JUDGMENT S.K.Phaujdar, N.S.Gupta (1.) THE present appeal is directed against the judgment and order dated 7.8.79 recorded by IVth Additional Sessions Judge, Varanasi, in S.T. No. 126 of 1977 whereby the first appellant was found guilty for an offence under Section 302/34, I.P.C. and the second appellant was found guilty for an offence of Section 302, I.P.C. read with Section 120B, I.P.C. Both were sentenced to life imprisonment. Upon appeal, the appellants were directed to be released on bail by an order dated 10.8.79 of this Court. During the pendency of the appeal, the appellant Sachchidanand Sharma was reported dead but no confirmation of the factum of his death came from the Court below even after a requisition. To avoid further delay in the matter, the appeal was heard in presence of the learned counsel for both the appellants. (2.) THE prosecution story, as narrated in the first information report, was that Sri Shyam Sunder Sharma had been a teacher in Sanskrit and had been the Manager of another Sanskrit Institution. This Shyam Sunder Sharma had been a disciple of one Roop Deo. There had been an Ashram in a particular place in Bihar and the control of the Ashram was being claimed by this Roop Deo and one Brahmchari to the exclusion of each other. THE second appellant Ramprapannacharya was in favour of the aforesaid Brahmchari while Shyam Sunder Sharma (deceased in this case) had been working in favour of the other claimant Roop Deo. This created a bad blood between Ramprapannacharya (appellant No. 2) and Shyam Sunder Sharma (deceased). This appellant allegedly had threatened the deceased on earlier occasions. THE first appellant was stated to be a disciple of Ramprapannacharya. Sachchidanand Sharma had been a student in the institution where Shyam Sunder Sharma was teacher. In an examination, Sachchidanand allegedly resorted to unfair means and was debarred from taking the examination. He suspected the hands of Shyam Sunder Sharma behind this action and he had threatened Shyam Sunder Sharma with dire consequence. Sachchidanand Sharma had been a student in the institution where Shyam Sunder Sharma was teacher. In an examination, Sachchidanand allegedly resorted to unfair means and was debarred from taking the examination. He suspected the hands of Shyam Sunder Sharma behind this action and he had threatened Shyam Sunder Sharma with dire consequence. With this background, as stated in the F.I.R., a further story was given to say that on 10.12.1976 at about 6.15 p.m. Shyam Sunder Sharma was observing jap (ritual utterances of mantra) in his room in the hostel of Parankush Sanskrit College, Assi, police station Bhelupur, Varanasi, when Sachchidanand Sharma came there with two more associates and shot him dead and he had uttered that the directions of his Guru (Mentor) were fulfilled. The assailants thereafter ran away. The informant Venkatesh Sharma and certain others tried to chase him but under the threat of opening fire on them, the miscreants made good their escape. The F.I.R. suggested that Ramprapannacharya had conspired with Sachchidanand and others to kill Shyam Sunder Sharma and had executed their plan as above. (3.) AT the trial, a charge was framed against Sachchidanand Sharma for having intentionally and knowingly caused the death of Shyam Sunder Sharma punishable under Section 302, I.P.C. He pleaded not guilty. As against Ramprapannacharya, it was stated that on the relevant date, the murder of Shyam Sunder Sharma was committed by Sachchidanand in pursuance of the criminal conspiracy entered into between Ramprapannacharya and Sachchidanand and some others and as such Ramprapannacharya was liable for an offence under Section 302/120B, I.P.C. He too pleaded not guilty to the charge. (4.) THE prosecution examined 14 witnesses. (P.W. 1) Venkatesh Sharma and (P.W. 2) Ram Bhajan Sharma claimed to be eye-witnesses. (P.W. 2) Gadadhar Sharma was examined on the point of the conspiracy between Sachchidanand and Ramprapannacharya. P.W. 4 was Doctor M. A. Hafeez who had held post-mortem examination on the dead body of Shyam Sunder Sharma. P.Ws. 5 and 7, Parmanand Sharma and Madho Sharma, had produced and proved two letters said to have been written to them by the deceased and certain statements in the letters were proposed to be acted upon as dying declarations. P.W. 6, S. I. Jagjivan Singh was a witness on the point of execution of warrant of attachment against the property of Sachchidanand. P.W. 6, S. I. Jagjivan Singh was a witness on the point of execution of warrant of attachment against the property of Sachchidanand. P.W. 8 Jagdish Tiwari was the police officer who conducted part of the investigation. P.W. 9 Keshav Prasad Pandey, was the constable who had carried the dead body for the post-mortem. P.W. 10 Ram Sumer Singh was the Malkhana Moharrir in Varanasi through whom certain materials were sent for chemical examination, P.W. 11 Baijnath Ram was the Investigating Officer who completed the investigation. P.W. 12 Netra Pal Singh had conducted the inquest on the dead body. P.W. 13, Siddha Nath Yadav was an S.I. of police who proved certain G. D. entries and P.W. 14 Jainuddin was again a constable who had taken the viscera of the deceased for chemical examination. The defence also examined three witnesses. D.W., S. N. Prasad had been an Assistant Professor in the Department of Radiology in Nalanda Medical College, Patna. The defence proved through him certain medical reports of Sachchidanand presumably with a view to set up a plea of alibi. D.W. 2 was Dr. Baldeo Singh a Medical Officer in Bihar. He too proved that on 9.12.1976 one Sachchidanand Sharma was admitted and treated in a Nursing Home at Patna and on the next date, a surgery was done in his abdomen. He identified the appellant Sachchidanand Sharma in Court. D.W. 3 was Sri Aditya Sharma who was a distant relation of the deceased. He proved the relationship of the informant Venkatesh Sharma and witness Rambhajan with the deceased. (5.) IN addition to the discussion of the prosecution evidence, the trial Judge had discussed the defence evidence as well. For D. W. 1 he found that through the X-ray report proved by him, the identity of Sachchidanand Sharma was not established. D.W. 2, according to the trial Judge, had proved a prescription dated 9.12.1976 granted by Dr. Anirudh Prasad Singh who was away to England at the time of the trial. The prescription did not contain the parentage, residence or any other particular to fix the identity of Sachchidanand Sharma. The trial Judge found from evidence that not only the case against Sachchidanand Sharma was proved but the case of conspiracy was also proved through a direct witness of conspiracy and through the letters that were allegedly written by Shyam Sunder Sharma. The trial Judge found from evidence that not only the case against Sachchidanand Sharma was proved but the case of conspiracy was also proved through a direct witness of conspiracy and through the letters that were allegedly written by Shyam Sunder Sharma. (6.) WE may first take up the case of alleged conspiracy involving Ramprapannacharya. The F.I.R. and the evidence on record, no doubt, indicates that over the Management of an Ashram, there was a dispute between Roop Deo and Brahmchari. Ramprapannacharya was in favour of Brahmchari while Shyam Sunder Sharma was in favour of Roop Deo. Allegations are there that Ramprapannacharya had an animosity against the deceased. The evidence on the point of conspiracy, however, may not be based merely on the above background which might, at the worst, suggest a motive and nothing beyond that. The F.I.R. spoke of a conspiracy with Shyam Sunder Sharma and Sachchidanand Sharma, but nothing is there to indicate how this conspiracy was hatched. The eye-witnesses spoke about the background, doubt but nothing is there in the F.I.R. regarding the conspiracy barring an utterance put in the mouth of Sachchidanand that he had complied with the directions of his mentor. The evidence of P.W. 2 Gadadhar Sharma may now be seen. On 10.12.1976 this witness had gone to borrow a book from Pramanand Sharma. On way back, he met another friend Vivekanand and both of them were coming through the road leading to Nawabganj. They stopped near a pan shop. There were tea stalls nearby and some benches were spread on the road infront of the tea stalls. This witness claimed that he saw the two appellants and two unknown persons talking amongst themselves. He heard appellant Ramprapannacharya saying to the appellant Sachchidanand Sharma that "Aaj kaanta saaf ho jana chahiye" (the thorn must be removed today). He also heard Sachchidanand Sharma replying "Guruji, aaj kaanta zarroor saaf ho jaye ga" (Mentor, thorn will surely be cleared today). The appellants kept on talking while the witness took his pan and left the place. This was at about 4.00 p.m. This witness further says that at 9.00 p.m. on that date, he came to learn that Shyam Sunder Sharma had been murdered. He went to B.H.U. Hospital and to Venkatesh Prankush Sanskrit College and learnt that Sachchidanand Sharma had murdered Shyam Sunder Sharma. This was at about 4.00 p.m. This witness further says that at 9.00 p.m. on that date, he came to learn that Shyam Sunder Sharma had been murdered. He went to B.H.U. Hospital and to Venkatesh Prankush Sanskrit College and learnt that Sachchidanand Sharma had murdered Shyam Sunder Sharma. He could immediately feel that the talk for clearing the thorn between the two appellants could be in respect of this murder. His statement was recorded by the police on 12.12.1976. He also proved the writing of Shyam Sunder Sharma on the two letters that were addressed to the other two witnesses as will be stated subsequently. His cross-examination indicates that when he met Ram Bhajan Sharma and Venkatesh Sharma on the night of the incident, he had told them about what he had heard in the talk between the two appellants. These two persons Venkatesh Sharma and Ram Bhajan Sharma were examined in Court and they have made no claim that any such information was given by Gadadhar Sharma to them at any point of time. He admitted that he did not go to the police station that night nor was he taken to police by anybody. He never thought that he should inform the police station about involvement of Ramprapannacharya so that he could be apprehended immediately. His further cross-examination indicates that he did not know the name of the owner of the pan shop. And he never led the police to that shop. All the persons who were eating at the stalls were talking in low voice and only the accused persons were speaking in such a pitch that every body was hearing them. The accused persons were not whispering. Sachchidanand Sharma had been a student of this witness also but he did not ask him anything at the spot. He had full knowledge that Shyam Sunder Sharma and the two appellants were inimical to each other and still then he never thought and it had not occurred to him that Shyam Sunder Sharma should be warned about the plan of the accused persons. (7.) THIS evidence on conspiracy has not been corroborated from any corner and the evidence must, therefore, be judged on its intrinsic merit. The witness did not disclose where was the pan shop. He did not take the police to that shop. The absence of corroboration from P.Ws. (7.) THIS evidence on conspiracy has not been corroborated from any corner and the evidence must, therefore, be judged on its intrinsic merit. The witness did not disclose where was the pan shop. He did not take the police to that shop. The absence of corroboration from P.Ws. 1 and 2 suggest that he did not inform them on date itself that he had heard such utterances of the appellants. THIS suggestion gains ground from the fact that no immediate report was made to him at the police station nor did Venkatesh and Ram Bhajan take him to police that night. It is again unbelievable that while all other persons at the tea stalls were speaking in a low voice not audible to others, only a design for a future murder would be made in a high pitched voice to the hearing of everybody, including some persons who were known to the appellants. It is true that conspiracies are made for commission of offences but it is normally not made in the manner alleged and even if a tea stall was chosen as rendezvous for the accused persons, they would always try to conceal their design. To remove a thorn is a very well understandable means of communication for removal of any man. It goes against normal human conduct that such a conspiracy would be hatched in the manner stated and statement of P.W. 3 suffers from intrinsic defect of not informing the other persons and police immediately. (8.) WE may look to the two letters now. These have been proved not only through P.W. 3 but also through P.Ws. 5 and 7. The relevant portion of one letter reads as follows "Ramprapannacharya had engaged certain goondas from Patna for attacking me, the goondas had come three four times but my fortune saved me." The other letter, in the relevant portion, reads as follows : "Ramprapannacharya had given two thousand rupees to the goondas for me, they had come to my house three four times and were staying in Varanasi for some days". These two statements were sought to be relied on as circumstances leading to the death of Shyam Sunder Sharma and were thus thought to be relevant under Section 32 of the Indian Evidence Act. Under this section, only that statement of a deceased person is relevant which states about the circumstances leading to his death. These two statements were sought to be relied on as circumstances leading to the death of Shyam Sunder Sharma and were thus thought to be relevant under Section 32 of the Indian Evidence Act. Under this section, only that statement of a deceased person is relevant which states about the circumstances leading to his death. That certain goondas had come to his house was certainly a fact that was known to the deceased and that circumstance could well be read as evidence under Section 32 of the Indian Evidence Act. But the assertion that Ramprapannacharya had engaged them from Patna was merely an inference based on the old enmity and this inference could not be relied on as the mere inference could not be relevant even as primary evidence had the deceased been alive and had made such statement in Court. In the name of admitting a dying declaration, the Court cannot allow evidence to come on record which was merely an inference and which was based on hearsay. The only relevant lines in the two letters what could be read in evidence were that certain goondas had come to Varanasi three or four times to the house of the deceased. The involvement of Ramprapannacharya may not be inferred from these statements. Looking from another angle, it may be stated that even if the involvement of Ramprapannacharya with certain goondas is accepted to be proved through these letters, that could have established a conspiracy between Ramprapannacharya and those goondas and not between Ramprapannacharya and Sachchidanand Sharma. This being the position in respect of the evidence on conspiracy, it must be held that the prosecution failed to prove the charge of conspiracy against Ramprapannacharya and he must be held not guilty for conspiracy or for murder allegedly committed as a result of that conspiracy. So far Sachchidanand is concerned, the learned counsel built up a theory that the post-mortem examination suggested that the death was caused within one day from the time of examination (2.00 p.m. on 11.12.1976). It was argued that the death could have occurred during noon hours of 10.12.1976 and the time has deliberately been changed to 6.15 p.m. to justify the presence of the witness. It was submitted that initial papers which were written for inquest and for sending the papers and the dead body to the mortuary bear a mark of this suspicion. It was argued that the death could have occurred during noon hours of 10.12.1976 and the time has deliberately been changed to 6.15 p.m. to justify the presence of the witness. It was submitted that initial papers which were written for inquest and for sending the papers and the dead body to the mortuary bear a mark of this suspicion. It was contended that there was no reason why another police officer should have been deputed to take up the inquest and there was no material on record to show as to who directed Netrapal Singh to make the inquest. There was, according to the learned counsel, no indication as to when the inquest began although the time of closure of inquest examination was 9.30 p.m. It was further indicated that the papers through which the dead body was forwarded to the mortuary had two different writings at vital points. The learned counsel drew own attention to certain findings in the post-mortem examination to say that the stomach had some semi-digested food and so did the small intestine. So far the large intestine was concerned, faecal matter was there in the upper part. It was suggested with reference to the statement of the Dr. M. A. Hafeez (P.W. 4) that death must have occurred within four to five hours of taking meals. Reference was also made to certain cross-examination of other witnesses to say that the deceased was very particular in his daily habits and on the concerned date he had gone to his college at 10.00 a.m. after taking meals. (9.) THE documents to which the attention of the Court was drawn during arguments were all proved in the Court below through P.W. 12, Netra Pal Singh. It is unfortunate for the defence that not a single line of cross-examination was there challenging any of these documents. Certain statements were there in these documents and if a witness was to be contradicted by these statements, his attention should have been drawn to the statements. If certain criticism was to be raised in respect of any entry, the witness who made the entry should have been given a chance to explain the same. In absence of any cross-examination, these criticisms are not permissible to be raised at the appellate stage. If certain criticism was to be raised in respect of any entry, the witness who made the entry should have been given a chance to explain the same. In absence of any cross-examination, these criticisms are not permissible to be raised at the appellate stage. Regarding presence of semi-digested food vis-a-vis the statement of the witness that the deceased had taken meals before going to the College at 10.00 a.m., it can only be stated that the medical opinion, that it takes four to five hours for complete digestion, is a general opinion and digestion is always a process that depends on the individual metabolism of a particular person. Simply because there was semi-digested food in the stomach at the time of death, it may not be a ground to hold that meals must have been taken by 1.00 p.m. or that if meal was taken at 10.00 a.m., death must have been caused at about 2.00 p.m. THE medical evidence is but an opinion and unless the opinion is absolutely incompatible with ocular evidence, no extra weight should be given to it. At best, this finding would put the Court in caution to analyse the ocular evidence. (10.) THE ocular evidence in this case has come from two witnesses P.W. 1 and P.W. 2. Both of them were residents of the same hostel where the deceased had been residing. It was a hostel, presence of light is not denied. THE witnesses made a consistent statement about shooting by Sachchidanand Sharma and almost and immediate report was made to the nearest police station giving the details of the incident. THE trial court had given a thorough discussion of the evidence of these two witnesses and we find no reason to differ from way the trial court analysed these two witnesses and the result arrived at by him. THE question of alibi was no doubt raised through the defence evidence but alibi is a plea which the accused is supposed to prove with such degree of proof as is required from the prosecution to prove its own case. For all other defences, the accused is to make out a probable case but for alibi, it must be proved it to the hilt. THE first witness to prove alibi could not fix the identity of the accused by the X-ray report. This witness could not say with certainty, if the Dr. For all other defences, the accused is to make out a probable case but for alibi, it must be proved it to the hilt. THE first witness to prove alibi could not fix the identity of the accused by the X-ray report. This witness could not say with certainty, if the Dr. Anirudh Prasad Singh used to practice in Patna in December, 1976, or if any patient in the name of Sachchidanand Sharma had been under his treatment. He simply proved the X-ray report taken on 9.12.1976 but he could not establish the identity of Sachchidanand Sharma by any description. D.W. 2 claims to be an assistant doctor to Dr. Anirudh Prasad Singh and says that on 9.12.1976, Sachchidanand Sharma was admitted to the Private Clinic of Dr. Anirudh Prasad Singh at Patna complaining pain in the abdomen. On the next day Dr. Anirudh Prasad Singh performed a surgery of this Sachchidanand Sharma in which this D.W. 2 had assisted him. He proved the prescription of Dr. Anirudh Prasad in favour of Sachchidanand. This witnesses had stated that Sachchidanand Sharma was in the Clinic upto 17.12.76. He identified the present appellant as the person who was the patient. His cross-examination indicated that in the prescription, no parentage of the patient or mark of identification were noted. He could not say why he had remembered Sachchidanand Sharma although he claimed that the patient used to come to the Clinic from time to time for two three months and never thereafter. He could not produce any record to show that he was an assistant in the Clinic of Dr. Anirudh Prasad. There were 13 beds in the Clinic. He could not say how many more patients were confined to bed in the Clinic at the relevant time. It must be held that the plea of alibi was not proved by the accused Sachchidanand Sharma. In view of what has been discussed above, the findings of the trial court regarding guilt of Sachchidanand Sharma under Section 302, I.P.C. may not be interfered with and the appeal, therefore, must fail. (11.) IN the result, it is ordered that the appeal partly succeeds in respect of Ramprapannacharya only. His conviction and sentence under Section 302, I.P.C. read with Section 120B, I.P.C. are set aside and he is acquitted. He is also discharged from his bail bonds. (11.) IN the result, it is ordered that the appeal partly succeeds in respect of Ramprapannacharya only. His conviction and sentence under Section 302, I.P.C. read with Section 120B, I.P.C. are set aside and he is acquitted. He is also discharged from his bail bonds. The appeal fails in respect of Sachchidanand Sharma his conviction and sentence under Section 302, I.P.C. stands confirmed. If he is alive, he must surrender before the Court below to serve out the sentence. The C.J.M., Varanasi, who had already been directed to make an enquiry into the reported death of Sachchidanand Sharma, shall take all steps to secure the attendance of Sachchidanand Sharma, if alive, and to send him to Jail to serve out the imprisonment.