JUDGMENT 1. -Appellants Pitha Ram, Mukh Ram and Sampat Ram were convicted under Section 302/34 IPC and each one of them was sentenced to life imprisonment with a fine of Rs. 250/- and in default to undergo three months simple imprisonment by learned Additional Sessions Judge No. 2, Bikaner vide his judgment dated 30.8.96 Appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure. 2. Briefly stated the facts, as alleged by the prosecution, are that the statement (Ex.P/4) of Daulat Ram was recorded on 29.10.92 on the basis of which FIR No. 299/96 was registered at police station Loonkaransar. In his statement, Daulat Ram stated that there was a criminal case pending in the court of Judicial Magistrate Loonkaransar between Pitharam, accused appellant, and Dungar Ram, the uncle of the complainant. Pitha Ram had threatened Dungar Ram many a time to kill him. When complainant Daulat Ram returned from his field to his village Kalwas at about 9.30 a.m., he found that daughters of Dungar Ram were weeping and were crying that Pitha Ram and others had beaten their father. Daulat Ram then took his camel cart and found Dungar Ram lying in his house. He had suffered injuries on various parts of his body as well as on his head. Daulat Ram inquired from him and at that time Dungar Ram told that when he was going to attend the court at Loonkaransar, Pitha Ram', Mukh Ram, Ram Narain, Shankarlal and Sampat Ram came following him. Pitha Ram was armed with a barchhi, Shankarlal with a sword and rest of the persons were armed with lathis. Dungar Ram further told that he was thrown down and with an intention to kill him he was beaten and that he suffered injuries on his head and ribs as well as on his back. It was Pitha Ram who inflicted a barchhi blow on his head. They left him in injured condition considering that he dead. Then Mularam brought him in his camel cart. After this story was narrated by Dungar Ram to Daulat Ram, latter took him in his camel cart to Loonkaransar hospital but in the way Mala Ram brought a jeep from Loonkaransar and then Dungar Ram was shifted to jeep and taken to hospital alongwith Mala Ram and Bhaggu Ram. Medical Officer of Loonkaransar advised them to take Dungar Ram to Bikaner hospital. Medical Officer of Loonkaransar advised them to take Dungar Ram to Bikaner hospital. Then Dungar Ram was taken to PBM Hospital Bikaner and admitted but he succumbed to his injuries. A case under Section 302, 147, 148 and 149 IPC was registered. During the investigation, Panchayatnama of the dead body was prepared, cloths of deceased Dungar Ram were collected and sealed, site plan Ex.P/5 was prepared and postmortem of the dead body was conducted. Accused persons were arrested. On the basis of their disclosure statements, barchhi and blood stained clothes of Pitha Ram were recovered vide Ex.P/11. Recoveries of lathis were also made at the instance of other accused appellants. After usual investigation challan was submitted before the concerned Magistrate who committed the case to the learned Sessions Judge, Bikaner. Learned Sessions Judge transferred it to the learned Additional Sessions Judge before whom the accused appellants faced trial for offence under Section 148, 302 read with Section 149 IPC. One of the co- accused persons, namely Ram Narain, was dealt with under the provisions of juvenile Justice Act. Prosecution examined as many as 11 witnesses on its behalf. Then accused appellants were asked to explain the circumstances appearing in the evidence against them as provided under Section 313 Cr.PC. They examined DW 1 Chunnilal in defence. Learned Additional Sessions Judge, Bikaner, after hearing both the parties, convicted and sentenced the accused appellants as stated above. 3. We have heard the learned counsel for the accused appellants as well as learned Public Prosecutor and the learned counsel for the complainant at length and have also gone through the record. 4. Learned counsel for the accused appellants submitted that the only incriminating evidence against appellants is of PW 4 Daulat Ram, PW 5 Saroj and PW 3 Mool Singh who are said to be the witnesses of oral dying declaration. But these witnesses are unreliable. He submitted that according to the medical evidence the deceased could not have spoken and told the names of the assailants to these witnesses. He submitted that PW 1 Bhagu Ram and PW 2 Malu Ram are said to be the eye witnesses but they have rightly been disbelieved by the learned trial court. He also submitted that the recoveries do not connect the accused appellants with the crime. He also submitted that there was a cross case because of which the accused appellants have been involved. He also submitted that the recoveries do not connect the accused appellants with the crime. He also submitted that there was a cross case because of which the accused appellants have been involved. According to him, no case is proved against any of the accused appellants and, therefore, all of them deserve acquittal. 5. On the other hand, learned Public Prosecutor has tried to support the judgment of the learned Additional Sessions Judge, Bikaner. 6. Let us first see if the death of Dungar Ram is homicidal PW 7 Dr. R.P Modi has stated that on 29.10.92 Dungar Ram was brought to him in Loonkaransar hospital but since he was in serious condition, he referred the injured to PBM Hospital Bikaner, after giving primary aid and also sent information to police station Loonkaransar vide Ex.P/16. After the death of Dungar Ram Dr. PN. Mathur, PW 9, conducted of post morten and found 15 injuries on the body of deceased, which are enumerated in Ex.P/18 postmortem report as follows- 1. Incised wound 5.8cm x 1,2cm x bone deep on right parietal region of scalp just lateral to midline oblique. 2. Abrasion 0.8cm x 6.3cm on right shoulder posteriorly. 3. Abrasion 2.0 x 1.2 on right supra scapular region oblique about 6cm below and medial to injury No.2. 4. Bruise 10cm x 2cm just below injury No.3 oblique. 5. Bruise 5.5 x 2.0cm about 3cm below injury No 4 obliquely. 6. Multiple bruises in an area of 13.5cm x 6.0cm on right side back of chest infra scapular region overlapping each other in various directions. 7. Bruise 7cm x 2cm on left side back of abdomen upper ⅓oblique. 8. Multiple bruises in an area of 15cm x 10cm on left side back of abdomen lower ⅓ and adjacent glutaeal region over lapping each other in various directions. 9. Abrasion 2cm x 0.3cm on right glutaeal region upper and outer quadrant. 10. Bruise 12cm x 2cm on right thigh upper ⅓ outer laterally oblique. 11. Bruise 11cm x 3cm on left side chest lower ⅓ outer laterally oblique. 12. Bruise 15cm x 3cm on left side chest just below and lateral to outer end of injury No. 11 and extending upto posterior aspect of back of chest, oblique. 13. Abrasion 1.2cm x 0.3cm on left knee anterior. 14. Abraded lacerated wound 2.5cm x 0.5cm x muscle deep on left leg upper ⅓ anteriorly. 12. Bruise 15cm x 3cm on left side chest just below and lateral to outer end of injury No. 11 and extending upto posterior aspect of back of chest, oblique. 13. Abrasion 1.2cm x 0.3cm on left knee anterior. 14. Abraded lacerated wound 2.5cm x 0.5cm x muscle deep on left leg upper ⅓ anteriorly. 15. Bruise with abrasion 6 x 2 on left hand dorsal, oblique. 7. When he dissected the body, he found that 7th, 8th, 9th, 10th and 11th ribe on right side and 7th, 8th and 9th ribs on left side were broken. So far as injury No. 1 is concerned, he has stated that on dissection of body he found clotted blood beneath this injury. He also found that the ribs which were fractured were found beneath injuries No. 6, 11 and 12. He also found a good number of injuries in both the lungs below the broken ribs of deceased. He was of the opinion that fractures of ribs and injuries to lungs and injuries No. 6, 11 and 12 were sufficient to cause death in ordinary course of nature. According to him the cause of death was shock and hemorrhage as a result of injuries to lungs and fractured ribs. He has further clarified that the fractures of ribs and injuries to lungs and injuries No. 6, 11 and 12 were self-sufficient to cause death in ordinary course of nature. Injury No.1' was caused by a sharp object. All the injuries were ante-mortem. So from his evidence it is clearly borne out that the death of deceased Dungar Ram was homicidal. This has not been challenged by the learned counsel "for the accused appellants. 8. The next question arises if any of the accused appellants is responsible to cause injuries on the body of deceased Dungar Ram According to the prosecution case there are two eye witnesses of the occurrence but the learned counsel for the accused appellants submitted that they were disbelieved by the trial court. We have gone though the statements of these two witnesses i.e. PW 1 Bhagu Ram and PW 2 Malu Ram. The question is whether these are the eye witnesses of the occurrence. The trial court has not regarded them as eye witnesses. The view of the trial court appears to be cogent because they have been introduced much later. We have gone though the statements of these two witnesses i.e. PW 1 Bhagu Ram and PW 2 Malu Ram. The question is whether these are the eye witnesses of the occurrence. The trial court has not regarded them as eye witnesses. The view of the trial court appears to be cogent because they have been introduced much later. According to PW 4 Daulat Ram they told him at 10 a.m. when Dungar Ram was being taken to hospital that they had seen the accused appellants beating Dungar Ram, but this witness did not tell it to anybody before his statement was recorded in the court on 30.3.94. According to PW 10 Manphool Singh, when he reached in the mortuary room of PB.M. Hospital Bikaner on 29.10.92, he found Daulat Ram and his son as well as other five or six persons belonging to Kalwas. He started investigation then and there and recorded the statement of Daulat Ram PW 4. But he did not inquiry whether there was any eye witness present at the place of occurrence. On 29.10.92 he did not investigate Malu Ram and Bhagu Ram neither did they themselves tell that they had seen the occurrence. He admitted that he came to know that these two witnesses were the eye witnesses but he admitted that he recorded the statement of Malu Ram for the first time on 25.11.92 which is Ex.D/2 on record. Statements of Bhagu Ram Ex.D/1 was recorded on 30.10.92. No explanation is coming as to why these statements were recorded late when Daulat Ram knew it that these witnesses had seen the occurrence. The natural presumption would be that the witnesses have been introduced to rope in the accused appellants. 9. PW 1 Bhagu Ram meticulously described the presence of the accused appellants and their individual actions in his examination in chief but when he was cross examined, he had to admit that he did not see Shankar Lal inflicting blow by sword on Dungar Ram. He also admitted in the cross examination that he did not see the five assailants causing injuries to Dungar Ram. He was seeing the occurrence from a distance of about 50 paces while he was standing. He saw only four persons. According to him when he reached near, he saw Dungar Ram lying on the ground. He also admitted in the cross examination that he did not see the five assailants causing injuries to Dungar Ram. He was seeing the occurrence from a distance of about 50 paces while he was standing. He saw only four persons. According to him when he reached near, he saw Dungar Ram lying on the ground. From his statement it appears that he did not see the accused appellants inflicting injuries to the deceased. PW 2 Malu Ram has stated that he was accompanying Bhagu Ram and both of them were coming from Kalwas to Loonkaransar. He has stated that a noise was heard and then he and Bhagu Ram reached on a mount of and wherefrom he saw the accused appellants as well as Dungar Ram. According to him Dungar Ram was lying on the ground and four accused persons were inflicting injuries. He also stated that both of these witnesses asked Pitha Ram not to give beatings but Pitha Ram and Shankar Lal said that if they come, they would also be beaten. Therefore, both of them did not go to the place where the incident was taking place. When he was cross examined, he improved the version and stated that Pitha Ram inflicted an injury on the person of deceased and then stood on one side and thereafter all other appellants inflicted injuries. From his cross examination it is found that he has been exaggerating and telling lie. He did not mention in his police statement that the accused appellants had threatened him and Bhagu Ram. He has stated in the court that Pitha Ram inflicted a barchhi blow on the head of Dungar Ram but in Ex.D/2 which is his police statement, he did not say so. He does not give any cogent explanation for this important lapse. From the statements of these two witnesses, we find that they were not the eye witnesses and the court below was right in discarding them as eye witnesses. 10. The next part of evidence against the accused appellants is the oral dying declaration of the deceased made before PW 4 Daulat Ram, PW 5 Saroj and PW 3 Mool Singh. Learned counsel for the accused appellants submitted that deceased Dungar Ram could not have been in a position to state anything before these witnesses when he was brought to his residence. Even according to PW 7 Dr. Learned counsel for the accused appellants submitted that deceased Dungar Ram could not have been in a position to state anything before these witnesses when he was brought to his residence. Even according to PW 7 Dr. R.P Modi when Dungar Ram was brought to Primary Health Centre, Loonkaransar, he was in a very serious condition and he was unconscious. So according to the learned counsel he would not have named anybody. Our attention is drawn by the learned counsel to the statement of PW 9 Dr. PN. Mathur who conducted the postmortem of deceased Dungar Ram. He has stated that injuries No. 6, 11 and 12 were serious and that there were crushed injuries in both the lungs of deceased which were results of breakage of ribs. According to him the plural cavities on both sides contained blood and he has specifically stated that in view of these serious injuries it was not probable that deceased would have spoken. Even after cross examination, the witness was re-examined by the learned PP. before the trial court and on his questioning Dr. PN. Mathur PW 9 replied that since there were serious injuries on both the lungs of the deceased there was little possibility that deceased might have spoken after the injuries were caused to him because in case one has to speak, he has to use his tongue, vocal cord, wind-pipe and lungs. They all require harmony when one speaks. He stated again and again that if the lungs of a person are damaged, he will not be in a position to speak. According to the learned PP when a person having such injuries may also speak, but when the doctor himself stated that there was no such possibility on the part of Dungar Ram, we cannot rule out the possibility that Dungar Ram was unconscious and could not have spoken, Dungar Ram was unconscious, is proved by PW 7 Dr. R.P Modi to whom he was taken at Loonkaransar at 10.50 a.m. After having gone through the injuries of Dungar Ram stated in Ex.P/18 and the statement of Dr. PN. Mathur, PW 9, there was possibility of Dungar Ram being unconscious at the time when he was brought to Dr. R.P Modi. R.P Modi to whom he was taken at Loonkaransar at 10.50 a.m. After having gone through the injuries of Dungar Ram stated in Ex.P/18 and the statement of Dr. PN. Mathur, PW 9, there was possibility of Dungar Ram being unconscious at the time when he was brought to Dr. R.P Modi. We would say that Dungar Ram had become unconscious even at the place of occurrence after having received such serious injuries and, therefore, we would presume that he could not have told the names of the accused appellants before Daulat Ram or Saroj or Mool Singh. 11. PW 3 Mool Singh has stated that he brought Dungar Ram in his cart from the place of occurrence to his residence. He has stated that he found Dungar Ram sitting on the road side whom Dungar Ram asked to leave at his residence. Then Mool Singh went to Dungar Ram and saw that he had suffered injuries. The witness brought him to his residence but did not tell him as to how he suffered the injuries. According to him when he reached at the residence of Dungar Ram he found Daulat Ram, Malu Ram and his wife there. Dungar Ram was left and then the witness went away. He was declared hostile by the prosecution and was cross examined with the allegations that he had seen the occurrence but was won over. No benefit could go to the prosecution from his statement. He has maintained that Dungar Ram did not tell the name of any accused appellant when he was brought in the cart by this witness. 12. Now we are left with Malu Ram PW 2, Saroj PW 5, and Daulat Ram PW 4. So far as PW 2 Malu Ram is concerned, he has stated that he saw the occurrence but according to PW 3 Mool Singh he was present at the residence of Dungar Ram when Dungar Ram was brought in bullock cart. If statement of Mool Singh is correct that Malu Ram was present, then presence of Malu Ram at the place of occurrence itself become impossible. However, PW 2 Malu Ram has stated that he went to the house of Dungar Ram to inform about the occurrence right from the place of occurrence. This behaviour of PW 2 Malu Ram is not natural. However, PW 2 Malu Ram has stated that he went to the house of Dungar Ram to inform about the occurrence right from the place of occurrence. This behaviour of PW 2 Malu Ram is not natural. Instead of saving Dungar Ram from the attack of the accused appellants he went to the house of Dungar Ram to inform the ladies. He has stated that Mool Singh brought Dungar Ram to his house who had suffered a lot of injuries which were bleeding. When Daulat Ram inquired from Dungar Ram, Dungar Ram stated that Pitha, Mukh Ram, Ram Narain, Shankar and Sampat gave him beatings. Thereafter Malu Ram immediately took Dungar Ram to the hospital of Loonkaransar where according to Dr. R.P Modi Dungar Ram was found unconscious. This witness Malu Ram has stated that he was present when the police had come at PBM Hospital Bikaner but he did not tell the police that he had seen the occurrence. So far as the oral dying declaration is concerned, he admitted that Dungar Ram did not say anything before Mooi Singh and when Mool Singh alighted him from the cart, Dungar Ram was feeling pain while breathing. So when the witness admits that Dungar Ram did not speak before Mool Singh, we cannot believe that Dungar Ram might have told the names of the accused appellants at that time. According to PW 4 Daulat Ram he inquired from Dungar Ram at his residence as to what happened and at that time Dungar Ram stated as follows- " vkt esjh yw.kdjulj vnkyr esa rkjh[k is'kh Fkh lqcg ?kj ls jokuk gksdj yw.kdjulj vkcknh ds ikl djhc ukS cts dkyokl ds jkLrs ls igqWapk rks esjs ihNs ihFkkjke] eq[kjke iq= es?kkjke fuoklh 'ks[klj ihFkkjke dk yM+dk jkeukjk;.k mQZ ckcwM+k] 'kadjyky iq= bZ'kjjke] lEirjke tks ihFkkjke dk Hkkatk gS ekyklj dk jgus okyk gS yw.kdjulj ds Nk=kokl esa jgrk gS vk;s] ihFkkjke ds gkFk esa cNhZ Fkh] 'kadjyky ds ikl ryokj Fkh] ckdh;ksa ds gkFkksa esa ykfV;ka Fkh eq>s uhps tehu ij iVddj tku ls ekjus dh uh;r ls flj] ilfy;ksa o exjksa esa pksVsa ekjhA ihFkkjke us esjs flj esa cNhZ dh ekjh eq>s ejk gqok le>dj NksM+ fn;k fQj eqykjke [ksjoky fuoklh yw.kdjulj vius xk<+s esa Mkydj esjs ?kj igqapk fn;kA " 13. In such a serious condition, as stated by both the doctors because of injuries on his person, Dungar Ram would not have uttered this soliloquy. This witness stated in his police statement Ex.D/3 that Dungar Ram was the elder brother of his father but in the statement before the court he has changed his version by saying that Dungar Ram was not his relation. He changed this version so that he may not be disbelieved. However, even if he was not a member of the family of the deceased, he and deceased Dungar Ram belonged to the same village and to the same community. So PW 4 Daulat Ram has given statement against the accused appellant as he was favouring Dungar Ram. He is not true and independent witness. 14. PW 5 Saroj is the daughter of deceased. She does not say that deceased Dungar Ram told the story before PW 4 Daulat Ram. At that time, according to her, she and her mother were present. So she negatives the presence of Daulat Ram, and therefore, we would say that Daulat Ram, in order to falsely rope in the accused appellants, invented even the soliloquy which we have quoted above. 15. Out of two ladies, prosecution examined only Saroj who has stated that Dungar Ram, her father, on enquiry by her and her mother, told that when he was proceeding to Loonkaransar Pitha Ram, Mukh Ram, Megh Ram, Ram Narain son of Pitha Ram, Shankar Lal and Sampat Ram came and threw him on the ground and then Pitha Ram inflicted a barchhi blow on his head and rest of the accused persons inflicted injuries by lathis. He also asked them to shift him to hospital. Then she came out and found Daulat Ram whom she asked to take her father to hospital. It was she who narrated the story to Daulat Ram. So it appears that Daulat Ram put the words told by Saroj in soliloquy of Dungar Ram and thus though Dungar Ram and not spoken even a single word before him he told lies by saying that Dungar Ram had divulged the story before him. 16. So far as Saroj is concerned, she knew it very well that her father was having litigation with the accused appellants for more than 4 years. 16. So far as Saroj is concerned, she knew it very well that her father was having litigation with the accused appellants for more than 4 years. She also admitted that police station Loonkaransar, on the report of Pitha Ram, had lodged a case against her father and brother and that Pitha Ram had threatened his father before her in the temple to kill him. She, out of this vengeance, put the names in the mouth of her father and stated them before the police when she was examined after about 27 days of the occurrence. So the fact of the dying declaration came to the knowledge of the police after a long lapse of time. We find from her statement Ex.D/4 that the same was recorded on 25.11.92 and the investigating agency has not given any explanation as to why this statement was recorded so late. She is the sole witness of this dying declaration whose statement has been recorded for the first time on 25.11.92. There is no explanation of this delay. She agreed with the suggestion in the cross examination that when her father was brought he was gasping but according to her, her father narrated the incident within 5 or 7 minutes. This witness was not examined by the investigating agency immediately after the occurrence and there is no explanation of delay as stated earlier. There were chances of additions/embellishment and exaggeration during this period. The condition of deceased was not such that he would have spoken even a single word as he was unconscious when he was brought to his residence. Therefore, we are of the view that even this witness, has on her own imagination put the names of accused appellants in the mouth of her father and has stated that he had made an oral dying declaration before her. She is unbelievable and, therefore, we do not accept her testimony. 17. Learned RR has contended that the recoveries were made at the instance of the accused appellants and it is a circumstances against appellants It is PW 6 Mamraj before whom recoveries were made. The case of the prosecution was that Shankarlai was having a sword but PW 6 Mamraj has stated that a stick was recovered at the instance of Shankar Lal. The case of the prosecution was that Shankarlai was having a sword but PW 6 Mamraj has stated that a stick was recovered at the instance of Shankar Lal. According to the case of the prosecution it was Pitha Ram who inflicted a barchhi blow on the head of deceased. Barchhi was recovered at his instance vide Ex.P/11 but its recovery memo Ex.P/11 itself mentions that there were no blood stains on the barchhi. So the recovery of barchhi in the circumstances does not held the prosecution. Recoveries do not connect the accused appellants with the crime. 18. In view of above discussion, we hold that the prosecution has not been able to prove its case and the accused appellants have been roped in because of previous enmity as a result of previous litigation between the parties. 19. Consequently, the appeal is allowed. Accused appellants Pitha Ram, Mukh Ram and Sampat Ram are acquitted from the charge under Section 302/34 IPC. They are in custody from where they shall be set free forthwith if not required in any other case.Appeal is allowed. *******