JUDGMENT V. P. Mathur, J. 1. Mr. C. L. Anand, the then III Additional Sessions Judge, Farrukhabad at Fatehgarh vide his order dated 17-3-1978, passed in Sessions Trial No. 339 of 1976, found the appellant Kanhai guilty for the murder of Pati Ram on a charge under section 502 IPC, convicted him accordingly and sentenced him to imprisonment for life. Against this order and judgment Kanhai appellant has come up to this Court through this appeal. 2. The victim in this case is one Pati Ram and he is credited with having lodged the first information report also after having sustained serious injuries as a result of which he subsequently died. The occurrence took place on 20-4-1974 at about 8 P. M close to the grove of Liaq Ram and the railway line towards its south within the area of the village Khandiya, Police Station Maudarwaza, District Farrukhabad. The prosecution story is that sometime back there was a partnership between the deceased Pati Ram and the appellant Kanhai in a grove of which they had taken bagh bahar jointly. Kanhai appellant acted dishonestly and the partnership came to an end. Thereafter, it is contended that Patiram obtained some other grove and Kanhai wanted to be admitted to the partnership of the same but Patiram refused to oblige him. This is said to be the motive for the present occurrence. The prosecution story further is that in the evening in question Patiram was returning with a heap of sticks on his head which he had brought from the grove of Babuji and while he had reached towards the south of the railway line, Kanhai armed with a knife (mentioned as dagger in the FIR) along with four other persons out of whom one was armed with a stick and the other with a lathi, way laid him. 3. He was immediately assaulted with these weapons, badly injured, fell down and cried. Towards north of the railway line at a distance which is given variously as 1/2 furlong to 1-1/2 furlongs, according to the witnesses there is a tube-well of Panna Lal PW 2 and his brother Chhidami. These two persons were present at that tube-well. They heard cries of Patiram and ran with torches. Towards north of the railway line at a distance which is given variously as 1/2 furlong to 1-1/2 furlongs, according to the witnesses there is a tube-well of Panna Lal PW 2 and his brother Chhidami. These two persons were present at that tube-well. They heard cries of Patiram and ran with torches. It also happened that Pati Ram was absent from his house for the last two days and his mother called upon his real younger brother Prabhu-dayal PW 1 to go and search out Patiram. Prabhudayal alongwith one Bachchan Lal PW 3, started for the search of Patiram. As co-incidence would have it, they reached almost the time when the occurrence was in progress near the grove of Liaq Ram which is to the south of the railway line. The four persons, it is contended, could see the occurrence thatt was taking place towards south of the railway line. They found the appellant Kanhai armed with dagger or knife and four unknown co-accused armed with slicks and lathis, belabouring Patiram who was crying. Then it is said that after causing injuries to Patiram the accused persons ran away from the spot. A charpai was arranged from the tube-well of Panna Lal and the injured was transported to the police station where it is contended that the first information report was lodged by Patiram himself at 9-05 P. M. on the same day i. e. 20-4-1974. Then he was sent to the District Hospital, Fatehpur where Dr. S. Tandon examined his injuries at 1.05 A. M. on 21-4-1974. The injury report is Ext. Kia-22 on the record. The doctor found the following injuries on the person of Patiram :- (i) Lacerated wound 2 5. cm. x 0.5 cm x scalp deep in the mid of the scalp in the front portion. (ii) Incised wound 2 cm x 1/4 cm x muscle deep on the left side cheek on the face. (iii) Abrasion 1 cm x 1/2 cm on the right side cheek of the face. (iv) Incised wound 2 cm x 1/4 cm x muscle deep on the left side back of the neck. (v) Incised wound 5 cm x 2 cm x; bone deep on the back left elbow kept U. O. Adv. X-ray left elbow with humerus. (iii) Abrasion 1 cm x 1/2 cm on the right side cheek of the face. (iv) Incised wound 2 cm x 1/4 cm x muscle deep on the left side back of the neck. (v) Incised wound 5 cm x 2 cm x; bone deep on the back left elbow kept U. O. Adv. X-ray left elbow with humerus. (vi) Incised wound 2 cm x 1 cm x muscle deep on the dorsal aspect of left upper l/3rd fore arm. (vii) Incised wound 2 cm x 1/2 cm x muscle deep on the dorsum of middle l/3rd of left fore arm. (viii) Incised wound 2 cm x 1 cm x muscle deep on the lower portion left chest in front 5 cm below left nipple. (ix) Stab wound present in the left fore portion of the front of the abdomen which is about 7 cm below umblicus and present at 8 O' clock position and intestine is coming out of the wound. The size of the wound could not be ascertained. Kept U. O. 4. The bed head ticket was also brought in court which has also been exhibited and it shows that Patiram's condition was bad and he was not in a position to answer to the questions put to him properly. He was, however, admitted and treatment was given to him, but inspite of this he expired on 23-4-1974 at 10.15 P. M. Postmortem- examination on the dead-body was conducted by Dr. S. C. Pandiya on 24-4-74 at 1 P. M. The cause of death was syncope which had been caused as: a result of peritonitis on account of injuries to abdomen and intestines. Tie post-mortem examination report is Ext.Ka-2 on the record. The following were the ante-mortem injuries on the dead-body :- 1.Sutured surgical incisor 2-1/2" long. It is paremedian on left side and the upper end begins at 1" below navel. 2.Abrasion linear 2" long left side of abdomen placed at right angle to vertical axis. Scabbed and healing up. 3.Incised wound 1" long and sutured on the left side of chest at 7 O' Clock to left nipple, and 1-1/2" from it. 4.Incised wound 1" x 1/4" x muscle deep 2" below armpit of left side in the mid-axillary bone. 5.Sutured wound 2" long on the back of left elbow. 6.Sutured wound 1" long on the left trachea radial in muscle region. 4.Incised wound 1" x 1/4" x muscle deep 2" below armpit of left side in the mid-axillary bone. 5.Sutured wound 2" long on the back of left elbow. 6.Sutured wound 1" long on the left trachea radial in muscle region. 7.Sutured wound 1/2" long back of left fore-arm lower third. 8.Sutured wound 1/2" long middles of back of right arm. 9. Incised wound 1-1/2" x 1/4" x muscle deep back of neck near the root on the left side. 10.Abrasion 3/2" x 1/4" right cheek. 11.Sutured wound 1" long on the left cheek. 12.Lacerated wound 1" x 1/2" x skin deep front of scalp. 13. Sutured wound 1/2" long on the left side of back of neck. After completion of the formalities including investigation during which the blood stained earth and pabbles from the scene of the occurrence were taken and sent to the chemical examiner and serologist, Mr. S. P. Sharma, PW 8, submitted charge-sheet. 5. On the earth and pabbles etc. recovered from the spot aswell as clothes which were taken by the doctor from the injured person human blood-stains were found in view of Ex.Ka-24 and Ex.Ka-23 which are the reports of the chemical examiner and serologist. 6. The prosecution examined in all eleven witnesses and out of them Prabhudayal PW 1, Panna Lal PW 2 and Bachchah Lal PW 3 are the eyewitnesses. All other witnesses are formal! including two doctors and the investigating Officer. One witness Sahdeo Singh was examined as Court witness. He was also formal witness and had brought bed head ticket and filed it in court. 7. The contention of the appellant was that he was falsely implicated because of ranjish, that he had never entered into a partnership with the deceased, that he had never been dishonest and that he had never tried to enter into partnership with him even afterwards. No defence evidence has been adduced. 8. The learned Sessions Judge, it may be pointed out at this stage, rejected the testimony of two prosecution witnesses, namely, Prabhudayal and Bachchan Lal holding that their presence on the spot at the time of occurrence was extremely doubtful. He also rejected the statement of Patiram recorded by the Investigating Officer on 21-4-1974 at 4-30 P. M. holding that in view of the medical evidence on record Patiram was not able to make a statement. He also rejected the statement of Patiram recorded by the Investigating Officer on 21-4-1974 at 4-30 P. M. holding that in view of the medical evidence on record Patiram was not able to make a statement. He has, however, relied upon the testimony of Pauna Lal and the first information report holding it to be the dying declaration of Patiram because although it was in the nature of first information report but aftes the death of Patiram it could be relied upon as dying declaration. So far as the two witnesses Prabhu Dayal and Bachchan Lal are concerned, we are in complete agreement with the learned Sessions Judge that their presence on the spot at the time of occurrence is highly suspicious and doubtful. It may be mentioned here that Prabhu Dayal was asked by his mother to go and search for his brother who had not returned home during the last two days without being told as to where he was expected to be found. He further says that he himself did not know as to where he had to go to search for Patiram and yet he started and reached near the scene of occurrence, just at the time when the occurrence was in progress. According to PW 3 Bachchan Lal, Prabhu Dayal had himself told him that they had to proceed to village Arra where according to the mother of Prabhudayal Patiram was expected to be in the grove. We do not know whether these witnesses proceeded towards village Arra because there is nothing on record to show that the scene of occurrence is anywhere in the way which leads to village Arra. it was mere co-incidence that these witnesses reached near the grove of Liaq Ram and at the time when they could hear cries of Patiram coming from the scene of occurrence. It may also be mentioned here that between the scene of occurrence and the grove of Liaq Ram a railway line runs. This is considerably at a higher level. On both sides of it there is depression. The evidence further shows that this depression is considerable. If one wants to see what is happening on the other side of the railway line in the depression he will haws to go up to the height of the railway line before he could view what was happening. On both sides of it there is depression. The evidence further shows that this depression is considerable. If one wants to see what is happening on the other side of the railway line in the depression he will haws to go up to the height of the railway line before he could view what was happening. According to the witness Bachchan Lal he and Prabhudayal reached near a safeda tree which in the site- plan had been shown by letter 'P' which according to the Investigating Officer was about 13 paces below the railway line towards north. Bachchan Lal says that from this place they heard cries coming from the other side of the railway line. He also says that the other witnesses, namely, Chhidami and Panna Lal who had run from their tubewell also readied the same place and from there they crossed the railway line and came to the scene of occurrence He further says that by the time they had collected near the Safeda tree they could not see anything on the other side of the railway line. For the first time when they had a view of the injured, the accused persons had already escaped. If this witness is to be believed then neither he did see the occurrence nor other eyewitnesses Panna Lal and Prabhudayal could see anything. The statements of these witnesses Bachchan Lal and Prabhudayal bad been rightly rejected by the learned Sessions Judge as unreliable. 9. Pw 2 Panna Lal is undoubtedly a person who accompanied the dead- body upto the Thana because his name finds mentioned in the chick report which was prepared on the basis of the first information report, in which names of the persons who brought the injured to the Thana have been clearly mentioned as Panna Lal, Pahalwan, Saligram and Prakash. It will be of interest to point out here that the names of Bachchan Lal and Prabhudayal did not mention in the chick report. It is in the evidence of Panna Lal that he and Prabhudayal and Patiram were cousin brothers. It will be of interest to point out here that the names of Bachchan Lal and Prabhudayal did not mention in the chick report. It is in the evidence of Panna Lal that he and Prabhudayal and Patiram were cousin brothers. It does not stand to reason why if the real brother of the injured Patiram, and cousin brother, namely, Bachchan Lal, were also present in the Thana when the first information report was lodged and the injured was taken there, their names do not find any mention in the chick report while mention has been made of the names of unconnected persons, who actually brought the injured to the Thana. Panna Lal had to admit that sometime before this occurrence he had a Sajna in lemon and mango grove with Kanhai appellant and this Sajha did not continue and was broken. Of course, there is nothing on the record that it could create any serious type of enmity between these two, but there must have been something which resulted in the fall out of these two persons. According to the site-plan Ext.Ka-15 two persons Panna Lal and Chhidami saw the occurrence from near the Safeda tree. It has been shown in the site-plan and its distance from the scene of occurrence has been shown as 40 paces. Panna Lal denied this fact but he says that he and Chhidami ran and while they were on the northern side of the railway line in the depression they heard cries of Patiram coming out. Obviously they could not see anything from there. They could see for the first time when they went up. According to this witness when he and Chhidami were 32-35 steps away from the scene of occurrence, they bad seen Prabhudayal and Bachchan Lal in their field towards north of the railway line and towards east of Liaq Ram's grove. It appears that by the time that these two witnesses could have reached the spot the accused were not present on the: spot and they could only see Patiram lying injured there. It further appears that they arranged for Charpai and brought the injured to the Thana. There is a suggestion to PW 1 Prabhudayal that the Station Officer of P. S. Maudarwaza summoned him after the arrival of Patiram in the Thana and he was made to lodge the first information report. This suggestion is denied. It further appears that they arranged for Charpai and brought the injured to the Thana. There is a suggestion to PW 1 Prabhudayal that the Station Officer of P. S. Maudarwaza summoned him after the arrival of Patiram in the Thana and he was made to lodge the first information report. This suggestion is denied. The facts, however, appear to be in support of this suggestion. The medical evidence shows that four hours after the lodging of the first information report when the injured was examined for the first time in the hospital the doctor found him incapable to speak properly. It will be too much to think that with such injuries as had been sustained by the injured including injury no. 9 which bad caused intestines to come out of the body the injured could have been in a position to coherently speak and lodge a detailed report like Ext. Ka-1. Further more it is apparent that the contents of Ex. Ka-1 (first information report) do not find corroboration from the testimony of Panna Lal and once the presence of Prabhudayal and Bachchan Lal is excluded, then the first information report becomes a document full of suspicions and doubts because it mentions presence of those two persons. We are of the opinion that the first information report of this case Ex. Kaj-1 was not lodged at the Thana by the injured himself because he was not in a position to lodge it and in any view of the matter it does not contain the correct version of the incident and it has to be discarded. The learned Sessions Judge has very rightly considered the alleged statement of the injured recorded by the Investigating Officer under section 161 CrPC and discarded it. This statement was recorded at a time when the injured was already in the hospital. The bed head ticket as well as the doctor clearly say that he was never able to speak coherently. The statement, therefore, cannot be attributed to the injured and has no legal value. 10. This being so, none of the prosecution witnesses is reliable and even the first information report Ext. Ka-1 cannot be accepted as dying declaration of Patiram and the whole case has to fall. In the result, the appeal is allowed. The order of conviction and sentence passed by Mr. 10. This being so, none of the prosecution witnesses is reliable and even the first information report Ext. Ka-1 cannot be accepted as dying declaration of Patiram and the whole case has to fall. In the result, the appeal is allowed. The order of conviction and sentence passed by Mr. C. L. Anand, III Additional Sessions Judge, Farrukhabad dated 17-3-1978 against Kanhai appellant is set aside. He is not found guilty of the offence under section 302 IPC and is acquitted. He is on bail and need not surrender. Appeal allowed.