Judgment I.P.Singh and P.N.Yadav JJ. 1. Both the criminal appeals bearing Cr. Appeal No. 550 of 2000 and Cr. Appeal No. 521 of 2000 arise out of the same judgment have been heard together and are being disposed of by this common judgment. 2. The prosecution case, according to the fardbeyan, of Gobardhan Mandal (deceased) which was recorded in Government Hospital, Bhavanipur on 30.08.1992 at 08.45 p.m., alleging, inter alia, is that on 30.08.1992 at 8.00 p.m. he was going to his house along with Thakur Mandal from Bhavanipur Bazar and as soon as he reached ahead of Circletola which was on the other side of the canal, all of a sudden firing took place and one shot hit him at his back. It has been also alleged that Thakur Mandal was accompanying him (Gobardhan Mandal). He was also hit by the shot in his head. After sustaining injury both of them became unconscious. It has been further stated that the accused persons also took rupees six thousand from his pocket. Thereafter, when they were unconscious the villagers of Circletola brought them to the hospital on a cot where they were being treated. The cause of occurrence has been stated to be a dispute related to sale and purchase of land. On the basis of fardbeyan the police instituted a case being Bhavanipur P.S. Case No. 82 of 1992 for the offences under Sections 326, 307 and 373/34 of the Indian Penal Code and 27 of the Arms Act. Since the informant, Gobardhan Mandal died, later on Section 302/34 of the Indian Penal Code was also added. After completion of investigation police submitted chargesheet under Sections 324, 341, 307 and 302/34 of the Indian Penal Code. Accordingly, cognizance was taken and the case was committed to the Court of Sessions for trial. Ultimately, the trial was concluded and the appellants were convicted in the manner as stated above. 3. The appellants have denied the allegation and have stated that they have been falsely implicated in this case due to land dispute and also the village enmity. 4. The prosecution, in support of its case, examined altogether eleven witnesses, PW 1 is Kartik Mandal, P.S. 2 is Banki Mandal. He is the brother of PW 9, Cheedi Mandal, PW 3 is Anandi Mandal. He is son of PW 8, Thakur Mandal, PW 4 is Aran Mandal. 4. The prosecution, in support of its case, examined altogether eleven witnesses, PW 1 is Kartik Mandal, P.S. 2 is Banki Mandal. He is the brother of PW 9, Cheedi Mandal, PW 3 is Anandi Mandal. He is son of PW 8, Thakur Mandal, PW 4 is Aran Mandal. He is also the son of PW 8, Thakur Mandal, PW 5 is Shri Kant Mandal, he is the brother of deceased, Gobardhan Mandal, PW 6 is Dr. Kamleshwari Prasad Singh. He has examined the injured. PW 7 is Anil Kumar. He is son of Thakur Mandal. He is the hearsay witness. PW 8 is Thakur Mandal. He claimed to be eye-witness of the case. PW 9 is Chhedi Mandal. He is the witness of inquest. PW 10 is Dr. Indra Narayan. He has conducted the post-mortem examination on the person of the deceased. PW 11 is Balmiki Prasad. He is the Investigating Officer of this case. 5. PW 8, Thakur Mandal, who claims to be the eye-witness, has fully supported the case of prosecution. According to him, on the day of occurrence at about 08.00 p.m. he was going to his house along with Gobardhan Mandal (deceased) from Bhavanipur bazar. When they reached west of nahar. Rajendra Mandal, Upendra Yadav son of Prasad of O.P. Mandal @ Upendra Mandal met them.. According to him, he identified the above named persons. It has also been stated that when they proceeded some distance Upendra Yadav assaulted him with bhala and O.P. Mandal wanted to fire his shot at him and Rajendra Mandal @ Raju Mandal fired shot which hit the panjara of Gobardhan Mandal. He fell down. He has also stated that O.P. Mandal pressed his mouth and bhala hit him in his right gatta, left hand shoulder, ear and on his head. Thereafter, he became unconscious and raised alarm. He has also stated that the deceased, Gobardhan Mandal also became unconscious, thereafter, they were taken to hospital on a cot by the villagers. He became unconscious and regained his consciousness at 04.00 a.m. next day and he learnt that deceased Gobardhan Mandal was dead after giving- his fardbeyan. According to him, the cause of the occurrence was land dispute. According to him, his statement was recorded next day at 06.00 a.m. PW 2 is Banki Mandal. He is the brother of Thakur Mandal (PW 8). According to him, the cause of the occurrence was land dispute. According to him, his statement was recorded next day at 06.00 a.m. PW 2 is Banki Mandal. He is the brother of Thakur Mandal (PW 8). When he heard sound of firing he ran from his house and came at the place of occurrence with a torch in his hand. He saw Rajendra Mandal @ Raju Mandal running away. He also saw the revolver in his hand. He also saw O.P. Yadav of Bhavanipur running away. According to him, he was carrying bhala in his hand. He has stated that the moon had appeared in the sky. He has stated that he saw Gobardhan Mandal lying injured in the field of paddy. He also saw Thakur Mandal. Both were injured. According to him, his brother, Thakur Mandal (PW 8) told him that O.P. Yadav assaulted him with bhala and deceased Gobardhan Mandal also told him that Rajendra Mandal of Birse had fired gun shot at him. He has stated that both the injured, Gobardhan Mandal and Thakur Mandal, were taken to hospital on a cot where they were treated. He has stated that after recording fardbeyan Gobardhan died. At the time of recording his statement he was present there and also put his signature over it. He has also stated that after 2-3 days his statement was recorded and he has stated before the Investigating Officer that the deceased Gobardhan Mandal has told him that. Rajendra Mandal @ Raju Mandal has fired at him. PW 3 is Anandi Mandal. He also heard about the occurrence and he came to know that deceased Gobardhan Mandal was killed. According to him, Gobardhan Mandal died in the hospital. He has also stated that it was moon lit night. PW 4 is Arun Mandal. He is son of Thakur Mandal (PW 8). He, is also hearsay witness. According to him when he heard sound of firing having torch in hand he went to the place of occurrence and he also saw the appellants, Upendra Mandal, Rajendra Mandal and Upendra Yadav fleeing away. He has also stated that after sustaining injury the deceased Gobardhan Mandal after half an hour died thereafter they were taken to Bhavanipur Hospital. PW 5 is Shri Kant. Mandal. He is also hearsay witness. He has also stated that after sustaining injury the deceased Gobardhan Mandal after half an hour died thereafter they were taken to Bhavanipur Hospital. PW 5 is Shri Kant. Mandal. He is also hearsay witness. According to him, his house is at the distance of three rassi from the place of occurrence. When he heard the sound of firing he came to the place of occurrence and he saw both Gobardhan and Thakur in injured condition. He also saw the appellants, Rajendra Mandal, Upendra Mandal and Upendra Yadav. He has stated that he had identified the appellants in the light of torch. PW 6 is the Dr. Kamleshwar Prasad. According to him, on 30th August, 1992, he was posted as Medical Officer of Bhavanipur Hospital and he examined the injured Thakur Mandal and found the following injures : (i) Incised wound of scalp 4" x 1 /4" x 1/2" (ii) Incised wound of right side hand 1"x 1/2" (iii) Incised wound of right ear 1(1/2)" x 1/4" x 1/2" (iv) Left little finger of hand incised wound 1" x 1/2" x 1/2" (v) Incised wound of abdomen right side 3" x 1/2" x 1/2" 6. In his cross-examination he has stated that all the injuries found were incised injuries and were not penetrating. He has further stated that deceased, Gobardhan Mandal, who had been brought to the hospital was not in a position to understand anything. He has also stated that he gave a certificate that he is not in a position to speak. He had been declared hostile. In his cross-examination, in paragraph 7, he has stated that he took the injured Thakur Mandal in operation theatre and when he returned back, from operation theatre the Investigating Officer asked him to sign on the fardbeyan of the deceased Gobardhan. In paragraph 9 of his cross-examination he has stated that since fardbeyann of the deceased was not recorded in his presence, as such, he did not issue any certificate regarding the mental health of deceased as required in such cases. PW 7 is Anil Kumar Mandal. He has also stated that he heard the sound of firing. He went to the place of occurrence and he saw the appellants fleeing away. PW 9 is Chedi Mandal. He is witness on the inquest. PW 7 is Anil Kumar Mandal. He has also stated that he heard the sound of firing. He went to the place of occurrence and he saw the appellants fleeing away. PW 9 is Chedi Mandal. He is witness on the inquest. According to him, on 31.08.1992 at 07.00 a.m. at Bhavanipur Hospital the Police Officer had prepared the inquest report of deceased Gobardhan and he put his left thumb impression over it. He has stated that Anil Yadav has also put his signature. PW 10 is Dr. Indra Narain. He has conducted the post-mortem examination on the person of the deceased. According to him, he was posted as Civil Assistant Surgeon, Pumia Sadar Hospital, Purnia. On 31.08.1992 at 11.15 a.m. he has conducted the post-mortem examination on the deceased, Gobardhan Mandal. He found the following injures on his person : (i) External appearance rigor mortis in disappear phase in all four limbs; (ii) A sharp cut on the base of nose about 1/4" x 1/6"; (iii) A circular hole with charred raged mark at the level of left 16th rib in posterial exhilary line within a diameter of about 10 centimeter leading with the abdominal cavity, the wound of entry and no wound of exit was found. 7. On dissection of head and neck no abnormality detected by doctor. Both chambers of the heart were empty and lungs were pale. The abdominal cavity was fulfil of blood, spleen and left kidney were ruptured. Liver was pale, and right kidney was pale. The stomach contains rice, pulse and vegetables in semi digestive form, the intestine contained foul smelling gases and the bladder was empty. A bullet was removed and preserved. In the opinion of the doctor, the death has been caused by haemorrhage and shock as result of fire arm injury. 8. PW 11 is the Investigating Officer of this case. According to him, at about 08.30 Oclock on 30.08.1992 in the night he saw quite some persons going towards the hospital. He enquired from them and came to know that Gobardhan Mandal and Thakur Mandal were shot by fire arm. Thereafter, he proceeded to the police station and he also went to Bhavanipur Hospital and saw the injured, Gobardhan Mandal, where he was treated by the doctor. He also enquired from the deceased (Gobardhan Mandal). At that time he was conscious and he recorded his fardbeyan. Thereafter, he proceeded to the police station and he also went to Bhavanipur Hospital and saw the injured, Gobardhan Mandal, where he was treated by the doctor. He also enquired from the deceased (Gobardhan Mandal). At that time he was conscious and he recorded his fardbeyan. He has also stated that on the fardbeyan of the deceased the First Information Report (Exhibit 7) was drawn up. Thereafter he also prepared the requisition slip of Thakur Mandal and Gobardhan Mandal. On the same day at about 4.00 a.m. he came to know about the death of Gobardhan Mandal. Thereafter he recorded the statement (Exhibit 8) of Thakur Mandal. According to him, he inspected the place of occurrence and he has given full description of place of occurrence. In his cross-examination in paragraph 14 he has stated that after recording the fardbeyan of Gobardhan Mandal he went near Thakur Mandal but he was not ready to give his statement. Thereafter next day at six in the morning his statement was recorded. 9. Defence has also examined DW 1, Md. Ismail. 10. The learned counsel for the appellants has submitted that whether dying declaration would be relied upon without any certificate about his mental condition by the doctor or even by Officer-in-Charge. It has been further submitted that the witnesses have not corroborated the dying declaration. The doctor has denied about it. He has also submitted that the deceased was not in a position to give his dying declaration. The fardbeyan of deceased can not be relied upon. 11. In this regard, he has relied on a decision in the case of Paparambaka Rosamma and others V/s. The State of Andhra Pradesh, 1999 (3) East Cr C 322 (SC) : AIR 1999 SC 3455 , in which it was held that the certificate of doctor that the injured was not a fit state of mind is necessary and without, such certificate dying declaration cannot be relied upon. In the aforesaid case even though there was a certificate by the doctor that "patient is conscious while recording the statement" but Court further held "that a person may be conscious but not necessarily that he was also in a fit state of mind to give his statement". However, in the present case the doctor has only signed over the fardbeyan. 12. However, in the present case the doctor has only signed over the fardbeyan. 12. Learned counsel for the appellants has also submitted that scribe, Rambilas Thakur, was not examined although he had recorded the fardbeyan of the deceased in the presence of Investigating Officer and, in this regard, he has drawn our attention to a decision in the case of Govind Narain and another V/s. State of Rajasthan, AIR 1993 SC 2457 , in which it has been held that "by not examining scribe defence was deprived of opportunity to cross-examine him and no explanation" has been given for has non-examination as such it was also a good reason to discard the dying declaration. Lastly it has been submitted that the question putforth in the statement under Section 313 of the Code of Criminal Procedure was not explained properly. The learned counsel for the appellants has relied upon a decision in the case of Sharad Birdhichand Sarda V/s. State of Maharashtra, 1984 East Cr C 559 (SC) : AIR 1984 SC 1622 , even on this lacuna. 13. On the other hand, learned counsel for the State has submitted that even if exhibit 1 the dying declaration (statement) of the deceased is discarded then there are other witnesses to support the factum of occurrence. It has been further submitted that even if evidence adduced against the appellants has not been explained properly while asking the question from the appellants under Section 313 of the Code of Criminal Procedure, the same would not prejudice the case on this ground alone and the case of the prosecution cannot be discarded. 14. In this case the genuinity of the dying declaration/fardbeyan has been severely contested. A doubt has also been raised on fact whether the deceased was not in proper state of mental condition to get such statement recorded. It has also been elaborately explained that there was hardly any time between the, assault during the occurrence and death of the deceased in the hospital. The doctor (PW 6) who was declared hostile, falsifies the dying declaration. He has stated that it was not recorded in his presence. It has also been elaborately explained that there was hardly any time between the, assault during the occurrence and death of the deceased in the hospital. The doctor (PW 6) who was declared hostile, falsifies the dying declaration. He has stated that it was not recorded in his presence. He also stated that he was busy in operation theatre treating the injured, Thakur Mandal (PW 8) and when he came out, by that time the deceased had already died and his fardbeyan was recorded and Investigating Officer gave him statement of deceased and requested to sign over it and he put signature. The procedure for recording the dying declaration is that when doctor finds that the condition of patient is serious and he is in mental condition to get his statement recorded then a Magistrate is called for and he has to give the certificate about the mental condition of the patient. The dying declaration should be voluntary and is not expected to give smaller details. In the present case considering the submission of learned counsel and ratio held by the Apex Court about the certification of medical expert, alleged dying declaration becomes valueless in eye of law and also doubtful whether it was the statement actually given by the deceased. It is also doubtful whether the deceased was in proper mental state to give such statement before the Investigating Officer or not. 15. All the eye-witnesses, PWs 1, 2, 3, 4 and 5 have stated that on hearing the sound of firing they rushed towards the place of occurrence which was 300 feet away from their residence. According to them, they saw the Injured and also claimed to have seen the appellants while they were fleeing away. As such they are not eye-witnesses of the firing. They reached at the place of occurrence after firing. The only witness (PW 8) who was accompanying the deceased has not thrown any light on the occurrence. According to PW 8, deceased was not in a position to give any statement since he has specifically stated that after sustaining injury both of them became unconscious and he regained his consciousness next morning. His statement was recorded in the morning. According to the eye-witness, his statement was recorded at 07.30 a.m. when he gained senses but his testimony about the unconsciousness has been controverted by the Investigating Officer. His statement was recorded in the morning. According to the eye-witness, his statement was recorded at 07.30 a.m. when he gained senses but his testimony about the unconsciousness has been controverted by the Investigating Officer. PW 11 has stated that PW 8, Thakur Mandal was conscious in the hospital and he refused to give his statement in the night when he was asked. Even about the identification of the appellant, PW 8 has not stated anything about the means of light in which he identified the appellants. The occurrence is of 08.00 p.m. and it is not clear, whether it was dark night or moon had come. Some of the witnesses have stated that moon had come out, some of the witnesses have stated that there was darkness and, as such, it was not fully explained whether actually PW 8 had seen them. It is also pertinent to mention that the deceased (Gobardhan Mandal) and PW 8 (Thakur Mandal) were moving together when occurrence took place and injury on the deceased was on his back. Firing must have been done from behind and there is no likelihood of witnessing actually who had fired on them. As such, the deposition of this witness (PW 8) as pointed by the learned counsel, is not free from contradiction. His claim of assault by bhald has also been controverted by the doctor who found incised injuries on his person and not penetrating wound, as expected if he would have been assaulted by bhala. Considering this point it would not be proper to give reliance to this witness (PW 8, Thakur Mandal). The other witnesses have not seen the occurrence and they would only be used as corroborative witnesses. The testimony of PW 8, who claims to be eye-witness has not been found trust inspiring as his evidence is full of contradiction. Moreover, PWs 2,3, 4 and 5 are related witnesses. 16. According to the deposition of PW 8 (Thakur Mandal), they had gone to Bhavanipur Bazar and at about 8.00 p.m. in the evening, they left for their respective village home. It was situated in the nearby village Birse. In the way, occurrence took place. This witness chose to remain silent about the occurrence and for the first time in the morning at 07.30 a.m.he gave his statement. It was situated in the nearby village Birse. In the way, occurrence took place. This witness chose to remain silent about the occurrence and for the first time in the morning at 07.30 a.m.he gave his statement. According to the doctor, PW 10, who has conducted the post-mortem exanimation of the deceased (Gobardhan Mandal) found rice, pulses and vegetables in semi digestive form. The intestine contained foul smelling gases and the bladder was empty which could only be possible if the deceased had taken his meal 3/4 hours prior to the time of occurrence but, according to prosecution story, he was returning from bazar to his house as such, it was expected that he must have empty stomach or certainly not to have taken full meal in the bazar. A bullet was removed and preserved. The occurrence must have taken place after assault and this medical finding of PW 10 casts grave doubt on the whole prosecution story. 17. From the discussions, made above, it is clear that the prosecution did not prove its case beyond all reasonable doubt and the appellants deserve benefit of doubt. 18. Accordingly, the conviction and sentence passed by the Court below are set aside and the appellants are acquitted of the charges levelled against them. They are also discharged from the liabilities of their bail bonds. 19. It has been stated that the appellant, Rajendra Mandal @ Raju Mandal of Cr. Appeal No. 550 of 2000 is in custody. It is directed that he be released forthwith, if not wanted in any other case. 20. In the result, both these appeals are allowed.