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Madhya Pradesh High Court · body

2005 DIGILAW 546 (MP)

Charnu v. State of M. P.

2005-04-26

A.K.GOHIL, CHANDRESH BHUSHAN

body2005
JUDGMENT Gohil, J.--1. This appeal is directed against the judgment of conviction of appellants under section 302 and 302/34 IPC passed on 13.11.1997 by First Additional Sessions Judge, Gwalior in Sessions Trial No. 212/88 and sentenced to life imprisonment and fine for Rs. 500/- each and in default of payment of fine, four months further imprisonment. 2. Short facts giving rise to this appeal are that PW 3 Kushendra Singh lodged FIR (Ex. P-4) on 8.5.1988 at P.S. Janakganj, Gwalior at about 11.30 p.m. that at about 10.00 p.m. when he was taking meals inside his house, he heard the cries of his brother Kailash from outside. Thereupon he with his brother Narendra Singh (PW 5) ran towards the spot and saw co-accused Sunder with Khaderua (heavy wooden stick) running away and Ramobai, mother of Sunder standing there. On being asked, Kailash told them that on exhortation of Ramobai he was beaten by appellants Munna, Chamu and Sunder. Thereafter they brought injured Kailash in the house where his clothes were removed and injuries were inspected by them. Kailash told them about assailants. Thereafter Kailash became unconscious. The injured was then taken to police station in a Tonga and lodged the FIR (Ex. P-4). Report was written by Suresh Singh (PW 7), SHQ On the basis of the aforesaid report crime was registered initially under section 307/34 IPC and injured Kailash was referred for medical examination to hospital where he was declared dead. Bharatlal (PW 8) who was sent with Kailash to the hospital returned back to the police station and informed the Head Constable Shafiulla Khan (PW 9) about the death of deceased Kailash. Thereafter Marg (Ex. P-13) was recorded. SHO converted the offence to under section 302 IPC. PW 6 Dr. Sanjay Morya conducted autopsy and found four injuries on the body of deceased. Post mortem report is Ex. P-15 and appellants were arrested vide arrest memo (Ex. P-8). Knives were allegedly recovered from them and seized vide seizure memos (Ex. P-11) and Ex. P-14 respectively. A Khaderua (heavy wooden stick) was also seized vide seizure memo Ex. P-13 at the instance and from the possession of co-accused Sunder Singh. Statements of witnesses were recorded and after completing the investigation, chargesheet was filed. In all four accused persons were chargesheeted. 3. During trial all the accused persons abjured their guilt and pleaded their false implication. A Khaderua (heavy wooden stick) was also seized vide seizure memo Ex. P-13 at the instance and from the possession of co-accused Sunder Singh. Statements of witnesses were recorded and after completing the investigation, chargesheet was filed. In all four accused persons were chargesheeted. 3. During trial all the accused persons abjured their guilt and pleaded their false implication. Before the trial Court prosecution examined as many as nine witnesses and in defence appellants also examined DW 1 Madan who has stated that some unknown persons were beating Kailash and when he reached on spot, assailants had run away and Kailash had died and thereafter he informed the brothers of deceased Kailash. Learned trial Court placing reliance on the evidence of PW 3 Kushendra Singh and PW 5 Narendra Singh, those who are the brothers of the deceased and also on the medical evidence convicted the appellants and sentenced them as aforesaid against which they have filed this appeal. 4. We have heard learned counsel for the parties. Shri V.K. Saxena, learned counsel appearing for the appellants vehemently argued and submitted that the trial Court has erred in placing reliance on the ocular version of Kushendra Singh and Narendra Singh in convicting the appellants. He submitted that they are not only highly interested and inimical witnesses but their testimony is also contrary to the medical evidence. They have falsely implicated the accused and on their same evidence co-accused Sunder and Ramobai have been acquitted by the trial Court. He further argued that the evidence of PW 3 and PW 5 is not at all reliable. The testimony of the witnesses of recovery of knives is not trustworthy. No witness has deposed that these weapons were used in the commission of offence. There is no evidence that human blood was found on them. He pointed out that as per FIR (Ex. P-4) deceased Kailash was alive when he was brought at the police station and the offence was registered under section 302 IPC. Therefore, he argued that the FIR is a fabricated and doubtful document. There is no compliance of the provisions of section 157 CrPC. The evidence of dying declaration is also not worthy of reliance. Both the witnesses have not narrated the same version which was narrated to them by the deceased. The dying declaration is doubtful. Therefore, he argued that the FIR is a fabricated and doubtful document. There is no compliance of the provisions of section 157 CrPC. The evidence of dying declaration is also not worthy of reliance. Both the witnesses have not narrated the same version which was narrated to them by the deceased. The dying declaration is doubtful. The oral dying declaration to the highly inimical witnesses is false and not worthy of reliance. Relations between the complainant party and the accused persons are inimical and the trial Court has wrongly discarded the said evidence. According to the prosecution story itself incident occurred in the night and there was no source of light, therefore there was no question of seeing the incident by the witnesses. Learned counsel for the appellants also placed reliance on the question of dying declaration as well as on the question of evidence of partisan and interested witnesses and also on the question of compliance of section 157 of the Code of Criminal Procedure. 5. In reply, Shri M.P.S. Bhadoriya, learned public prosecutor appearing for State supported the judgment of the trial Court and submitted that evidence of PW 3 Kushendra Singh and PW 5 Narendra Singh those who are the brothers of the deceased is reliable and trustworthy. They are natural witnesses who came on spot on hearing the cries of their brother and he submitted, that evidence of dying declaration is also available against the appellants which has been found proved by the trial Court and his submission was that the trial Court has not committed any illegality in recording the findings and prayed for the dismissal of this appeal. 6. Considering the prosecution evidence as well as rival submissions of the learned counsel for the parties, we have analysed the entire prosecution evidence afresh. It is not in dispute that PW 3 Kushendra Singh and PW 5 Narendra Singh are the brothers of the deceased and as per their own evidence they came on spot after hearing the cries of their brother Kailash and they had seen that appellant Charu and Munna both were carrying knives in their hands. Sunder was having Khaderua (heavy wooden stick) and they both had seen them running from the spot. Ramobai was present on spot. Sunder was having Khaderua (heavy wooden stick) and they both had seen them running from the spot. Ramobai was present on spot. According to their evidence, from the spot they had brought the injured Kililash to their house where they inquired about the incident and Kailash had told them that appellant Charnu and Munna assaulted him by knives and Sunder had given a Khaderua blow on his head and these blows were given on the exhortation of their mother Ramobai. Thereafter, Kailash was taken to police station where report was not written but they were immediately referred to hospital for medical treatment where Kailash was declared dead. Thereafter, at about 1'O Clock they came back from the hospital and lodged the report. 7. We have perused the evidence of PW 3 Kushendra Singh and PW 5 Mahendra Singh. PW 3 Kushendra Singh has stated that the report was written when he came back after 1'O Clock. This clearly means that by the time he came back from the hospital; deceased had expired. From the FIR (Ex. P-4) it is clear that the same was written at 11.30 p.m. (23.30 hours). It was initially registered under section 302 IPC but subsequently it was converted into section 307 IPC. Infact this should have been vice versa. In the cross-examination PW 3 Kushendra Singh has stated that Kailash had received four injuries, two on his chest and two on his back and abrasions were available on the neck. In the cross-examination he has stated that FIR (Ex. P-4) was lodged after coming back from the hospital. He has admitted that the police had visited the spot in the night on the same day and the spot map (Ex. P-6) was prepared on the next day. He had handed over one pant to police which was seized vide Ex. P-7. The said pant was stained with blood. He has admitted that appellant Charnu, Sunder and Ramobai are residing in the same house adjoining to their house. He has admitted that one year before the incident their relations with the accused persons were cordial and they were friends. 6-7 months before the incident, deceased Kailash had encroached upon the Government land near Gol Pahadiya and due to this encroachment, their relations became strained and before this incident there was quarrel between Charnu, Panwala and Kailash. He has admitted that one year before the incident their relations with the accused persons were cordial and they were friends. 6-7 months before the incident, deceased Kailash had encroached upon the Government land near Gol Pahadiya and due to this encroachment, their relations became strained and before this incident there was quarrel between Charnu, Panwala and Kailash. In the cross-examination he says that he had heard the voice that "Bhai Sahab Hamen Bachao" but why this fact has not been mentioned in Ex. P-4, he was unable to give any reason. After hearing the voice when he came out from his house, Kailash was lying forty ft. away from his house. Thereafter he says that Kailash was sitting on a stone slab which was two ft. high from the ground. He had seen the accused persons. Blood was also available on the spot. He says that on spot he had not seen the injuries of Kailash but when they brought Kailash in the house, Kailash informed him about the incident. When they brought Kailash into their house, their clothes were stained with blood. Blood was oozing from the injuries and they had also tied those injuries by towel. He has clearly stated that FIR (Ex. P-4) was written at police station at 1 O' Clock in the night after the death of Kailash and statements of the witnesses were not recorded by the police in the night. He was confronted with his police report (Ex. P-4) in which it has not been mentioned.that Charnu and Munna were carrying knife in their hands. He was unable to give any reason for the same. Why this fact that he had gone to lodge the report with Phool Singh has not been written in the FIR, he cannot give any reason. Why this fact has not been mentioned that deceased received four injuries by knife, two on the chest and two on back, he cannot give any reason. He has admitted that spot map was not prepared in the night. 8. Why this fact has not been mentioned that deceased received four injuries by knife, two on the chest and two on back, he cannot give any reason. He has admitted that spot map was not prepared in the night. 8. PW 5 Narendra Singh who is another brother of the deceased has also narrated the same version that he had seen that Sunder was present on spot with Khaderua (heavy wooden stick) and his mother Ramobai was also standing there and Charnu and Munna were running away and his brother Kailash was lying on a stone slab and when they lifted their brother, he told him that on the exhortation of Ramobai, Charunu, Munna and Sunder had assaulted him. Thereafter he was brought in the house. They removed his clothes and inspected his injuries. This witness in his examination-in-chief has not stated about exhortation by mother Ramobai and injury in the chest. In the cross-examination, he has stated that his brother Kailash was working with some businessman in Daal Bazar but he does not know the name where he was working. In the cross-examination he has admitted that his statement was recorded by the police after three days and he heard the voice of his brother thrice but why the police has not mentioned this fact in his case-diary statement, he cannot give any reason. If this fact has also not been mentioned in Ex. D-2 in his case-diary statement that when he carne out from his house Munna and Chamu were running away and they were carrying knives in their hands, he cannot give any reason. Sunder also ran away in the inside lane and their mother also fled away from the spot, if not mentioned in Ex. D-2 he cannot give any reason. Kailash had told him that Sunder gave one Khaderua blow in his head but why the same is not mentioned in his statement Ex. D-2, he cannot give any reason. Munna and Chamu both have assaulted Kailash by knives, if it is not mentioned in his case-diary statement, he cannot give any reason. On the contrary, Kailash had told him that one blow was given on back and another knife blow was given on thigh. Why this fact has not been mentioned in his case-diary statement Ex. D-2, he cannot give any reason. On the contrary, Kailash had told him that one blow was given on back and another knife blow was given on thigh. Why this fact has not been mentioned in his case-diary statement Ex. D-2, he cannot give any reason. He states that when they carne out after hearing the voice of their brother Kailash, he was lying opposite temple and also opposite the house of Hariom. He says that he had not lifted Kailash but he chased the accused persons. He chased Sunder. When he carne back he had seen that blood was oozing from the body of deceased. He had pressed that portion with a view to stop the blood and inside the house cloth was applied on the wound. Blood fell between the place of occurrence and their house. Kailash became unconscious before reaching the police station. After the death of Kailash they both carne back to police station and informed the police personnel that thereafter their report was written and next day they were called at the police station and till then no documents were prepared by the police. Copy of the report was also not given to them. Three days after the incident, their signatures were obtained on some papers and copy of the report was given to them. They were not knowing on which paper their signatures were obtained and what was written on it. Report was written on 3rd day and their signatures were obtained thereon and copy was given. Prosecution has not examined any other witness either who had seen the incident or before whom oral dying declaration was made by the deceased. 9. PW 6 Dr. Sanjay Morya had conducted the autopsy of the dead body. Post mortem report is Ex. P-15. He found the following injuries on the dead body of the deceased: (a) Three linear abrasions present over left side of chest lateral surface, obliquely placed -- (i) 5.5 ems. below and lateral to left nipple 2 cms. long (ii) 1 cm. long, 0.75 cms. above injury No.1 (iii) 1 cm. long 0.50 cms. above injury No.2. (b) Incised wound with abrasion over right side of chest anteriorly, obliquely placed 6 cms. medial to right nipple, 10.5 cms. below right clavicle. Abrasion is 2.5 x 0.5 cms. and incised wound situated over upper end of abrasion. 0.4 x 0.2 cms. x skin deep. above injury No.1 (iii) 1 cm. long 0.50 cms. above injury No.2. (b) Incised wound with abrasion over right side of chest anteriorly, obliquely placed 6 cms. medial to right nipple, 10.5 cms. below right clavicle. Abrasion is 2.5 x 0.5 cms. and incised wound situated over upper end of abrasion. 0.4 x 0.2 cms. x skin deep. (c) Incised wound over left side of back of chest obliquely placed 5 cms. below scapular region. 2 x 0.75 cms. x muscle deep. (d) Stitched wound obliquely placed over right iliac fossa 6 cms. above iliac creast, 2 cm. x 1 cms. x abdominal cavity deep. Blood oozing present. According to him, all the injuries mentioned above were ante mortem and were caused by sharp pointed object. Injuries to abdominal organs (Mesentry, intestine) and to large vessel and internal haemorrhage was fatal to life in an ordinary course of nature. Cause of death was shock due to injuries to abdominal organs, large vessel and internal haemorrhage. Duration of death was within 12 to 24 hours since post mortem examination. Mode of death was homicidal. In the cross-examination, doctor has stated that the weapons were not shown for knowing the nature of injuries. He has further stated that he cannot say that injuries Nos. "C" and "D" were caused by the same weapon. He has stated that the deceased might have died within six hours after receiving injury No. "D". He has stated that after receiving injury No. "D", the deceased might have been in a position to speak. In the cross-examination, doctor has stated that he is unable to say whether after receiving the aforesaid injuries, the deceased has been in a position to speak or not. 10. Another important evidence is of PW 7 Suresh Singh, T.I. He has admitted that when Kailash came at the police station, he was not conscious and he had not recorded any statement of Kailash. PW 3 Kushendra had not objected while signing Ex. P-4. Whether any memo for referring him to the hospital was prepared or not, he cannot say, but head constable Bharatlal had gone to the hospital alongwith injured Kailash, but he cannot say because Roznamacha has not been produced. He has admitted over-writing on document Ex. P-4. He has denied that earlier case was registered under section 302 and later it was converted to 307 IPC. He has admitted over-writing on document Ex. P-4. He has denied that earlier case was registered under section 302 and later it was converted to 307 IPC. He has denied this fact that report was written after death of the deceased. In the cross-examination he could not furnish any satisfactory reply about forwarding the copy of the FIR to the Magistrate in compliance of section 157 of the Code of Criminal Procedure. Prosecution has also not produced any document that when the report was forwarded and when it was received. He has admitted that on the day of incident, he had not recorded the statement of witnesses and lateron he says that he had recorded the statement of witnesses on spot. He admits that in the night he had visited the spot with force and there was no source for light, therefore he had not performed the investigation in the night. Spot map was prepared next day at 10.30 at the instance of Kushendra. He has admitted that in the spot map (Ex. P-6), he has not shown that place from where the witnesses had seen the incident. He had seized the pant from the house of complainant vide Ex. P-7, though in the seizure memo it has not been mentioned that the pant belongs to whom. He has admitted that the seizure memo (Ex. P-7) was prepared on the same night at 1.30 p.m. He could not furnish any explanation that why in seizure memo (Ex. P-7) he has mentioned the case to be under section 307/34 IPC when he was knowing before preparing the seizure memo (Ex. P-7) that Kailash has died and case is converted from section 307 to 302 IPC. He has admitted that while writing the report (Ex. P-4). Kushendra had told him about the cries of "Bachao Bachao" made by his brother. Kushendra had not told him that Kailash had received four injuries, two on the chest and two on the back. In the statement (Ex. D-2) given by Narendra, he had not told him that mother had also come on spot and that Kailash had told him that Sunder had assaulted him by Khaderua on his head. It was also not told to him that out of the knife blows given by Munna and Charnu, one blow was given on back and another on stomach above thigh. It was also not told to him that out of the knife blows given by Munna and Charnu, one blow was given on back and another on stomach above thigh. He was also not informed by Narendra that• he heard the noise of Kailash thrice. He was also not informed by Narendra that he had seen the appellants running arid they were carrying knives in their hands and that Kailash was taken upto the courtyard. 11. On the basis of the aforesaid prosecution evidence and from the evidence of PW 3 and PW 3, trial Court found that the Khaderua injury caused by Sunder on the head of the deceased is not medically corroborated and though the presence of accused Ramobai is shown on spot but she has not actively participated in the commission of crime and on that basis acquitted both the accused persons and convicted the appellants. After considering the evidence of PW 3 Kushendra Singh and PW 4 Narendra Singh, it is found that their evidence does not inspire confidence. They have admitted that the incident took place in the night at about 10 p.m. There was no source of light available on the spot and the incident took place at around 40 ft. away from their house and when they came out from their house they had only seen the accused persons running away from the spot. There are omissions and contradictions in their evidence about the presence of knife in their hands. Therefore, it is doubtful that the two witnesses PW 3 and PW 5 had seen the accused persons running, way from the spot. 12. There are many other lapses in the prosecution story such as the place where the oral dying declaration\Vas made to the witnesses--whether it was made at the place of occurrence or inside the house. From their evidence, it is also clear, as stated by PW 3 Kushendra Singh that the deceased has not stated anything to him on spot and whatever he said, he said inside the house. PW 3 Kushendra Singh has stated that deceased had not told anything to him on spot and PW 5 Narendra Singh has stated that deceased narrated the incident to them on spot. Therefore, it is not clear that which is the correct version and whether incident was narrated to them on spot or in the house. PW 3 Kushendra Singh has stated that deceased had not told anything to him on spot and PW 5 Narendra Singh has stated that deceased narrated the incident to them on spot. Therefore, it is not clear that which is the correct version and whether incident was narrated to them on spot or in the house. PW 5 had not shown the presence of mother of Sunder on spot. There is no evidence of exhortation by mother in his examination-in-chief. He has also not given the correct version of the injuries. He says that Munna and Chamu assaulted on the back as well as on the thigh whereas the deceased has not received any injury on the thigh. Admittedly, deceased has received two injuries on the chest and two on the back. There is variation on this point in the statement of the two witnesses. PW 3 Kushendra Singh says that when they reached on spot, they had not chased any of the accused persons whereas PW 5 Narendra Singh has stated that he tried to chase accused Sunder upto 100 meters but he could not catch him. Therefore, there is variation in the statement of the two witnesses on this point also. Both the witnesses have admitted enmity between the complainant party and the deceased on the ground of some plot. PW 3 has stated that when he came out deceased Kailash was siting on a flat stone and• blood was also available on the flat stone. PW 3 has also stated that their clothes were also stained with blood when they carried deceased Kailash from the place of Occurrence to their house. Admittedly, police has not seized those clothes. From the evidence of the two witnesses, it appears that they are cooked up witnesses and they were not present on spot. They might have reached later on and by the time the deceased must have become unconscious on spot itself. It is the prosecution case that when the injured was taken to the police station, he was unconscious. 13. The evidence of investigation witnesses also creates doubt in the prosecution story. PW 1 Ashok Vardhan Shukla has stated in the cross-examination that he reached on spot on the same night with police force where body of deceased was lying on spot and he had shifted the dead body to the hospital for post mortem. 13. The evidence of investigation witnesses also creates doubt in the prosecution story. PW 1 Ashok Vardhan Shukla has stated in the cross-examination that he reached on spot on the same night with police force where body of deceased was lying on spot and he had shifted the dead body to the hospital for post mortem. He is also the witness of Ex. D-1 and Ex. D-2 and had received two sealed bottles and packets of cloth of deceased vide Ex. P-1 and he had also prepared seizure memo (Ex. P-2). On the question of lodging the FIR, PW 3 and PW 5 both have stated that they lodged the FIR after 1'O Clock when they came back from the hospital after the death of deceased Kailash. PW 5 in his cross-examination has admitted that FIR was written after three days and his signatures were also obtained after three days and copy of the FIR was also given after three days. This witness has also stated in the cross-examination that his and his brother's (Kushendra's) signatures were obtained by Daroga and T.I. and no documents were prepared in their presence in the night itself. Their signatures were obtained after three days by Daroga on some plain papers. He does not know on which documents their signatures were obtained and what was written on them. Neither they had read them nor they were read over to them. PW 7. Investigating Officer has also made contradictory statements. He has admitted that there is overwriting in Ex. P-4 FIR and Ex. P-7. From that overwriting it appears that initially the case was registered under section 302 and subsequently it was converted to under section 307/34 IPC. This over-writing and change in the documents creates doubt in the version of the Investigation Officer because if the FIR is written earlier at 23.30 hours, it should be under section 307 IPC as at that time injured Kailash had not died but if it is written as stated by both the witnesses after 1 a.m., then it should be under section 302 IPC. There was no occasion for him to . make any over-writing. This over-writing clearly shows that either the FIR was ante-dated or ante-timed. Investigating Officer, has come in the witness box but he has not furnished any explanation about this over-writing. There was no occasion for him to . make any over-writing. This over-writing clearly shows that either the FIR was ante-dated or ante-timed. Investigating Officer, has come in the witness box but he has not furnished any explanation about this over-writing. Therefore, it appears that there are manipulations in the FIR which is confirmed by the statement of PW 5 who states that FIR was written after three days and the copy of the same was also given to him after three days. According to the evidence of PW S, on plain papers their signatures were obtained and other documents were prepared subsequently. Ex.P-7 is the seizure memo of one pant from Kushendra Singh (PW 3). There is overwriting in this document also. Investigating Officer (PW 7) has stated that he had seized the pant on the same night at 1.30 a.m. In this document section 307/34 IPC has been mentioned. When it was known to him after 1'0 Clock that injured Kailash has died and by that time it was a case under section 302/34 IPC then why section' 307/34 IPC has been mentioned in that document ? That has not been explained and no reasonable explanation has been furnished by him. According to the statement of Investigating Officer injured was first taken to the police station and thereafter he was referred to hospital, then why instead of going to hospital, they went on spot for investigation. This conduct of the investigation officer also creates doubt in his investigation. Likewise in Ex. P-6 which is the spot map, he has admitted that he has not shown the place from where the witnesses had seen the accused persons running away. More so, we have also perused the spot map (Ex. P-6). In the spot map, point No. 11 has not been shown. It has not been mentioned that which is the house of the complainant party, where is the house of accused persons, from where the incident took place and from which place the injured was taken to which place. Vide Ex. P-16, Investigating Officer has seized one drop of plood 'from the slab of stone and vide Ex. P-17 he had. seized part of stone slab. Vide Ex. P-16, Investigating Officer has seized one drop of plood 'from the slab of stone and vide Ex. P-17 he had. seized part of stone slab. This document also creates doubt that when witnesses have said that blood was oozing and enough blood passed out from the body of injured and injured was sitting on that slab at the time of receiving injuries, then why only one drop of blood was seized from that spot. Witnesses have also stated that blood fell between that slab and their house but prosecution has not recovered blood from any other place. This also creates doubt in the prosecution story. 14. We have perused the findings recorded by the trial Court. It appears that the trial Court has not considered all the aforesaid lapses in the prosecution evidence. DW 1 Madan is also the neighbour. He was also taking meals at his house when he heard the noise. He came out and he found that two persons were beating Kailash. When he reached on spot, assailants ran away form the spot and Kailash had died. Thereafter he gave information to the brothers of Kailash about the incident. From the evidence on record, defence version appears to be more probable that when both witnesses came on spot they had not seen who are running away and Kailash had not narrated any version to them and the names of assailants were not told to them. 15. Shri V.K. Saxena, learned counsel for the appellants vehemently argued on the question of variation in narrating the incident by deceased in exact words. For this purpose he pointed out the evidence of PW 3 Kushendra Singh and PW 5 Narendra Singh and submitted that both have not stated the exact words which were told to them by the deceased Kailash to prove the oral dying declaration. In this connection he placed reliance on the decision in the case of Ram Nath v. State of M.P. ( AIR 1953 SC 420 ) and thereafter on the decision in the case of Darshana Devi v. State of Punjab (1996 SCC Cri 38). In this connection he placed reliance on the decision in the case of Ram Nath v. State of M.P. ( AIR 1953 SC 420 ) and thereafter on the decision in the case of Darshana Devi v. State of Punjab (1996 SCC Cri 38). In the case of Ramnath v. State of M.P. (supra), the Supreme Court has held that it is the settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered. Unless one is certain about the exact words uttered by the deceased, no reliance should be placed on verbal statements of witnesses and the oral declarations made by a deceased. The same principle has been followed in Darshana Devi v. State of Punjab (supra) wherein the Supreme Court has held that even though an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of exact words of the oral declaration in such cases is very important. The difference in the exact words of the declaration in the present case detract materially from the value of the oral dying declaration. Division Bench of this Court in the case of Nattha v. State of M.P. [ 2003(2) JLJ 144 ] has also placed reliance on the said principle enumerated in the case of Darshana Devi v. State of State of Punjab (supra). 16. If the case in hand is examined from the view point of the aforesaid principle, it is clear that in this case two different versions have been submitted by two different witnesses before whom oral dying declaration was made. The exact words uttered by the deceased have not been narrated by the two witnesses. Even PW 5 Narendra Singh has not stated the exhortation made by the mother and the injuries received on chest by the deceased. The exact words uttered by the deceased have not been narrated by the two witnesses. Even PW 5 Narendra Singh has not stated the exhortation made by the mother and the injuries received on chest by the deceased. Even there are variations about the injuries received in the thigh by the deceased as the deceased has not received any such injury: Therefore, in the light of the aforesaid discussion and the evidence on record, it cannot be held that the oral dying declaration made by the deceased is reliable. We have perused the findings recorded by the trial Court and we find that the trial Court has not properly appreciated the evidence on record and has not considered, the aforesaid variations. Admittedly in this case there is no compliance of section 157 of the Code of Criminal Procedure which puts a check on the question of ante-dating and ante-timing of FIR. In this case prosecution has not led any evidence on the question that when the FIR was forwarded to the Magistrate and when it was received. In the case of Girish Yadav v. State of M.P. [ 1997(1) JLJ 157 (SC)], the Court has considered the observations made in the case of Mehraj Singh (UNK.) etc. v. State of M.P. [ 1994 (5) SCC 188 ] in which it has been held as under : "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets benefit of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. On account of delay, the FIR not only gets benefit of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been• recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. The second external check equally important is the sending of the copy of the FIR along with the deadbody and its reference in the inquest report. Even though the inquest report, prepared under section 174 CrPC, is aimed at serving at statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of the statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded lateron after due deliberations and consultations and was then ante-timed to give in the colour of a promptly lodged FIR". Now it is no doubt true that the external checks indicated in the said decision would lend credence to the prosecution case that the FIR was promptly recorded but what is enumerated in the said decision is not an exhaustive list of external checks. There may be other external checks also which may get well established on record and may lend credence to the prosecution case about the prompt recording of the FIR. 17. Now in the present case two such external checks are not clearly established. Spot map (Ex. P-6) was not prepared promptly. It was prepared next day and that also suffers from various infirmities as pointed above. We have perused the Panchayatnama Lash which is another check. 17. Now in the present case two such external checks are not clearly established. Spot map (Ex. P-6) was not prepared promptly. It was prepared next day and that also suffers from various infirmities as pointed above. We have perused the Panchayatnama Lash which is another check. It was prepared on 9.5.1988 at 9 a.m. but interestingly on the top of this document time 10.05 hours has been mentioned as time of death which is also not the correct version. It is not known that if the deceased died on 9.5.1988 at 10.05 a.m. then how this document could be prepared at 9'O Clock. This also shows that Naksha Panchayatnama Lash is either ante-timed or ante-dated which also raises a serious doubt in the prosecution case. 18. It was also argued that PW 5 and PW 3 are brothers of the deceased and therefore they are partisan and interested witnesses. Though the evidence of the witnesses cannot be discarded merely on the ground that they are the relatives of the deceased but if their evidence is tainted and does not inspire confidence, the same cannot be relied upon and it will not be proper and safe to base the conviction thereon. Thus, considering the overall evidence on record, we find that the prosecution has failed to prove the case against the appellants. There is no clinching and trustworthy evidence on record. Evidence of PW 3 and PW 5 cannot be accepted as they are highly interested and partisan witnesses. The evidence of inimical relations between the complainant and the accused persons is also available on record and as discussed above the evidence of dying declaration is also not reliable. On the same set of evidence, trial Court has acquitted two accused persons. Recovery of knife is also doubtful. Weapons used in the commission of crime have not been identified and no human blood is found on the articles. Infact the incident took place in the night at about 10 p.m., it was a dark night and there was no light on the spot. Therefore, it was difficult for the witnesses to see the assailants who were running. Therefore, it is clear that prosecution has failed to prove the case by producing evidence beyond reasonable doubt and considering the overall circumstances and totality of the evidence on record, no case is made out against appellants and they are entitled for acquittal. Therefore, it was difficult for the witnesses to see the assailants who were running. Therefore, it is clear that prosecution has failed to prove the case by producing evidence beyond reasonable doubt and considering the overall circumstances and totality of the evidence on record, no case is made out against appellants and they are entitled for acquittal. Therefore, this appeal is allowed. Judgment of the trial Court is set aside and the appellants are acquitted. They are in jail. They be released forthwith if not required in any other case. ........................