JUDGMENT M.P. Varma & Bimalendu Narayan Sinha, JJ. 1. Nine accused were put on trial, on the charges of forming an unlawful assembly with the common object and also sharing the common intention with each other in causing the murder of Ramnath Singh, in village Neknamtola under police station Barhara in the district of Bhojpur, Arrah. The trial court, vide judgment impugned, convicted two of them Sidnath Singh and Gopal Singh under section 302 of the Indian Penal Code (hereinafter referred to as the Code') and sentenced both to suffer imprisonment' for life, against which they have appealed to this Court. Criminal Appeal no. 548 of 1983 has been filed by Sidhnath Singh and Cr. appeal no. 537 of 1983 has been filed by Gopal Singh. 2. So far the fate of other seven accused are concerned, the learned trial judge, in the same judgment took the view that the prosecution failed to satisfactorily prove their presence and participation in the crime and possibility of their false implication could not be ruled out. In that view, the learned Judge gave them the benefit of doubt. All of them were acquitted of the charges under section 302/34 and also under section 302/149 and 148 of the Indian Penal Code. The State of Bihar also preferred an appeal against the finding of acquittal against these seven accused and this appeal has been registered as Government appeal no. 48 of 1983. 3. Since all the three appeals are out of the same judgment, with the consent of the Counsel for the parties and for the sake of convenience they have been heard together and are being disposed of accordingly. It may be added here that the respondents accused in Govt. appeal no. 48 of 1983 did not appear in court in spite of notices issued to them. These are old appeals and we do not like to delay the disposal any longer by issuing fresh notices, and in order to avoid any prejudice, we directed a Senior Counsel Sri B.N. Sen of the Court to take the brief of those respondents and to assist the court in hearing and disposal of the appeal. 4. The case against them arose on the statement of P.W. 6 Premnath Singh. He is the brother of the deceased Ramnath Singh. 4. The case against them arose on the statement of P.W. 6 Premnath Singh. He is the brother of the deceased Ramnath Singh. After the incident of murder, he had rushed to the police station Barhara with P.W. 2, a co-villager and with the Chowkidar and Dafadar of the village. At the instance of the Officer incharge the statements of the informant Premnath Singh was recorded by Ramautar Singh, a Police officer of the station. P.W.8 the Officer incharge drew up a First Information Report marked ext.4. A case was registered. P.W. 8 took up investigation. He came to the village, inspected the place of occurrence, examined some of the witnesses, sent the dead-body of Ramnath Singh, which was at the Darwaza of the informant for post mortem examination and after completing investigation he finally submitted charge sheet against all the nine accused, who were thus, put on trial. 5. The case of the prosecution is as follows : On 5.12.79 at about 7 P.M. the informant P.W. 6 and his deceased brother Ramnath Singh were sitting at their Darwaza in the village. His uncle P.W. 4 Ram Narayan Singh and his father P.W.2 Deomuni Singh and also P.W. 2 the co-villager Mohan Singh were there at the Darwaza. 6. Accused Gopal Singh suddenly came there. He had a Bhala in this hand. He told Ramnath Singh that a cow had strayed in his Chhattarbala-field. He asked Ramnath Singh to accompany him and to drive away the cow. Ramnath Singh went in his company. Some time after P.W.6 also moved on to follow them. He took a torch with him. It has come in evidence that he had taken one rope also. When he reached near Neknamtola School, he heard the cry of his brother Ramnath Singh. He was crying: JAN MARLAN SA BAPRAIN. He was crying for help. The informant P.W. 6 further tells the court that he ran, but he hid himself in a Rahar field close by. It was from there that he could see in the light of the torch and in the moon lit that all the accused (all of them have been named in the F.I.R. i.e. the two appellants and the seven respondents of the Government appeal) had surrounded Ramnath Singh. They were all assaulting him. Accused Sidhnath assaulted Ramnath Singh with a Fasuli and accused Gopal Singh hit him with Bhala. They were all assaulting him. Accused Sidhnath assaulted Ramnath Singh with a Fasuli and accused Gopal Singh hit him with Bhala. It has been said that all the accused were carrying different incriminating weapons, like a country made gun, Farsa and Bhalas. He saw the whole occurrence from start to finish from the hide-out. He then raised an alarm. He further said that on his cry all the accused ran on him. He then fled towards the village raising hulla. He met Mohan Singh (P.W. 2) on the way and with him he again got back to the place, where his brother was being killed. The accused persons ran away. He further said that a Bhala and Chappal belonging to accused Dinesh Singh and one cap (described as monkey-cap) of accused Rajkumar Singh were left at the spot. He found his brother seriously injured, but he was conscious and he gave out the names of all the accused persons to him and to all others, who ran on Hulla. 7. We get further that P.W. 6 brought Ramnath Singh to his Darwaza. The strewn incriminating articles found at the spot were also collected and taken charge of by him, which he later handed over to the police. 8. He has assigned past enmity as motive for the occurrence. It is his case that accused Gopal Singh was hired by other accused with whom he had enmity to kill his brother. Regarding enmity he has said that accused Umesh and Dinesh are related to one Chandrika Singh and this Chandrika had a dispute with his family since long. 9. Sri Lala Kailash Bihari Prasad has appeared in the Government Appeal for the State and for the State respondents in other two appeals filed by the accused. In course of his argument the learned Counsel has said that the prosecution evidence may be put in three categories. The first one is the statement of the eye-witnesses. In this category comes the evidence of P.W. 6, who claimed to have seen the incident from beginning to end and also the evidence of P.W. 2, who saw the accused running away from the place of occurrence. P.W. 1, another brother of the informant; P.W. 4 the uncle of the informant and P.W. 5, the father-in-law of the informant have also come to state that they too saw the accused running away. P.W. 1, another brother of the informant; P.W. 4 the uncle of the informant and P.W. 5, the father-in-law of the informant have also come to state that they too saw the accused running away. Then in the second category, we get the evidence in the form of dying declaration. Prosecution case is that the deceased Ramnath Singh has named the accused persons both in the field, where he was brutally assaulted and even at his Darwaza in presence of his two brothers P.Ws. 1 and 6 and also his uncle and father P.W. 4 and 5 the villager P.W. 2. The Choukidar and Dafadar and many other villagers were there to whom he had spoken the names of his assailants i.e. these accused persons. It has been casually stated that in the third category comes the evidence of the doctor P.W. 3, who conducted autopsy over the dead body and also of P.W. 8 the Police Officer who investigated the case. P.W. 4 the uncle of the informant has of course been tendered. 10. The accused in the trial court pleaded their innocence and it is their specific case that Ramnath Singh was done to death in darkness. Nobody has seen any occurrence and his brother, the informant P.W.6 in collusion with others concocted a false story implicating the accused persons and also accused Gopal who had no motive to grind against the informant’s family. In appeal before us the plea has been taken that the evidence relating to dying declaration is a total falsehood. It has been argued that injuries sustained by the deceased Ramnath Singh was so severe and grievous in nature as found by the doctor that he must have died on the spot immediately and could not have given an statement and no reliance can be placed on the testimony of those witnesses with regard to the dying declaration. It has next been submitted that bereft of it, there is only one eye witness i.e. the evidence of his brother P.W.6 which also suffers from various infirmities disqualifying him altogether to be believed as an eye witness and similar is the evidence – of P.W.2 who has been introduced to corroborate P.W.6. It has been argued that P.W.2 was also animous with the accused and came forward to support the false case lodged by the informant. It has been argued that P.W.2 was also animous with the accused and came forward to support the false case lodged by the informant. In this context further argument is that all other witnesses testifying to the fact of having seen the accused while running away have miserably contradicted themselves in their earlier statements made before the police officer and they are not to be believed and in such a circumstance, it was an error on the part of the court below to convict these two appellants Sidhnath and Gopal and there is no infirmity in the finding of acquittal against other seven accused. 11. We first propose to take up the question of credibility with regard to the lodging of the F.I.R. According to the prosecution the incident took place at 7 P.M. and the F.I.R. was lodged at the police station at 9.30 P.M. Sri Lala Kailash Bihari Pr. with all his vehemence submitted that there has been no delay in lodging F.I.R. and so there was no occasion for any consultation or deliberation between the members of the family and in that circumstances the earliest version must be accepted as correct statement. Sri Lala Kailash Bihari 'quoting him in his own words,' said that the promptness in reporting the case has always been admired by the court of law in the country. It has been argued that it is a case in which there has been prompt reporting to the police by P.W. 6 leaving no scope for any consultation or deliberation to implicate the accused falsely. The argument is quite laudible. But we are thinking that it is a misconceived approach to say that promptness in reporting a case would always mean a correct reporting of facts. This maxim cannot be accepted as an axomatic truth that a prompt reporter will never report a false story. Delay of course is to be depricated. It gives an occasion to lot of criticism. One may in a case of unreasonable delay or in a case of an unexplained delay think that there might have been consultation in lodging the case or in falsely implicating the person animus to him but may not have any hand in the crime. Promptness is certainly to be appreciated and admired in the words of Sri Lala Kailash Bihari Prasad. Promptness is certainly to be appreciated and admired in the words of Sri Lala Kailash Bihari Prasad. But 'promptness' does not necessarily mean that what has been said is all true. It may even be a total falsehood. One may be very prompt in narrating or creating story and telling lie. We cannot lay it down as a rule of law that 'promptness' in reporting puts a seal of authenticity and truth in every case. So, promptness in reporting cannot conclusively lead to any such presumption of correctness. The over all situation and the totality of the evidence must be visualised to what is the value of the evidence given and it is at this stage that the court is required to disengage the truth from falsehood. Judging the case in the given circumstance and an analysis of the evidence we find various infirmities in the statements of P.W. 6, the First Informant. According to the prosecution case, accused Gopal Singh had come over to his Darwaza to give a call to Ramnath Singh to accompany him for driving away a cow which had strayed in his Chhatarbala field. Ramnath went away in his company. Informant P.W. 6 did not say that he entertained any doubt at that stage and if there was no doubt, we do not find any cause which prompted him to follow his brother and accused Gopal. He added that he followed them and also carried a torch with him. If the torch was a necessity, (it pre-supposes that there as darkness prevailing as no one is expected to take a torch in driving away cattle in a moon-lit night) and he possessed one, then that torch should have been carried by his deceased brother Ramnath Singh. We get from the evidence that instead of taking torch he had taken a lathi and a rope with him. It may be commented here that the Investigating officer did not find either of these two articles carried by the deceased at the spot. 12. Learned Counsel Sri Lala Kailash Bihari Prasad, of course, expressed his lament over the manner in which the case has been conducted in the court below and said that there were many irregularities in the investigation too but maintained the view that such irregularities do not defeat the case of the prosecution. 12. Learned Counsel Sri Lala Kailash Bihari Prasad, of course, expressed his lament over the manner in which the case has been conducted in the court below and said that there were many irregularities in the investigation too but maintained the view that such irregularities do not defeat the case of the prosecution. Be that, as it may, here the non-finding of the rope and the Lathi is a circumstance for the court to find out whether he had actually moved in the company of Gopal in the circumstances, as alleged. Non-finding of these two articles speak otherwise. Looking back to the conduct of his brother the informant P.W. 6, he has said that he heard a cry of his brother asking for help. If it was so he could have rushed immediately to him or could have rushed back to the village to collect all his men to save his brother. But he did nothing and most conveniently told the court that be hid himself behind a bush in order to witness the entire Occurrence from start to finish and only thereafter he made an attempt to raise a cry for help going to his village. But he added in his statements that while hiding behind the bush he had flashed his torch and in the flash of the torch and in the light of the moon he could identify the accused. This does not appear to be probable conduct and a natural bebaviour. Had he been flashing his torch, being close to the place where Ramnath was being assaulted, some of the accused who were six or seven in number would have certainly fallen upon him. He was chased in the end, after the assault on his brother was over and that also when he ran towards his village. At some distance, be met P.W. 2 Mohan and again got back to the place. It was then that the accused persons started running away. These two witnesses accosted the accused. But in the second phase he accused did no attempt to assault either P.W.6 or his companion P.W. 2. It has been said earlier in the F.I.R. and also in court that those accused persons had enmity with him and his family. It was then that the accused persons started running away. These two witnesses accosted the accused. But in the second phase he accused did no attempt to assault either P.W.6 or his companion P.W. 2. It has been said earlier in the F.I.R. and also in court that those accused persons had enmity with him and his family. If the enmity was the prime cause for the murder of Ramnath Singh, P.W. 6 should not have been spared if he was there in the field hiding behind the bush. The improbable conduct exhibited by these witnesses discredits their claim of having seen the occurrence. The learned Counsel for the appellant Sri Srawan Kumar has next argued that ‘the torch’ has been mentioned in the F.I.R. P.W. 6 has said in the F.I.R. that he had identified the accused in the torch light. Police makes a note of his observation and findings gathered in the course of investigation which are factors to analyse and check up the trustworthiness of oral statements of the witness. The police first investigates on the line, a witness puts his case in the F.I.R. The F.I.R. therefore, assumes much importance in a case. Other witnesses are then examined with all promptitude and the police follows on to ascertain if the crime as alleged was committed and who were the perpetrators of the crime and whether their identity could be fixed up. It is for this purpose that there is provision for search and seizure and to hold Test Identification Parade etc. It is the duty of the Police to make an honest investigation to track the criminals and to submit charge sheet on ascertaining the correctness or otherwise of the prosecution version. Identification is the moot question in this case. The informant has said that he had identified the accused in the light of the torch. The Police officer therefore; must have asked for the torch and bring the fact in evidence for it for the court to assess if really the witness had any torch with it to facilitate identification. No torch has been produced in court, neither it has been seized by the police officer, so much that the torch was not even shown to him. No torch has been produced in court, neither it has been seized by the police officer, so much that the torch was not even shown to him. The total absence of the 'torch theory' leads to presume that there was no torch with the informant and he has added this story of torch in the F.I.R. in order to justify his claim with regard to the identification of the accused persons in the darkness of night. 14. P.W. 2 who was with the informant, could have stated what respective weapons were held by which accused, but the informant could not say so. If P.W. 2 could give this detail, it was expected that P.W. 6 too should have narrated all these details in the same sequence, but he could not notice the weapons in spite of the fact that he had a torch in his hand and was watching closely from behind the bush, and in this view, doubt appears ill the evidence of both. It is doubtful if P.W. 2 could have seen all these details. Fact remains that both P.W. 6 as well as P.W. 2 met the accused on the way, but they did not have any sort of altercation, no exchanges of bitterness or hot words between them and no attempt to attack either of them and the accused retreated peacefully. The statement of P.W. 2 and all other witnesses including P.Ws. 1, 4 and 5 can be brushed aside by a single stroke of pen when we look to the findings of the court below that all these witnesses made serious contradictions before the investigating officer with regard to the identification of the accused. In addition to it, we get that P.W.2 is interested in the prosecution party and had reasons to oblige the informant in giving evidence against the accused. Even in the past he had deposed for the members of prosecution party in a proceeding under section 145 of the Code of Criminal Procedure. 15. The incident of murder took place aloes to Neknam Tola School. It has come in evidence that adjacent to the school there are houses of Rajkishore Singh, Keso Singh and others. The case of the prosecution is that the deceased was raising cry. The deceased had cried for help and so was his brother P.W. 6. He ran crying to the village-hide for held. It has come in evidence that adjacent to the school there are houses of Rajkishore Singh, Keso Singh and others. The case of the prosecution is that the deceased was raising cry. The deceased had cried for help and so was his brother P.W. 6. He ran crying to the village-hide for held. But nobody had come to the scene. Rajkishore and Keso have not been examined in court to testify to the fact of any such incident look place close to the school. P.W. 6. claims that he ran to police station soon after the incident. It is not known what prompted him to carry the Bhala, Chappal and the cap to his residence which were found at the place. He had added that Chappal and Bhala belonged to accused Dinesh and the cap belonged to accused Raj Kumar Singh There articles were not put on test identification. There was no specific mark for him to identify these two as belonging to the accused. Normally it would be difficult to speak about a particular Bhala belonging to a particular accused unless both of them are associated closely since long. But the evidence is otherwise. They were on litigating terms. This gives an inkling that these articles have been introduced only with the sole purpose of fixing identity of the accused and to lend support to the story of the accused going near the Neknam Tola for causing murder of Ramnath Singh. 16. P.W. 1 is another brother of the deceased Ramnath Singh. He too arrived immediately at the place of occurrence on hearing Hulla. His evidence is that he learnt about the details from deceased Ramnath Singh who was lying injured in the field, but he did not see any of the accused running away from the place of occurrence. If his evidence of going to the scene of occurrence is taken into consideration, this obviously falsifies the claim of not only P.W. 2, but also of P.W. 5 his brother of seeing the accused at the time of their retreat. If his evidence of going to the scene of occurrence is taken into consideration, this obviously falsifies the claim of not only P.W. 2, but also of P.W. 5 his brother of seeing the accused at the time of their retreat. In these circumstances, we do not feel inclined to accept the testimony of either of these witnesses to hold that they had seen any such occurrence of killing or even of running away of the accused persons from the scene of occurrence and we feel that the trial court has rightly appreciated their evidence while acquitting the other seven accused of the case against whom the Government appeal has been preferred. 17. In view of the aforesaid circumstances and bereft of any eye witness to the occurrence, we now proceed to examine the dying declaration alleged to have been made by the deceased Ramnath Singh. The case of the prosecution is that he gave statements at two places. At the first instance to all those who came to the field and then at his Darwaza when he was removed from the field by the informant and other men. Mr. Lala Kailash Bihari Prasad has however, vehemently stated that according to the doctor the deceased was quite conscious. His vocal chord was found intact and was able to make statement and there is no infirmity in his statement naming the accused as his assailant. The statement, though made orally (not taken down by any one of the villagers) is admissible under section 32 of the Evidence Act. We feel that the learned Counsel has failed to correctly appreciate the Doctor's evidence. P.W. 3 had conducted post mortem examination over the dead body and he had found the following ante mortem injuries:- (i) Incised wound on the left side of the neck 6 "long 1 1/2" wide and bone deep. The left jugular vein, the left carotid artery and the body of second cervical vertibra and the spinal chord has been sectioned (severed). (ii) Incised wound on the right shoulder 1 1/2" x 1/2 x 1/2" deep. (iii) Perforating wound on the lower part of the front of the left side of the chest piercing the heart-left side of the diaphragm and the stomach. (iv) Palm of the right hand has been incised 3"x 1/2 bone deep. (ii) Incised wound on the right shoulder 1 1/2" x 1/2 x 1/2" deep. (iii) Perforating wound on the lower part of the front of the left side of the chest piercing the heart-left side of the diaphragm and the stomach. (iv) Palm of the right hand has been incised 3"x 1/2 bone deep. (v) Right ring and middle finger have been completely incised at the level of the 2nd metacarpal bone. (vi) Incised wound 5" x brain deep on the right side of the skull cutting the temporal bone. Pinna of the right ear incising the right cerebral hemisphere of the brain. In the opinion of the doctor the death was caused due to injury no. 1 and also on account of the damage of the heart and sleeding and shock caused by the above injuries. These also were sufficient in ordinary course of nature to cause his death. The doctor has said in his evidence that he had found more than half of the neck cut. The heart was also injured. There was cerebral damage and it has added to the death having, been very quickly caused. Long cross examination left testimony unshaken. 18. Counsel for the State appellant has however, laid stress in the latter part of the statement given by the doctor in his cross-examination that in an exceptional case such injured person might talk. It has been argued that the trial court should have considered this as one of those exceptional cases in which Ramnath Singh was able to speak. We do not get any data, much less any such circumstance to find out and hold that the case of Ramnath Singh was an exceptional one. According to the post mortem report the deceased had a long incised wound on the neck cutting more than half of the neck. The jugular vein and the cartoid artery were severed with spinal chord. There was another perforating wound on the left side of the heart and also piercing the diapharm and the stomach. It is not a matter of argument to speak that when diaphram was out and perforated, it would certainly make the victim speechless. The doctor has not said in his evidence that he found the vocal part in tact and he could not have said so in view of the diaphram and the stomach having piercing wound. It is not a matter of argument to speak that when diaphram was out and perforated, it would certainly make the victim speechless. The doctor has not said in his evidence that he found the vocal part in tact and he could not have said so in view of the diaphram and the stomach having piercing wound. The argument of the learned Counsel for the State is not acceptable that the, vocal chord was in tact and the victim was able to speak even after having such serious injuries. From the nature of the injuries, discussed above and also from the finding of the doctor, we are of the view that Ramnath Singh must have got unconscious and must have gone in to coma no sooner he got such injuries. There was 5" incised wound brain deep on the right side. Such injury on the brain would definitely cause unconsciousness and the stage of coma and that would make him quite speechless. It is difficult for us to hold that he was able to speak and make any dying declaration. This fact gets support from the conduct of the prosecution in suppressing the independent witnesses and not permitting them to examine in court. The evidence is that not only the Chaukidar and Dafadar rushed to the place, but certain villagers also had come. The Chaukidar, who has been examined in court did not support the prosecution story with regard to any dying declaration made by Ramnath Singh. The prosecution, in order to overcome this difficulty filed an application before the court to declare him hostile and his attention was drawn to some earlier statement made before the police. "We have already said that the learned State Counsel has lamented over the conduct of this Police Officer and the manner in which he conducted the investigation. Chaukidar is the only independent witness and he did not support the prosecution case. 18. In the circumstances, discussed above we do not find justification to treat this witness Chaukidar (P.W. 7) as hostile to the prosecution, but even assuming he was so, what prevented the prosecution in not bringing the Dafadar and other villagers in Court in support of the fact that Ramnath was able to make any statement and give out the names of his assailants. Non-examination of independent witnesses in the present case speaks a volume against the prosecution. 19. Non-examination of independent witnesses in the present case speaks a volume against the prosecution. 19. Counsel for the appellant has also shown same serious infirmity in the manner of Investigation. It has been argued that probably the F.I.R. and other documents have been prepared at a later stage in huff. Accused Umesh Singh was arrested on 7.12.79. His clothes were seized by the police officer. The seizure list is Ext. 2/2. The Seizure list is dated 6.12.1979. It has been rightly argued that if Umesh Singh was arrested on 7th there should have been no seizure list of the clothes an the 6th. This speaks of something wrong about the manner in which the investigation has been conducted and the advantage thereof such lapses must go to the accused. 20. In the end, while once again looking at the case of Government Appeal, we feel that the approach and appreciation of the evidence of the court below is well justified. Needless to say that even if two views of particular evidence can be taken and a court below has already taken a reasonable view, it is not advisable to upset the same in appeal by taking a different view for convicting an accused. We may interfere if the judgment is quite perverse or there is serious error both in law and on facts. We have already said the circumstances do indicate that these witnesses did not see any part of the occurrence and they have come up with a cooked up story far implicating these accused persons. From the past mortem report (Ext. 3) we get that the doctor found undigested food in the stomach of the deceased. From this circumstances, we may reasonably conclude that the incident happened only after Ramnath had finished his meal. This takes us that he might have been killed some time late in the night and not in the early part of the evening, as narrated by the prosecution. We get an inkling of this circumstance from the statement of P.W. 2 and this further falsifies the whole case of the prosecution. P.W. 2 has said that on hulla Deomuni Singh, the father of the deceased (P.W. 5), P.W. 4 uncle of the deceased and some others ran to the place of occurrence carrying a ‘Khatia’, that means a cot. P.W. 2 has said that on hulla Deomuni Singh, the father of the deceased (P.W. 5), P.W. 4 uncle of the deceased and some others ran to the place of occurrence carrying a ‘Khatia’, that means a cot. If Ramnath was being killed and there was a cry for safety, nobody would run with a cot with the feeling that he must have been killed or so seriously injured that a ‘Khatia’ would be needed to carry him. P.W. 4 and P.W. 5 and a few others were carriers of the ‘Khatia’ and that could have been done only when they got the news that Ramnath was lying seriously injured or was probably dead. Thus, in the circumstances, discussed above, we feel that the prosecution has not narrated a correct story and that there is nothing wrong in the finding of the court below in recording acquittal in favour of the seven accused. From the evidence, it is further clear that these two witnesses P.Ws. 2 and 6 could not see any part of the occurrence nor the deceased had made any dying declaration. The trial court committed error on both the counts, first in accepting the testimony of these two witnesses and secondly in taking into consideration the alleged statement of Ramnath as dying declaration. The evidence conclusively shows that he was not able to maks any statement and could not have made any, In such a doubtful proposition, the benefit must go to all the accused. 22. In the result, Government appeal no.48/83 fails and is accordingly dismissed and the two appeals-Criminal appeal no. 537 and 548 of 1983, filed by Sidhnath Singh and Gopal Singh succeed. They are acquitted of the charges. They may be discharged from their bail bonds if any.