the words contained in that statement. In the year of 1922 the Calcutta High Court, in Emp. v. Balaramdeen, reported in 49, Cal., 358, laid down that the direct method of proving the statement of the deceased by the production of the record of the dying declaration, by the person, who prepared it, as the evidence of the statement made to him, is perfectly legal. In the year of 1922 the Calcutta High Court, in Emp. v. Balaramdeen, reported in 49, Cal., 358, laid down that the direct method of proving the statement of the deceased by the production of the record of the dying declaration, by the person, who prepared it, as the evidence of the statement made to him, is perfectly legal. In 49, Cal., 358, the Magistrate who had recorded the dying declaration, had died and the Assistant Surgeon, who was present when the statement was recorded, gave the following evidence: "Before the deceased died, I wrote to the Magistrate to have his dying declaration recorded. The Sub-Deputy I Collector Surendra Gosh came and recorded the dying declaration on the 29th night. He recorded the declaration in my presence. Surendra Babu is deal. This was over two years ago. Ex. P. 2 is the dying declaration as recorded by Surendra Babu in my presence. I know Surendra Babus hand-writing and signature. He read it over to the deceased in my presence. The declarant admitted it to be correct. Ex. P. 2 read over." 21. It was contended on the strength of 8 Gal., 211, that this statement was not enough to prove the dying declaration. The learned Judge of the Calcutta High Court made the following observations:— "But we hold that the evidence, that the deceased used the words contained in the statement given by the witness, who can speak all those words by refreshing his memory, is not the only way in which the statement of the deceased person can be proved. If the witness who heard that statement, swears that the written statement correctly reproduces the words used by the deceased, this is sufficient to prove that the deceased did use the words contained in that statement. Here the important part of the evidence is that the dying declaration was recorded in the presence of a witness, that it was real over to the deceased in the presence was admitted be correct. sufficient." 22. In the year of 1924, a single bench of the Lahore High Court adopted the view taken in 8 Cal. Here the important part of the evidence is that the dying declaration was recorded in the presence of a witness, that it was real over to the deceased in the presence was admitted be correct. sufficient." 22. In the year of 1924, a single bench of the Lahore High Court adopted the view taken in 8 Cal. 211, but it was soon found, that the method suggested was unsatisfactory, and a Bench of the Lahore High Court veered to the latter view in Pratap singh vs. Emperor reported in A.I.R. 1926 Lah., 310 which ruling was followed by another Bench iof the same High Court in Kapoor Singh v. Emperor, A.I.R. 1930 lahore, 450. I find myself in perfect agreement with the latter view of High Courts. To adopt the former view will be tantamount to reduce the proceedings to a force. No human being can be expected to remember word for word what he had written long ago, and either the witness will have to learn the evidence by heart, before he enters the witness box, or no dying declaration can be proved in a satisfactory manner. The only satisfactory and reliable method of proving the dying declaration of deceased person, is to let the person who recorded or in whose presence it was recorded, directly prove the writing itself by swearing that the dying declaration contains the words that were actually used by the deceased. 23. In the present case, Sultan Khan P.W. 18 who recorded the dying declaration of the deceased has deposed that "whatever was taken down in the dying declaration were the actual words used by Kalyan Dan " In my opinion, the dying declaration stands fully proved on the file. 24. As far as the contention, that the dying declaration was not signed by the deceased Kalyan Dan is concerned, I do not think that it is necessary that the dying declaration should always be signed by the deceased, although, I am of the opinion, that the signatures of the deponent, will certainly increase its evidentiary value. 24. As far as the contention, that the dying declaration was not signed by the deceased Kalyan Dan is concerned, I do not think that it is necessary that the dying declaration should always be signed by the deceased, although, I am of the opinion, that the signatures of the deponent, will certainly increase its evidentiary value. Dying declaration is not a deed executed by the deceased, it is only a record of the statement of a dying man, and its value lies in the fact, that when a man is dying,the awful position in which he is placed is held by the law to be a sufficient warranty for his veracity; and therefore, the tests of oath and cross-examination are dispensed with under such circumstances. The only thing that is required to be proved is that the dying man actually uttered the words contained in the dying declaration. The view taken in 23, I. G. 195, cited by the learned counsel for the appellants, that a dying declaration "must bear the signature of the deponent" is not a correct view. It is often the case that a dying man is not physically fit to put his signature on the paper. 25. In Krishnama Naichan and others v, Emperor, reported in A.I.R. 1931 Mad. 431, it was held that "whether the statement male by a dying man recorded by another is read over to him or not, or whether it is signed by him, makes no difference, and the fact that it has been read over and signed by the deponent, only makes its evidentiary value stronger." 26. The main contention of the learned counsel for the appellants is that almost all the prosecution eyewitnesses are absolutely unreliable and untrustworthy, and every one of them has perjured himself to the extent of even implicating innocent persons in this case. With regard to Jagannath P. W. 8, it has been said that he does not belong to the village Tokarla but belongs to other village Kerry; he had no business to be at Tokarla on a wintery morning of the month of December; that the explanation given by him, that he came to see Ganesh Dan is unbelievable; that his name does not appear in the F.I.R. Ex. P. 30 given just after the occurrence; and that Kalyan Dan deceased has definitely stated in his dying declaration Ex. P. 30 given just after the occurrence; and that Kalyan Dan deceased has definitely stated in his dying declaration Ex. P. 35, that the only persons present on the Chowki at the time of occurrence, were Fateh Dan and Ganesh Dan and that he is a chance witness produced by the prosecution to fill up the gap of on independent eye-witness, as the other two eye-witnesses Fateh Dan and Mst. Kalyan Kanwar P.W. 16 are closely related to the deceased. The above facts, mentioned by the learned counsel for the appellants, although not sufficient to conclusively establish the absence of the witness from the spot at the time of the occurrence, yet are such, which can go to a great extent in creating a reasonable doubt, in the mind with regard to the presence of the witness at the place of occurrence. I would have given the benefit of the doubt to the accused, had there not been any incidence of a Shoe belonging to Jagannath having been recovered from the spot. A Shoe was recovered by the police from the place of occurrence just when the investigation was started at the spot. At the time of the recovery, nobody knew that the Shoe belonged to Jagannath P. W. 8, and so the natural inference was drawn that it belonged to any one of the accused. This was given out to the Police Officer who prepared a recovery list of the Shoe. In the recovery list, it is written that the Shoe belongs to one of the accused. Afterwards, it was found that the Shoe belonged to Jagannath Brahmin P. W. 8, and so a proof was tendered in the court that the Shoe of Jagannath was recovered from the spot. Jagannath himself deposes that the Shoe belonged to him. Now the question is, how much reliance is to be put on this portion of his testimony? In my opinion, the circumstances in the case are such that Jagannath cannot be disbelieved on this point. 27. Jagannath states that he was sitting on the Chabutri of the Kau and just at the time when the accused began to strike sword-blows on Ganesh Dan, he ran away. In my opinion, the circumstances in the case are such that Jagannath cannot be disbelieved on this point. 27. Jagannath states that he was sitting on the Chabutri of the Kau and just at the time when the accused began to strike sword-blows on Ganesh Dan, he ran away. The fact is there, that there was a durrey on the Chabutri and not only in this part of the country, nay everywhere in the rural areas in India, people sit on the Murrey after putting off their Shoes. The probability goes, that Jagannath might also have done the same, and at the time of running, might have left Shoes there. The prosecution could connect this Shoe with any of the accused, in order to prove his presence on the spot, and that was natural course for them to adopt if they wanted to make any connection in the matter. In my opinion the prosecution has put right facts before the Court, and I do not entertain even the least doubt with regard to the fact that the Shoes recovered from the spot belonged to Jagannath. As far as the argument, that the name of the witness does not appear in the F.I.R., goes I do not think that it has got any force. F.I.R. is not such a document which is to be stuffed with every sort of information, and moreover, Bhura Ganchi, who lodged the report Ex. P. 30 was not an eye-witness of the occurrence. It is just possible that he might not have been told by any body that Jagannath was there. Whatever may be my view with regard to the reliance to be put on the evidence of Jagannath the contention of the learned counsel, that Jagannath was not present on the Chowki at the time of the occurrence has no substance. 28. On the strength of very minor discrepancy, the same has been said with regard to Mst. Sunder P.W. 7 and Ramla P.W. 3, Ramla and Mst. Sunder belong to the village of Tokarla and live very close to the place of occurrence, and hence, no doubt can be entertained with regard to their presence on the spot. Moreover, their evidence is that they reached the spot just after the occurrence had taken place. 29. Sunder P.W. 7 and Ramla P.W. 3, Ramla and Mst. Sunder belong to the village of Tokarla and live very close to the place of occurrence, and hence, no doubt can be entertained with regard to their presence on the spot. Moreover, their evidence is that they reached the spot just after the occurrence had taken place. 29. In this appeal, the most vexing point, which yet remains to be discussed, is the contention raised by the defence that innocent persons were implicated by the prosecution, in this case. The learned counsel for the appellants has very ably discussed this point in his arguments, and we consider that the contention is not devoid of all force. 30. In all, eight persons Sheo Dan, Ram Dan, Hetu Dan, Bahadar Dan — the present appellants, and Manohar Dan, Kan Dan, Guman Dan and Badri Dan, who are not before us, were mentioned by the prosecution as assailants in the case. It is admitted by the prosecution that these persons belonged to the opposite hostile camp. Bitter enmity existed between both the camps and it became more bitter during the days preceding the occurrence. On account of the assistance, that was given by Ganesh Dan deceased, the leader of the other camp to Bhura Ganchi P.W.1 in the prosecution of Ram Dan convict, for an indecent assault on his niece. 31. The occurrence took place at about 8 a.m. on 7.12.48. The F.I.R. Ex. P. 30 was given by Bhura Ganchi P.W.1 at 10 a. m. on the same day, another statement Ex.P.1, that was treated as F.I.R. in this case, and which has been declared as inadmissible by this judgment for the purpose of corroboration, was given by Ajit Dan at 8 p. m. on the same date. The dying declaration of Kalyan Dan deceased was recorded at 10 p. m. i.e., two hours after the statement given by Ajit Dan. In Ex.P.30, the names of the assailants are not mentioned, only their number is mentioned. The question arises, what was the reason that Bhura Ganchi did not mention the name of even one of the assailants. Bhura Ganchi belongs to the same village to which the assailants belong. At least on; of the assailants,RamDan, was his bitter enemy. Bhura Ganchi was closely associated in those days with Ganesh Dan, as the latter was helping in his prosecution of Ram Dan. Bhura Ganchi belongs to the same village to which the assailants belong. At least on; of the assailants,RamDan, was his bitter enemy. Bhura Ganchi was closely associated in those days with Ganesh Dan, as the latter was helping in his prosecution of Ram Dan. He proceeded to the Police Station to lodge the report, from the place where the occurrence had taken place, and where the injured persons were lying. He was sent to lodge the report by Ajit Dan who was in the know of the names of all the assailants, at the time when he was sent. He reached the spot immediately after the occurrence. These are the questions which arise in our mind. 32. The explanation given by Bhura Ganchi that Ajit Dan did not tell him the names of the assailants, and simply asked him to bring the Sab-Inspector over to the village of Tokarla, does not seem to be satisfactory. So far it is probable that Ajit Dan might not have told him the names of the assailants, but this is unbelievable that Bhura Ganchi was not in the know of the names of the assailants, if not all, of some of them. When a serious occurrence, like the present one, takes place, every body, who happens to reach the spot, immediately after the occurrence, generally asks the question, who were the culprits? and in the case of Bhura Ganchi, such a question to ask was but natural, because during those days he was associated with Ganesh Dan, and more because of his enmity with the other party. There is evidence on the file that such a course was adopted and Bhura Ganchi was told the names of culprits. Fateh Dan P. W. 8 deposes in his testimony before the learned Sessions Judge, that "Ajit Dan had given out names of the above named assailants of Ganesh Dan to Bhura Ganchi and Badri Dan when he sent them to the Police Station for making the report." From this, it appears that there was some talk between Ajit Dan and Bhura Ganchi with regard to this matter when the former sent the latter to the Police Station for the purpose of lodging a report. The doubt, that is created in my mind is that Bhura Ganchi was actually forbidden from giving the names of the assailants to the police, because up to that time it was not decided upon, as to whose names will be given to the police; the number was settled and Bhura Ganchi was asked to give the number. The number of 8 also seems to me to be fictitious. Kalyan Dan deceased has depose 1 in his dying declaration, Ex. P. 35, that the number of the assailants was five. A specific question with regard to the number of the assailants was put to him and the answer was that the number was five. In Ex.P.35 the assailants names given are as "Sheo Dan, Badri Dan and three sons of Rib Dan." Ajit Dan, while dictating the names of the assailants, in his statement Ex, P. 1, gave the names of the four sons of Rib Dan, one of them being Dhul Dan. Afterwards, in his statement before the committing court and the learned Sessions Judge, he excluded the name of Dhul Dan. Ajit Dan was confronted on this point in Sessions trial and the explanation given by him was that it was by mistake that the name of Dhul Dan S/o Rib Dan was mentioned instead of Kan Dan S/o Mahesh Dan. I am not at all prepared to believe this explanation. In Ex. P. 1, it is not only the name of Dhul Dan that is mentioned but his fathers name is also mentioned. What I smell in the case is that Ajit Dan was forced to curtail the number of Rib Dans sons from 4 to 3 in the face of the dying declaration that was recorded two hours after he dictated his statement Ex. P. 1. For the reasons given above, there is a scope for a reasonable doubt that some innocent persons were implicated in the case. Although, it cannot be said definitely as to which of the assailants were innocent, yet the doubt is there. 33. Almost all the eye-witnesses in the case have placed a consistent story before the court. There can be no doubt with regard to the facts that the deceased were given fatal sword-blows on the Chabutri by some of the persons named as assailants in the case. 33. Almost all the eye-witnesses in the case have placed a consistent story before the court. There can be no doubt with regard to the facts that the deceased were given fatal sword-blows on the Chabutri by some of the persons named as assailants in the case. The prosecution story, as related by the prosecution witnesses, seems to be true in every respect except in the mention of the names and number of the assailants. The duty of the court, in such cases, is to sift out the names of the actual culprits. 34. The learned counsel for the convicts strongly contended before us. that the evidence of all the eye-witnesses be thrown away, as they have mixed innocent persons with the guilty ones. I do not agree with the learned counsel in this respect. This is not a case in which it has definitely been held by the court, that any one of the convicts is wholly innocent, it is a case of doubt only, and in such cases, the accused are entitled to the benefit of doubt and such a doubt cannot become the reason for acquitting all of them. In such a case, the duty of the court is to sift truth from the falsehood. The evidence of a prosecution witness about whom reasonable doubt exists, that he has falsely implicated any innocent person in the case, can be believed with regard to the other accused if it is corroborated by a convincing circumstantial evidence against that other. 35. On the principle set forth above, in the present case, I would maintain the conviction of all those convicts, whom the prosecution, eyewitnesses, as well as the circumstantial, evidence, implicate without any doubt whatever seen in this light, Ram Dan and Bahadar Dan must escape. Apart from the oral evidence of the eyewitnesses, there is nothing on the file against these convicts. Nothing incriminating was recovered at the instance of these accused and they do not admit their presence on the spot at the time of the occurrence. I am conscious of the fact that Ram Dan is son of Rib Dan, and Kalyan Dan deceased has mentioned in his dying declaration that three sons of Rib Dan took part in the attack. Rib Dan has more than three sons. How to single out any one of them as being assailant in the present case? I am conscious of the fact that Ram Dan is son of Rib Dan, and Kalyan Dan deceased has mentioned in his dying declaration that three sons of Rib Dan took part in the attack. Rib Dan has more than three sons. How to single out any one of them as being assailant in the present case? As far as the remaining two appellants Sheo Dan and Hetu Dan are. concerned, they admit their presence on the spot. The story given by them that a fight took place between Ganesh Dan and Kalyan Dan and they were fatally injured by each other, does not stand proved on the file and seems to be absolutely false and groundless. There seems to be no reason why the statements of the eye-witnesses should not be believed in respect of these two convicts. Moreover, two swords, blood stained were recovered at the instance of Sheo Dan Lorn the bed of a river. The learned counsel for the appellants has argued, on the strength of a ruling of this High Court Mat. Nojall vs. Sarkar, reported in A.I.R. 1950, Rajasthan 5 that as the swords were not sent to the Chemical analyser, therefore, there is absolutely no evidence to show that the blood on them was human blood, the swords cannot be connected with the crime. The principle set forth in A. 1. R. 1950 Rajasthan 5 is correct, and I do not take any help in the conviction of the accused from the blood stains present on the swords. But the question arises why the swords were buried in the bed of the river, two miles away from the village? In A.I.R. 1950 Rajasthan 5, the farsi was recovered from the house of the deceased, while in the present case, the swords were discovered at the instance of the accused from the bed of the river Smer. No explanation was given by the accused as to how he came to know the fact that the swords were lying burried in the bed of river. In the absence of such an explanation, the natural inference will be that the swords were buried there by the accused and were buried because the fatal injuries were inflicted with them. Apart from all this, the names of the accused were definitely mentioned by Kalyan Dan deceased in his dying declaration Ex P. 35. 36. In the absence of such an explanation, the natural inference will be that the swords were buried there by the accused and were buried because the fatal injuries were inflicted with them. Apart from all this, the names of the accused were definitely mentioned by Kalyan Dan deceased in his dying declaration Ex P. 35. 36. For the reasons given about, the appeals of Bahadar Dan and Ram Dan are accepted and they are acquitted of all charges, while the appeals of Sheo Dan and Hetu Dan are dismissed.