Judgment JUDGMENT:- Ram Vilas (Original Accused No. 1) and Mewa Ram (Original accused No. 2) were convicted under Sections 302 read with 34 and also under Section 107/34, I.P.C. and their convictions and sentences are confirmed by the High Court. They have filed Criminal Appeal No. 489 of 1984. They along with two more accused Gouri Shankar (A-3) and Ram Din (A-4) were tried and convicted by the trial Court but those two are acquitted by the High Court. Questioning their acquittal the State has filed Criminal Appeal No. 501 of 1984. In the said appeal, the State has also questioned the acquittal of Ram Vilas and Mewa Ram in respect of the other murder which also took place during the same transaction. 2. The case rests mainly on the evidence of P.W, 7 Gangadevi who was also injured. The prosecution case is as follows:- Four accused before us along with three absconding accused are alleged to have formed into an unlawful assembly on 24-12-1979 with a common object of murdering Sultan Singh and all his family members. In furtherance of the common object they attacked and killed Sultan Singh when he was on his way back from his Haveli. This happened in the forenoon and in the same afternoon these accused (A-1 and A-2) along with three absconding accused attacked and killed Ramdayal, the uncle of Sultan Singh. During the course of the same incident they inflicted injuries on Gangadevi (P.W. 7) with a Farsa. It is alleged that A-1 and A-2 were armed with Farsas, A-3 and A-4 were armed with lathis and Sheo Narayan and absconding accused were armed with guns and spear. They also looted some articles from the house and forcibly took P.W. 7 and her three children towards a spot known as Tari. They also attacked the three children who died at the spot. After committing the ghastly crimes they left the spot mistaking that P.W. 7 was also dead. P.W. 6 Chhotaiya took her to her house. At 4.30 p.m. P.W. 1 gave information about the occurrence to the police. A case was registered and the inquests were also held on the five dead bodies which were sent for post mortem. P.W. 7 was also injured and as it was felt that her dying declaration was to be recorded, the Executive Magistrate (D.W. 2) recorded a statement which is marked as Ex.D-5. A case was registered and the inquests were also held on the five dead bodies which were sent for post mortem. P.W. 7 was also injured and as it was felt that her dying declaration was to be recorded, the Executive Magistrate (D.W. 2) recorded a statement which is marked as Ex.D-5. The three accused were absconding and the others were stated to have been tried. P.W. 7 on whose testimony the entire case rested was examined and cross-examined. At that stage the defence came to know that Ex. D-5, her dying declaration, was lying with police and the copy of the same was not supplied to them. Therefore they filed an application and finally they succeeded in getting an order from the High Court. The evidence of P.W. 7 could not be confronted with Ex.D-5. In her dying declaration she had not mentioned the names of Gouri Shankar (A-3) and Ram Din (A-4). There is much discussion by the High Court as to the nature and evidentiary value of Ex.D-5. The High Court, however, having referred to Section 33 of the Evidence Act and examined the contents of Ex.D-5 noticed that P.W. 7 in her dying declaration mentioned only four names, namely, that of Ram Vilas (A-1), Mewa Ram (A-2), and Keshav and Kailashi, the two absconding accused. In that statement she did not mention the names of Gouri Shankar (A-3), Ram Din (A-4) and Sheo Narayan, the absconding accused. The High Court took the view that since the entire case rested on the evidence of P.W. 7, the sole witness, and she did not mention the names of A-3 and A-4 in the dying declaration, acquitted them and confirmed the conviction of A-1 and A-2. Questioning the same these two appeals have been filed one by the convicted accused and the other by the State. 3. The learned counsel for A-1 and A-2 submitted that the case entirely rests on the sole testimony of P.W. 7 and the prosecution did not even supply the copy of the dying declaration and suppressed the same and, therefore, an adverse inference has been drawn as to the genesis of the occurrence. In these circumstances, it is also unsafe to accept the evidence of P.W. 7 in respect of A-1 and A-2. In these circumstances, it is also unsafe to accept the evidence of P.W. 7 in respect of A-1 and A-2. The learned counsel for the State, on the other hand, submitted that the dying declaration and the circumstances under which it was recorded show that much importance cannot be given to the contents of the same and P.W. 7 in her earlier statement recorded by the police as well as in her deposition has consistently mentioned the names of A-3 and A-4 also and the High Court mainly relying upon the contents of Ex.D-5, acquitted A-3 and A-4 and convicted A-1 and A-2 for the murder of other deceased persons. 4. The fact remains that A-1 and A-2 are convicted under Section 302 read with 34, I.P.C. for the murder of the deceased Ramdayal and the three children about which P.W. 7 gave evidence. The names of A-1 and A-2 have been mentioned and to that extent her evidence is corroborated. Having gone through the evidence of P.W. 7 which is accepted by both the courts below in respect of A-1 and A-2 we see no grounds to interfere with their convictions. 5. Now coming to the appeal filed by the State, since the case entirely rests on the evidence of P.W. 7 and admittedly D.W. 2 Executive Magistrate recorded the dying declaration which is a valuable piece of evidence but unfortunately P.W. 7 could not be confronted by the defence. That by itself is not a ground to give the benefit which the defence can legitimately claim on the basis of the contents of Ex.D-5 particularly when the case rests on the sole testimony of P.W. 7. No doubt as pointed out by the counsel for the State that she has later mentioned the names of A-3 and A-4 also in her statement as well as in the deposition but the benefit should naturally go to these two accused and the High Court has rightly given the same to them. We see no grounds to interfere. In the result, both the appeals are dismissed. 6. The bail bonds in respect of A-3 and A-4 in Criminal Appeal No. 501 of 1984 stands cancelled. Appeals dismissed. For Citation:  1993 Cri. L.J. 3251