Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 50 (HP)

BHAG NARGU v. STATE OF H. P.

2005-03-16

A.K.GOEL, M.R.VERMA

body2005
JUDGMENT M.R. Verma, J. - Since both these appeals arise out of the same judgment of the trial Court therefore, are being disposed of by this common judgment. 2. Brief facts leading to the filing of these appeals are that on 22.1.2000 a telephonic message was received in Police Post Murang that there was an explosion in the house of Ram Rath in Village Riba in which Ram Rath, his wife and his daughter had sustained injuries. Report about the information was recorded a copy whereof is Ext. PW-19/A. On receipt of this information, HC Shyam Chand (PW-29) along with two police constables proceeded to the place of occurrence, injured Gurgayal Mani made a statement under Section 154 of the Code of Criminal Procedure before PW-29 that her husband Ram Rath, her daughter Tiran Devi and she were sleeping in their room when accused/appellants Bhag Nargu and Bhag Narin (hereafter referred to as A-1 and A-2) entered into the room and caused injuries to her with an iron Ghan (a hammer like iron instrument meant for breaking big stones/boulders) and with foot blows and after setting the house on fire and closing the door, ran away and thereafter an explosion took place. In the occurrence, Ram Rath had died by the time the statement was made by Gurgayal Mani. The aforesaid statement was reduced into writing by PW-29 and is Ext. PW-2/B. On the basis of this statement, FIR Ext. PW-24/A under Sections 452, 302, 436, 323/34 of the Indian Penal Code was recorded at Police Station Pooh and the investigation followed. 3. After preparing the report Murg Ext. PW-1/A and Ext. PW-1/B the, dead body of Ram Rath was sent for post mortem and the other injured, namely, Gurgayal Mani and Tiran Devi, were also sent for their medical examination/treatment. After conducting post mortem examination of the dead body of Ram Rath, Dr. Sanjeev Ashothra (PW-9) and Dr. Subhash Chauhan (PW-10) prepared post mortem report Ext. PW-9/A and opined that Ram Rath died due to head injury along with asphyxia secondary to inhalation of smoke and the fatal injuries sustained by him "appeared to be due to blunt weapon" whereas degree of burn injuries found on the body of the deceassd alone could not have led to immediate death. PW-9/A and opined that Ram Rath died due to head injury along with asphyxia secondary to inhalation of smoke and the fatal injuries sustained by him "appeared to be due to blunt weapon" whereas degree of burn injuries found on the body of the deceassd alone could not have led to immediate death. Injured Gurgayal Mani (since deceased) was medically examined by PW-10 and it was found that she had sustained as many as ten injuries including burn injuries to the extent of 68% vide MLC, PW-10/A. On medical examination of Tiran Mani, PW-9 found three, lacerated wounds and burn injuries to the extent of 30% on her person and the nature of injuries was opined to be grievous vide MLC. Ext. PW-10/C. After her medical examination, Gurgayal Mani succumbed to the injuries sustained by her and post mortem examination of her dead body was conducted by Dr. R.C. Negi (PW-11) who on such examination opined that Gurdayal Mani died due to multiple injuries on head and severe burn leading to hypovolaemic shock. During investigation dying declaration Ext. PW-2/A made by Gurgayal Mani in the presence of Rattan Minjri (PW-3), Suchet Singh (PW-4), Chander Singh and reduced into writing by Dhan Kumar Negi (PW-2) was taken in possession by the Investigation Officer vide memo Ext. PW-2/K. During the course of investigation, the Investigating Officer (PW-29) got the place of occurrence photographed negatives whereof are Ext. PW-2/C-20 and photographs are Exts. PW-2/C-1 to PW-2/C-19. PW-29 also took into possession wooden piece Ext. P-5, small cloth pieces Ext. P-4, giving smell of petrol or kerosene oil, fuse wire Ext. P-6 and earth Ext P-7 vide memo Ext. PW-2/D. he also took in possession one wooden Danda Ext. P-8, wooden Pachar (piece) Ext. P-10, pipe Ext. P-9, iron Tentha Ext. P-10) and Darat Ext. P-12, a/I of which were blood stained, vide memo Ext. PW-2/E. Elastic cap Ext. P-13, trousers Ext. P-14, burnt shirt Ext. P-15 and Koti, Ext. P-16 were also taken in possession from the house wherein Ram Rath died vide Memo Ext. PW-2/F. PW-29 also took in possession one blood stained Dohru Ext. P.-17 vide memo. Ext. PW-2/G. The blood found sprinkled on the wall Ext. P-18 was also taken in possession vide memo. Ext. PW-2/H. On production by Bhagi Ram (PW-1) a partly burnt jacket Ext. PW-2/F. PW-29 also took in possession one blood stained Dohru Ext. P.-17 vide memo. Ext. PW-2/G. The blood found sprinkled on the wall Ext. P-18 was also taken in possession vide memo. Ext. PW-2/H. On production by Bhagi Ram (PW-1) a partly burnt jacket Ext. P-1 stated to be that of accused Balwan Singh (hereafter referred to as "A-3") who had left it at the house of PW-1 when immediately after the occurrence he had gone there, was also taken in possession vide memo Ext. PW-1/C. During the investigation A-3 made disclosure statement Ext. PW-2/K-1 on the basis of which he got recovered Jerry canes Exts. P-22 and P-23 ani Ghan Ext. P-24 which were taken in possession vide memo Ext. PW-2/K-2. A-2 also made a disclosure statement Ext. PW-2/KK on the basis of which his trousers Ext. P-25 was taken in possession vide memo. Ext. PW-2/KKK and detonators numbering 45 were also taken in possession vide Memo Ext. PW-2/0. On the search of the premises in possession of A-1, 37 explosive rods Ext. P-20 and four detonators Ext. P-21 were recovered and were taken in possession vide recovery memo. Ext. PW-2/L Out of the so recovered articles which were duly sealed at the time of recovery samples of blood-stained earth, stones, jelatine, and detonators were taken out in the presence of Amar Singh (PW-6), the then Tehsildar, Pooh, vide memo. Ext. PW-6/A, Ext PW-6/B, Ext. PW-6/C and Ext. PW-6/D for being sent to the Chemical Examiner. 4. It is also case of the prosecution against the accused persons that after the occurrence they had absconded and were apprehended at Bhawa Nagar while travelling in Taxi No. HP-02-2823 owned by Devinder Singh (PW-5). After arrest, the accused persons were also got medically examined. On such examination of A-1 and A-2 by Subhash Chauhan (PW-10), no marks of injury were found vide MLCs. Ext. PW-10/E and Ext. PW-10/F. However, on examination of A-3, PW-10 opined vide MLC Ext. PW-10/G that A-3 had sustained burn injuries on his face and left hand to the extent of 4%. 5. On such examination of A-1 and A-2 by Subhash Chauhan (PW-10), no marks of injury were found vide MLCs. Ext. PW-10/E and Ext. PW-10/F. However, on examination of A-3, PW-10 opined vide MLC Ext. PW-10/G that A-3 had sustained burn injuries on his face and left hand to the extent of 4%. 5. During the investigation it was also found that there was some land dispute between PW and deceased Ram Rath on one hand and A-1 and A-2 on the other, because the decease had partitioned his property between his sons and had given about 15 Bighas of land to the son of PW-1 and also wanted to give some more land as gift to PW-1. A criminal case was instituted by the State on the report of Bhagi Ram against A-2 under Sections 447 and 379 of the Indian Penal code. Another case under Sections 447, 427, 506 and 379 of the Indian Penal Code was also instituted against A-2 on a police report based on the complaint made by deceased Ram Rath. In this regard the Investigating Officer took in possession statement of Ram Rath Ext. PW-15/A, order passed by the Assistant Collector, I-Grade Murang Ext. PW-15/B, copies of challan forms Exts. PA & PB and report of Girdawar Kanungo Ext. PC to show the existence of dispute between the parties." 6. The articles taken in possession by the police vide memos. Exts. PW-2/D, PW-2/E, PW-2/F, PW-2/G, PW-2/H and PW-2/K to PW-2/KKK were got chemically analysed and on such examination human blood of Group A was found in the blood stains collected from the spot (Ext. P-18), wooden Danda Ext. PW-8 and pipe Ext. P-9. Traces of blood were found in blood stained earth Ext. P-7, cloth pieces Ext. P-4 and wooden pieces EXt. P-5, cap Ext. P-13 and tousers Ext. P-14 but such traces were not sufficient for further examination. Human blood was found on the wooden Pachar Ext. P-10, Tentha Ext. P-11, Darat, Ext. P-12, Koti Ext. P-16 and Dohru Ext. P-17, but the blood group could not be determined. Blood was found on the Pent and Payzama of the deceased but was incapable of further tests. In the shirt Ext. P-15 and jacket Ext. P-1 nothing incriminating was detected. 7. P-10, Tentha Ext. P-11, Darat, Ext. P-12, Koti Ext. P-16 and Dohru Ext. P-17, but the blood group could not be determined. Blood was found on the Pent and Payzama of the deceased but was incapable of further tests. In the shirt Ext. P-15 and jacket Ext. P-1 nothing incriminating was detected. 7. On completion of the investigation, Officer-in-Charge of Police Station Pooh submitted a charge-sheet against the accused persons who were tried by the learned Sessions Judge, Kinnaur at Rampur on a charge under Sections 452, 302, 436, 325, 307 of the Indian Penal Code and Section 4 of the Explosive Substances Act read with Section 34 of the Indian Penal Code. 8. To prove the charge against the accused persons, the prosecution examined as many as 30 witnesses. Statements of the accused persons under Section 313 of the Code of Criminal Procedure were recorded wherein they denied the case of the prosecution and claimed to be innocent. The accused persons, however, did not lead any defence evidence. 9. On consideration of the material on record, the learned trial Judge convicted A-1 and A-2 under all the heads of charge against them and sentenced each of them as under:- Sr. NO Offence : Sentence awarded (1) U/S 452, IPC Simple imprisonment for 7 years and fine Rs. 10,000/- and in default of payment of fine, simple imprisonment for one year. (2) U/S 302, IPC Imprisonment for life and fine of Rs. 10,000/- and in default of payment of fine, simple imprisonment for one year. (3) U/S 325, IPC Simple imprisonment for seven years, and fine Rs. 10,000/- and in default of payment of fine, simple imprisonment for one year. (4) U/S 436, IPC Simple imprisonment for ten years and fine Rs. 10,000/- and in default of payment of fine simple imprisonment for one year. (5) U/S 307, IPC Simple imprisonment for ten years and fine Rs. 10,000/- and in default of payment of fine simple imprisonment for one year. (6) U/S 4 of the Explosive stances Act, read with Section 34, IPC Simple imprisonment for seven years and fine Rs. 10,000/- and in default of payment of fine, simple imprisonment for one year. The sentences of imprisonment were made to run concurrently. 10. A-3, however, was acquitted of the charge against him. 11. (6) U/S 4 of the Explosive stances Act, read with Section 34, IPC Simple imprisonment for seven years and fine Rs. 10,000/- and in default of payment of fine, simple imprisonment for one year. The sentences of imprisonment were made to run concurrently. 10. A-3, however, was acquitted of the charge against him. 11. Feeling aggrieved by their conviction and sentence awarded to them under different counts, A-1 and A-2 have preferred Criminal Appeal No. 29 of 2003 and being aggrieved by the acquittal of A-3, the State has preferred Criminal Appeal No. 128 of 2003. 12. We have heard the learned Counsel for the accused persons and the learned Additional Advocate General for the State and have also gone through the records. 13. It is not in dispute that Ram Rath and Gurgayal Mani are no more in the land of living. In view of the unshattered evidence of PW-9 and PW-10 read with post mortem report Ext. PW-9/A and evidence of PW-11 read with postmortem report EXt.PW-9/A it is firmly and indisputably established that Ram Rath who was found to have sustained ante mortem injuries on his person including head having been caused with blunt weapon and also burn injuries died of the head injury and asphyxia secondary to inhalation of smoke and Gurgayal Mani was found to have sustained six ante mortem head injuries caused with blunt weapon and burn injuries spread almost all over her body and died due to multiple injuries on the head and severe burns leading to hyporolaemic shock. It is further firmly and indisputably established in view of the evidence of Tiran Devi (PW-28) and PW-10 read with MLC Ext. PW-10/C that she had sustained three injuries (lacerated wounds caused with blunt weapon) and burn injuries to the extent of 30% within 24 hours of her medical examination on 22 1.2001 at 6.30 a.m. According to the prosecution, the aforesaid injuries were caused to the deceased Ram Rath and Gurgayal Mani and PW-28 by the accused persons whereas this allegation is denied by. the accused persons. It is also allegation of the prosecution that the accused persons were in conscious possession of explosive substance i.e. detonator and gelatine a part of which they used for blasting the house of the deceased. This allegation has also been denied by the accused. Therefore, the following two questions are involved for determination in these appeals. the accused persons. It is also allegation of the prosecution that the accused persons were in conscious possession of explosive substance i.e. detonator and gelatine a part of which they used for blasting the house of the deceased. This allegation has also been denied by the accused. Therefore, the following two questions are involved for determination in these appeals. (a) Whether fatal injuries to Ram Rath and Gurgayal Mani and grievous injuries to Tiran Devi were caused by the accused persons ? and (b) Whether the accused persons were in possession of explosive substance a part of which they used for blasting the house of deceased Ram Rath ? 14. To substantiate the accusations against the accused persons, the prosecution produced the following evidence:- (1) Tiran Devi (PW-28) eye-witness of the occurrence; (2) Dying declarations Exts.PW-2/A and PW-2/B made by Gurgyal Mani and respectively recorded by PW-2 and HC Shyam Chand (PW-29). (3) Disclosure statements and consequential recoveries of weapon of offence and the explosive substance at the instance/from possession of the accused persons; and (4) Existence of a land dispute between the assailed and the assailants constituting the motive for the crime. 15. The learned Sessions Judge relied on the dying declarations Exts.PW-2/A and PW-2/B, the disclosure statements by A-2 and A-3 and consequential recoveries of the incriminating articles at the instance of A-2 and A-3 and the recovery of explosives from the house of A-1 and the motive in convicting A-1 and A-2. However, he did not believe the prosecution case regarding involvement of A-3 in the commission of the alleged offences and thus acquitted him. 16. The learned Counsel for the accused assailed the conviction of A-1 and A-2 and defended the acquittal of A-3 on the following grounds :- (1) that the alleged eye-witness has not supported the prosecution case; (2) that the denying declaration Exts.PW-2/A and PW-2/B are not proved to have been made by the maker. In any case, these declarations are contradictory of each other, therefore, non confidence inspiring and unreliable; (3) that the disclosure statements and the recoveries are fake and do not connect the accused persons with the commission of the crime; and (4) that even if there was land dispute between the accused persons and the deceased, as alleged, the accused persons were not going to gain anything by eliminating the deceased persons or hurting PW-28. 17. 17. On the other hand, the learned Additional Advocate General defended the conviction of A-1 and A-2 and assailed the acquittal of A-3 on the grounds that the evidence led by the prosecution proves the charge against all the accused persons beyond any reasonable doubt as such evidence is reliable and trustworthy. Ground No. (1) 18 It was contended by the learned Counsel for the accused persons, that the alleged sole eye-witness of the occurrence examined by the prosecution has not supported the prosecution version nor anything contained in her statement against the accused persons can be relied upon for the simple reason that the alleged occurrence, as per the prosecution, took place in the dead of night when the inmates of the house, including the eye-witness, were sleeping in the house and there is no evidence that there was light inside the house to enable the witness to identify the intruders/culprits. Therefore, the statement of the eye-witness (PW-28) does not advance the cause of the prosecution in proving the charge against the accused persons. 19. On the other hand, the learned Additional Advocate General contended that at one stage of her statement PW-28 has pointed out the accused persons to be the culprits and she being a close relation of the accused persons, there is no reason for her to point out the accused persons as the guilty persons, therefore, her statement can be relied upon. 20. It is not in dispute that PW-28 is dumb and cannot speak. It, however, clearly emerges from the undisputed version/admissions of the various material witnesses on record that PW-28 could understand the questions and answer by signs. Against this background, her statement was recorded by the trial Court with the help of Muhabat Devi and Dev Pyari who are close relatives of the witness and familiar with the Kinnauri language and the signs. The relationship of the interpreters with PW-28 and their ability to interpret the signs is not in dispute nor there any illegality in the manner of recording her statement with the help of the said interpreters. The version of the occurrence, as given by PW-28 by signs, is that her parents were killed. At the first instance she did not give any answer as to who were the killers of her parents. When further asked, she told that her parents were killed by the" police. The version of the occurrence, as given by PW-28 by signs, is that her parents were killed. At the first instance she did not give any answer as to who were the killers of her parents. When further asked, she told that her parents were killed by the" police. The Public Prosecutor was then permitted to cross-examine the witness. On such cross-examination when she was questioned as to how many persons had entered inside the room where the occurrence took place, she raised ten fingers which was interpreted by the interpreters as 10 persons having entered into the room. In the next question when it was specifically put to her that the accused persons had killed her parents, she replied in the1 affirmative and so was her answer to the leading question that the accused had put petrol in the room and set the room on fire. On further question, she pointed out that the injuries were inflicted with pipe Ext. P-1 and piece of wood Ext. P-5 and not with the hammer Ext. P-24. She has further pointed out by signs that she was also beaten up by the accused persons and injuries were inflicted upon her and she also sustained burn injuries. In the cross-examination for the defence, she admitted that she was residing with PW-1 and his daughter Deep Shikha who were maintaining her and had come with them to the Court. On further cross-examination she admitted that-when enquiries were made from her about the assailants, she had told the police that she could not identify the assailants as they had muffled their faces with cloth. She admittedly reiterated this version when the police had gone to the hospital to enquire about the incident from her. Lastly she has stated that her version that she could not see the faces of the assailants because they had muffled their faces, is correct and that she was asked by PW-1 to name the accused persons as the assailants. . 21. It is evident from the above narration that the statement of PW-28 the only eye-witness of the occurrence, examined by the prosecution, is self-contradictory and self-destroying and no reliance whatsoever can be placed on her evidence. It is more so when the entry of the assailants in the room was in the dead of night and there is no evidence whatsoever to suggest that there was light inside the. It is more so when the entry of the assailants in the room was in the dead of night and there is no evidence whatsoever to suggest that there was light inside the. room to identify the assailants. In these circumstances, the statement of PW-28 could not have been relied upon at all to connect the accused with the commission of the offences and the contention of the learned Counsel for the accused in this regard deserves to be upheld. Ground No. (2) 22. It was contended by the learned Counsel for the accused that the alleged dying declaration Ext. PW-2/A and Ext. PW-2/B are not proved to have been mad6 by the maker and being contradictory of each other and having been made under highly suspicious circumstances, are unreliable. It is more so when the truthfulness of these declarations is examined in view of the opinion of the medical expert that the maker when brought to the hospital was not in a position to make a statement. 23. On the other hand, the learned Additional Advocate General contended that whatever has been certified by the Medical Officer about the State of Gurdayal Mani when she was in the hospital for treatment is not relevant to the period when the dying declarations in question were made. He has further submitted that the certification by a medical expert that the maker at the time of making the dying declaration was in a fit mental state to make statement, is only a rule of caution, otherwise it is not necessary that a dying declaration made by a person must invariably be made after the maker has been certified to be fit to make such a statement by the doctor. To substantiate his contention the learned Additional Advocate General relied upon Laxman v. State of Maharashtra, 2002 Cri. L.J. 4095. 24. Dying declaration is a statement by a person as to cause of his death or as to circumstances resulting in his death and under Section 32(1) of the Evidence Act such a statement is relevant and admissible in evidence in a case in which the cause of death of the maker comes into question. Great sanctity is attached to the words of a dying man because of the belief that a person on the verge of death is not likely to tell lies. Great sanctity is attached to the words of a dying man because of the belief that a person on the verge of death is not likely to tell lies. Therefore, a conviction can be based solely on the basis of a dying declaration. However, to place implicit reliance on a dying declaration and convict the accused on the basis thereof, the" dying declaration must stand the test on the touchstone of reliability. Before reliance is laid on a dying declaration it must be established that such declaration was in fact made by the maker, it was made truthfully and was recorded/stated correctly by the concerned witness(s). In cases where there are more than one dying declarations, there must be consistency and similarity in the dying declarations and above all, evidence regarding dying declaration must be trustworthy and confidence inspiring and devoid of any blemish. It is, however, not always necessary that there must be certification by a medical officer about the fitness of the maker of the dying declaration but it depends as to whether the persons to whom the possession was made, was satisfied that the maker of the dying declaration was in a fit state to make dying declaration and the fact of fitness of the maker can be otherwise established as is the ratio is Laxmans case (supra). 25. In case Tarun Kumar v. State of HP., 2002(2) Chandigarh Law Reporter 327, while dealing with the subject, this Court held as under :- "12. A dying declaration is the statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which result in his death and is admissible under Section 32 of the Evidence Act. If found truthful and reliable, a conviction can be solely based on it. However, a dying declaration not being a statement on oath so that its truth could be tested by cross-examination, the evidence regarding making of dying declaration has to be strictly scrutinized before it may be acted upon." 26. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, 1993(2) SCC 684, while dealing with the subject, the Apex Court held as under :- "18. 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 creditworthy. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, 1993(2) SCC 684, while dealing with the subject, the Apex Court held as under :- "18. 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 creditworthy. 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 declatraion, 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 average 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 circumstance 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 passes 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 declarations are consistent with each other in material particulars before accepting and relying upon the same." 27. It is in view of the above settled position in law that the rival contentions of the parties have to be appreciated. 28. The dying declaration Ext. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same." 27. It is in view of the above settled position in law that the rival contentions of the parties have to be appreciated. 28. The dying declaration Ext. PW-2/A, which is in Hindi when translated into English, reads as under :- "Today the 22nd day of January, 2001 at 2 a.m. I Gurgyal Mani state that I, my husband Ram Rath and my daughter Tiran Devi were severally beaten by my two sons Ram Nargu and Ram Narain and we were beaten with iron Ghan and they left after closing the door from outside. Thereafter both of them xxx xxx - xxx threw petrol and set fire. I Gurgyal Mani wife of Ram Rath resident of Village Riba, District Kinnaur have made the above written statement while in full senses so that it is legally acceptable." 29. Ext. PW-2/A is not signed/thumb marked by the maker of the statement. As per the prosecution it was made by Gurgyal Mani before Rattan Manjari (PW-3) Pradhan of the Gram Panchayat in the presence of Bhagi Ram (PW-1), Dhan Kumar (PW-2) who has recorded it, Suchet Singh (PW-4) and Chander Sain and is signed by all these witnesses except PW-1. 30. The dying declaration Ext. PW-2/B which is also recorded in Hindi, when translated into English reads as under:- xxx xxx "Today night when I was sleeping with my husband i and daughter in my roor/i, my two sons xx Bhag Nargu and Bhag Narain came in the room and started beating head and breast and then burnt with petrol. They came in the night after opening the door and gave foot blows also and there was fire in the room. They bolted away after closing the door. My whole body has burnt with fire. We three members of the family got burnt inside the room and loud blast sound was heard. In this beating my husband has died." 31. Ex. PW-2/B purports to be thumb marked by Gurgyal Mani and attested by PW-2 and PW-3 and has been recorded by PW-29 at 4.45 a.m. on 22.1.2001. 32. A bare perusal of Ext. We three members of the family got burnt inside the room and loud blast sound was heard. In this beating my husband has died." 31. Ex. PW-2/B purports to be thumb marked by Gurgyal Mani and attested by PW-2 and PW-3 and has been recorded by PW-29 at 4.45 a.m. on 22.1.2001. 32. A bare perusal of Ext. PW-2/A and PW-2/B reveals that these dying declarations do not in any manner implicate A-3 in the commission of the crime, therefore, are of no help to the prosecution in proving any head of charge against A-3. 33. It is further evident from the perusal of Ext. PW-2/A and Ext. PW-2/B that there is material variance in the versions contained therein. According to the contents of Ext. PW-2/A after beating the deceased and the injured with iron Ghan (a big hammer used by agriculturists/horticulturists for breaking big boulders to convert them into smaller stones) A-1 and A-2 closed the door and left the place and thereafter threw petrol and set the place on fire, whereas according to Ext. PW-2/B; they closed the door after beating and setting on fire the deceased and the injured with petrol. As per Ext. PW-2/A, the injuries were caused to the victims with Ghan whereas according to Ext. PW-2/B, A-1 and A-2 used even the feet to give blows to the victims. Further in Ext. PW-2/A there is no reference to any kind of blast at any stage whereas as per the contents of Ext. PW-2/B the beating and setting the victims on fire was followed by a loud blast. Thus suspicion arises about the correctness and consequently, truthfulness of contents of Exts.PW-2/A and PW-2/B. 34. It is not in dispute that initially it had emerged on the basis of material available including statement of PW-2 that the accused caused hole in the roof of the house of the victims and put petrol in to the room through that hole. This version is now disputed by the prosecution. A bare look on Ext. PW-2/A reveals that initially this was the version contained even therein. Certain words initially written in Ext. PW-2/A at the place indicated by xxx in the English translation of Ext. PW-2/A set out hereinabove have been scored out but are still legible. This version is now disputed by the prosecution. A bare look on Ext. PW-2/A reveals that initially this was the version contained even therein. Certain words initially written in Ext. PW-2/A at the place indicated by xxx in the English translation of Ext. PW-2/A set out hereinabove have been scored out but are still legible. When the scored words are read with the preceding and following words it means that both the accused by causing a hole in the roof put in petrol and set fire. There is no explanation coming forward to explain the deletion of the score out words from Ext. PW-2/A. On the contrary, it prima facie appears that the ink used for scoring these words and putting initials against this portion is different from the ink used for writing the other contents of Ext. PW-2/A. 35. Admittedly, there is no medical opinion that Gurgyal Mani was medically fit to make the statements Exts.PW-2/A and PW-2/B. No doubt medical opinion about the fitness of the maker of a dying declaration may not always be available, therefore, absence of such opinion by itself may, in the given circumstances of a cases, not render the dying declaration unreliable. However, in such a case the person before whom dying declaration is made must be satisfied that the maker was in a fit state of mind to disclose the true facts. None of the1 witnesses viz. PW-1, PW-2, PW-4, PW-5 and PW-29 examined by the prosecution to prove Exts. PW-2/A and PW-2/B has stated that at the time of making these statements, Gurgyal Mani was physically and mentally fit to make them. On the contrary it is admitted case of the prosecution that Gurgyal Mani at the relevant time was 80 years of age having fresh burn injuries almost all over her body to the extent of 60% (vide her MLC Ext. PW-10/A)/70% (Vide postmortem report Ext. PW-11/A) and six lacerated wounds on different parts of the head a vital part injuries whereon may have impact on brain also. It is admitted by PW-2, PW-3 and PW-4 that at the relevant time Gurgyal Mani was crying in pain and PW-1 has stated that Gurgyal Mani was in a state of shock. As per the contents of the MLC Ext. PW-10/A when she was medically examined at 6.30 a.m. i.e. after about 4-1/2 hours of coming into being of Ext. It is admitted by PW-2, PW-3 and PW-4 that at the relevant time Gurgyal Mani was crying in pain and PW-1 has stated that Gurgyal Mani was in a state of shock. As per the contents of the MLC Ext. PW-10/A when she was medically examined at 6.30 a.m. i.e. after about 4-1/2 hours of coming into being of Ext. PW-2/A and less than two hours of recording of Ext. PW-2/B she was semi-conscious and not fit to make a statement. In view of these admitted facts, it cannot be held that dying declarations Exts.PW-2/A and PW-2/B were made by Gurgyal Mani while in a fit state of mind. 36. It is admitted case of the prosecution and so is mentioned in Ext. PW-2/A and PW-2/B that the occurrence took place during night and as per the contents of Ext. PW-2/B the victims at that time were sleeping in the room. There is nothing in Exts.PW-2/A and PW-2/B on the basis of which it may be said that there was some sort of light in the room with the help of which Gurgyal Mani or PW-28 could have identified the assailants. On the contrary, PW-2 is admittedly the person who entered the room, place of occurrence first of all and it is admitted by him that at that time the room was dark and he saw the situation/condition inside the room with the help of Torch light. Thus, it is evident that there was darkness in the room and in such a situation the trespassers/assailants could not have been identified by the persons inside the room. It may be pointed out here that Gurgyal Mani aged about 80 years at the relevant time had "some problem due to low vision" as admitted by PW-4. 37. It is admitted by PW-28 who according to the prosecution is the eye-witness of the occurrence that the number of assailants was ten and their faces were muffled. The Investigating Officer had recovered six weapons of offence in the case vide memos Ext. PW-2/E and PW-2/K-2 and evidently so many weapons were not required to be used by A-1 and A-2 when a Ghan (big iron hammer) when used as a weapon of offence is capable of smashing a human head into pieces with one blow. According to PW-28 the injuries were caused to the victims with pipe Ext. P-9 and piece of wood Ext. According to PW-28 the injuries were caused to the victims with pipe Ext. P-9 and piece of wood Ext. P-5 and she has specifically denied use of Ghan Ext. P-24 as weapon of offence and has thus controverted the version regarding use of Ext. PW-24 as weapon of offence as contained in Exts.PW-2/A and PW-2/B. 38. It has been the constant case of the prosecution that A-3 was an complicate in the commission of the crime but in Exts.PW-2/A and PW-2/B his name does not figure at all. 39. There is no explanation as to why Gurgyal Mani did not thumb mark Ext. PW-2/A whereas subsequently prepared Ext. PW-2/B bears her thumb mark. 40. In view of the above discussion and conclusions, the dying declarations Exts.PW-2/A and PW-2/B are highly suspicious documents, unworthy of any credence and could not be relied upon to convict A-1 and A-2. Ground No. (3) 41. It was contended by the learned Counsel for the accused that the alleged disclosure statements were recorded and consequential recoveries were effected after the concerned accused had been in custody for days. Moreover, the recoveries of the weapons of offence except Ghan (Ext. P-24) had been made by the police from the spot and not in consequence of any disclosure statement and the other incriminating articles had been recovered from the premises of deceased Ram Rath, therefore, the alleged recoveries by the Investigating Agency are unreliable and cannot be accepted to implicate the accused persons in the commission of the offences. 42. On the other hand, the learned Additional Advocate General has submitted that most of the incriminating recoveries have been made pursuant to the disclosure statements made by the accused persons in the presence of the witnesses, therefore, there is no reason to .thereat the recoveries unreliable. "Since these have been made at the instance of accused persons from the places pointed out by them, therefore, it is inconsequential as to who was the owner of the place/premises from where the recoveries have been made and such recoveries have rightly been believed by the trial Court to hold that A-1 and A-2 are involved in the commission of the offences but have wrongly been ignored while acquitting A-3. 43. It is not dispute that accused persons were arrested on 21.1.2003. The disclosure statement Ext. PW-2/A-1 and consequential recovery of the Jericanes Exts.P-22 and P-23 and Ghan Ext. 43. It is not dispute that accused persons were arrested on 21.1.2003. The disclosure statement Ext. PW-2/A-1 and consequential recovery of the Jericanes Exts.P-22 and P-23 and Ghan Ext. P-24 were made on 4th day of the arrest of A-3. The time gap between the arrest of A-3 and making the aforesaid disclosure statement and the consequential recoveries is enough to look upon the statement Ext. PW-2/A-1 and recoveries vide memo Ext. PW-2/A-2 with some suspicion moreso when the I.O. has admitted that after arrest till the making of the statement of the accused had not made any disclosure statement despite being in custody for three days. Secondly, these recoveries have been effected from the store room of the house of deceased Ram Rath. Once the house has been set on fire, as is the case of the prosecution, it does not appear natural that the offender instead of throwing away the containers of the petrol would enter into the burning house and keep the Jeri canes and the alleged weapon of offence therein. 44. The disclosure statement Ext. PW-2/KK and the consequential recoveries vide memos Ext PW-2/O and PW-2/KKK have been made on 28.1.2001, i.e. on the 7th day of the arrest of A-1, which time in police custody is long enough to doubt that the disclosure was voluntarily made. 45. The disclosure statement and consequential recovery vide Ex. PW-2/K-2 is stated to have been made in the presence of PW-2 and Parkash Chand (PW-8). PW-8 supports the prosecution version in his examination-in-chief but in his cross-examination clearly and-unambiguously admits that when he reached the spot the articles Exts.P-22 to P-24 allegedly recovered consequent upon the disclosure statement, were lying in the verandah of the house of the deceased Ram Rath. Therefore, it is evident that neither the disclosure statement was made by A-3 nor the alleged incriminating articles were recovered in his presence. Thus his statement does not lend any support to the prosecution version that A-3 made disclosure statement Ex. PW 2/A-1 or the articles Ex. P-22 to P-24 were recovered at his instance. In so far as PW-2 is concerned, his version about the making of disclosure statement by A-3 is that the accused had stated that he could get a Jericane and a Ghan recovered whereas as per the contents of the disclosure statement, A-3 made the disclosure statement about two Jericanes. P-22 to P-24 were recovered at his instance. In so far as PW-2 is concerned, his version about the making of disclosure statement by A-3 is that the accused had stated that he could get a Jericane and a Ghan recovered whereas as per the contents of the disclosure statement, A-3 made the disclosure statement about two Jericanes. PW-2 is evidently an omnibus witness who is present almost at every stage of the investigation. When examined at the trial, he comes forward with the version that A-3 had made a confessional statement to him which reveals his intention in implicating the accused. This material improvement in his statement at the trial and his being an omnibus witness render his statement highly unreliable. As already stated hereinabove, the use of Ghan Ex. P-24 as weapon of offence is denied by the sole eye-witness nor it is otherwise proved, therefore, the disclosure statement Ext. PW-2/K-1 and the consequential recovery vide memo Ex. PW-2/K-2 are not reliable. 46. As already stated hereinabove, the disclosure statement Ex. PW-2/KK and the consequential recovery vide memos Exts.PW-2/KKK and PW-2/O have been made on the seventh day of arrest of A-1 which by itself creates doubt about the disclosure statement having been made voluntarily. The recovery of explosive material vide memo Ex. PW-2/O is stated to have been made in the presence of PW-2, PW-3 and one Karam Chand. Said Karam Chand has not been examined. For the reasons stated hereinabove, statement of PW-2 cannot be accepted as gospel truth. Same logic applies to PW-3 who is also a witness present at almost every stage of the investigation. 47. It may also be noticed here that in respect of this explosive material and such material taken in possession at the time of the search of the house of A-1 vide memo Ext. PW-2/L the accused persons are being prosecuted under the penal provisions of Explosive Substances Act for which previous sanction of the District Magistrate is required. The Investigating Agency has admittedly obtained sanction Ext. PW-21/A to prosecute the accused persons from PW-21 the then District Magistrate Kinnaur. PW-21 has stated that in his capacity as District Magistrate for Kinnaur District he had accorded the sanction Ext. PW-21/A for prosecution of the accused persons for being in possession of the explosive substance. The Investigating Agency has admittedly obtained sanction Ext. PW-21/A to prosecute the accused persons from PW-21 the then District Magistrate Kinnaur. PW-21 has stated that in his capacity as District Magistrate for Kinnaur District he had accorded the sanction Ext. PW-21/A for prosecution of the accused persons for being in possession of the explosive substance. However, he has clearly and unambiguously admitted in his cross-examination that as per the police record the explosive material was recovered from the house of late Ram Rath. If on perusal of the record placed before him by the Police to consider the desirability of sanction to prosecute. PW-21 found that the explosive was recovered from the house of deceased Ram Rath the version of the prosecution that some recover was made from an open space and some from within the house of A-2 is rendered fake and unreliable which as a consequence render the aforesaid disclosure statements and recoveries unreliable,. Thus, there being no cogent and reliable evidence regarding making of the disclosure statements by the accused persons voluntarily and most of the recoveries admittedly having been made from the house of the deceased lends credence to the plea raised by the learned Counsel for the accused persons. 48. Payajama of A-1 was recovered from within his house but this recovery itself does not implicate him in the commission of the offence. Ground No. 4: 49. It was contended by the learned Counsel for the accused that even if there was litigation between the father and the sons that did not necessarily afford a motive to the sons to kill the father when he had already given them substantial share in his land and even otherwise the motive is a very weak circumstance incapable of rendering a person liable for conviction moreso when the accused did not stand to gain anything by causing the death of the deceased. 50. The submission for the accused is not without substance. The motive will lose significance and value when the eye-witness by making a self destroying statement has come forward with the version that there were ten assailants with muffled faces and none could be recognized, therefore, reliance on the evidence to prove the alleged motive has wrongly been laid by the learned trial Judge to convict A-1 and A-2. 51. The motive will lose significance and value when the eye-witness by making a self destroying statement has come forward with the version that there were ten assailants with muffled faces and none could be recognized, therefore, reliance on the evidence to prove the alleged motive has wrongly been laid by the learned trial Judge to convict A-1 and A-2. 51. The testimony of the prosecution witnesses particularly PW-1, PVV-2, PW-3 and Prem Murti (PW-12) was found by the learned Sessions Judge as reliable and confidence inspiring because the accused persons did not adduce positive, cogent and reliable evidence to controvert it. Primarily the view taken by the trial Court is contrary to the norms of criminal jurisprudence. It is for the prosecution to prove its case beyond any reasonable doubt by trustworthy and reliable evidence. The prosecution has to stand on its own legs and it is not for the accused to lead cogent, reliable trustworthy evidence to disprove the testimony of the prosecution witnesses. As and when the accused succeeds in creating doubt about the testimony of the prosecution witnesses the benefit has to go to the accused. In this case, there are reasons to raise suspicion about the testimony of the aforesaid witnesses. PW-1 is a person admittedly having litigation with A-2, therefore, he cannot be said to be an independent witness. PW-2 and PW-3, as already stated hereinabove, are omnibus witnesses. The dying declarations relied upon by the prosecution and sought to be proved by the evidence of these witnesses have been found highly untrustworthy and unreliable, therefore, statements of the aforesaid witnesses and PW-4 and PW-12 cannot be said to be confidence inspiring. 52. It is admitted case of the prosecution that when PW-1 son of the deceased persons came to know of the fire having broken in the house of his father, he instead of rushing to the place of occurrence went out to collect the witnesses. In the ordinary course as soon as he learnt about the incident of fire he would have rushed to the place of occurrence so that the fire could be extinguished and the inhabitants of the house could be saved and steps for their treatment could be taken. The conduct of PW-1 and PW-2 in delaying their arrival to the spot seems to be shady and suspicious. The conduct of PW-1 and PW-2 in delaying their arrival to the spot seems to be shady and suspicious. There is nothing on record which may suggest that any effort was made by them to save the house and the inmates from fire. Even after PW-1 and PW-2 had reached on the spot no first aid was given to the injured/victims who remained in the room filled with smoke. As a result, the victims inhaled obnoxious smoke which played its own part in causing death of Ram Rath. 53. As already stated, while discussing the value of the dying declarations, there is no evidence that there was any source of light inside the room by which any of the victims could have identified the assailants. PW-2 has a unique explanation to give in this regard when he states that the accused were identified by Ram Rath with the help of light of a torch. He does not claim to have spoken to deceased Ram Rath before his death nor he claims that any version was given by Gurgyal Mani or PW-28 to make such a statement. Thus, there is no cogent and reliable evidence to prove the identity of the accused as the assailants. 54. It was contended by the learned Additional Advocate General that after the occurrence accused persons had absconded and were apprehended at Bhawanagar. This version is not supported by the only independent witness, namely, Devinder Singh (PW-5). In any case even if it is assumed that the accused persons were arrested at Bhawanagar that cannot be said to be a case of abscondance nor can it be read as a conclusive circumstance against the accused persons. It is admitted case of the prosecution that A-3 had sustained burn injuries. It was he who informed PW-1 of the breaking of the fire and that he could not do anything in the matter. As per the admission of the relevant prosecution witnesses, he was in severe pain and was left at the house of PW-1 with a direction to the inmates to take care of him because of the pain he was suffering from. There is no evidence to rule out the possibility that A-3 was being removed to the hospital for treatment by A-1 and A-2 when they were allegedly apprehended at Bhawanagar. There is no evidence to rule out the possibility that A-3 was being removed to the hospital for treatment by A-1 and A-2 when they were allegedly apprehended at Bhawanagar. It is also not the case of the prosecution that A-3 was not suffering from such injuries which required immediate treatment. Therefore, the circumstances of abscondance pressed into service is entire proved nor is of any help to the prosecution. 55. In view of the above discussion and conclusions, we have no hesitation in holding that the prosecution has failed to prove that fatal injuries to Ram Rath and Gurgayal Mani and grievous injuries to Tiran Devi were caused by the accused persons. The prosecution has also failed to prove that the accused persons were in possession of explosive substance a part of which they used for blasting the house of deceased Ram Rath. Therefore, the two questions set out vide para 13(supra) which are involved for determination in these appeals are answered in the negative. It follows that the impugned conviction and sentences awarded to A-1 and A-2 cannot be sustained and the acquittal of A-3 does not call for any interference. 56. As a result, Cr. Appeal No. 29 of 2003 filed by A-1 and A-2 is allowed and conviction and sentences awarded to them are set aside and they are acquitted of the charge against them. They are presently in Jail undergoing the terms of imprisonment awarded to them, therefore, they be set at liberty forthwith unless required to be detained under any other process of law. Fine, if recovered, be refunded to them. Cr. Appeal No. 128 of 2003 preferred by the State against the acquittal of A-3 is dismissed. The bail bonds furnished by A-3 are discharged.