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2004 DIGILAW 256 (HP)

ANIL KATOCH v. STATE OF H. P.

2004-10-05

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT Lokeshwar Singh Panta, J.: - Appellants Anil Katoch and Dilawar Chand (hereinafter referred to as the accused) along with the two others faced trial in Sessions Case No. 37-B/99 (RBT No. 11-B/2000) for the alleged commission of offence punishable under Sections 302 read with Section 34 of the Indian Penal Code and Sections 201 and 212 of the Indian Penal Code, 1860 (for short the IPC). The learned Addl. Sessions Judge (I), Kangra at Dharmashala found accused Anil Katoch and Dilawar Chand to be guilty of offence under Section 302 read with Section 34 I.P.C. Each was sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/- each. The fine if realized was ordered to be paid to PW-3 Smt. Kapahi Devi. While two co-accused, namely, Jeewan Chand and Parvinder Singh were acquitted. The prosecution version as unfolded during the trial may briefly be stated thus: 1. On 19.7.1999 at about 6.20 a.m. PW-30 Sanjay Kumar Sharma, the then Station House Officer, Police station, Baijnath, PW-27 Bashir Khan, Dy. Superintendent of Police and PW-29 Head Constable Bhup Singh were conducting exercise raid at a place known as Mahakal in sub-Division Baijnath District Kangra. Some persons told the police party that one injured person had been taken to Hospital at Baijnath. They went to the hospital. PW-30 made an application (Ext. PW-1/A) to PW-1 Dr. N.9.R. Shanoy, Medical Officer who was attending upon Ashok Kumar injured to ascertain if the injured was in a fit state to make the statement. PW-1 certified that Ashok Kumar was in a fit merjtal state to make the statement. PW-30 asked PW-29 Head Constable Bhup Singh to record the statement (Ext. PW-1/C) under Section 154 Cr. P.C. of Ashok Kumar which was thumb marked by the injured and attested by PW-30. Ashok Kumar injured died immediately after making the said statement. Statement (Ext. PW-1/C) was sent by PW-30 to the Police Station/or registration of the case. On the basis of Ext. PW-1/C, PW-28 ASI, Joginder Singh registered a formal First Information Report (Ext. PW-28/A) at Police Station, Baijnath at about 7.30 p.m. PW-28 was called by PW-30 to reach at the Hospital. PW-28 prepared inquest reports (Exts.PW-4/B and PW-4/C). PW-22 Satish Kumar Sharma, took photographs (Exts.PW-22/1 to PW-22/5) of the dead body of Ashok Kumar in the Hospital. On 20.7.1999, PW-28 moved an application (Ext. PW-4/A) to PW-4 Dr. PW-28/A) at Police Station, Baijnath at about 7.30 p.m. PW-28 was called by PW-30 to reach at the Hospital. PW-28 prepared inquest reports (Exts.PW-4/B and PW-4/C). PW-22 Satish Kumar Sharma, took photographs (Exts.PW-22/1 to PW-22/5) of the dead body of Ashok Kumar in the Hospital. On 20.7.1999, PW-28 moved an application (Ext. PW-4/A) to PW-4 Dr. G.S. Sood who at the relevant time was posted as Medical Officer in Civil Hospital, Palampur for conducting post mortem of the dead body of Ashok Kumar. He also recorded the statements of Sanjay Rdna and Anil Rana witnesses. PW-38 Sanjay Kumar Sfjiarma, the Investigating Officer visited the spot of the incident. He found blood on the leaves of the bushes and on a wrapper of bundle of Bidi on the spot which were taken into possession vide recovery memo (Ext. PW-30/C) in the presence of PW-12 Beli Ram and PW-17 Raj Kumar. He recorded the statements of PW-2 Rajesh Kumar and PW-5 Puran Chand. Spot map (Ext. PW-30/C) was prepared. Statements of PW-3 Smt. Kapahi devi mother of the deceased, Situ and PW-6 Amar Nath were also recorded. PW-30 thereafter went to Krishna Nagar where the shop of Dilawar Chand accused was found locked. He broke open the lock of the shop where a Maruti Van bearing registration No. HP-53-3500 was found parked inside it. On checking the said vehicle, PW-30 found stains of blood inside and outside the vehicle. The vehicle was taken into possession in the presence of PW-8 Ashok Kumar and PW-27 Smt. Shakuntla Rani. Memo (Ext. PW-30/D) of the spot and the recovery of the Van was also prepared. Photographs (Exts. PW-7/A to PW-7/D) of the van were also taken. 2. On 21.7.1999, PW-30 broke open the lock of the quarter of Anil Katoch accused at Mahakal. During search of the quarter of Anil Katoch, PW-30 found a sheath of a sword kept on the almihra between the books. The said sheath was also taken into possession vide recovery memo (Ext. PW-10/A) in the presence of PW-2 Rajesh Kumar and PW-10 Smt. Maina Devi. On 23.7.1999 PW-30 arrested the accused Anil Katoch, Dilawar Chand and Jeewan. Accused Dilawar Chand made a disclosure statement (Ext. The said sheath was also taken into possession vide recovery memo (Ext. PW-10/A) in the presence of PW-2 Rajesh Kumar and PW-10 Smt. Maina Devi. On 23.7.1999 PW-30 arrested the accused Anil Katoch, Dilawar Chand and Jeewan. Accused Dilawar Chand made a disclosure statement (Ext. PW-5/A) in the presence of PW-5 Puran chand and PW-4 Baini Chand under Section 27 of the Evidence Act stating that on 21.7.1999 he kept a sword in the house of accused-Parvinder Singh at Lanjot (Shahpur). On the basis of the said disclosure statement sword (Ext. P-1) was recovered from one room in the ground floor which was kept underneath the mattress from the house of the accused Parvinder Singh in the presence of PW-12 Beli Ram and PW-18 Nasib Singh. Parvinder Singh accused was arrested on the same day. Statement of Jeewan Chand accused under Section 27 (Ext. PW-17/A) was recorded in the presence of PW-5 Puran Chand and PW-17 Raj Kumar. Pursuant to the said statement, some ash of burnt shirt of Jeewan Chand accused and Rani and half burnt button were taken into possession. On 27.7.1999 Anil Kumar Katoch accused made disclosure statement (Ext. PW-13/A) in the presence of PW-7 Smt. Shakuntla Rani and PW- 16 Tarlok Chand that he had concealed one sword at place Tanotoo by the side of the path and he could get the same recovered. Pursuant to the said disclosure statement sword (Ext. P-1) was recovered from inside cement pipes. On 28.7.1999 Dilawar Chand accused produced his pant (Ext. P-4), Anil Kumar Katoch accused produced his Baniyan (Ext.P-5), shirt (Ext. P-21), Pajama/Pant (Ext. P-22) and Jeewan Chand accused produced his pant (Ext. P-6) to the Investigating Officer which were taken into possession. Certificate of registration of the van was taken by the Investigating Officer on 3.8.1999 from the office of Sub Divisional Magistrate, Baijnath. The vehicle was mechanically examined by PW-19 Ramesh Bali who on inspection of the vehicle issued mechanical report (Ext. PW-19/A). The Investigating Officer also collected the copies of the revenue records from the revenue official. On receipt of the reports (Exts.PW-30/A and PW-30/C) from F.S.L. Junga, PW-30 submitted charge sheet against the accused persons before the Judicial Magistrate, 1st Class, Baijnath. 3. The trial of the case was committed to the learned Sessions Judge, Kangra at Dharamshala by the learned Judicial Magistrate. On receipt of the reports (Exts.PW-30/A and PW-30/C) from F.S.L. Junga, PW-30 submitted charge sheet against the accused persons before the Judicial Magistrate, 1st Class, Baijnath. 3. The trial of the case was committed to the learned Sessions Judge, Kangra at Dharamshala by the learned Judicial Magistrate. The learned Sessions Judge assigned the trial of the case to the learned Additional Sessions Judge-I, Dharamshala for disposal. The accused pleaded not guilty to the charges and claimed trial. 4. In order to bring home the accusation, thirty witnesses were examined by the prosecution. 5. The accused in their statements recorded under Section 313 Cr. P.C. pleaded false implication and claimed to be innocent. Dilawar chand accused stated that he is not known by nick name Rani. Anil Kumar Katoch accused also pleaded that he has been falsely implicated by PW. Puran Chand with the help of Station House Officer and the Doctor. He pleaded that his nick name is not Neetu or Bitu as alleged by the prosecution. 6. The trial court found the evidence of PW-1 Dr. N.S.R. Shanoy, PW-3 Smt. Kapahi Devi, mother of the deceased, PW-5 Puran Chand, PW-6 Amar Nath, PW-27 Washir Khan, Dy. Superintendent of Police, PW-29 Head Constable Bhup Singh and PW-30 Sanjay Kumar Sharma, Investigating Officer corroborated by oral and written dying declaration (Ext. PW-1/C) made by the accused in the Hospital cogent and reliable. Placing reliance on their evidence, the trial Court found two accused persons namely Anil Kumar Katoch and Dilawar Chand guilty of the commission of the offence punishable under Section 302 read with Section 34 of the I.P.C., but found that the prosecution has not established its case so far as co-accused Jeewan Chand and Parvinder Singh are concerned and accordingly directed their acquittal. He, therefore, vide judgment and order dated 26.2.2002 convicted and sentenced Anil Kumar Katoch and Dilawar Chand accused as aforesaid. 7. Feeling aggrieved by the conviction and sentence imposed upon them, both the accused have preferred the above said two separate appeals. We have heard both these appeals together and they are being disposed of by this common judgment. 8. In support of the appeal, the learned Counsel for the accused submitted that the trial Court has not analyzed the evidence in proper perspective. The deceased had not identified the convicted accused to be the assailants in the so called written dying declaration (Ext. PW-1/C). 8. In support of the appeal, the learned Counsel for the accused submitted that the trial Court has not analyzed the evidence in proper perspective. The deceased had not identified the convicted accused to be the assailants in the so called written dying declaration (Ext. PW-1/C). The evidence of the witnesses of the oral dying declaration is not believable and reliable. Further the recovery of two swords (Ext. P-1 and Ext. P-2) alleged to have been made at the instance of the accused persons has not been proved as the recovery witnesses have not supported the version of the prosecution in that regard. 9. In response, the learned Deputy Advocate General for the State supported the judgment of the learned trial Court and further submitted that in view of the analysis of the evidence made by the learned trial Court and nature of the injuries proved to have been inflicted on the person of the deceased no interference is called for by this court in the judgment of the learned trial Court. 10. In order to appreciate the rival contentions of the learned Counsel for the parties we have reappraised and scrutinized the evidence appearing on the record. 11. PW-1 Dr. N.S.R. Shanoy, medically examined injured Ashok Kumar on 19.7.1999 at about 6.17 p.m. in Civil Hospital at Baijnath. The injured was accompanied by PW-29 H.C. Bhoop Singh as per the entry in M.L.C. Ext. PW-1/E. PW-30 made an application Ext. PW-1/A to PW-1 to give his opinion whether Ashok Kumar was in a fit condition to make the statement. Doctor found the injured in a fit state of mind to make the statement. PW-29 Head Constable Bhup Singh at the instance of PW-30 Sanjay Kumar Sharma, Station House Officer recorded the statement Ext. PW-1/C of Ashok KUmar. Dr. Shanoy on medical examination of injured Ashok Kumar found the following injuries on his person: 1. Incised wound 2 x 1 cm red in colour slightly inclined. Spindle shaped with clean adjust on the right side of chest about 3 cm. about right nipple. Lung deep as airs is coming out during expiration and sucked in during inspiration. 2. Incised wound 2x1 cm. read slightly inclined, clean margin on the right side of chest about 3 cm above injury No. 1. Lung deep as air is being sucked in and blow out through the wound. 3. about right nipple. Lung deep as airs is coming out during expiration and sucked in during inspiration. 2. Incised wound 2x1 cm. read slightly inclined, clean margin on the right side of chest about 3 cm above injury No. 1. Lung deep as air is being sucked in and blow out through the wound. 3. Incised wound about 5x5x5 cm, extending almost all around the lower t/4th of the left forearm. Both the bones clearly cut and the left hand hanging from a part of skin about 3 cm. in breadth. Margine regular. 4. 8x2x1 cm. incised wound red in colour, clean margines on the right side of forehead extending upwards from the right angle of eye to the hair line. 5. 4x2x1 cm incised wound on the left side of forehead extending from left side of middle of forehead obliquely upwards to the hair line. Clean margines red in colour. 6. 2x1 cm. incised wound on the right side of the epigastier about 2 cm below the costral margine clean edge, red, depth not assessed abdomen soft. 7. 5x2x1 cm. transfers incised wound on the chin. Clean edges. Red. 8. About 10x3x4 cm. incised wound extending backward between third and the 4th toes on the left foot backwards upto about 2 cm below the ankle. Wound through and through the thickness of left foot. 12. Injury No. 1, 2, 3 and 8 were found grievous in nature whereas other injuries were found simple caused by sharp edged weapon. Duration of the injuries was within two hours. In Ext. PW-1/F, the time of death of Ashok Kumar was given at 6.55 p.m by PW-1. PW-4 Dr. G.C. Sood had conducted post mortem or, the dead body of Ashok Kumar on 20.7.1999 at Civil Hospital, Palampur. In his opinion, the cause of death was due to excessive external and internal haemorrhage due to multiple injuries on scalp, aforesaid and both the lungs were injured and collapsed. He has admitted in the cross-examination that keeping in view the overall injuries over the body of the deceased, the death could be instantaneous. 13. In the present case, the prosecution has relied upon one oral dying declaration alleged to have been made by the deceased before PW-3, PW-5 and PW-6. The second written dying declaration is Ext. He has admitted in the cross-examination that keeping in view the overall injuries over the body of the deceased, the death could be instantaneous. 13. In the present case, the prosecution has relied upon one oral dying declaration alleged to have been made by the deceased before PW-3, PW-5 and PW-6. The second written dying declaration is Ext. PW-1/C i.e. the statement of the deceased recorded by PW-29 at the instance of PW-30 under Section 154 I.P.C. at Baijnath Hospital in the presence of PW-1 Dr. N.S.R. Shanoy, PW-27, Deputy Superintendent of Police and PW-30, Station House Officer. 14. It is by now well settled that dying declaration is admissible in evidence and can form the basis for conviction, if found to be reliable. While, it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. In order that a dying declaration may form the sole basis for conviction without need for independent corroboration, it must be shown that person making it had the opportunity of identifying the person implicated and it is thoroughly reliable and free from blemish. .If, on the facts and in the circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court, on strict scrutiny, finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence should not be acted upon unless it is corroborated. 15. Dealing with the question of evidentiary value to be attached to a dying declaration, the Supreme Court in Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, 1993(2) SCC 684 held as under: ("Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit worthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that persons death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same possess the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the Court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declaration are consistent with each other in material particulars before accepting and relying upon the same..........." 16. Again in Arvind Singh v. State of Bihar, 2001(6) Supreme Court Cases 407, their Lordships of the Supreme Court held that dying declarations shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. 17. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. 17. PW-3 mother of the deceased has specifically stated that at about 6 p.m. on the day of occurrence Bitu @ Rajnish Kumar @ Pritu (PW-2) came to her house and told her that Rani, Bitu1 and Jeewan were cutting Dhouna near the sheller of Madhu. When she went at the place of occurrence, she saw Jeewan and Rani from a distance of 17-18 yards from the place of occurrence armed with sword in their hands stained with blood entering a van. She asked Rani to stop and cried as to what wrong was done by her son against him. She also abused him. She lifted her injured son Ashok Kumar who told her that he was injured by Nitu1, Rani and Jiwan with sword. PW-2 has not corroborated the version of PW-3. He was cross-examined by the Public Prosecutor in length but nothing is elicited from his cross-examination to prove the identity of the accused persons. A suggestion of the Public Prosecutor that PW-2 had disclosed to PW-3 that Ashok Kumar was given beatings by Jeewan, Nitu and Rani is emphatically denied by him. 18. PW-5 stated" that injured Ashok Kumar told his mother PW-3 that he was assaulted with sword by Nitu and Rani. He admitted in the cross-examination of the accused that the names of the parents of Nitu and Rani were not disclosed by injured Ashok Kumar nor did he mention about their caste and places of residence. He deposed that he did not inquire about the identity of assailants from injured Ashok Kumar. This witness informed the Police on telephone about the occurrence. He did not disclose to the Police on telephonic message that Ashok Kumar was assaulted by Nitu and Rani. PW-6 Amar Nath stated that he along with PW-3 lifted injured Ashok Kumar from the place of occurrence and placed him by the side of the road. The injured disclosed to his mother that one Nitu and Rani assaulted him. He deposed in the cross-examination that nothing was told in his presence by Ashok Kumar regarding identification and features of the assailants. The version of PWs. The injured disclosed to his mother that one Nitu and Rani assaulted him. He deposed in the cross-examination that nothing was told in his presence by Ashok Kumar regarding identification and features of the assailants. The version of PWs. 3, 5 and 6 do not prove that both the accused persons are also named as Nitu and Rani. The names of the accused persons were not disclosed by injured Ashok Kumar to PWs. 3, 5 and 6 nor the names . of their parents and places of residence have been mentioned. 19. In written dying declaration (Ext. PW-1/C) recorded by PW-29 at the instance of PW-30 in the presence of PW-1 Dr. N.S.R. Shanoy and PW-27 Dy. Superintendent of Police, the deceased had given the names of Rani and Nitu to be the assailants who without any reason or cause had inflicted sword blows on his per soft at about 6 p.m. on 19.7.1999 at road side of Vikas Nagar. In this written dying declaration, the deceased had not stated that he had named Rani and Nitu1 to be the assailants to PW-3, PW-5 and PW-6 at the spot of the occurrence 20. The fact whether the deceased was conscious and was in a fit of mental condition to make a voluntary disclosure of the incident is not free from doubt. Ext. PW-1/A is the application made by PW-30 to PW-1, Medical Officer inquiring him if the deceased was fit to make the statement. On perusal of application (Ext. PW-1/A), we find that PW-1 Dr. N.S.R. Shanoy had not opined whether the deceased was in a fit mental state to make voluntary statement. In M.L.C. (Ext. PW-1/E), doctor has recorded that injured Ashok Kumar was brought to hospital at about 6.47 p.m. ion 19.7.1999 by PW-29. It is the evidence of PWs. 29 and 30 that some occupants of the van informed them at place known Mahakal that there was some fight between some persons and injured person had been taken to the hospital. When they reached at hospital, the deceased was already under medical treatment of PW-1. The written dying declaration (Ext. PW-1/C) recorded by PW-29 at the instance of PW-30 would go to show that there was some over writing in the date and timing. Time was changed from 6.47 to 6.45 p.m. Ext. When they reached at hospital, the deceased was already under medical treatment of PW-1. The written dying declaration (Ext. PW-1/C) recorded by PW-29 at the instance of PW-30 would go to show that there was some over writing in the date and timing. Time was changed from 6.47 to 6.45 p.m. Ext. PW-1/C does not bear the signature of scribe PW-29 nor his designation was mentioned thereon. PW-29 in the cross-examination has admitted that it could not be inferred from Ext. PW-1/C that the dying declaration was written by him. He has admitted a suggestion of the accused that the injured died immediately after making statement (Ext. PW-1/C). It has come in the evidence of PW-27, Dy. Superintendent of Police that when statement (Ext. PW-1/C) was recorded by PW-29 in the hospital, the condition of injured Ashok Kumar was serious. He admitted in the cross-examination that at the time of recording of the dying declaration (Ext. PW-1/C), the voice of injured Ashok Kumar could not be understood. As per the version of PW-27 injured Ashok Kumar was questioned by PW-30 and his answers were recorded by PW-29. He stated that injured Ashok Kumar could not tell the names of the father of Nitu and Rani. It is his version that name of Nitu was clarified by the persons who were present in the Hospital whereas Ashok Kumar injured had uttered word Mittu. PW-30 admitted having made overwriting of time 6.47 p.m. and he has not put his initial signature in proof thereof. He said that he put questions to injured Ashok Kumar. He admitted that the names of Rani and Nitu were dictated by him to PW-29 and he did not ascertain the names of the parents of the assailants and their addresses. He stated that no telephone message was received by Moharrir Head Constable in the Police Station from PW-5 about the occurrence as deposed by PW-5, PW-1 Dr. N.S.R. Shanoy endorsed the statement (Ext. PW-1/C) having been written in his presence. It has come in his cross-examination that he has not mentioned in the M.L.C. that the patient was conscious at the time when he was admitted in the hospital. It is his categorical statement that he attended injured Ashok Kumar after he was brought to the hospital as his first job to provide life saving blood to the patient. It has come in his cross-examination that he has not mentioned in the M.L.C. that the patient was conscious at the time when he was admitted in the hospital. It is his categorical statement that he attended injured Ashok Kumar after he was brought to the hospital as his first job to provide life saving blood to the patient. He has admitted in the cross-examination that in endorsement (Ext. PW-1/D) made on Ext. PW-1/C, he had initially written 6.4 under his signature but later on he deleted the figure. It has come in his cross-examination that statement (Ext. PW-1/C) was recorded by some police official when he was giving treatment to the patient as well as giving instructions to the subordinate staff and at that time a number of other persons were also present in that room. In view of such evidence, the onus was heavily on the prosecution to establish that the deceased was in a fit mental state to make the statement. Such evidence is lacking in the present case. 21. In Paprambaka Rosamma and others v. State of A.P., i999 SCC (Cri.) 1361, their Lordships held:- "In the absence of a medical certification that the injured was in a fit state of mid at the time of making the declaration, it would be very risky to accept the subjective satisfaction of the Magistrate who opined that the injured was in a fit state of mind at the time of making the declaration". The Honble Supreme Court further observed: "It is true that the medical officer Dr. K. Vishnupriya Devi (PW-10) at the end of the dying declaration had certified patient is conscious while recording the statements. It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injures on her person. Dr. P. Koteswara Rao (PW-9) who performed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K. Vishnupria Devi (PW-10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. the certificate of the said expert at the end only says that patient is conscious, while recording the statement. In view of these material omissions, it would not be safe to accept the dying declaration (Ex P-14) as true and genuine and as made when the injured was in a fit state of mind. From the judgment of the courts below, it appears that this aspect was not kept in mind and resultantly they erred in accepting the said dying declaration (Ext. P-14) as true, genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonyrmous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below." 22. In the present case as stated above, PW-1 Dr. N.S.R. Shanoy has not opined in Ext. PW-1/A and/or Ext. PW-1/C that victim Ashok Kumar was in a fit state of mind at the time of making the declaration. In view of these material omissions, it would not be safe to accept the dying declaration (Ex. PW-1/C) as true and genuine and as made when the injured as in a fit state of mind. Therefore, the alleged dying declaration (Ext. PW-1/C) cannot be relied upon to prove the identity of the accused persons for holding them to be guilty of the offence 23. In so far as the oral dying declarations alleged to have been made by deceased to PWs. 3, 5 and 6 is concerned, the same also do not inspire confidence. The deceased had not given the names of the accused persons to be the assailants either to PWs. 3, 5 and 6 or in his statement (Ext. PW-1/C). In so far as the oral dying declarations alleged to have been made by deceased to PWs. 3, 5 and 6 is concerned, the same also do not inspire confidence. The deceased had not given the names of the accused persons to be the assailants either to PWs. 3, 5 and 6 or in his statement (Ext. PW-1/C). It is well settled that dying declaration which does not contain complete names and addresses of the persons charged with the offence, cannot be accepted without corroboration. Their Lordships of the Supreme Court in Gopal Singh and another v. The State of Madhya Pradesh and another, AIR 1972 Supreme Court 1557 held that dying declaration which does not contain complete names and addresses of the persons charged with the offence, even through may help to establish their identity is not of such a nature on which conviction can be based. The dying declaration cannot be accepted without corroboration. 24. Perusal of medico legal certificate (Ext. PW-1/A) shows that the deceased was shown to have been accompanied by PW-29 Head Constable Bhup Singh. If injured Ashok Kumar was in conscious condition, why he did not disclose the names of the assailants to the Doctor or to PW-29 Bhup Singh at that time. There is neither any answer nor any explanation to this. If the nicknames of the accused persons were disclosed by injured Ashok Kumar to PWs. 3, 5 and 6, they could have disclosed their names to the doctor or the Police immediately when the injured was taken to the hospital where these witnesses were present at the time of recording of alleged dying declaration (Ext. PW-1/C). In the facts and circumstances of the case, the only inference is that no oral dying declaration was made by the deceased to PW-3, PW-5 and PW-6. The identity of the accused persons have not been established beyond reasonable doubt by the prosecution. It has come in the evidence of PW-9 A.S. Kahwar on 19.7.1999 that he was coming with deceased Ashok Kumar at about 6.13 p.m. to his house when they reached near the sheller by the road side at Vikas Nagar, he went to the sheller to make payment. He heard some cries. It has come in the evidence of PW-9 A.S. Kahwar on 19.7.1999 that he was coming with deceased Ashok Kumar at about 6.13 p.m. to his house when they reached near the sheller by the road side at Vikas Nagar, he went to the sheller to make payment. He heard some cries. He denied the suggestion of the learned Public Prosecutor that PW-2 Rajnish Kumar was also accompanying them at that time, he also denied the suggestion of the prosecution that he had seen a Maruti van at the distance of 20-25 feet from the sheller bearing registration No. In Devnagri script HI PR-53/3500. He also denied the suggestion of the Public Prosecutor that Rani and Nitu were assaulting Ashok KUmar with sword and PW-2 Rajnish Kumar was standing silently by the side. Further he denied the suggestion of the Public Prosecutor that Dhawar Chand accused is known as Rani and Anil Kumar Katoch accused is known by nickname Nitu. PW-11 Rajesh Rana Up-Pradhan, Gram Panchayat, Chobin had denied the suggestion of the Public Prosecutor that Anil Kumar Katoch is known by the name of Nitu. He stated that when he reached at the rented premises of Anil Kumar Katoch accused, the police was already in possession of Sheath (Ext. PW-11/A) wrapped in a cloth and it was not recovered in his presence at the instance of Anil Kumar Katoch accused. He has admitted in the cross-examination of the accused that there are 2-3 persons known by nicknames Nitu in his area. PW-13 Karam Singh has also admitted that he could not say that Dilawar Chand accused is known as Rani and nickname of Anil Kumar Katoch accused is Nitu. 25. During the investigation, disclosure statement (Ext. PW-12/B) alleged to have been made by Dilawar Chand accused to the Investigating Officer in the presence of PW-12 Beli Ram and PW-18 Nasib Singh, Sword (Ext. P-1) was recovered from the house of co-accused Parvinder Singh. On the basis of disclosure statement (Ext. PW-14/A) made by Anil Kumar Katoch accused to the Investigating Officer in the presence of PW-14 Chukan sword (Ext. P-2) was recovered. AH these witnesses have turned hostile to the prosecution. They have been cross-examined by learned Public Prosecutor at length but they have categorically stated that both the accused had not made disclosure statements in their presence nor swords (Ext. P-1 and Ex. P-2) was recovered. AH these witnesses have turned hostile to the prosecution. They have been cross-examined by learned Public Prosecutor at length but they have categorically stated that both the accused had not made disclosure statements in their presence nor swords (Ext. P-1 and Ex. P-2) were recovered in their presence at the instance of the accused. Thus, the prosecution has not proved on record that the disclosure statements (Exts.PW-12/A and PW-14/A) were made by the accused persons to the Investigating Officer on the basis of which swords (Exts.P-1 and P-2) were recovered at the instance of- the accused persons. PW-16 Tarlok Chand has also stated that sketch (Ext. PW-16/A) of the recovery of the sword was not prepared by the Investigating Officer in his presence. PW-12 Beli Ram stated that the Station House Officer told him that sword had been recovered from the house of accused Parvinder Singh but it was not recovered in his presence at the instance of Dilawar Chand accused. 26. In the state of the evidence on record, we are not satisfied that the prosecution has proved its case beyond reasonable doubt against the accused persons. Their conviction and sentence, as such, cannot be sustained. 27. For the foregoing conclusions, we allow these appeals filed by the accused persons. The conviction and sentence imposed upon the accused persons by the learned Sessions Judge, Kangra at Dharamshala dated 26.2.2002 in Sessions Case. No. 37-B/99 (RBT No. 11-B/2000) is set aside and they are acquitted of the offence under Section 302 read with Section 34 of the Indian Penal Code. 28. The accused persons, who are in jail undergoing sentence, shall be set at liberty forthwith unless required in any other case. The amount of fine, if already paid, shall be refunded to the accused persons. Case property shall be dealt with as per directions of the learned trial Court. A copy of this judgment shall be sent to the accused persons through Superintendent Jail.