JUDGMENT 1. - This reference is made to this Court as a result of awarding death sentence to Vazir S/o Hoshiyar Singh Gosain, resident of Pokhar Khedi Distt. Jind and Joragir Slo Donigiri Gosain r/o Pokar Khedi Distt. Jind on having been convicted under Section 302 IPC for causing murders of Krishnagir Mahant of Balakdera, Hissar and his disciple Sewanandgir at village Rampura Police Station Hamirvas. Rajgarh in Distt. Churu (Raj.). 2. As per the prosecution case, Lakmaram RPS and SHO, PW/23 received information from Police Station Rajgam, Distt. Churu at about 11.05 AM on 23rd July, 2000 that there has been firing in village Rampura at Baba Lalgiri Ashram. On this information, the said Lakmaram alongwith one ASI and Police Constables reached the site of occurrence where PW1, Puran Mal submitted a written report (Ex.P-1). According to this report, Baba Lalgiri o Ashram is situated in village Rampura and there is a 'Samadhi' of Lalgiri. The Ashram was under the supervision of Mahant Mangal Gir Every year, at the Samadhi on the occasion of anniversary of Lalgiri a 'Yagna' is performed. Following the said tradition, since 17.7.2000, the 'Yagna' was going on, which culminated on 23rd July, 2000. On this occasion, 'Bhandara' was also being run and many saints. Sadhus and other people have come from outside. One of them was Mahant of 'Balakdera' Krishnagir, who was supervising the 'Yagna'. The details in FIR tells us that in the morning of the fateful day, Mahant Krishna Gir was sitting on the Deewan in the Satsangh Bhawan. Sewanand Gir was sitting nearby. Mahant Mangal Gir of Ashram was sitting near the gate. The informant Puran Mal was sitting in the store. One Ummaid Singh of Beni village was sitting In the Ashram. At about 10.30 to 10.40 AM, two persons came from the back gate. One of them was wearing pant and Bush shirt and another was in Chola Payjama. The man wearing Pant-Bush Shirt' fired at Krishnagir and he started to bleed and fell down from Deewan, having become unconscious. The men sitting near him tried to grab the person who has fired the gun. Then the man wearing 'Chola Payjama' fired at Sewanand Gir with intention to kill him. Consequently, Baba Sewanand also became unconscious and fell down. The man wearing Pant-Bush Shirt' fired at Krishnagir and he started to bleed and fell down from Deewan, having become unconscious. The men sitting near him tried to grab the person who has fired the gun. Then the man wearing 'Chola Payjama' fired at Sewanand Gir with intention to kill him. Consequently, Baba Sewanand also became unconscious and fell down. Seeing this, the informant Puran Mal, Ummaid Singh and Mahant Mangal Gir raised hue and cry and ran after the assailants who had run towards the back-gate. One more person was standing near the back-gate armed with a double-barrel gun in his hand. This was also witnesses by Jagdish Prasad of Rampura and Baba Samundra Gir of Bhiwani. The two assailants and the third person, who was standing near the gate, went towards the car which was parked there. Another man wasstanding near the car. The man with double-barrle gun fired in the air after reaching near the car. At that time, it was seen by Veer Singh and Krishna Singh.With this information, Puran Mal stated that he could identify all these persons. In the stampede that followed, all the four persons ran towards the railway station. One Car No. HR-26G-8929. According to the First Information Report, the car was of grey colour Ceilo Mahant Krishna Gir and Sewanandgir were sent to Pilani in a wounded condition. On the way, Sewanand Gir died and Krishna Gir was taken to hospital at Hissar. At the scene of occurrence empty cartridge were lying. 3. This report bears the time 12.30 PM dated 23rd July, 2000. The written FIR submitted by Puran Mal, PW/1 is Ex.P/1. 4. According to this report, in all four persons were involved: two assailants. One man with double-barrel gun and one man near the car. As the report reveals by the time it was made, the information about death of Sewanandgir on the way and departure of Krishnagir to Hissar had been conveyed to Rampura village at Ashram. It was also stated that Krishnagir and Sewanand injured were sent to Pilani in a wounded and unconscious condition for treatment, but no names were mentioned as to with whom the injured were sent and by what manner of transport they were sent, though the person making FIR does know that they were sent. Yet nothing was stated about who accompanied injured Sewanand and Mahant Krishnagir. Yet nothing was stated about who accompanied injured Sewanand and Mahant Krishnagir. Nor any person who may have accompanied Mahant Krishnagir from Balakdera finds place in the FIR to suggest that they may nave witnesses the occurrence. It did not say anything about any close associate of Baba who might have accompany him to Ashram of Lalgiri. Nor identity of any of the accused was disclosed, though it was stated that each of the witness named in FIR present at site can identify the culprits. 5. The written report was sent to Police Station, Hamirvas with constable Kunen Ram. At 2.00 PM Sugan Singh. PW-19 registered the FIR No 30/2000 under Sections 302, 307, 123-B read with Section 34 IPC and under Section 3/25 of the Arms Act. In the presence of Motbir Om Prakash, PW/20 and PW/21 Dhan Singh, the site plan (Ex.P/2) was prepared and site inspection ts note (Ex.P/2-A) was also prepared. From the site blood stained piece of Chatai (Cotton mat), the blood stained bed-sheet at the Deewan, a saffron Paiari bearing the caring marks of cartridges and hold were seized by the police Vide Exs, P13, P14 and P/5 respectively. The police also seized a piece of the blood stained carpet, empty cases of cartridges found on the campus and four pellets vide Ex.P/6 and Ex.P/7 respectively. 6. Mahant Krishnagir died allegedly at CMC hospital, Hisser where he was taken from Pilani. PW/31, Prem Singh Huda drew proceedings under Section 174 of CrPC and recorded the statement of Prithvi Gir PW/3 which is part of inquest report marked as Ex.D/4, he also recorded the statement of 25 Dharm Veer, the driver of deceased Krishnagir, which is Ex.D-11. 7. However, during the course of investigation no identification parade was held after the accused were arrested so as to enable the witnesses named in FIR to identify the accused. 8. The prosecution case unfolded in challan named accused person on 30 the basis of a dying declaration which was allegedly made to Prithvi Gir PW/3 by Deceased Mahant Krishnagir while he was taken from Rampura to Pilani and cites Balveer Singh PW4; Pratap Singh PW/5, Hawa Singh and Rajveer as persons who were present at the scene of occurrence and witnessed the occurrence, identified assailants on the spot when the incident took place. 9. 9. The genesis of the dispute was stated to be that Krishna Gir was Mahant of Balakdera Ashram in Haryana. Its Mahant was also having ultimate supervision and control over other associated Ashram. Baba Lal Gir Ashram at Rampura, where incident occurred was one of such Ashrams under Balakdera. Amongst others, one Dera was situated at village Pokar-Khedi in 40 Jind Distt. of Haryana. Pokhar- Khedi Ashram had about 100 acres of land. In the past, it was managed by its Mahant Mangeram. Notwithstanding that the Pokar-Khedi Ashram and its Mahant was under Balakdera, during his lifetime, said Mahant Mangeram has transferred that land in the names of his nephew Joragir and other members of his family. He also executed a will about the said land. When this fact came to the knowledge of Krishnagir through villagers of Pokar-Khedi, he filed a civil suit for cancellation of transfers made by ' langeram and for possession of the land in a Court situated in Jind. It is stet A that the said suit was decreed in favour of Krishna Gir. The appeal against which was dismissed by the Punjab & Haryana High Court and so ultimately the decree was maintained by the Supreme Court. During the pendency of the said litigation. Mange Gir Mahant of Pokar-Khedi died. Joragir laid claim to succeed Mange Gir as Mahant but he was not allowed to take charge because he has kept one woman in his house. But Krishnagir was appointed as Mahant of Pokar-Khedi also. 10. The possession of land was recovered by Krishnagir in execution of said decree. Because of this dispute and because the civil suit has resulted in favour of Krishnagir, the accused party became inimical to Krishnagir. 11. In the follow - up action, attempt on the life of Krishna Gir was made in Jind Court premises. The accused party tried to regain the possession of the said land. In that dispute. one child named Krishna also died. Thereafter, to Krishnagir was assaulted by knife at Baiakaera. Cases in relation to all these incidents are alleged to be pending in different courts in Haryana State. 12. In this connection, it was also stated that a conspiracy was hatched at the house of Hoshiyar Singh and Pokhar Khedi where Hoshiyar Singh, Rajmal, Jage Gir, Joragiri, Wazir, Sohan Gir, Lichman conspired to kill Krishnagir on 12.7.2000. Cases in relation to all these incidents are alleged to be pending in different courts in Haryana State. 12. In this connection, it was also stated that a conspiracy was hatched at the house of Hoshiyar Singh and Pokhar Khedi where Hoshiyar Singh, Rajmal, Jage Gir, Joragiri, Wazir, Sohan Gir, Lichman conspired to kill Krishnagir on 12.7.2000. Accused Vazir who is nephew of Mahant Mange Gir allegedly said that without killing Krishnagir, they cannot regain the possession of the land situated in Pokhar Khedi. According to the prosecution, under this conspiracy on 23rd July, 2001, Krishna Gir was attacked and Sewanand Gir who has intervened was also shot at. Both were injured and as a result, they died.With these allegations, the prosecution was launched against the following 11 persons: 1. Vazir 2. Joragir 3. Hoshiyar Singh 4. Rajmal 5. Jage Gir 6. Balraj 7. Lichman 8. Sohan Gir 9. Kulveer 10. Ramniwas 11. Lila @ Jogendra (1) Vazir S/o Hoshiyar; and (2) Joragir s/o Dunigir were charged under Sections 148, and 302 as well as under section 3/25 of the Arms Act. (3) Hoshiyar Singh; (4) Rajmal; (5) Jage Gir; (6) Balraj; (7) Sohan Gir; (8) Kuiveer were charged with under section 148 and 120-B IPC. In addition to charge under section 148 and 120-B against Rajmal was charged with Section 3/30 of the Arms 30 Act and Kulveer under section 302/149. Rajmal accused (9) Lichman; (10) Ramniwas; and (11) Lila were charged under section 148 and 302/149 IPC. 13. The Judicial Magistrate, Rajgarh committed the accused persons to sessions. Additional Sessions Judge, Rajgarh Distt. Churu framed charges.After the trial, the learned trial Judge convicted the accused Vazir, and Joragir under section 148 and 302 IPC. Accused Balraj Kirshna Gir Gosain and Lichman were convicted under Section 148 and 302 readwith Section 149 IPC. All the four were held to have caused murder of Krishna Gir with a common object to kill him. All the four were also convicted for offence under Section 120-B IPC. Offence under section 308 IPC and under section 3/25 of Arms Act were not proved against any accused. Offence under section 120-B was also not proved against all accused except the four accused viz. Vazir, Joragir, Balraj and Lichman. All the four were also convicted for offence under Section 120-B IPC. Offence under section 308 IPC and under section 3/25 of Arms Act were not proved against any accused. Offence under section 120-B was also not proved against all accused except the four accused viz. Vazir, Joragir, Balraj and Lichman. Finding it to be a case of rarest of rare depravity, the learned trial Court sentenced Vazir s/o Hoshiyar Singh and Joragir S/o Dunigir residents of Pokerkhedi to death for offence under section 302 and imposed fine of Rs.5,000/- 45 each. For offences under section 148, they were sentenced to two years R.I. Balraj and Krishna resident of Distt. Hisser and Lichman Slo Jagannath Gosain were sentenced to two years R.I. under section 148 and life imprisonment for offences under Section 302 readwith 149 in addition thereto 5,000/- in default to pay, then to further undergo 3 months R.I.All other accused were acquitted of all charges. The reference has been made to this Court for confirmation of the death sentence for Vazir and Joragir under Section 366 Cr.P.C. 14. The learned trial Court has relied on the dying declaration of 1 deceased Krishnagir, which is sought to be proved by Prithvi Gir (PW/3) and statements of PW4, Balbir Singh and PW-5 Pratap Singh as eye-witness of tht occurrence. 15. According to PW-2. Prithvi Gir while deceased Krishnagir was being taken to Pilani, on the way, Krishna Gir stated that he and Sewanand have been shot by Vazir S/o Hoshiyar Singh and Joragir S/o Dunigir and he has recognised them at that time. Prithvi Gir further states that Krishnagir stated that Daielgin, disciple of Ramgir of Mahant, Hosiyar Singh, Rajmai and Joragir the resident of Pokar-Khedi, Sohangir, disciple of Gulabgir resident of Surpura Distt. Jind. Baljeet Singh of village Pokher-Khedi, Devanand, member of Delhi Police and Lachman S/o Jagannath, distantly related as maternal uncle of Vazir and is sister's husband of Sohangir Jageram and Rajmal had conspired together to shot at him. Jind. Baljeet Singh of village Pokher-Khedi, Devanand, member of Delhi Police and Lachman S/o Jagannath, distantly related as maternal uncle of Vazir and is sister's husband of Sohangir Jageram and Rajmal had conspired together to shot at him. For ready reference, the dying declaration attributed to deceased Krishna Gir reads as under: " eSa lqeks xkM+h esa Fkk esjs lkFk jkefxjh th o ,d jkeiqjk dk vkSj Fkk tks d`".kfxjh th egkjkt dks fiykuh ys x;sA mlh nkSjku egUr d`".k fxjh gks'k esa Fks mUgksaus esjs dks crk;k fd rFkk xkM+h esa crk;k fd esjs o lsokuUn th ds xksfy;k othj iq= gksf'k;kj flag tkfr xkslkbZ tksjkfxjh psyk nwuhfxjh tkfr xqlkbZ nksuksa fuoklh iksdjk[ksM+h mDr nksuksa us esjs o lsokuan th ds xksfy;k ekjh gS ftudks eSaus ekSdk ij igpku fy;k gS mDr nksuksa eqyfteku vkt gkftj vnkyu gS vkSj mUgksaus esjs dks ;g Hkh crk;k esjs xksfy;k djokus esa "kM~;a= j[kus esa nysy fxjh psyk jkefxjh fuoklh ege o gksf'k;kj flag jktey tkxsjke fuoklh iksdj[ksM+h o lksgu fxjh xqykcfxjh tkfr xqlkbZ fuoklh lqjiqjk ftyk ftUn o cythr flag tkfr tkV xzke iksdj[ksM+h o nsokuan xzke HkSloky tkfr xqlkbZ gky fnYyh iqfyl esa dk;Zjr gS bUgha vknfe;ksa us feydj esjs xksfy;k djokyh o fyNe.k iq= txUukFk tkfr xqlkbZ xzke fiatiqjk ftyk dsFky tks ukrk esa othj dk ekek yxrk gS o lksgufxj] tksxjke o jktey dk cguksbZ yxrk gS mDr yksxksa us esjs xksfy;kWa ejok;h gSaA " 16. He has also named that at the time of incident, Balvir Singh, Pratap Singh and Hawa Singh and Rajbir Singh were also there who had seen the incident.Out of these four persons two persons viz., Balbir Singh and Pratap Singh been examined as PW/4 and PW/5 respectively. Both of them stated that they were sitting at a short distance of 8 to 10 feet from deceased Mahant Krishnagir and have seen the assailants and recognised them at that time 17. The person who lodged the FIR viz. Puran Mal and persons named in the FIR as person present at the Ashram at the time of incident and had witnesses it and claimed that they could identify the assailants and their associates did not support the prosecution. 18. No other evidence was found to corroborate the complicity of accused in the crime. 19. Thus, the prosecution case hinges on the acceptance or rejection of the testimony of the aforesaid three witnesses. 18. No other evidence was found to corroborate the complicity of accused in the crime. 19. Thus, the prosecution case hinges on the acceptance or rejection of the testimony of the aforesaid three witnesses. We shall presently examine their statements and the attending circumstances to find whether the statements of PW3 Prithvi Gir, PW4 Balraj and PW5 Pratap Singh.Before examining the evidence regarding dying declaration and the statements of PW4, Balbir Singh and PW/5, Pratap Singh, who are alleged to be present and witnessed me occurrence, it would be appropriate that we may notice the commencement and progress of the investigation. 20. As per Ex.P/1, the written report submitted by PW/1 Puran Mal to Lakmaram PW/23. who is a RPS Officer, then on probation, has named certain persons who had witnesses the incident at different stages which clearly suggests that none of the persons named in that report were knowing the assailants and had not recognised any one of them but claimed that if seen again, they could identify the assailants. A very significant feature of the case is that no identification parade was held to identify the accused Person by these witnesses. The persons named in Ex.P/1 who had seen the occurrence at different stages in the Ashram were; PW1 Puran Mal himself, who had allegedly seen the incident from store, Ummaid Singh of village Beri, who was in the Ashram, Baba Mangal Gir since deceased. Jagdish Prakash, Baba Samundra Gir, Veer Singh and Krishna Singh of village Rampura and one Manish Singh S/o Ranjit Singh who was alleged to have seen the Car No. HR-26G-8929. However, neither the documents prepared at the time of investigation on site or statement of witnesses disclose the presence of Prithvi Gir at the time of incident in the Ashram who has stated himself to be heir apparent of deceased Krishnagir and has in fact, succeeded him. Nor Balbir Singh, Pratap Singh, Hawa Singh and Rajveer Singh, who were alleged to be near the deceased and had seen the assailants and were knowing the assailants.Of the persons named in Ex.P/1, Puran Mal has been examined as PW-1, Veer Singh as PW-9, Ummaid Singh as PW-10 and Jagdish, PW-12. 25 However, Mangal Gir, Samundra Gir, Kishan Singh and Manish Singh have not been examined of which, Mangal Gir is stated to have died. 25 However, Mangal Gir, Samundra Gir, Kishan Singh and Manish Singh have not been examined of which, Mangal Gir is stated to have died. However, his statement under Section 161 Cr.P.C. was not recorded until 30th August, 2000 when the incident took place on 23rd July, 2000 and he was present at site when the report was lodged. No identification parade was held to seek identification of assailants by the persons named in the FIR, and who said that though they do not know the assailants but could identify the assailants if they come before them. 21. Even amongst the examined witnesses Puran Mal PW1, Ummaid Singh, PW10 and Jagdish PW12 have all turned hostile. Puran Mal hasstated in his statement that he has not seen anybody wounded by gun shot nor he has seen any person firing nor he knows how many persons had fired. He has stated that 'I have later on heard that Baba Krishna Gir was shot.' He went on to state that he was told by SHO to lodge an FIR which was got written by one boy and the police has prepared the documents. He has signed it but what was written therein, he did not know. 22. Even otherwise, in Ex.P/1, it has been stated that when the incident has taken place, he was inside the store and from the site plan and site-inspection note, Ex.P/2 and 13/2A respectively. it seems improbable that from the store, he could have seen anything where Mahant was sitting as the deceased was sitting inside the Satsangh Bhawan in a corner at Deewan and a person sitting in store shown in site-plan could not have seen as to what is happening inside the Satsangh Bhawan. 23. Pw-10, Ummaid Singh was stated to be in the Ashram and as per site plan, he was stated to be standing just near the Southern gate of Satsangh Bhawan in which Krishnagir was sitting he said that neither he heard the names of the assailants nor he could identify the assailants. He also said that he has not seen anybody armed with gun. PW-10, Ummaid Singh who alleged to have seen the assailants while they were running back towards the car and heard firing in the Car as PW-10 could not identify any persons. 24. PW-12 Jagdish. who is alleged to have seen, as per Ex.P/1. He also said that he has not seen anybody armed with gun. PW-10, Ummaid Singh who alleged to have seen the assailants while they were running back towards the car and heard firing in the Car as PW-10 could not identify any persons. 24. PW-12 Jagdish. who is alleged to have seen, as per Ex.P/1. the man who was standing near the backdoor of the Ashram while supports that 5 he has seen a man armed with double-barrle gun near the back-gate, but he expressed his inability to identify that person. 25. Significantly, PW-12. Jagdish Prasad states that Mangal Gir was sitting near the gate on the date of occurrence at the time of incident and he has disclosed the names of assailants when the witness met Mangal Gir after it) the incident. However, the witness does not remember any of the names so disclosed by Mange{ Gir. Nor the said Mangal Gir disclosed their names to police at that time, nor was he examined until 30.8.2000 after one of alleged eye- witness allegedly told the police that he has disclosed the names to Mangel Gir 26. Thus, none of the witnesses named in Ex.P/1, the First Information Re; ort, in any manner helps the case of the prosecution. On the contrary, it emellishes the case of the prosecution. 27. However, two significant facts which emerege from Ex.P/1 and statement of Jagdish PW-12 are that in the FIR, lodged by Puran Mal at abc ut 12.30 PM, it has been revealed that Sewanand has died on the way to Pilani and Krishnagir was taken to Hissar from Pilani i.e. to say, by the time the information was lodged, the information about Krishnagir having been taken from Pilani to Hissar has reached the Ashram at Rampura village and has come to the notice of persons at Rampura Ashram. By that time, alleged dying declaration was also made by Krishnagir but no information about assailants reached Rampura alongwith information of taking Krishnagir to His Secondly, the statement of PW-12 reveals, if he were to be believed, that Mangal Gir, who was the person stated to be at the Ashram at the time of icident has disclosed the names of assailants at that very time to him suggesting that these names were known at the time FIR was lodged. Name of Mangal Gir as a person present in Ashram was also stated to be in the FIR, yet the names of assailants had not been disclosed, in the FIR not said Mangal Gir was examined immediately or soon thereafter but his statements were recorded only on 30th August, 2000 after about a month. 28. It may also be noticed that as per Lakmaram, PW-23, the police officer who was first to reach the place of occurrence after having received information from police station, Rampura, has reached Rampura Ashram at 11.30 AM. He has also stated that upto 12.30, time was taken in controlling in crowed. However, he has stated that until 12.30, that is to say almost for one crowed nobody has informed him how the incident has occurred. He was categorical in his statement that either before or after submission of report by Pun n Mal, nobody present there stated anything. Those who were present started that they were not in position to say anything at the moment, but will tell later on. Nothing was told later on. He also stated that Puran Mal did not 45 tell Arn anything orally, but he gave a written report. He also states that he can of say whether Puran Mal was at all there or not in the Ashram before the export was made. PW/29, Laxmi Narayan is the investigating officer. He has 31 early stated that he has gone to the place of occurrence within half an of receipt of information and stayed there for about one hour. He had not talk with any eye-witness. He further states in his cross-examination that he t as gone to the place of occurrence a day or two later on. Puran Mal, Ummaid Singh and Mangal Gir were also there. This shows that Mangal Gir not left the Ashram immediately or unnoticed. Yet even after that much time, he was not examined nor he disclosed to police the name of assailants which it is not alleged that ne was knowing at the time of incident itself, 29. It is also significant that PW/4. Balbir Singh has stated that he has told about the incident to Mangal Gir. Yet even after that much time, he was not examined nor he disclosed to police the name of assailants which it is not alleged that ne was knowing at the time of incident itself, 29. It is also significant that PW/4. Balbir Singh has stated that he has told about the incident to Mangal Gir. Yet neither the name of assailants nor the name of man who knew the assailants and disclosed it to Mahant of Lalgiri Ashram before they left the Ashram, which was before filing of the FIR, finds place in FIR or were disclosed to Investigation Officer. 30. It is strange that Mangal Gir was the Mahant of Ashram. Had he known the assailants, he would have left the Ashram without telling the police or anybody else about the assailants? 31. The name of the assailants have surfaced first time 3 days after the occurrence on 26th July, 2000 when the statement of Prithvi Gir, Balbir Singh and Pratap Singh were recorded under Section 161 Cr.P.C. at Balakdera Ashram. Earlier thereto, none has informed the police or anybody about the identity of assailants. Prithvi Gir, is witness to whom the alleged dying declaration was made. He also names the presence of Pratap Singh, Balbir Singh, Hawa Singh and Ralveer in the Ashram at Rampura at the time of incident as eye-witnesses. Prithvi Gir, PW-3 was also the heir apparent and principal disciple of deceased Krishnagir, yet his presence was not noticed by any of persons managing the Ashram at Rampura village. 32. We have already quoted above the dying declaration attributed to Krishnagir while he was being carried from Lalgiri Ashram to Pilani for medical attendance. He was seriously wounded. The details in which wounded person is expected to express is not comptaible with the divulgence of diverse details attributed to deceased. It not only discloses the name of the actual assailants with their parentage and the place of residence but has also alleged to have given details of the conspirators by saying who is related to whom, to the extent of telling the name of distant relations and person whose disciple is who e.g. the description of Devanand and Lichman. It not only discloses the name of the actual assailants with their parentage and the place of residence but has also alleged to have given details of the conspirators by saying who is related to whom, to the extent of telling the name of distant relations and person whose disciple is who e.g. the description of Devanand and Lichman. The following part of statement will illustrate the abnormality of dying declaration: " nsokuan xzke HkSloky tkfr xqlkbZ gky fnYyh iqfyl esa dk;Zjr gS bUgha vknfe;ksa us feydj esjs xksfy;k djokyh o fyNe.k iq= txUukFk tkfr xqlkbZ xzke fiatiqjk ftyk dsFky tks ukrs esa othj dk ekek yxrk gS o lksgufxj] tkxsjke o jktegy dk cguksbZ yxrk gS mDr yksxks us esjs xksfy;k ejok;h gSA " 33. Likewise, with each name of accused, his parentage, caste, name of village where he resides and District and mentioned. This does not sound natural but betrays an attempt to plant names of all those with whom the Balakdera Mahant has an axe to grind with the rival group of deceased and his successors through the statement attributed to deceased. 34. In dying declaration itself, the deceased does not allege which assailant did hit him or Sewanand. A person, if he was so anxious and energetic to disclose the names, parentage, village of residence and inter relations between the persons whom he is naming as conspirators, not present at site would not ordinarily have omitted to disclose which of the assailant hit him or Sewanand. It only suggest that since by that time the names of four unknown persons firing at Rampura had found place in the FIR, without naming particular assailant, the relating of assailant with individual act was left to be proved by other evidence. 35. A very peculiar feature about the dying declaration made, while coming to statement of Prithvi GR.is that as per the evidence on record. It has been stated in Ex.P/1 that wounded Krishnagir and Sewanandgir were sent to Pilani in unconscious condition for treatment but it was not stated that with whom the wounded persons were sent to Pilani for treatment. While persons from Rampura village have not stated who were the persons who can ied Sewanand Gir and Krishnagir to Pisani in Car, according to PW-4, Balbir Singh and PW-5 Pratap Singh. While persons from Rampura village have not stated who were the persons who can ied Sewanand Gir and Krishnagir to Pisani in Car, according to PW-4, Balbir Singh and PW-5 Pratap Singh. Prithvi Gir, alongwith Ramgir, another disciple of Krishnagir, accompanied Krishnagir and the driver of that car was Naresh. Neither Naresh has been examined nor Ramgir has been examined. 36. From the prosecution case, it does not appear that anybody else hac accompanied Krishna Gir to Pilani. Sewanand was taken in a different car and was accompanied by different persons. According to the prosecution Sewanand had died on the way while he was taken to Govt. hospital. But according to Prithvi Gir, deceased Krishnagir was taken to a Nursing 15 home run by PW-2 Dr. Tarun Bedwal. PW-2 states that he gave first-aid to Krisrinagir. Fire arm wounds were at the person of Krishnagir and since his hospital was not equipped to treat him, he recommended the accompanying people to take him to Hissar and Prithvi Gir told him that he had a dispute about land in Jind and those people have shot at Krishnagir. It is strange 20 while Prithvi Gir will take no time to disclose to doctor at Pilani the reason for the assailants to kill Krishnagir, he will be too slow and reluctant to disclose the names of assailants to Investigating Agency who really mattered to be informed to apprehend the culprits, or will not show any interest to transmit this information even to Rampura Ashram where investigation was going on 25 and from the FIR recorded at 12.30 PM vide PW-1, the information about taking Krishna Gir to Hissar has already reached as the said fact finds mention in the report Ex.P/1. As an heir apparent, in ordinary course, he would have shown interest to divulge the names of the assailants to the police at the first opportunity so that the assailants are nabbed as early as possible and brought to book. However, he keeps the names of assailants disclosed by Krishnagir close to his heart as strongly guarded secret while the information about taking Krishna Gir from Pilani to Hissar was transmitted and also reason behind killing is also disclosed to the doctor at Pilani. This casts a strong shadow of doubt on the veracity of Prithvi Gir's statement. However, he keeps the names of assailants disclosed by Krishnagir close to his heart as strongly guarded secret while the information about taking Krishna Gir from Pilani to Hissar was transmitted and also reason behind killing is also disclosed to the doctor at Pilani. This casts a strong shadow of doubt on the veracity of Prithvi Gir's statement. Heal so does not say whether any of alleged eyewitnesses met him and disclosed that he has seen the incident and identified the assailants. 37. He had the second opportunity to divulge the information at Hissar where Krishnagir died and PW/31 has carried the inquest about the death of Krishna Gir under section 174. His statement was recorded by PW31 while making the inquest report and still, he did not disclose who the assailants were. Though he says in his statement that he had disclosed the names of assailants with dying declaration to officer at Hissar, it does not find place in Ex.D/4, as part of inquest report. Contrary to his statement PW/31, Prem Singh in his statement has stated that he had recorded the statement of Prithvi Gir as told by him and he has not disclosed about the dying declaration or names of assailants. 38. Strangely, PW31, Prem Singh, who is an officer of the rank of Circle Inspector unabashedly, not thought it proper when apparently it was a case of homicidal death and when it was divulged that the incident had occurred so in the territory of Police Station, Hamirwas in Rajasthan, and the case has already been registered, to ask about the incident and remit the information, if any revealed to him, to the concerned police station to facilitate the investigation so much so that PW-31, Prem Singh has gone to the extent of saying that even if Prithvi Gir would have divulged the names of the assailants, he would not have written in the inquest report. 39. 39. Undoubtedly, the purpose of inquest report is different than the purpose of investigation but the conduct of a person who is highly interested to see that culprits are arrested and the conduct of police officials who has come to know of commission of cognizable offence like murder, when death was caused within his jurisdiction makes no effort to either himself register a case and start investigation or on being informed that crime has been committed within jurisdiction of another police station to collect information and inform about the death and other details to concerned police station. As a police official he too is expected to be equally interested in helping to find out the culprits and bring them to book. This is other circumstance which leaves a room of doubt about the veracity of dying declaration which is alleged to have been made while in car. It only probabilise that until death occurred and inquest took place at Hissar, Prithvi Gir knew nothing about the assailants, and betrays possible concoction of dying declaration to bring the eye- witnesses as centner stage. 40. Even if he were not supported to write names of accused disclosed to him in injury report, it does not seem probable that Prem Singh, PW/31 would not have disclosed this information to Investigating Officer who too had reached Hissar on 23.7.2000 itself late in the evening and has met him and gathered all information from him, which was with him as stated by 25 PW/29, Laxmi Narayan. 41. PW-3 Prithvi had also not thought in fit to divulge the names immediately when the police arrived at Balakdera in the course of investigation to find clues about the death of Krishna Gir. The statement of PW-29 Laxmi Narayan Investigating Officer is revealing in this respect. In 30 this statement he has stated that he has gone to Hissar for the first time in 23rd July, 2000 in connection with the said investigation and he has met Prem Singh Huda, PW-31. While he says that he got many information from Prem Singh including Ex.D/4 and D/11 that how the incident has occurred, but that information did not reveal the names of the assailants. While he says that he got many information from Prem Singh including Ex.D/4 and D/11 that how the incident has occurred, but that information did not reveal the names of the assailants. He has stated that on 25th July, 2000 he has gone to Balakdera and had stayed there for about one hour but he was told: " eSa ckyd Msjk xzke esa x;k rc mUgksaus dgk fd ge vHkh dqN ugha crk;saxsA gfj}kj x;s gSaA vc ugha crk;saxsA eSa fnukad 25-9-2000 gks ckyd Msjk esa x;k Fkk ml fnu crk;k fd gfj}kj vfLFk;ka ysdj x;s gSaA vHkh ekgkSy xeZ gS] ckn esa crk;saxsA " 42. It is also worth noticing that Laxmi Narayan has followed Krishnagir and Sewanand to Pilani. He was told at Pilani that Krishnagir has been taken to Hissar in wounded condition. This information was conveyed by Raghavanand and the people who were with the dead body of Sewanand. He enquired from persons who were with Sewanand but he was told that there is no confirmed information therefore they will not tell anything. No trace of names of any of accused either at Pilani or Rajgarh, even after Krishnagir has taken to Hissar and this information was transmitted to persons with Sewanand and Raghavanand. Raghavanand too has not been examined. 43. If deceased Krishnagir did tell Prithvi Gir in Car on way to Pilani the names of persons who filed at him and deceased Sewanand, it does not stand to reason that Prithvi Gir would try to avoid all the opportunity that came to him to divulge the names of the assailants which according to him were divulged to him by Krishna Gir himself before death on 23.7.2000 and wait for his own chosen suspicious time to disclose names of culprits and about dying declaration and other eye witnesses. 44. There is yet another circumstance that incriminates against the credibility of the testimony of PW-3, Prithvi Gir. He is specific about the time he reaches CMC Hospital. Hissar. He says that they reached the CMC Hospital between 3.30 to 3.45 PM and Krishngair was declared dead at 5.00 PM. But as per post mortem report. death of Krishnagir has already taken place at 3.10 PM on 23.7.2000 much earlier to arrival of Prithvi Gir. He is specific about the time he reaches CMC Hospital. Hissar. He says that they reached the CMC Hospital between 3.30 to 3.45 PM and Krishngair was declared dead at 5.00 PM. But as per post mortem report. death of Krishnagir has already taken place at 3.10 PM on 23.7.2000 much earlier to arrival of Prithvi Gir. The eye witness PW-4, Balbir Singh and PW-5, Pratap Singh, who have followed Krishnagir from Rampura after he was taken to Pilani have also reached hospital at Hissar only at about 4.30 to 5.00 PM. This also casts a serious doubt whether Prithvi Gir, PW/3; Balbir Singh, PW/4 and Pratap Singh, PW/5 were at all at Rampura and it is probabilised that after information about firing at Krishnagir and Sewanand and subsequent death of Sewanand on the way to Pilani and taking of Krishnagir to Hissar in a wounded condition has reached Balakdera, the three witnesses have reached Hissar directly to attend to Mahant, but unfortunately before they reached Hissar Mahant has already died. 45. Non-examination of any doctor or staff from CMC Hospital, Hissar, who could have attended Krishnagir at Hospital and non-production of any documents from Hissar Hospital about admittance of Mahant at Hissar Hospital, if he was brought there while he was alive and administration of any treatment, casts a serious doubt about the whole story. No information to PW/31, Pram Singh Huda, who has reached Hissar Hospital and conducted inquest under section 174 further supports this conclusion. The fact that Krishnagir had died before reaching Hissar also cannot be ruled out. 46. Significant in this connection is that Mahant has travelled in his own car from Balakdera to Rampura whose driver was Dharamveer. Ordinarily, in such circumstances ordinarily Mahant would have been carried to Hospital in his own car with his own personal staff. The said driver has also not been examined. Though he has been examined by inquest officer at Hissar, which shows that Dharamveer was present at hissar and admittedly, the deceased Mahant has gone to Rampura in his own car driven by Dharamveer. This leads to an irresistible conclusion that Dharamveer with the car of Mahant has also travelled from Rampura to Hissar. His absence from prosecution evidence also makes a hole in the prosecution story. 47. This leads to an irresistible conclusion that Dharamveer with the car of Mahant has also travelled from Rampura to Hissar. His absence from prosecution evidence also makes a hole in the prosecution story. 47. The names of accused have been divulged for the first time on 26th 40 July, 2000 at Balakdera when statements of Prithvi Gir under Section 161 Cr.P.C. was recorded and simultaneously the names of Balbir Singh, Pratap Singh, Hiwa Singh and Rajvir have surfaced in this statement. Another person Ramgir does not have interest adverse to the prosecution and is also named principal disciple of Krishnagir alongwith Prithvi Gir and according to the as prosecution case itself he was in the same car in which Krishna Gir carried in Pilani, has not been examined for some inexplicable reasons. 48. Driver Naresh, who was allegedly driving the car in which Krishnagir was being carried, has also not been examined. While the non-examination of Naresh has been tried to be explained that a driver would be attentive in so driving and may not listen what the wounded man is trying to say to the person who is accompanying him. this explanation does not go well with the non-examination of Ramgir Ramgir was as much interested and as much attentive to attend the wounded Krishnagir in the car as Prithvi Gir. The non-examination of these persons alleged to be accompanying in the car with Prithvi Gir and Krishnagir further weakens the veracity of statement of Prithvi Gir, who, for no plausible explanation has chosen to keep silence for three days before divulging the fact about dying declaration. Coupled wan circumstances that in a very unnatural manner, the description of assailants in great detail including the names of the conspirators for the assault on the deceased man finds place in the statement attributed to Krishnagir, the deceased, alongwith simultaneous disclosure of the names of as many as four witnesses who were hitherto nowhere in the picture from any source as eye-witnesses, highly probabilises that when names of actual assailants were not surfeiting for non-identification of culprits, a deliberate concoction is made on the part of successor to Balakdera to implicate as many as persons of rival group after due deliberation, motivated by existing bitter rivalry, 49. PW-23, Lakmaram and PW-29 Laxminarayan, the Investigating Officer both have reached the site of incident at 11.35 AM on 23.7.2000. PW-23, Lakmaram and PW-29 Laxminarayan, the Investigating Officer both have reached the site of incident at 11.35 AM on 23.7.2000. While PW-23 does not state anything about it, PW-29 has stated that when he has reached, the wounded persons were already taken to hospital at Pilani and he himself started for Pilani immediately. Strangely, both police officers have not thought it fit to enquire nor anybody else has thought it fit to inform that who have accompanied Sewanand and Krishnagir to the hospital. Krishnagir was not an ordinary man but was a Mahant and leader of the sect under which the Lalgiri Ashram at Rampura was also a satellite. Mahant was not moving alone but was accompanied with number of persons, if statements of Balbir and Pratap Singh PW/4 and PW/5 respectively are taken into consideration. It cannot be assumed that a person of such an importance would be carried away after having been assaulted by persons not known to anybody who were managing the Lalgiri Ashram. It was not a matter of assault on an unidentified and unknown persons or a common follower of the sect whom the Manager of the Ashram may not be knowing but he was their leader and has come to the Ashram at the invitation of Lalgiri Ashram a day before with many of his followers. In ordinary course, the management of the Ashram will be the only person who will be arranging and managing the sending of wounded persons to hospital. It cannot be believed that some person not known to managers of Ashram will just remove the wounded Mahant Krishnagir and Sewanand from the Ashram without Mahant of Lalgir Ashram and his colleagues knowing about. The absence of any information about the man who have accomapnied Krishnagir and Sewanand in FIR or statement of persons named in FIR and no investigation in that regard by the police and it is left to anybody's guess who received information about Mahant Krishna Gir being carried to Hissar from Pilani before writing FIR and non disclosure of names by Prithvi Gir in the very first instance, throws a serious doubt about the truthfulness of the dying 45 declaration and truthfulness of Prithvi Gir as witness. 50. This is further so because as per the case set up by prosecution. Ramgir and driver Naresh were the only other persons accompanied Krishnagir to the hospital at Pilani. 50. This is further so because as per the case set up by prosecution. Ramgir and driver Naresh were the only other persons accompanied Krishnagir to the hospital at Pilani. At Pilani Sewanand and Krishnagir had not gone to same hospital nor they had travelled in the same car. Police has not accompanied them. As per the prosecution case, Krishnagir was directly taken Hissar on the advice of PW/2 Dr. Tarun Bedwal. In these circumstances, only these four viz. Prithvi Gir, Ramgir, Naresh and Dr. Bedwal were in a position to have informed back at Rampura about taking of Krishnagir to Hissar. Before going to Hissar, as per PW/3, Prithvi Gir names of the assailants were already disclosed by the Mahant Krishnagir. Out of the above four persons. only PVv/2 Dr. Bedwal and PW/3 Prithvi Gir have been examined. Both of them do not say that they informed anybody at Rampura or Pilani about onward carriage of Manant Krishnagir to Hisser. The other two witnesses have not been examined. In these circumstances, non-examination of these two vital witnesses cast a shadow of doubt on the whole story about dying declaration when seen in the light of the non disclosure of the names of assailants by Prithvi Gir until his statement under Section 161 Cr.PC. was recorded on 26th and his arrival at Hissar at a time which is after the death of Krishnagir. 51. In our opinion, it is not safe to rest conviction of the accused persons on the testimony of PW/3. Prithvi Gir about dying declaration which has not received corroboration from any quarter. 52. It is also to be noticed that as per the investigation officer and PW-23 Lakmaram, amongst the crowd while they stayed at the place of incident, no person from Balakdera came forward or was ever examined by them, when it is not in dispute that deceased Krishnagir was Mahant and Head of Balakdera and he has come to Balakdera for presiding over the 'Yagna' ceremony with his disciples and other followers. It cannot be believed that all the persons from Balakdera immediately disappeared from the scene. 53. Balbir Singh PW/4, the alleged eye-witness says that when after assailants have run away, they went into Satsangh Bhawan. Mahant Krishnagir was then alive and conscious and was speaking to Prithvi Gir. It cannot be believed that all the persons from Balakdera immediately disappeared from the scene. 53. Balbir Singh PW/4, the alleged eye-witness says that when after assailants have run away, they went into Satsangh Bhawan. Mahant Krishnagir was then alive and conscious and was speaking to Prithvi Gir. This fact does not find corroborated from any witness from Rampura Ashram where Mahant was the Chief Guest. Moreover, if Mahant was conscious and was talking to Prithvi Gir and these eye-witness were also at Satsangh Bhawan and none of them had left the place before wounded persons were taken to Pilani, and in fact, the eye-witnesses as per their own versions had carted later, there appears to be no reason that identification of assailants Could not have been revealed then and there to persons at Ashram. It is contrary to all ordinary course of human conduct that neither the victim, who was seriously wounded and who dies thereafter, could have named not only the two actual assailants but would have described 11 more persons conspirators, nor the person claiming to be very near to victim will not reveal the names of assailants then and there to person present. 54. We may now examine the testimony of Balbir Singh and Pratap Singh, the acclaimed eye-witnesses of the incident. While PW/3, Prithvi Gir has given details about the ongoing dispute between Krishna Gir and Mahant and his followers in respect of agricultural land and the criminal case in which Vazir and Hosiyar Singh were involved, no supportive documentary elidence has been placed on record by prosecution or by the witnesses in their examination to prove those facts which are matter of record. The details a ',out dispute has been primarily furnished for attributing the strong motive as the part of the accused to dwell upon the life of Krishnagir. The principal assertions we have noticed above, are that Mange Gir, Mahant of Pokhar ledi, since deceased, has tried to usurp the property of Ashram by making transfers in favour of his own relative which led to civil litigation. The civil litigation culminated in favour of Krishnagir and the possession of the land v.as restored to Krishnagir in execution of decree of civil Court. Mange Gir Died during the pendency of that litigation. His disciple Jora Gir was not allowed to become Mahant for keeping a woman. On account of this litigation. The civil litigation culminated in favour of Krishnagir and the possession of the land v.as restored to Krishnagir in execution of decree of civil Court. Mange Gir Died during the pendency of that litigation. His disciple Jora Gir was not allowed to become Mahant for keeping a woman. On account of this litigation. Jora Gir, and his associates who are accused became severely inimical to Krishnagir to the extent that attempts on life of Krishna Gir were made in past also once in court premises of Jina, in the process of restoration of possession, one child named Krishna was killed and attack was also made on the life of Krishnagir at Balakdera by Joragir Rajmai. Chandrabhan and Shiv Kumar of which Shiv Kumar was caught hold by nim and ishwar Singh and case in this respect is pending at Hissar. it nas also been stated that in the case of child death Vazir and Kalu were sentenced to to 7 years R.I. and that Vazir has absconded from custody in a pending matter relating to kidnapping of the owner of a petrol pump. But, no documentary proof in support of these incidents has been produced. 55. However, even assuming that strong motive was present for the appellants to kill Krishna Gir, but the same is also true about the Prithvi Gir and his associates to see that rival camp is wholly restrained from operating against them by sending them to Jail by foisting the case of assassinating Mahant Krishna Gir, where the assailants have not been identified by anyone. Such a motive is double-edged sword. 56. Balbir Singh has also given details about the enimity between the accused and the Krishna Gir. It shows their interests in the land. So far as substantive part of the incident witnessed by Balbir Singh is concerned, he states that on 23rd July, 2000 at about 8.00 AM in the morning, Krishnagir was sitting on a 'Divan' in Satsangh Bhawan. Sewanand was sitting on a met and some other saints were also sitting thereby whose names he does not 25 know and Hawa Singh was also sitting opposite Divan of Krishnagir. However, he was quick to say that they (means eye witnesses) were sitting outside the Satsangh Bhawan and they were sitting under a 'Zal tree'. Sewanand was sitting on a met and some other saints were also sitting thereby whose names he does not 25 know and Hawa Singh was also sitting opposite Divan of Krishnagir. However, he was quick to say that they (means eye witnesses) were sitting outside the Satsangh Bhawan and they were sitting under a 'Zal tree'. While he has stated the distance between himself and Krishnagir about 10-12 feet and that all the alleged eye witnesses were sitting nearby under the 'Zal tree' from where they saw that at around 10.30 AM, two persons came through the crowd near Mahant Krishnagir. The man in front was wearing Paint, Shirt and he fired as soon as he reached near the door of the Satsangh Bhawan. He fired three to four times. Sewanand grabbed the person who has fired at Krishnagir. On that distance, the man who was coming behind the man in Paint and Shirt, wearing Kurta, Payjama fired two to three rounds at Sewanand and Sewanand fell down and they turned and ran towards the gate from which they come inside. 57. Balbir Singh tells that they went out firing at wall and he recognised them when they turned round. According to him, the man who fired at Krishnagir was Vazir S/o Hosiyar Singh and was a disciple of Dunigir Gosain. He alongwith Pratap Singh, Hawa Singh and Rajveer went behind the assailants after the assailants have gone out of gate. At the gate, Balram S/o Krishan Chand was firing in the air with his double-barrie gun. At some distance Lachaman S/o Jagannath was standing. At some distance, a Car was parked where two persons were standing near the car, whom they could not identify. Thus, according to him, in all six persons were involved; whereas as per Ex.P/1, only four persons were involved in the incident. According to this witness PW/4, Balbir, Prithvi Gir, PW/3 and Ramgir were chief disciples of Mahant and had taken Mahant Krishnagir to Pilani and Sewanand was taken by Raghvananda. When he alongwith Pratap Singh Hawa Singh and Rajveer reached Pilani then Raghvanand told them that Krishnagir has been taken to Hissar. This Raghav Gir is also not examined so as to throw any light about who informed him about Krishnagir's departure to Hissar or whether any information about assailants was communicated or who accompanied Krishnagir to Hissar. 58. When he alongwith Pratap Singh Hawa Singh and Rajveer reached Pilani then Raghvanand told them that Krishnagir has been taken to Hissar. This Raghav Gir is also not examined so as to throw any light about who informed him about Krishnagir's departure to Hissar or whether any information about assailants was communicated or who accompanied Krishnagir to Hissar. 58. The deceased Sewanand was known at Rampura Ashram. Firing at him is reported in FIR. It is also stated in the FIR that a person near Mahant has grabbed the assailant who has shot at Mahant Krishnagir and thereafter the other assailant shot at Sewanand. However, it is not stated that Sewanand grabbed the assailant. However, Balbir Singh, who is sitting outside he Satsangh Bhawan under a tree names Sewanand as person who grabbed the assailant. 59. It may be noticed that as per his statement wherever Bhandara was to take place, he alongwith Pratap Singh, Hawa Singh and Rajveer accompanied Mahant Krishnagir. Inspite of this regular feature, no one noticed their presence at Rampura Ashram. He has not come to Rampura Ashram earlier and has left the Ashram soon after the occurrence following wounded Mahant, yet he describes details of Ashram as if he is a regular visitor. He also says that they reached Hissar at about 4.30 to 5.00 PM. By that time, Mahant had died. He admits that Hissar Police came at hospital after they reached there. But the witness does not tell anything to police about the incident. 60. Apart from the aforesaid fact, he divulged the names of the assailants only on 26th July, 2000 after Prithvi Gir has decided to speak about the dying declaration to the police and also revealing the names of these witnesses as eye-witnesses, and suffer from the same weaknesses as the statement of Prithvi Gir as discussed above, so far as not divulging the names of the assailants earlier. On 25th July, when Investigating Officer has reached Balakdera, he was assiduously sent back by saying that right now the climate is hot and the information will be divulged later on. He has greatly improved over his statement under Section 161 Cr.P.C. at every stage. According to Balbir Singh he has met Mangal Gir immediately after the n incident. On 25th July, when Investigating Officer has reached Balakdera, he was assiduously sent back by saying that right now the climate is hot and the information will be divulged later on. He has greatly improved over his statement under Section 161 Cr.P.C. at every stage. According to Balbir Singh he has met Mangal Gir immediately after the n incident. He has also stated that he has told Mangal Gir about the entire incident and Mangal Gir has asked him to go with Babaji and he will take care of polio proceedings. This shows that Mangal Gir was present at the time of incident and as per Ex.P/1, if Balbir Singh had told everything about the incident to Mangal Gir, as alleged by him and he has assured him to takecare of police proceedings. the investigation does not support Balbir's statement. Non-examination of Mangal Gir and non disclosure of any name in the very first opportunity by Mangal Gir on 23.7.2000 and later on by himself makes the statement of Balbir Singh highly suspect. He has stated that he has told the police in his earlier statement that whenever Krishna Gir was going out, we were always going with him but the said statement did not find place in Ex.D/5 in his statement under Section 161. While in his examination-in-chief, he stated that he has come to Lalgiri because Mahant Krishnagir has instructed to reach at the closing ceremony of Rampura Yagna'. But the said statement is an improvement over the statement under 45 section 161. The place of his sitting at about 12-13 feet also does not find place in the statement under section 161, Ex.D/5 is his police statement. The fact that they saw two persons and one of them fired near the door of Satsangh Bhawan towards Krishan Gir who was wearing Paint, Shirt also does not find place in his statement under section 161 Cr.P.C. He has resiled from his statement under section 161 5o Cr.P.C. when he said that he does not recollect that Sewanand caught hold of a man who has fired at Swami ji. Likewise about the assailants turning and running towards the gate from which they have come and firing at the back wall of the Ashram, is an improvement over the previous statement. Likewise about the assailants turning and running towards the gate from which they have come and firing at the back wall of the Ashram, is an improvement over the previous statement. A significant fact does not find place in the statement Ex.D/5, is that while they were returning from gate, Krishnagir was being taken to Pilani in car. He virtually forgets everything about his earlier statement or denies to have made such statement as is put to him when he asserts that his memory is good and not weak. He was categorical about the fact that he has not come to Rampura before this incident nor after ward. He also says that when he has gone inside the Satsangh Bhawan, Krishnagir was talking. He says that nor to he or anyone of them has gone to police Station for lodging a report. The proximity which Balbir Singh claims with Krishnagir, not reporting of the incident to the police when he was shot down but running from the scene of occurrence without assisting the police in finding out the culprits also shows the doubt about his proximity with Mahant and about his presence on the site. 61. The aforesaid witness was categorical in his statement that he and his colleagues, the other eye-witnesses named by Prithvi Gir were sitting under the Zal Tree. According to the site-plan, the situation of two Zal trees standing in the Ashram is such that from that place it is not possible to see what is happening inside Satsangh Bhawan. That is also the statement of PW-23, Lakmaram when he says that according to the site plan where Jal Tree is situated in Ashram, it is not possible to see what is happening inside the Satsangh Bhawan. 62. The same infirmities are attached with the statement of PW-5, Pratap Singh. He states that they had left scene of occurrence after about 25 minutes to one hour after Krishna Gir and Sewanand were taken to Pilani. The incident had occurred around 10.30 PM. By 11.35 police was there. These eye-witnesses have stayed in the campus for about an hour. While Balbir Singh states that Mangal Gir was informed about the incident, Pratap Gir had stated that no one from Ashram including Mangal Gir was informed 30 about the assailants or the incident. The incident had occurred around 10.30 PM. By 11.35 police was there. These eye-witnesses have stayed in the campus for about an hour. While Balbir Singh states that Mangal Gir was informed about the incident, Pratap Gir had stated that no one from Ashram including Mangal Gir was informed 30 about the assailants or the incident. Thus, if Pratap Singh is to be believed, all the four witnesses who are regular members of conclave of Krishnagir, left the place without leaving any clue for the police or the Ashram managers to reach the culprits. This is hard to believe. This is quite in contrast with the statement of Balbir Singh, PW/4. 63. The other two witnesses Rajveer Singh and Hawa Singh have not been examined. 64. Coupled with the aforesaid infirmities, it is apparent that eye-witnesses PW/4, Balbir Singh and PW/5, Pratap Singh have reached Hissar at about 4.30/4.35 PM much after Krishnagir has died and according 40 to the statement of Prithvi Gir he has also reached after 3.30 whereas according to post mortem report, Krishnagir has died at 3.10 PM. This also give rise to probability, and it cannot be ruled out, that Prithvi Gir, Balbir Singh and Pratap Singh all have reached directly to Hissar after having come to know about firing at Mahant in Rampura had taken place and wherefrom 45 Krishna Gir has been taken to Hissar since the incident, only after death of Krishna Gir. Inimical relations with the accused party and this witness is an admitted position. There being no direct evidence, the possibility of a well-thought strategy by Prithvi Gir, the successor to Mahant Krishnagir in consultation with PW/4, Balbir Singh and PW/5 Pratap Singh to name accused persons with strong motive to kill Krishnagir on the basis of inimical relationship, cannot be ruled out. It is trite to say that however the strong motive may be, it cannot take the place of proof. 65. As we have found that dying declaration and the statement of eye-witnesses both do not inspire confidence to be truthful. and there is no other corroborative evidence to support their statements and the witnesses named in FIR having become hostile and no weapons of crime viz. fire arms have been recovered from the accused persons, the case against the accused persons for any of the offences is not proved. 66. and there is no other corroborative evidence to support their statements and the witnesses named in FIR having become hostile and no weapons of crime viz. fire arms have been recovered from the accused persons, the case against the accused persons for any of the offences is not proved. 66. Consequently, the convictions of Vazir, Joragir Balraj and Lichman on each count are set aside and Appeals No. 781/2002 and 718/2002 are allowed. The appellants-convicts be released forthwith, if not wanted in any to other case.The State Appeal No. 105/2003 is dismissed. *******