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2007 DIGILAW 451 (MP)

Subhash Soni S/O Heeralal v. State Of M. P.

2007-04-16

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2007
JUDGMENT : S.L. KOCHAR, J. The appellants have filed this appeal against the judgment and order dated 23rd April, 1998 passed in S.T No. 10/1996 by learned I ASJ, Dewas whereby convicted the appellants under section 302/34 of the Indian Penal Code and sentenced to undergo RI for life. 2. The prosecution case shorn of unnecessary details is that on 20-9-1995 deceased Anil left his house for some work and told his brother Rajendra (PW.1) for returning within 10 minutes. He left the house at 8.30 p.m. Just after 15 minutes of his departure, somebody informed Rajendra (PW.1) that deceased was assaulted with sword. Having heard the news, Rajendra immediately rushed in the direction where the deceased had gone on his motor cycle. He saw a crowd of people in front of Laxmi Market surrounding to deceased who suffered many injuries on his person lying on the road. At the same time Dr. Komal Chandra Kothari (PW.4) reached near the crowd and on request deceased was taken to Civil Hospital in his car. On the way to Hospital deceased was questioned by Rajendra (PW.1) as to who had assaulted him, deceased replied that accused Ramesh, Subhash and Heeralal had assaulted him by sword. Deceased was admitted in the hospital where he succumbed to the injuries during treatment. The FIR (Ex.P.1) was lodged in the police station Kotwali, Dewas by Rajendra (PW.1) in the night at 9.40 p.m. Police recorded the statements of two eye witnesses Radheshyam (PW.2) and Prakash Jadhav (PW.3) on 9-10-1995 along with other eye witnesses Manohar @ Babu, Balraj, Premsingh and Satish Shrivastava on 21-9-1995. On 22-9-1995 statements of witnesses Nanakdas, Ghanshyam, Parmanand, Govindram and Jaikishore were also recorded by Investigating Officer R. S.Chundavat (PW.8). Post-mortem was performed by Dr. D. K. Rathore (PW.7). Report is Ex.P.10. Police also seized the true copy of the documents (Ex.P.2-C) regarding civil litigation pending between deceased Anil Soni, his brother Rajendra Soni (PW.1) and appellant Heeralal. Crime No. 715/1995 was registered by the police and after necessary investigation, the charge-sheet was filed against the accused persons for commission of offence under section 302 read with 34 of the Indian Penal Code and under section 4 read with section 25(1-B), (b) and 27 of the Arms Act, 1959. 3. The appellants abjured their guilt and their defence was of false implication, therefore, they were put on trial. 3. The appellants abjured their guilt and their defence was of false implication, therefore, they were put on trial. They stated in their statements recorded under section 313 of the Criminal Procedure Code that deceased and his brother Rajendra (PW.1) were doing colonizing business and on their behalf Radheshyam (PW.2) and Prakash (PW.3) used to collect money from the concerned persons. About three years ago one Babulal was got murdered by the deceased and Rajendra (PW.1) on account of dispute over possession of land. Radheshyam and Prakash were the friends of Rajendra (PW.1). Dr. Komal Chandra Kothari (PW.4) was having family terms with deceased and his brother Rajendra (PW.1). They also submitted that Prakash Jadhav (PW.3) was convicted for murder of one Prabhakar Kadam and sentenced to life imprisonment by the learned Sessions Court of Dewas. In the said case, appellant Ramesh appeared as a witness against Prakash Jadhav. Because of all these reasons, appellants pleaded their false implication. Appellants examined Balraj Tiwari (DW.1) in their defence whereas prosecution has examined as many as eight witnesses and got proved 17 documents to prove its case. 4. The learned trial Court while acquitting the appellant No. 3 Ramesh from the charges under section 4 read with 25(1-B), (b) and 27 of the Arms Act, 1959 convicted all the three appellants under section 302/34 of the IPC sentenced to RI for life. 5. The learned Sr. Advocate Shri S. K. Vyas appearing for the appellants has urged that the testimony of eye witnesses Radheshyam (PW.2) and Prakash (PW.3) could have not been relied upon by the trial Court because of their highly abnormal conduct for not informing to police being eye witnesses of the incident immediately and they kept mum for 19 days without any reasonable and plausible explanation and that FIR (Ex.P.1) was brought into existence on ante date and time which demolishes the prosecution case in its entirety. He has also submitted that though incident occurred in thickly populated locality/market but no independent witness of the said locality was examined by the prosecution in Court, though Investigating Officer recorded the statements of several witnesses, without showing any valid reasons. He has also argued that evidence of oral dying declaration to witness Rajendra (PW.1), brother of deceased and Dr. Kothari (PW.4) is not at all worth for placing reliance looking to the serious lapses in investigation. 6. He has also argued that evidence of oral dying declaration to witness Rajendra (PW.1), brother of deceased and Dr. Kothari (PW.4) is not at all worth for placing reliance looking to the serious lapses in investigation. 6. On the other hand, the learned Dy. AG Shri Desai has supported the judgment and finding of the trial Court. He has also submitted that some witnesses though cited were not examined because they were won over by the defence and delay in disclosure by the eye witnesses to police has been explained by them. 7. Having heard the learned counsel for parties and after perusing the entire record, according to us the core question for decision is whether the ocular account given by two eye witnesses Radheshyam (PW.2) and Prakash Jadhav (PW.3) is worth for placing reliance coupled with the evidence of Rajendra (PW.1) and Dr. Komal Kothari (PW.4) on the point of oral dying declaration of the deceased. 8. We first take up the evidence of both the eye witnesses. Radheshyam (PW.2) has testified that he was very well knowing to deceased Anil Soni and on 20th September, 1995 in the night between 8.45 to 9.00 pm he was sitting on the platform of cloth shop situated after 5-6 shops from the golden jewellery shop (saraffa ke dukan) of deceased. At that juncture, deceased Anil Soni was coming on motor cycle from near Novelty Square. He was stopped by the appellant Subhash who was standing on platform in front of his shop. Deceased Anil stopped motor cycle and while sitting on it started talking with appellant Subhash who came down from platform near his motor cycle. At that very moment appellant Ramesh came out from Manohar Medical Store situated in front of his shop and went towards his house which was situated inside near the shop of accused persons. Appellant Ramesh emerged with sword out of his house and dealt a blow which landed on the right wrist of deceased and the appellant Subhash caught the deceased and thrown on the ground, thereafter appellant Ramesh dealt a second blow which caused injury on abdomen. The appellant Ramesh further gave 4-5 sword blows on the legs of deceased and appellant Heeralal while standing on the platform in front of their shop exhorted Ramesh saying that "MAAR DALO ISSE MAKAN KA PHAISALA AAJ HI HO JAYEGA". The appellant Ramesh further gave 4-5 sword blows on the legs of deceased and appellant Heeralal while standing on the platform in front of their shop exhorted Ramesh saying that "MAAR DALO ISSE MAKAN KA PHAISALA AAJ HI HO JAYEGA". After causing injuries to deceased, appellant Ramesh with sword and appellant Subhash left the scene of occurrence in their Maruti Car. 9. The further say of this witness is that deceased was lying in a pool of blood in injured condition and was writhing for taking him to hospital. At that moment Dr. Kothari (PW.4) was passing through that place. He saw Anil in injured condition, stopped his car and alighted from the car, thereafter came near Anil and with the help of persons present, took Anil in the car towards hospital and this witness went to his house. He has also stated in examination-in-chief that near the spot there were so many persons present at the shops but because of fear neither he nor other persons reached to rescue the deceased because appellant Ramesh was having sword. 10. The statement of this witness was recorded as per provision under section 161 of the Criminal Procedure Code by the Investigating Agency on 9-10-1995 after the lapse of 19 days. In cross-examination, he has admitted that he was arrested twice or thrice by the police in a case of firing at Mangilal Thakur and he was facing prosecution for offence under section 307 of the Indian Penal Code (attempt to commit murder). He was also facing prosecution for causing injury by knife to one Rakesh S/o Laxmi Narayan. He also admitted that he was oftenly arrested by the police and was also arrested in 4-5 cases but according to him police launched false cases against him. He was working as a truck driver. He admitted that whenever he was going out with a truck wherever he found toll tax barrier, RTO barrier or entry tax barrier, he used to pay fees and take receipts thereof. While entering into Maharashtra going from Burhanpur, District Khandva, Madhya Pradesh there was a barrier. He was working as a truck driver. He admitted that whenever he was going out with a truck wherever he found toll tax barrier, RTO barrier or entry tax barrier, he used to pay fees and take receipts thereof. While entering into Maharashtra going from Burhanpur, District Khandva, Madhya Pradesh there was a barrier. It appears that this question was put to this witness to show that according to him he left the town on the next day and went to Andhra Pradesh while driving the truck but to establish this aspect, he had not filed any receipts of payment of toll tax, entry tax or RTO tax on various barriers which he must have crossed while going from Madhya Pradesh to Andhra Pradesh. Investigating Agency also did not collect any such receipts from him but we do not consider this aspect very material for appreciating the statement of this witness because on the question of receipts, he was not asked by the defence to produce any receipts, but looking to his unnatural conduct on spot while witnessing the incident and after the incident, not informing the police about witnessing the incident immediately or in the same night or on the next day morning before leaving for Andhra Pradesh or while moving with the truck, on any police station or giving intimation to the relations of the deceased about the incident and his witnessing the incident, his version of witnessing the incident becomes doubtful. He remained on the spot after the incident for 5-7 minutes. Kotwali Police Station of Dewas was half kilometer from the place of incident. He was having scooter but he did not go to police to inform about witnessing the incident. His name is not mentioned as eye witness in the FIR, therefore, police was not knowing that he witnessed the incident. Looking to his positive admission that he was facing 4-5 criminal cases meaning thereby he was very well acquainted with the police and Court proceedings. He must be understanding the importance of witnessing the incident. 11. A very detailed cross-examination has been done on this point by the defence but this witness failed to assign any reason as to why he kept silent after witnessing the incident and as to why did not inform the police either personally or on telephone or through any responsible person. 11. A very detailed cross-examination has been done on this point by the defence but this witness failed to assign any reason as to why he kept silent after witnessing the incident and as to why did not inform the police either personally or on telephone or through any responsible person. According to him, after witnessing the incident he went to his house and slept, thereafter on the next day he went to Andhra Pradesh while driving the truck. He was very well acquainted with the deceased and his whole family as admitted by him in para 10. He was knowing prosecution witness Dr. Kothari. The house of the deceased was situated at the distance of 500 paces from the place of incident but he did not go there and inform the relatives of the deceased. 12. In para eight the say of this witness is that after returning from Andhra Pradesh, on the next day, he was called by Kotwali Police, Dewas and he reached Kotwali in the evening between 5-6 pm. At that time his statement was recorded by Town Inspector Shri Chundavat about the incident and his signature was also taken on statement but he was not supplied any copy thereof by him. In para nine he was confronted with his case diary statement (Ex.D.2) wherein on perusal, we do not find any signature of this witness. Section 162(1) of the Criminal Procedure Code mandatorily prohibits the investigating agency to take signature of a person/witness making the statement as per provision under section 161 of the Criminal Procedure Code, therefore, normally police does not take signature on the statement. This witness failed to explain important omissions in his case diary statement (Ex.D.2) about the name of motor cycle on which deceased was sitting, appellant Subhash was standing on platform in front of his shop, deceased was talking while sitting on motor cycle with Subhash, Subhash came down from platform and talked with deceased while standing near to him, the house of the deceased was situated behind his shop and when deceased fell down the second blow by sword was dealt by appellant No. 3 Ramesh Soni which caused injury on his abdomen. He denied "A to A" portion of his statement (Ex.D.2) that appellant Ramesh dealt first sword blow on abdomen of deceased Anil, thereafter appellant Subhash pulled him down from motor cycle. He denied "A to A" portion of his statement (Ex.D.2) that appellant Ramesh dealt first sword blow on abdomen of deceased Anil, thereafter appellant Subhash pulled him down from motor cycle. The appellants Subhash and Ramesh having sword went in Maruti Car. Deceased Anil was raising his hands and murmuring to take him to hospital and when Anil fell down, the appellant Subhash caught him from behind putting his hands underneath the armpit of the deceased and continued to hold him. For all these omissions and contradictions this witness Radheshyam failed to assign any explanation. 13. Second eye witness Prakash Jadhav (PW.3) was also examined by the police on 9-10-1995. This witness has admitted in para six of his deposition that he was prosecuted and convicted for murder of one Prabhakar and thereafter released by order of the High Court. He expressed his ignorance that in the said case before the Sessions Court appellant Ramesh appeared as a witness against him and during investigation, at his instance, one sword was seized from inside the well and the said proceeding was witnessed by appellant Ramesh but he admitted about seizure of sword. He also admitted about his arrest by Indore police with regard to purchasing of stolen property and was also arrested once or twice by Dewas police in case of SATTA (Gambling) and in both the cases he was sentenced to fine of Rs. 100/- each. He also admitted playing of SATTA (gambling) and knew that police apprehends the person he found involved in gambling. He also admitted that after recording his statement in the instant case by the police, he was arrested twice in gambling case and released after imposing fine by the Court and that he was playing SATTA since last two years from the date of recording of his statement in Court dated 17th January, 1996 and whenever he was having money he used to play SATTA. He failed to give specific date of recording of his statement by police but according to him his statement was recorded after 10-12 days of the incident. He was called in Kotwali Police Station, Dewas through Head Constable Lokendra Vyas and his statement was recorded by T.I Shri Chundavat. He failed to give specific date of recording of his statement by police but according to him his statement was recorded after 10-12 days of the incident. He was called in Kotwali Police Station, Dewas through Head Constable Lokendra Vyas and his statement was recorded by T.I Shri Chundavat. In para 13 he has admitted that after the incident and between the period of recording of his statement by the police, on almost all days he was going to his shop and while going to shop passed from in front of the road of Kotwali Police Station, Dewas. He voluntarily did not approach the police for disclosing about the incident which he had seen. 14. The further say of this witness is that Kotwali Police Station was situated 200 paces from the place of incident, but at the time of occurrence he did not rush to the police station for giving information and also did not try to rescue the deceased nor raised any cry or alarm. He also did not go to the house of the deceased for giving information to his family members and he reached on the spot at the time of incident with Gopal Soni and after the incident went to hotel of Babulal with Gopal Soni and when they were sitting in the hotel for about 30-45 minutes in the hotel, police party with T.I Chundavat reached on the spot, but he did not approach him to disclose about the incident or to inform him that he had witnessed the incident. In para 14 he deposed that on the date of incident he was not knowing the name of deceased Anil Soni and he did not try to know his name in the night of the incident during the course of talk with the people. He came to know his name on the next day morning but he was every day seeing deceased Anil Soni passing from in front of his shop. He also admitted that though he was knowing situation of S.P Office in Dewas but he did not furnish any information to S.P or any police officer about his witnessing the incident. He came to know his name on the next day morning but he was every day seeing deceased Anil Soni passing from in front of his shop. He also admitted that though he was knowing situation of S.P Office in Dewas but he did not furnish any information to S.P or any police officer about his witnessing the incident. He was confronted with his case diary statement (Ex.D.3) in which it is not mentioned that appellant Subhash caught the collar of deceased and there was verbal quarrel as well as scuffle between accused and deceased and deceased was sitting on motor cycle. This witness failed to explain these omissions. He also admitted that when scuffle was going on he did not try to intervene or pacify the quarrel. In para 18 he admitted friendship with Rajendra Soni (PW.1), brother of deceased Anil Soni and Rajendra used to come to his house during the pendency of this case but prior to the case he was not visiting his house and Head Constable Lokendra Vyas reached to his house for calling him to police station. In para 20 this witness has admitted that he was sitting in the hotel of Babulal, since one hour prior to the time of incident and also remained there for 15-20 minutes after arrival of the police on the spot and went away because police was not allowing anybody to stay there and he did not tell any police officials who were disbursing the persons that he had seen the incident. 15. In our considered view aforesaid both the eye witnesses could not be relied upon because of their highly unnatural and abnormal conduct at the time of incident, after the incident and keeping silence for a long duration of 19 days. 15. In our considered view aforesaid both the eye witnesses could not be relied upon because of their highly unnatural and abnormal conduct at the time of incident, after the incident and keeping silence for a long duration of 19 days. Our this view finds support from catena of Supreme Court judgments as mentioned here under :- (1) Ganesh Bhavan Patel and another vs. State of Maharashtra, AIR 1979 SC 135 , (2) Hadu vs. The State, AIR (38) 1951 Orissa 53 (C.N.20), (3) State of Karnataka vs. Babu and others, AIR 1994 SC 31 , (4) Muluwa S/o Binda and others vs. The State of M. P., AIR 1976 SC 989 , (5) Somappa Vamanappa Madar Shankarappa Ravanappa Kaddi vs. The State of Mysore, AIR 1979 SC 1831 , (6) Darya Singh and others vs. State of Punjab, AIR 1965 SC 328 , para 11, (7) The State of U. P and another vs. Jaggo @ Jagdish and others, AIR 1971 SC 1586 , (8) Dilavar Hussain s/o Mohammadbhai Laliwala etc. vs. State of Gujarat and another, AIR 1991 SC 56 , para 10, (9) A. V. Mohal vs. Senior Superintendent of Post Office and others, AIR 1991 SC 328 , para 11, (10) Addanki Venkateswara Rao vs. Public Prosecutor, High Court of A. P., Hyderabad, 1995 Cri.L.J 2633, (11) Palanisamy and others vs. State of Tamil Nadu, AIR 1986 SC 593 , (12) Sonia Bahera vs. State of Orissa, AIR 1983 SC 491 , (13) Capt. Radhey Shyam and another vs. State of U. P., 1993 Cri.L.J. 3709, (14) Narsi vs. State of Haryana, AIR 1999 SC 234 . 16. The learned trial Court in para 66 of the impugned judgment discarded the testimony of Balraj Tiwari (DW.1) because of his abnormal conduct of keeping mum and did not come forward to inform the police about the incident whereas same logic is also applicable about conduct of aforesaid both the eye witnesses who were having criminal antecedents and prosecuted through the same police station in number of criminal cases. It is trite law that while appreciating the evidence of prosecution and defence witnesses, the same yardstick must be applied by the Court. The prosecution has not adduced any evidence in Court as to how police came to know the names of both the eye witnesses and why they were examined after 19 days. 17. It is trite law that while appreciating the evidence of prosecution and defence witnesses, the same yardstick must be applied by the Court. The prosecution has not adduced any evidence in Court as to how police came to know the names of both the eye witnesses and why they were examined after 19 days. 17. The Investigating Officer/SHO R. S. Chundavat (PW.8) has deposed in para 23 of cross-examination that he was knowing about the criminal record of witness Radheshyam who was examined as eye witness PW.2 in the instant case but he had not investigated as to where witness Radheshyam was living or present after witnessing the incident till recording of his statement on 9-10-1995. This witness has also admitted the recording of statements of both the aforesaid eye witnesses on 9-10-1995 in para 11 of examination-in-chief. 18. The learned trial Court in para 48 considered against the appellants the presence of mere blood stain on the sword in question in FSL report (Ex.P.17). This circumstance cannot be considered against the appellants without there being proof of presence of human blood tallying with the blood group of deceased on the sword. Simple recovery of the sword is also not an incriminating circumstance unless same is identified by the eye witnesses in the Court with the statement of use of the same by the accused persons causing injury to deceased. 19. Now the second set of evidence led by prosecution is the disclosure of the names of the appellants by deceased to Dr. Komal Chandra Kothari (PW.4) and his brother Rajendra (PW.1). 20. Rajendra (PW.1), the brother of deceased identified the appellants in Court and also stated that they were tenant in their house No. 167/1, M.G. Road, Dewas. The deceased Anil was his elder brother and on the date of incident i.e. 20th September, 1995 in the night at 8.30 pm they were in their jewellery shop situated at Subhash Chowk, Dewas, his brother deceased Anil left the shop with assurance to come back within 10 minutes. Thereafter 15 minutes a person came to his shop and informed him about assault to deceased by some one with sword. He was not knowing that person. Upon hearing this information he was shocked and under anxiety proceeded towards Novelty Square and found a crowd in Laxmi Market. Anil was lying in a pool of blood. Thereafter 15 minutes a person came to his shop and informed him about assault to deceased by some one with sword. He was not knowing that person. Upon hearing this information he was shocked and under anxiety proceeded towards Novelty Square and found a crowd in Laxmi Market. Anil was lying in a pool of blood. At that moment Deepak Agrawal and Dr. Komalchandra Kothari (PW.4) also reached there. He with the help of Deepak Agrawal lifted and put Anil in the rear seat of the maruti car of Dr. Kothari and proceeded for government Mahatma Gandhi Hospital, Dewas. On the way, he questioned his brother as to who assaulted him, he replied that tenant appellants Heeralal, Subhash and Ramesh assaulted him by sword. He also noticed injuries on the person of Anil especially on right palm, wrist, both thighs and calf. The further say of this witness is that in Dewas hospital, Anil was treated for 20-25 minutes, thereafter succumbed to the injuries and he went to Dewas Kotwali for lodging the report and lodged the same vide Ex.P.1 on which this witness admitted his signature at "A to A" portion. According to this witness accused persons were his tenant and for vacating the house, civil litigation was pending against the appellants in appellate stage and the case was being looked after by his brother deceased Anil. He further deposed that adjacent to the back portion of the tenanted premises a premise was purchased by deceased and one part of the house of the said portion was illegally possessed by the appellants and they were raising construction. To stop the construction work deceased had also filed civil suit against the appellants. On the date of incident, there was hearing of said civil suit in the Court and deceased submitted affidavit in the said civil suit. The witnesses identified the signature of deceased Anil Kumar on affidavit (Ex.P.2) on "A to A" portion at three places. P2-C was the true copy of the affidavit. This witness also proved spot map (Ex.P.3) prepared by T.I R.S. Chundavat (PW.8). The witnesses identified the signature of deceased Anil Kumar on affidavit (Ex.P.2) on "A to A" portion at three places. P2-C was the true copy of the affidavit. This witness also proved spot map (Ex.P.3) prepared by T.I R.S. Chundavat (PW.8). In cross-examination para 22, this witness was confronted by the learned counsel for defence with report (Ex.P.1) and his case diary statement (Ex.D.1) about omission of word KIRAYEDAR in both the documents and the reply of this witness is that he told the police the word KIRAYEDAR and if the same is not available in Ex.P.1 and Ex.D.1 he could not assign any reason. The learned trial Court discussed this aspect in para 27 of the impugned judgment and held that since no specific question about omission of this word in both the documents was put to IO R. S. Chundavat (PW.8) in his cross-examination so as to contradict Rajendra (PW.1) on the point, therefore, the accused would not get benefit of improvement and the evidence of oral dying declaration of this witness cannot be overlooked. On consideration, we do not find any illegality in the approach of the learned trial Court. This point is fortified by the Supreme Court judgment rendered in case of State (Delhi Administration) vs. Laxman Kumar and others, AIR 1986 SC 250 , para 39. 21. At this juncture, it would be apposite to refer here the finding of the learned trial Court in para 44 of the impugned judgment that Ex.P.1 cannot be treated as FIR because R. S. Chundavat (PW.8) admitted in cross-examination that before recording report (Ex.P.1) at the instance of Rajendra (PW.1) he received intimation through same head constable who had received intimation on telephone about the incident and the same was recorded in daily diary at Sl. No. 1694 on the same date of incident, but copy of the same was not filed along with the charge-sheet. We are in full agreement with this finding of the trial Court about FIR (Ex.P.1) that at the most can be treated as a statement of Rajendra (PW.1) recorded under section 161 of the Criminal Procedure Code by the police during the course of investigation. Merely by non-filing of copy of daily diary, the whole prosecution case would not be fragiled in the facts and circumstances of the present case. 22. Merely by non-filing of copy of daily diary, the whole prosecution case would not be fragiled in the facts and circumstances of the present case. 22. The next evidence is evidence of oral dying declaration which is also admissible as resgestae under section 6 and 7 of the Evidence Act. Dr. Kothari has deposed that on the date of incident in the night at 8.45 to 9.00 am he was going from his nursing home situated at M. G. Road towards Laxmi Market, he saw assembly of about 100 persons in front of Laxmi Market on the road. He stopped his car and was informed by some persons who were knowing him, about occurrence of use of sword and he was suggested to go by another side. When he was reversing his car he was approached by Deepak Agrawal, the class-mate of his son Anand Kothari who informed him that Anil Soni sustained injuries by sword and lying on the road, nobody was ready to take him to hospital and he requested him to take Anil to hospital in his car. The further say of this witness is that he reversed the car and stopped near the place where Anil Soni was lying. He was knowing him, at that moment Rajendra Soni, brother of Anil Soni also reached over there. Anil Soni was lying on the ground. Anil Soni was shifted on the rear seat of his maruti car by Rajendra Soni and Deepak Agrawal. Both also sat in the car and he drove the car. The further say of this witness is that the moment he started the car, Rajendra Soni asked Anil as to who assaulted him upon which Anil replied that he was assaulted by Subhash and Ramesh, thereafter in fast speed he reached directly to Civil Hospital, Dewas. Anil Soni was taken to emergency room and they got commenced his treatment and he became unconscious. After 3-4 minutes he regained consciousness and Doctor on duty felt that he is required to be given blood, therefore, they asked blood group upon which Anil disclosed his blood group 'O' Negative. At that moment 8-10 persons also reached there and asked Anil the name of assailants and he disclosed the names of Subhash and Ramesh. After half an hour Anil died in the hospital and he came back to his house. At that moment 8-10 persons also reached there and asked Anil the name of assailants and he disclosed the names of Subhash and Ramesh. After half an hour Anil died in the hospital and he came back to his house. He noticed injuries on right thigh and both hands. Blood was oozing from the injuries. In cross-examination, he stated that his statement was recorded in the same night. He admitted that in his statement to police he did not disclose about the disclosure of the name of assailant by deceased to 8-10 persons and about blood group of deceased. According to him, he only answered the question of the police and did not disclose these facts because same were not asked. In para 10 he deposed that though they had gone to hospital while passing through the Kotwali Police Station, but did not stop to give information to police because Anil was in serious condition and in the hospital they were busy to manage his treatment and after some time police also reached in the hospital. In cross-examination, para eight he admitted that in Dewas town there could be 5-50 persons having their name Ramesh and Subhash and he was not the member of Rotary or Lions Club. He also deposed about treatment of family members of Anil Soni occasionally but specifically denied the defence suggestion that he was the family Doctor of Anil Soni and because of close relations with deceased Anil and his family members, given false statement. 23. On visualisation of the statement of this witness Dr. Kothari, we find ring of truth in his statement. There is no reason for him to speak lie or to implicate the appellants falsely. There is absolutely no material on the record to show his bias against the appellants. The learned counsel for appellants argued that on the basis of the statement of this witness, identity of the appellants Ramesh and Subhash is not established because he admitted the presence of 5-50 persons having same name in town Dewas. We do not agree with argument of learned counsel because as the identity of the appellants has already been established by the statement of Rajendra Soni (PW.1), brother of the deceased and statement of Dr. We do not agree with argument of learned counsel because as the identity of the appellants has already been established by the statement of Rajendra Soni (PW.1), brother of the deceased and statement of Dr. Kothari being independent witness and duly corroborated by disclosure of the names of appellants Ramesh and Subhash by the deceased as his assailant while taking him to hospital in his car. 24. In the instant case, there appears a glaring feature of non-co-operation of the citizens and keeping away from appearing as witnesses as well as tendency of watching the crime as silent spectators. Admittedly, the incident occurred in a prime location of the market of Dewas Town. 100 persons were present there. None tried to rescue the deceased. If all the shop keepers and inhabitants of that area would have immediately intervened in the act of assault, they could have saved the deceased who sustained as many as 11 injuries caused by hard and sharp object. Though, the incident was witnessed by other persons but none came forward to give statement and to openly inform the police which is the duty of the citizen/public as per provision of section 39 of the Criminal Procedure Code Dr. Kothari (PW.4) could have also avoided the situation but he acted as a responsible citizen as well as person belonging to a noble profession. On the basis of the material available on the record, in the instant case he cannot be termed as a got up witness. In that case he could appear as an eye witness of the incident. He discharged his onerous duty as a citizen as well as Doctor by taking the deceased immediately to hospital in his car though persons of the said locality did not give any assistance. We find him to be an independent witness and his statement is corroborated by Rajendra (PW.1) so far as appellant Subhash and Ramesh are concerned. This witness has not named Heeralal, therefore, we do not consider it safe to rely on the solitary testimony of Rajendra (PW.1), brother of the deceased about evidence of oral dying declaration against appellant Heeralal. 25. Dr. Kuldeep Shrivastava (PW.6) attended the deceased Anil Soni first in time in government hospital, Dewas. He found 12 external injuries on his person, could be caused by sharp edged object. He proved his report (Ex.P.7). 25. Dr. Kuldeep Shrivastava (PW.6) attended the deceased Anil Soni first in time in government hospital, Dewas. He found 12 external injuries on his person, could be caused by sharp edged object. He proved his report (Ex.P.7). He also opined that injuries on the person of deceased were cumulatively sufficient to cause death and out of 12 external injuries nine were on thigh and legs, two were on right hand and one was between right thigh and abdomen and deceased was in semi-conscious condition. There is no medical evidence to say that after sustaining injuries deceased would have fallen unconscious immediately and could not talk with anybody. The statement of Dr. Kuldeep Shrivastava (PW.6) is establishing the fact that deceased was brought in the hospital in live condition. Deceased sustained most of the injuries on non-vital part of the body like thigh and legs. Therefore, in our considered view he must be in a position to talk with Rajendra (PW.1) and Dr. Kothari (PW.4) while taking him to the hospital in a car. He survived more than an hour after the incident. Since Rajendra (PW.1) and Dr. Kothari (PW.4) were not the eye witnesses, therefore, they must be anxious to know the names of the assailants and best person was the deceased to furnish this information. For complicity in the crime of appellant Heeralal, there is no corroboration to the testimony of Rajendra (PW.1), therefore, in our view he is entitled for benefit of doubt. The learned counsel for appellants has pointed out the evidence of Dr. Shrivastava (PW.6) in para five that he was asked by police for recording of dying declaration of Anil Soni after his admission in the hospital and his dying declaration could not be recorded because he was unconscious and not in a position to give statement. The document is Ex.P.8. 26. We have given our anxious consideration to this aspect and are of the opinion that this opinion of Dr. Shrivastava was given after admission of Anil in Intensive Care Ward during the course of treatment for recording of dying declaration. On this basis it cannot be inferred that while taking him to hospital by Rajendra (PW.1) and Dr. Komal Kothari (PW.4) he could not speak and was in unconscious condition. Shrivastava was given after admission of Anil in Intensive Care Ward during the course of treatment for recording of dying declaration. On this basis it cannot be inferred that while taking him to hospital by Rajendra (PW.1) and Dr. Komal Kothari (PW.4) he could not speak and was in unconscious condition. Looking to the part of the body on which he sustained injuries we ourselves can also come to the conclusion that he must be conscious and able to give name of his assailants during the course of taking to the hospital. Our this view is fortified by the judgment rendered by the Supreme Court in cases of Prakash and another vs. State of M. P and Vishram and others vs. State of M. P., AIR 1993 SC 65 placitinum-C para 11, page 250 para 4 and 5. In case of Prakash (supra) the Supreme Court while considering the evidence of oral dying declaration observed that "victim was alive for about half hour after assault and absence of medical evidence to indicate that he was not in a position to make dying declaration. Victim was knowing the assailants, therefore, it is reasonable to expect that he would give names of assailants to his family members at first opportunity" and in case of Vishram (supra) the oral dying declaration was made by the deceased to his father who lodged the FIR after admitting him to hospital. He also mentioned about oral dying declaration and gave necessary details in the FIR. There was no evidence that deceased was unable to give oral dying declaration, therefore, the conviction of the appellants on the basis of oral dying declaration has been maintained by the Supreme Court. 27. In the instant case, we are having the evidence of oral dying declaration before independent witness Dr. Kothari (PW.4) who had no axe to grind against the appellants. The statement of deceased to both the witnesses is duly admissible under section 6 as res gestae and dying declaration under section 32, sub-section (1) of the Evidence Act, which reads as under :- "Relevancy of facts forming part of same transaction. Section 6 :- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places". Section 6 :- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places". Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Section 32 :- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :- When it relates to cause of death; (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question". 28. In the case at hand, the statement of deceased to aforesaid witnesses was the fact not only connected with the fact in issue and forming part of the same transaction but are also its immediate cause and effect, they are therefore being relevant to the fact in issue are admissible as RESGESTAE within the meaning of section 6 of the Evidence Act. The statement of deceased to both the witnesses is also disclosing his cause of death, thus, admissible under section 32(1) of the Evidence Act. The prosecution has led sufficient evidence to establish the motive of the appellants Subhash and Ramesh as discussed hereinabove. 29. Consequently, in the wake of aforesaid analysis, this appeal is allowed in part. Conviction and sentence of appellant No. 2 Heeralal is hereby set aside. He is on bail. His bail bond and surety bond stand discharged. Conviction of appellant No. 1 Subhash and No. 3 Ramesh are hereby affirmed. Their appeal is dismissed. Appellant No. 1 Subhash is in jail. Appellant No. 3 Ramesh is on bail. Conviction and sentence of appellant No. 2 Heeralal is hereby set aside. He is on bail. His bail bond and surety bond stand discharged. Conviction of appellant No. 1 Subhash and No. 3 Ramesh are hereby affirmed. Their appeal is dismissed. Appellant No. 1 Subhash is in jail. Appellant No. 3 Ramesh is on bail. He is directed to surrender before the trial Court on 14th May, 2007 and the learned trial Court is directed to send him to jail for serving out the jail sentence as awarded by the trial Court. On failure of the appellant No. 3 Ramesh to surrender himself on 14th May, 2007 before the trial Court, the trial Court is directed to take necessary legal steps against him as well as his surety under intimation to this Court.