JUDGMENT 1. - Mangal, Dinesh & Habbu alias Prabhatnarain have filed this appeal which is directed against the judgment of the learned Additional Sessions Judge, Alwar dated 4-3-1974 convicting Habbu alias Prabhat Narain for an offence under section 302 IPC and sentencing him to imprisonment for life. By this judgment Dinesh and Mangal were convicted for offences under section 302 read with section 34 IPC and each one of them was sentenced to undergo imprisonment for life. 2. The facts giving rise to this case are in a nut shell as follows:- On 17th September, 1973 at about 9 P.M. Suresh went to see the picture in New Raj cinema, Alwar, where he met with three accused persons namely, Habbu alias Prabhat Narain, Mangal and Dinesh. It is said that the tickets were not available and, therefore, a suggestion was given by the accused persons to Suresh to return and then to come again the next day to see the picture. While on their way back from the cinema, when the party reached Malan-ki-Gali, it is said that Mangal and Dinesh caught hold the deceased Suresh and Habbu alias Prabhat Narain inflicted stab-wounds by his knife and thus caused serious injuries to the deceased. According to the prosecution case, the accused persons acted in this manner in order to rob Suresh of the amount that he was carrying in his pocket. On raising a cry, three persons namely, PW1 Mahesh Chandra, PW4 Ramesh and PW5 Bhavani came to the spot. They tried to intervene and in the course of intervention, Ramesh sustained two injuries on his fingers. The accused persons made good their escape from the place of occurrence when other neighbours came to the Malan-ki-Gali. Suresh was immediately shifted to the hospital. His condition was serious and, therefore, his dying declaration was recorded by Dr. Deshbandhu Gupta PW3. Before recording this dying declaration, the doctor had sent a message to the Police Station, but, it so appears, that when he found that no body was turning up, he himself recorded the statement of the deceased, which is exhibit P12. After some time PW8 Hariram came to the hospital and he also recorded the statement of the deceased, which is document exhibit P/15. On the basis of this document, the first information report was registered. After some time PW8 Hariram came to the hospital and he also recorded the statement of the deceased, which is document exhibit P/15. On the basis of this document, the first information report was registered. After the lapse of two hours, the condition of Suresh deteriorated and he died the same night. The injuries of Suresh were recorded by the Medical Jurist Dr. P.S. Agarwal at the time when Suresh was taken on the the operation table. According to the document, exhibit P/25, the following 7 injuries were sustained by Suresh : "1. Stab wound 2cm x 11/2cm x cavity deep on left iliac, Fossa, Bleeding + + 2. Stab wound of 3cm x 2cm x cavity deep just below and left to umbilious, omentum coming out of wound. Bleeding + + 3. Stab would 2cm x 11/2cm on left side of neck laterally at base. 4. Stab wound 11/2cm x l cm x M. deep on rt. axilla bleeding. 5. Incised wound 2cm x 1/2cm on left arm laterally upper part and C bleeding. 6. Incised puncture 2cm x 1/2cm x M deep 11/2cm below injury No. 5 C bleeding. 7. Incised wound 2cm x 1/2cm x M deep on Arm laterally upper part C bleeding for wound." PW/3 Ramesh who had also sustained injuries when he was trying, to save the deceased was also examined by the same doctor and was found to have received two incised wounds vide document exhibit P/26. The injuries on person of Ramesh were as follows:- "1. Incised wound 11/2cm x ⅓cm x M deep oblique (ulnar side up and radial side down ward) on palmar aspect of rt. mid finger middle phalynx with blood clots. 2. Incised wound 11/4cm x 11/4cm x skin deep on palmer surface rt. ring and finger C blood clot." 3. After the death of Suresh, his post-mortem examination was performed by Dr. P. S. Agarwal who was of opinion that the death of Suresh was caused due to stab wounds, in abdomen and per formation of intestine, musculatery, haemorrhage and shock. 4. Dr. Agarwal was examined in the committing court and his statement was brought on the record in evidence in the court of sessions and that statement is exhibit P/23. 5. P. S. Agarwal who was of opinion that the death of Suresh was caused due to stab wounds, in abdomen and per formation of intestine, musculatery, haemorrhage and shock. 4. Dr. Agarwal was examined in the committing court and his statement was brought on the record in evidence in the court of sessions and that statement is exhibit P/23. 5. The accused persons denied the charge and came out with stories that they were falsely implicated because of the enmity between the parties and in support of their plea they examined 7 defence witnesses, but learned defence counsel when he argued the case before us did not touch the defence evidence probably because the evidence did not inspire any confidence. Mr. Thanchand who argued the case on behalf of the three appellants urged that the case of the prosecution suffers from such infirmities which, according to him, falsify the entire prosecution case and on the basis of the material brought on the record, the conviction of the accused persons cannot be sustained. The first argument advanced by Mr. Thanchand was that the two dying declarations viz. exhibit P/2 and exhibit P/15, being contradictory to each other, could not be taken as the correct statement of the deceased. He further urged that the dying declaration was the result of tutoring, as is clear from the statement of PW/2 Nand Kishore, whose statement finds support from the statement of Dr. Deshbandhu Gupta, who had categorically admitted that before his dying declaration was recorded, many of the relations of the deceased were talking with him. 6. Mr. Thanchand also urged with vehemence that the so-called eye witnesses namely, Maheshchandra PW1, Ramesh PW4 and Bhawani PW5 are all got-up witnesses as their name's are not found in the first dying declaration exhibit P/2. Even if, according to the learned counsel for the appellants, they were there on the spot, they cannot be believed, as they have turned hostile and none of then, even at the stage of the committing court, implicates the two accused persons namely. Mangal and Dinesh and, therefore, in these circumstances, it is prayed by Mr. Thanchand that all the three accused-appellants deserve to be acquitted. 7. Learned Public Prosecutor, on the other hand, urged that there is no contradiction in the dying declarations recorded by the doctor and the police viz. exhibit P/2 and exhibit P/5. Mangal and Dinesh and, therefore, in these circumstances, it is prayed by Mr. Thanchand that all the three accused-appellants deserve to be acquitted. 7. Learned Public Prosecutor, on the other hand, urged that there is no contradiction in the dying declarations recorded by the doctor and the police viz. exhibit P/2 and exhibit P/5. According to him, only the details were finished by the doing man when he was examined by PW/8 Hariram, who could get those details by having a further probe in the matter on account of his experience as a Police Officer to go deep in the matter and extract details from the injured person. It was also argued by Mr. Purohit that the eye-witnesses cannot be dubbed as got-up witnesses because the injuries on the finger of Ramesh PW/4 go to establish beyond any mariner of doubt his presence at the spot. According to Mr. Purohit, even other prosecution witnesses establish that Ramesh was one of those who came to the place of occurrence and subsequently got the deceased admitted in the hospital. It was then that his injuries were noticed by the doctor. Mr. Purohit laid further stress on this aspect of the question that if the eye witnesses were won over at the stage of the trial, then their statements, which have been brought on the record under section 288 of the Code of Criminal Procedure, cannot be taken to be fabricated statements and due credence must be given to their earlier statements and where Habbu has been unanimously described by all the eye witnesses as the real assailant of Suresh. So far as the case of Mangal and Dinesh is concerned, he urged that the deceased had consistently named these two persons who had accompanied Suresh right from the cinema to the place of occurrence and who did play a vital role of catching the deceased and facilitated the completion of the incident. He however admitted that the role assigned to Mangal in the two declarations namely, exhibit P/2 and exhibit P/15 is no doubt different but that by itself is not sufficient to discard the dying declarations. In these circumstances, the judgment of the lower court has been vehemently supported by the learned Public Prosecutor. 8. Let us first examine the argument of Mr. Thanchand that the dying declarations are not true and that they cannot form the basis for conviction. In these circumstances, the judgment of the lower court has been vehemently supported by the learned Public Prosecutor. 8. Let us first examine the argument of Mr. Thanchand that the dying declarations are not true and that they cannot form the basis for conviction. It will be relevant to look to the language of the two dying declarations recorded by the doctor PW/3 Deshbandhu Gupta and PW/8 Shri Hariram.Exhibit P/2 reads as follows : 11&40 ih0,e0 Mkbax fMDysjs'ku vkQ lqjs'k iq= Jh jkepUnz esa lqjs'k iq= Jh jkepUnz VBsjk eksgYyk oh.k ikMh vyoj vius iw.kZ gks'k C;ku nsrk gWaw fd %& ,Dl eq>s gCcw vkSj ykykth exay us pkdw ls ekjk vkSj fnus'k iq= xqykc us idM+ fy;kA mlds lkFk djhc vkB vkneh Fks ftudksa esa 'kDy ls tkurk gWawA uke rhu ds gh tkurk gwWa 1&gCcw 2&exay vkSj 3&fnus'kA gekjk >xM+k uksVksa ds mij gqvkA os eq> ls uksV ekaxrs FksA irk ugh fdl pht ds ekaxrs gSA esjh tsc esa :i;s djhc 125 lok lkS muesa ls flQZ chl iPphl :i;s gh cps gSaA mijksDr C;ku esa viuh ethZ ls /keZ bZeku ls lp lp ns jgk gWawA ;g >xM+k ekyu dh xyh ds vUnj ,d xyh esa gqvk FkkA djhc nl cts jkr vkt gqvk FkkA ckbZ0 lh0gk0 lqjs'k Mh0 vVslVsM gk0 ns'kcU/kq xqIrk rk0 17&9&76 17&1&76 ,0gk0 uUnfd'kksj iq= ,e0 th0 ukbVM;wVh Jkexksiky tSu nkm niqfj;k ekSgYyk vyoj ch0 gk0 I;kjsyky 'kekZ tSu ukbV yhij gksl0 vyoj] 17&1&76 Exhibit P/15 is couched in the following language:- ipkZ c;ku lqjs'k oYn jkepUnz BBsjk ehukikMh vyojA esa jkt U;w rst flusek ns[kus x;k FkkA ckgj gcw mQZ izHkrukjk;.k ekFkqj ok eaxy tSuh ok fnus'k BBsjk feys o dgk Fkk fVdV ugh feys rks mUgksusa dgk fd gekjs lkFk py dy [ksy ns[ksaxsA rc esa muds lkFk ekyuksa dh xyh esa x;k rks eq>s fnus'k o laxy es idM+ fy;k ok izHkkrukjk;.k us pkdw isV esa xys esa ekjs ok esjs ls iSls ekaxrs Fks esjh tsc esa djhc 135 Fks ftues ls :i;k fudky fy,A ekjihV ns[kus okyk jes'k] egs'k] Hkokuh Fks ftUgksusa eq>s cpk;kA ekjihV djhc 9AA cts dh FkhA fQj eq>s vLirky nkf[ky djk;kA nkf[ky djkus okys jes'k ok esjs firkth vkSj Hkh vkneh FksA ,0gk0 lqjs'k ch0 9. When these two dying declarations are read together, then no doubt is left in our mind that the deceased had involved all the three accused persons in this incident. The only difference that has been termed as a Contradiction by Mr. Thanchand is that in exhibit P/2 the role assigned to Mangal by the deceased was that he too along with Habbu inflicted stab-wounds to the deceased, while in the dying declaration recorded by Shri Harirarn the role played by Mangal was described as one of those two who caught him by his hands. This undoubtedly is a contradiction and, therefore, so far as the case of Mangal is concerned, a doubt is created whether he played the role of one who caught Suresh by his hands or he himself was an assailant. In a subsequent dying declaration exhibit P/15, the detail as to when and now the accused persons met Suresh is furnished which we find lacking in the first dying declaration. Mr. Thanchand has made capital out of this deficiency in the first dying declaration that the entire story of coming together from the cinema to the place of occurrence i.e. Malan-ki-Gali is false, because this fact has not been mentioned specifically in the first dying declaration. According to Mr. Purohit, non-mentioning of certain details in the first dying declaration does not rob it of its truthfulness and, therefore, this discrepancy should not be given undue importance to discard the dying declaration. In our opinion; this link that the accused persons had met the deceased at the cinema because they could not obtain the tickets for their entry in the Hall and therefore they came hack on the suggestion of the accused persons together is an integral link of the entire story and if this is found lacking in the first dying declaration, it can be said that the dying declaration is not of sterling worth and, therefore, these declarations cannot be made the basis for conviction, unless the dying declarations find corroboration from other sources. However, we find that this important link as to how accused and the deceased came to Malan-ki-Gali is missing in the first dying declaration, which is a defect that weakens the probative value of these two documents and, therefore, the Court is compelled to look for corroboration of these dying declarations. However, we find that this important link as to how accused and the deceased came to Malan-ki-Gali is missing in the first dying declaration, which is a defect that weakens the probative value of these two documents and, therefore, the Court is compelled to look for corroboration of these dying declarations. It is true that both the dying declarations had mentioned the presence of all the three accused persons on the spot of occurrence, but the part played by Mangal, as assigned to him in the two doing declarations, renders the case of Mangal also very doubtful and to that extent we cannot accept the dying declaration as a gospel truth to record conviction of Mangal. In these circumstances, we cannot accept them without looking for their corroboration. It is contended by the prosecution that the dying declarations find support from the testimony of the eye-witnesses. Let us see to what extent this claim of the prosecution can be sustained. 10. On close scrutiny of the statements of the three eye-witnesses namely, Mahesh Chandra PW/1, Ramesh PW/4 and Bhawani PW/5, we find that these witnesses did not support even at the stage when they were produced as prosecution witnesses in the committing court regarding the part played by Mangal and Dinesh as stated by the deceased while making the dying declaration. The first version given by these witnesses before the Police was that on hearing the shrieks of someone crying for help from Malan-ki-Gali, they rushed towards that site and found that the two persons namely, Mangal and Dinesh had caught Suresh by his hands and Habbu was causing stab-wound to the deceased, but at the committing court, all the three persons adopted a hostile attitude towards the prosecution case so far as the investment of Mangal and Dinesh is concerned. They were cross examined by the Public Prosecutor but nothing could be elicited in the cross examination regarding the role played by Mangal and Dinesh. At the trial PW/l Mahesh Chandra did stick to the version deposed before the committing court and stated that when he along with the other two eye-witnesses namely, Ramesh & Bhawani reached the place if occurrence, he saw two persons running away and Habbu alias Prabhat Narain causing stab wounds with a knife on the body of the deceased. At the trial PW/l Mahesh Chandra did stick to the version deposed before the committing court and stated that when he along with the other two eye-witnesses namely, Ramesh & Bhawani reached the place if occurrence, he saw two persons running away and Habbu alias Prabhat Narain causing stab wounds with a knife on the body of the deceased. The witness was cress-examined at-length, but so far as the part played by Habbu alias Prabhat Narain is concerned, his testimony could, net be shaken on the anvil of cross-examination. He, however, did not corroborate the dying declaration so far as the part played Dinesh and Mangal is concerned. 11. PW/4 Ramesh, who had two injuries on his fingers, alleged to have been sustained at the time when he was trying to save the deceased, cannot be said to be a person who has been falsely inducted as an eye-witness in this case. His presence at the spot is proved on account of the presence of injuries on his fingers. Nand Kishore PW/2 who has tried to help the defence by stating certain facts regarding the circumstances under which the names of Mangal and Dinesh were introduced in the dying declaration also supports the prosecution case so far as the presence of Ramesh is concerned. Ramesh when examined at the committing stage took somersault so far as the case of Mangal and Dinesh was concerned and like other eye witnesses, be also stated that when he along with two other eye-witnesses, reached Malan-ki-Gali he saw two persons running away whom he could not identify and he had witnessed the inflicting of stab-blows to the deceased by Habbu alias Prabhat Narain, but at the trial he changed the entire story. At the request of the Public Prosecutor, the statement of Ramesh recorded by the committing court exhibit P/17 has been brought on the record under section 28 CrPC and that has been, relied upon by the learned Public Prosecutor as a substantive piece of evidence. It has been vehemently argued by Mr. Purchit that exhibit P/7 support is the prosecution case in its entirety against Habbu alias Prabhat Narain. It has been vehemently argued by Mr. Purchit that exhibit P/7 support is the prosecution case in its entirety against Habbu alias Prabhat Narain. Similarly, the statement of Bhawani recorded by the committing court exhibit P 9 has been brought on the record as a substantive piece of evidence under Section 288 Cr.P.C. It is true that Bhawani has turned totally hostile to the prosecution at the trial stage, but at the committing stage he had supported the case of the prosecution so far as the act of Habbu alias Prabhat Narain is concerned. 12. Mr. Thanchand urged that the statements of the hostile witnesses cannot be pressed into service to draw support to the veracity of the dying declaration. In support of this argument, reliance has been placed by him on Munna Raja and another v. The State of Madhya Pradesh . In that case the statements of Santoshsingh and Mst. Gumni were rejected by the Sessions Judge, as they resiled from their earlier statements recorded by the Police and, therefore, the learned judges of the Supreme Court upheld the view of the Sessions Court that their evidence could not be used to corroborate the dying declaration either. But in the present case, we find it difficult to discard the testimony of Mahesh Chandra PW/1, Ramesh FW/4 and Bhawani PW/5 so far as the part played by Habbu alias Prabhat Narain is concerned they were quite consistent about the part played by Habbu till the latter two witnesses turned hostile to the prosecution at the trial stage. The statements of the two eye-witnesses namely, Ramesh PW/4 and Bhawani PW/5 recorded at the committing stage have been brought on the record as a substantive piece of evidence. We carefully went through these two statements and we find that they have resiled only to the extent to which the other two accused persons namely, Mangal and Dinesh had played their role in the incident, but they maintained their consistency throughout about the part played by Habbu alias Prabhat Narain. The presence of Ramesh at the spot cannot be doubted as he sustained the injuries during his effort to rescue the deceased when he was being stabbed by Habbu alias Prabhat Narain. The argument of Mr. The presence of Ramesh at the spot cannot be doubted as he sustained the injuries during his effort to rescue the deceased when he was being stabbed by Habbu alias Prabhat Narain. The argument of Mr. Than Chand that the testimony of these two eye-witnesses should be totally discarded and cannot be accepted as a corroborative piece of evidence of the dying declaration, cannot be accepted by us so far as the case of Habbu is concerned. 13. As regards the case of Mangal and Dinesh, we find that all the three eye- witnesses have not corroborated the prosecution case even at the committing stage and, therefore, the corroboration to the dying declaration is lacking altogether 14. The Supreme Court in Khushal Rao v. State of Bombay, AIR 1958 SC 22 has laid down certain principles on the basis of which the veracity of the dying declaration can be judged by the courts. According to the Supreme Court, in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 15. We find, in this case the dying declaration was made by the injured at the earliest passible opportunity. It is true that at the time when the statement of the deceased was record, by the doctor (exhibit P/2), his father and some other persons were talking to him and that he was in senses, but this fact alone is not sufficient to give a colour to the dying declaration that it was a tutored one. It is true that at the time when the statement of the deceased was record, by the doctor (exhibit P/2), his father and some other persons were talking to him and that he was in senses, but this fact alone is not sufficient to give a colour to the dying declaration that it was a tutored one. It is true that Nand Kishore PW/2 has deposed in his statement that the father of the deceased had asked him to name Mangal and Dinesh, but when this statement is read as a whole, it does not inspire any confidence and on his testimony, it is difficult for us to say that the dying declaration was a result of tutoring. However, the infirmity in the dying declaration regarding the part played by Mangal is there and, therefore, we adopted a safe course not to make the dying declaration the sole basis for the conviction and we through it proper to seek corroboration from other sources. Similarly, we find that so far as the part played by Habbu is concerned, the dying declaration is consistent throughout and, therefore, there is no reason to discard the dying declaration regarding Habbu's role in the incident, specially when dying declaration finds corroboration from all the three eye witnesses upto the stage of the committal proceedings. 16. Mr. Thanchand raised an argument that the prosecution has changed the place of occurrence. This argument was also advanced before the Sessions Court but the learned judge has not accepted this argument, and in our opinion, rightly so, because right from the very beginning, the case of the prosecution is that the light near the temple of Sitaramji was on and as is apparent from the Site Plan, exhibit P14 at point `X' there was an electric light and it was at place `A' that the incident had taken place. Much stress has been laid by Mr. Thanchand that blood was not found at place `A', but it was found in abundance near the Chabutri at the northern side of Prasad's house. But no prosecution witness has been cross examined by the defence on this point and, therefore, at this late stage, it is difficult to press into service this discrepancy in the prosecution case. Thanchand that blood was not found at place `A', but it was found in abundance near the Chabutri at the northern side of Prasad's house. But no prosecution witness has been cross examined by the defence on this point and, therefore, at this late stage, it is difficult to press into service this discrepancy in the prosecution case. However, we are convinced from the statements of the eye-witnesses as well as the investigating officer that the incident had taken place at place 'A' marked in exhibit P/4 and near to it, a light of an electric bulb was available and so also near the temple of Sitaramji there was a sufficient light to detect the assistant and, therefore, this argument, in our opinion, hardly cuts any ice. Moreover the assailants were known to the injured and as the dying declaration says that all the four persons were coming together towards the placer of occurrence from the cinema and, therefore, there could not be any difficulty for the injured to know about these assailants when the assailants were going together with the injured. The eye-witnesses also knew Habbu alias Prabhat Narain and they also identified him at the spot. In these circumstances, we cannot find any infirmity in the dying declaration on the ground of the insufficiency of light at the place of occurrence. 17. Since the dying declaration does not find corroboration from the eye-witnesses so far as the part played by Dinesh and Mangal was concerned, we find it difficult to sustain the conviction of these two accused persons on the basis of dying declaration alone. In these circumstances, we are compelled to extend the benefit of doubt to Mangal and Dinesh. They are therefore, acquitted of the charge under section 302 read with section 34 I.P.C. and the imprisonment for life awarded to each one of them is set aside. Both these appellants are in jail. They shall be released forthwith, if not required in connection with any other case. 18. Since the prosecution has established beyond all reasonable doubt, the part played by Habbu alias Prabhat Narain in the incident which resulted in the death of Suresh, his appeal is dismissed and his conviction and sentence are upheld. The appeal is accordingly disposed of 19. They shall be released forthwith, if not required in connection with any other case. 18. Since the prosecution has established beyond all reasonable doubt, the part played by Habbu alias Prabhat Narain in the incident which resulted in the death of Suresh, his appeal is dismissed and his conviction and sentence are upheld. The appeal is accordingly disposed of 19. Learned counsel for the Habbu alias Prabhat Narain prays for leave to appeal to the Supreme Court on two points of law namely, (1) that if dying declaration has been obtained after tutoring, then it vitiates the dying declaration, and (2) that if the hostile witnesses support the prosecution case in part, then they cannot be relied upon. We do not feel that these two questions raised are very important questions of law and, therefore, we cannot certify this case to be a fit one for appeal to the Supreme Court under Article 134 of the Constitution of India. The prayer is, therefore, rejected.D and M acquitted. Appeal of H rejected. *******