Judgment SHIVA KIRTI SINGH and SUBASH CHANDRA JHA JJ. 1. Both the appeals have been heard together and are being disposed of by this common judgment because they arise out of same impugned judgment and order of conviction. There are three appellants in Cr.Appeal No. 147 of 2002. Appellant No. 1, Kishori Yadav @ Kishori Gone has been convicted under Section 302 read with Sec. 34 of the IPC and awarded Rl for life. Appellants No. 2 and 3, Ram Lagan Yadav @ Goru Yadav and Chhotey Lall Yadav have been convicted under Sec. 326 read with Section 34 of the IPC and awarded Rl for three yars each. They have been further convicted under Sec. 27 of the Arms Act and awarded Rl for one year. Their sentences are to run concurrently. The sole appellant in the other appeal, Devan Yadav has been convicted under Sec. 302 IPC and sentenced to Rl for life. He has further been convicted for offence under Section 27 of the Arms Act and sentenced to two years Rl, both the sentences are to run concurrently. 2. The prosecution case as mentioned in fardbeyan of Baleshwar Yadav, the injured who subsequently died, was recorded by Sub-Inspector of Police, S. Sharma of Asthawan Police Station on 20.11.1981 at 1500 hours at State Dispensary, Asthawan. The case of the prosecution, in brief, is that on 20.11.1981 at about 9:00 A.M. the informant had gone to Noraiyabagh, east of his village Konan for harvesting paddy from his field along with his wife, Gauri Devi (PW-4) and his brother, Sukhram Yadav (PW-1). There all the four accused- appellants along with their father Narayan Yadav came armed with weapons. Devan Yadav, Chhote Lall Yadav and Goru Yadav were having country made guns in their hands and Kishori Yadav was armed with a Garasa. They questioned the informant as to why he was harvesting the paddy. The informant claimed that he had purchased the land through sale deed. On that all the accused began to abuse and accused Devan Yadav with country made gun in his hand fired upon the informant which caused injury on his head, waist, abdomen and all over his body and the informant fell down unconscious. The wife of the informant was assaulted by accused, Ram Lagan Yadav @ Goru Yadav with lathi and she sustained injuries. The occurrence was allegedly witnessed by co- villagers. The wife of the informant was assaulted by accused, Ram Lagan Yadav @ Goru Yadav with lathi and she sustained injuries. The occurrence was allegedly witnessed by co- villagers. Jugal Yadav and many other villagers. Seeing the informant in injured condition the accused persons ran away and thereafter he was lifted and brought to Asthawan Hospital by members of his family. 3. According to further case of the prosecution as appearing from the statement of witnesses, the injured-informant was referred by the doctor at Asthawan to Sadar Hospital, Bihar Sharif and from there to Patna Medical College Hospital, Patna where he died after three days. Initially the case was registered under Sec. 307 and other Section of the IPC and Section 27 of the Arms Act as Asthawan PS Case No. 172 dated 20.11.1981. Sec. 302 IPC was subsequently added on 23.11.1981 apparently after the deceased died. After completing investigation chargesheet appears to have been submitted against the four appellants showing that co-accused, Narayan had died during investigation. During trial the accused denied the charges and pleaded that they are innocent. Their further defence is that on the alleged date of occurrence, the deceased, along with Agnu and others had gone to harvest the paddy crops grown by accused, Narayan Yadav which was protested by a daughter- in-law of Narayan Yadav and upon that the deceased and others went to the house of Narayan Yadav along with weapons. Thus, their defence is that their paddy crops were wrongly harvested by the deceased and others and on protest they came to house of the accused persons and the manner of the occurrence as alleged by the prosecution is entirely false. 4. In course of trial the prosecution examined altogehter four witnesses. It has already been noticed that PWs-1 and 4 who are brother and wife of the deceased are mentioned in the fardbeyan. PW-2, Ram Khelawan Yadav, father of the deceased has also claimed to be an eyewitness. PW-3 Nanhey Yadav has deposed in a formal manner claiming that his father had sold the paddy field in question to the deceased. 5. The record disclosed that the trial court took pains for production of other witnesses but the prosecution did not examine even the Investigating Officer or the Doctor who conducted the postmortem examination upon the body of the deceased. 5. The record disclosed that the trial court took pains for production of other witnesses but the prosecution did not examine even the Investigating Officer or the Doctor who conducted the postmortem examination upon the body of the deceased. In such a situation one Kameshwar Prasad was examined as court witness no. 1. He is an Advocates Clerk not claiming to be conversant either with the affairs of the Doctor who conducted the postmortem or with the investigation of the case. He has acted as formal witness to prove Para- graphs-1 to 47 of the case diary written by Sarju Sharma as Court Exhibit-1 and para- graphs-48 to 74 of the case diary written by Sub-Inspector of Police, Rajendra Prasad Singh as Court Exhibit No-1/1. He has also deposed that the fardbeyan is in the handwriting and signature of Sarju Sharma and it has been marked as Court Exhibit No.-2. 6. PW-1, Sukhram Yadav has claimed to be an eye witness and has added to the original prosecution case by alleging that deceased was also assaulted by accused, Kishori Yadav with Garasa. PW-2 Ram Khelawan Yadav has not supported the allegation against Kishori Yadav as made by PW-1, but has claimed that along with his daughter-in-law (PW-4), he was also assaulted by accused, Ram Lagan @ Goru by butt of gun and he was further assaulted by accused, Kishori Yadav and Chhotey due to which he fled away to some distance. He has also admitted that his vision is poor which appears to be natural because his age has been given out as 80 years. He has admitted that accused, Kishori is a lame person and his son the deceased was facing some criminal cases and had been to jail in the past. 7. PW-4, Gauri Devi is wife of the deceased and is claimed to be an eye witness. Her presence is mentioned in the fardbeyan. She has not named Narayan among the miscreants and has levelled allegation against Kishori that he also assaulted her husband with Garasa on head. She has disclosed that her husband was taken to Asthawan Hospital and from there, on the advice of the Doctor he was taken to Patna Hospital where he died after three days in course of treatment. She has also stated that her husband gave his beyan in Asthawan Hospital on which he put his thumb impression in her presence. She has disclosed that her husband was taken to Asthawan Hospital and from there, on the advice of the Doctor he was taken to Patna Hospital where he died after three days in course of treatment. She has also stated that her husband gave his beyan in Asthawan Hospital on which he put his thumb impression in her presence. In cross- examination, she has admitted that in hospital her husband had disclosed that assault was made with gun. She has failed to disclose when her husband purchased the paddy field in question. She has also claimed that blood had fallen in the field where her husband had received injuries. In paragraph-26 of her deposition she has stated that-after assault and before death, her husband never gained consciousness. She has claimed that the accused persons were having double barrel gun with them. In paragraph-31 of her deposition, she has made a specific statement in cross-examination that after the accused persons had fled away from the place of occurrence then her father-in-law (PW-2) and her husbands younger brother (PW-1) came there. She has admitted that prior to lodging of the present case for murder of her husband the accused persons had lodged a case for cutting of paddy crops from their field against the brother and father of her husband. 8. In this case, the evidence of PW-2, the father of the deceased does not inspire confidence for the reason that as a family member had he been present at the time of occurrence, his presence would have been mentioned in the fardbeyan itself. His old age and bad eye sight also create doubt that he could have come to the place of occurrence only to watch the occurrence. So far as PW-1 is concerned, his evidence is more or less on the same lines as that of PW-4 and it is significant to note that PW-4 has given a categorical reply that PW-1 and PW-2 arrived at the place of occurrence after the accused persons had already sled away. In that view of the matter, it appears safe not to rely upon the evidence of PW-1. In that view of the matter, it appears safe not to rely upon the evidence of PW-1. This view appears reasonable, in the facts of the case, because if a male member such as PW-1, a brother of the injured had been present in the field cutting the paddy crops in the disputed field, there was every likelihood of his getting involved in the occurrence. It is not the case of the prosecution that PW-1 managed to run away nor it is their case that any body attempted or caused any injury to him. 9. So far as PW-3, Nanhe Yadav is concerned, his evidence does not improve the prosecution case much in respect of its claim that the deceased had purchased the paddy field in question from Agnu Yadav, father of PW-3. Inspite of questions put to all the material witnesses, none has given even the date of the alleged sale deed, much less producing the deed itself. 10. So far as charges levelled by the prosecution are concerned, the only witness, PW-4 appears to be an eye witness on whom reliance may be placed to some extent although she appears to be a rustic illiterate woman who does not appears to be a rustic illiterate woman who does not appear to be aware of exact meaning and significance of unconsciousness. She has asserted at more than one place, almost in same breath, that her husband was not conscious but he gave his statement to the police in the hospital. Although it is alleged by the prosecution as well as by PW-4 that she sustained injuries but no medical evidence even by way of injury report has been brought on record. However, because of inability of PW-4 to name her alleged assailant in court, accused Ram Lagan Yadav @ Goru has been acquitted of charge under Sec. 323 of the IPC. 11. In the aforesaid facts and circumstances, the first issue is whether the statement of the informant who subsequently died as contained in fardbeyan can be treated as dying declaration to support the case of the prosecution. 11. In the aforesaid facts and circumstances, the first issue is whether the statement of the informant who subsequently died as contained in fardbeyan can be treated as dying declaration to support the case of the prosecution. On this issue the learned trial court has referred to the materials in the case diary and has noted that the Investigating Officer had recorded even subsequent statement of the informant on the same lines and therefore he placed reliance upon the fardbeyan because it contains the statement ot deceased, Baleshwar Yadav regarding the circumstances under which injuries had been caused to him and also contains the name of his assailants. Such reliance has been placed even after noticing that the writer of the fardbeyan, Sarju Sharma, Officer Incharge of Asthawan PS has not been examined and contrary to the usual practice on the face of the document there is no witness regarding recording of the fardbeyan or regarding affixing of thumb impression of the informant on such beyan. 12. A statement in order to be treated as a dying declaration must appear to be beyond any doubt, the statement of an injured given while in control of his senses and truthfully recorded by the person recording the same. In absence of name of any witness appearing on the fardbeyan, only Sarju Sharma who appears to be the Police Officer who recorded the fardbeyan could have proved the contents of the fardbeyan and could have deposed about the mental and physical condition of the informant at the time of recording the fardbeyan. Apparently, such requirement has not been fulfilled because of non examination of Sarju Sharma. To the contrary evidence of PW-4 that her husband never gained consciousness after receiving injuries and till his death creates further hindrance in placing reliance upon the fardbeyan as a dying declaration of the deceased. 13. The next issue is whether copy of postmortem report available in the case diary whose paragraphs have been marked as Exhibits can be relied upon as medical evidence for corroborating the prosecution case. The learned trial court has noted down the contents of the postmortem report as appearing from its copy in the case diary. He has also noted that the postmortem examination report of the deceased is attached with the case diary but the same could not be exhibited. The learned trial court has noted down the contents of the postmortem report as appearing from its copy in the case diary. He has also noted that the postmortem examination report of the deceased is attached with the case diary but the same could not be exhibited. Only because the original document could not be exhibited, can its copy in the case diary whose paragraphs have been exhibited through a court witness be relied upon to corroborate the prosecution case, is a question which can be answered only in negative. When admit- tody the original document is available with the prosecution, its secondary evidence is not permissible under the Evidence Act. Even after the original postmortem report could have been brought on record through a formal witness, it is doubtful if the opinion of the Doctor could have been admissible on the basis of such formal witness. 14. The rule of adducing the best evidence even for presenting the postmortem certificate by getting it proved by a person who had acquintance with the hand writing of the doctor has been laid down by the Apex Court in the case relied by the learned State Counsel himself, reported in 2006 2 SCC (Crl) 52, Munna Kumar Vs. The State of Bihar. In the present case also the court witness, an Advocates clerk has not claimed any acquaintance with the investigation and in any case with the original postmortem report. 15. The most important issue which remains to be decided is whether on the basis of evidence of PW-4 the appellants can be safely convicted for the charges levelled against them and found proved by the learned trial court. Except appellant, Kishori Yadav all the three other appellants are said to be armed with guns and the prosecution case is consistent that only Devan Yadav fired a shot at the deceased. The fardbeyan does not mention any assault by Kishori Yadav with Garasa. No assault is attributed to remaining two appellants, Ram Lagan Yadav @ Goru Yadav and Chhotey Lall Yadav against the de-. ceased. The fardbeyan does not mention any assault by Kishori Yadav with Garasa. No assault is attributed to remaining two appellants, Ram Lagan Yadav @ Goru Yadav and Chhotey Lall Yadav against the de-. ceased. In such circumstances, even after placing reliance upon the oral testimony of PW-3 it is not deemed safe to hold that Kishori Yadav @ Kishori Gope is guilty of offence under Sec. 302/34 of the IPC or that the other two appellants, Ram Lagan Yadav and Chootey Lall Yadav had any fire arms in their hands and they could have shared the common intention of causing grievous injury to the deceased. 16. On a proper consideration of entire materials available on record it is found that there is no reliable material to prove participation of appellants, Kishori Yadav, Ram Lagan Yadav and Chhotey Lall Yadav in the occurrence in which the deceased received fire arm injuries. They deserve to be acquitted of the charges for which they have been convicted by the trial court. 17. So far as appellant Devan Yadav is concerned, the consistent prosecution which is supported by PW-4, wife of the deceased is that he fired a shot at the deceased causing some injuries to him. There is not allegation that he repeated another shot or the accused persons made any attempt to prevent the injured being taken to the hospital for treatment. In the background of defence of the accused that the prosecution party had attempted to cut paddy crops grown by them, it is difficult to hold that the accused had the intention of causing death of the deceased. To some extent, their defence is fortified by the fact that prosecution could not support its claim of title over paddy field in question by bringing on record any sale deed. It also stands admitted that the defence side had lodged a case of crop cutting prior to lodging of this case. In such circumstances, it appears that Devan Yadav is guilty of exceeding his right of defence of property and thereby causing injuries to the deceased by fire-arms. For that he could be held guilty only of charge under Section 304 of the IPC which prescribes punishment for culpable homicide not amounting to murder. In such circumstances, it appears that Devan Yadav is guilty of exceeding his right of defence of property and thereby causing injuries to the deceased by fire-arms. For that he could be held guilty only of charge under Section 304 of the IPC which prescribes punishment for culpable homicide not amounting to murder. Since it has been discussed and held earlier that intention of Devan Yadav was not to cause death but appears to be actuated by a defence to his property, he must be held guilty of offence under Sec. 304 (Part-2) and also under Section 27 of the Arms Act. His conviction is accordingly converted from under Sec. 302 to Sec. 304 (Part-2) of the IPC. The other appellants are held not guilty of the charges found against them by the trial court and are acquitted of all the charges. 18. It appears from the records that appellant, Devan Yadav has remained in custody for about five years and three months which includes the period he remained in custody during investigation and the period of pendency of this appeal during which he has not been released on bail. 19. Considering all the facts and circumstances, it appears that ends of justice would be satisfied if he is sentenced to period already under-gone by him. 20. As a result the appeal of appellants, Kishori Yadav @ Kishori Gope, Ram Lagan Yadav @ Goru Yadav and Chhotey Lall Yadav is allowed. The appeal of appellant, Devan Yadav i.e. Cr. Appeal No. 193 of 2002 is dismissed with the aforesaid modification in conviction and sentence. 21. Since Devan Yadav has been sentenced to the period already undergone by him, he should be released from custody forthwith if not required in connection with any other case. The other appellants shall stand discharged from the liabilities of their bail bonds.