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2009 DIGILAW 307 (JK)

Lal Chand v. State Of J. &K.

2009-06-05

VIRENDER SINGH, Y.P.NARGOTRA

body2009
Virender Singh, J. 1. Perhaps, age-wise, this is the oldest criminal Division Bench appeal, which is being disposed of by us. We may mention here that delay is primarily caused by the appellants only, who after being released on bail, did not appear for a considerable period. Record reveals that for about more than two years, presence of Bias Raj could not be secured even through non-bailable warrants of arrest and ultimately this Court in May, 2006 appointed Sh. M. M. Gupta, Advocate, as amicus-curiae, to assist this Court on his behalf. Thereafter also some of the appellants chose not to appear and, as such, non-bailable warrants of arrest were issued to secure their presence. Ultimately, Mr. Vishal Sharma, Advocate, put in his appearance on behalf of appellants-Mohinder Pal, Madan Lal and Basant Kumar, and made a request that earlier the present appeal was being handled by Sh. Sakal Bhushan, Advocate, who has since shifted to Supreme Court and he would be assisting this Court on behalf of aforesaid three appellants. One of the appellants, namely Lal Chand died during the pendency of the appeal, which fact was subsequently verified by the learned State counsel and, as such, qua Lal Chand the present appeal stood abated. This, in brief, is the flashback which has caused delay in disposal of the instant appeal. 2. It is also worth-mentioning that alongwith aforesaid five appellants (including Lal Chand since dead), Krishan Kumar and Om Parkash alias Doctor, the other two sons of Lal Chand, were also booked and faced trial. They have earned acquittal vide impugned judgment. The State, however, has not filed an appeal against their acquittal. Therefore, the present appeal now survives qua four appellants only namely Bias Raj, Mohinder Pal, Madan Lal and Basant Kumar (for short to be referred to as `the accused). 3. Another two facts need to be clarified to avoid any confusion at any later stage, viz (i) that in the title of the impugned judgment, one Sant Kumar figures as accused No.4, he is son of Lal Chand. In fact, this is a typographical mistake. Instead of Sant Kumar, it should have been Basant Kumar as is otherwise clear from the operative part of the judgment. However, the present appeal is by Basant Kumar S/o Lal Chand alongwith other four convicted accused; (ii) another fact is with regard to Mohinder Pal, the convicted accused. In fact, this is a typographical mistake. Instead of Sant Kumar, it should have been Basant Kumar as is otherwise clear from the operative part of the judgment. However, the present appeal is by Basant Kumar S/o Lal Chand alongwith other four convicted accused; (ii) another fact is with regard to Mohinder Pal, the convicted accused. He has initially figured as Roshal Lal in the statement of Jaswinder Lal (since deceased), which is the basis of registration of the F.I.R., but during trial, it is made clear that Roshal Lal is known as Mohinder Pal also. In the operative part of the judgment or even in the memo of appeal, Mohinder Pal is mentioned as alias Roshan and is the appellant before us. However, in our judgment, he shall be referred to as Mohinder Pal only. 4. All the accused were charged under Sections 302/ 148/ 149 R.P.C. alongwith their two co-accused namely Krishan Chand and Om Parkash (since acquitted) They have been convicted and sentenced for the same charges vide impugned judgment of learned Sessions Judge, Kathua dated 18.03.1991 and sentenced to imprisonment for life under Sections 302/ 149 RPC with a fine of Rs.500/- each, in default thereof to further undergo simple imprisonment for three months and to undergo two years rigorous imprisonment under Sections 148/ 149 R.P.C. Both the sentences have been ordered to run concurrently. Aggrieved of the same, they are before us through instant appeal. Proceedings are also submitted to us for confirmation through Confirmation No. 38/1991. 5. There are two deceased in this case namely Jaswinder Lal and Manjit Kumar. At one or two places Jaswinder Lal is said as Jaswinder Kumar also. The incident is of 16.05.1990 at about 12 noon. Place of occurrence is the house of the accused. The case set up by the prosecution is that on 16.05.1990 an entry No.14 was made in the Daily Diary Register (DDR) of Police Station Industrial Estate Kathua to the effect that a reliable information was received that Lal Chand (since dead) and his sons were assaulting two young persons, who were forcibly detained by them in their house situate in Jagatpur, Tehsil Kathua (now District). On receipt of the said information, Head Constable Raj Mal accompanied by constables Chaman Lal and Tirath Singh left for the village and when they reached the house of the accused, they found that Manjit Kumar and Jaswinder Lal (both since deceased) were seriously injured and were lying in one of the rooms of the house of the accused. They were removed by the police to District Hospital Kathua for providing them immediate medical aid. Sub Inspector Basant Singh reached the hospital and recorded the statement (EXPWBS) of Jaswinder Lal in the presence of Dr. Mrs. Renu Jamwal, who declared him to be fit to make the statement and the other Manjit Kumar could not regain consciousness and ultimately died. On the statement of Jaswinder Lal, initially a case under Sections 307/ 382/ 342/ 148/ 149 RPC was registered in Police Station Kathua. However, subsequently it was converted into 302 RPC after the receipt of the information about the death. 6. In his statement (EXPW-BS) Jaswinder Lal- deceased, describes the occurrence stating that he and Manjit Kumar had gone to village Jagatpur to get fodder (grass) and when they were walking in the village street abutting the house of the appellants, Lal Chand, his four sons namely Bias, Basant Kumar, Mohinder Pal and Madan Lal alongwith his other sons, dragged them inside their house, where they were subjected to severe beating with `Drat and Lathies. They were also made to drink water, which had some strange taste. They were, however, rescued by the police and brought to the hospital. It is also the case of the prosecution that accused Basant Kumar had removed Rs.300/- from the pocket of Jaswinder Lal. During trial, it revealed that the occurrence was preceded by the assault and wrongful confinement of PW Parveen Kumar alias Laddi, the real brother of the deceased, to whom Bias Raj owed Rs.50/- and Parveen Kumar had asked for the same 3-4 days prior the occurrence. On the date of occurrence, he had gone to village Jagatpur to fetch certain labourers and when he reached near the house of the accused, accused- Bias Raj stopped him and remarked that he would return Rs.50/- alongwith interest on that day (date of occurrence). Upon this, he started beating PW Parveen Kumar and in the meantime the other accused had also joined him. Upon this, he started beating PW Parveen Kumar and in the meantime the other accused had also joined him. He was confined in the room, where fodder was kept and in the meantime Manjit Kumar and Jaswinder Lal (since deceased), who had come to buy fodder in the village, were also passing through the place of occurrence and they too were attacked by the accused with different weapons like `Drat (sharp edged weapon) `Dandas & Saria (both blunt weapons). They were dragged inside the room and became unconscious. However, PW Parveen Kumar could manage fleeing from the place of occurrence. During investigation, it was also revealed that Parveen Kumar was accompanied by PWs Hardev Singh and the factum of aforesaid incident was also disclosed to Chajju Ram and Krishan Chand- Lambardar, and thereafter, the police was informed. It reached the spot and shifted the deceased to the hospital. This, in brief, is the prosecution case. 7. Before discussing the evidence produced by the prosecution, may be in the shape of `eye version account or `the dying declaration of Jaswinder Lal-deceased, the injuries inflicted on the person of both the deceased need to be reproduced. 8. Manjit Kumar-deceased has received the following external and internal injuries:- "1. An incised wound 4" x 2" x 2" margin everted blood stained bone deep with fracture tibia and fibula 3" above. The right ankle joint almost vertically placed. 2. Fracture with dislocation of left ankle joint with swollen left foot. 3. An incised wound in the middle of left leg margin blood stained 2" x 1-1/2" x 1" antimortem in nature. Skin deep placed almost vertically. 4. Fracture and dislocation of right wrist joint. 5. Swollen right elbow joint. 6. Fracture with dislocation of right shoulder joint. 7. Fracture with dislocation of left elbow joint. 8. Incised wound on the posterior aspect of left forearm placed almost vertically in the middle anti-mortem in nature about 2" x 1" skin deep. 9. Multiple bruises over the back upper portion extending towards the left shoulder joint as well right shoulder joint. 10. Multiple bruises over the left leg posteriorly more on buttock. 11. Lacerated wound 1" x 1/2" x 1/2" antemortem in nature skin deep over the dorsal aspect of the left hand. 12. Both hands swollen anterior posterior aspects." 9. 9. Multiple bruises over the back upper portion extending towards the left shoulder joint as well right shoulder joint. 10. Multiple bruises over the left leg posteriorly more on buttock. 11. Lacerated wound 1" x 1/2" x 1/2" antemortem in nature skin deep over the dorsal aspect of the left hand. 12. Both hands swollen anterior posterior aspects." 9. On opening of the scalp, the doctor noticed fractures of occipital bone extended to left temporal bone with extensive subdural hemorrhage with rupture of membranes. There was laceration of brain tissue underneath the fractured bones. 10. The following injuries were noticed on the dead body of Jaswinder Lal, the second deceased:- "1. Fracture dislocation of the left knee cap. 2. An incised wound 2" x 1" x 1" bone deep, ante mortem in nature on the left leg almost vertical. 3. Fracture dislocation of left shoulder. 4. Swelling over dorsum of left hand. 5. Swelling over dorsum of right hand. 6. An incised wound over forehead almost in the centre 3" above the right eye measuring about 2-1/2 x1/2" x1/2" bone deep. Antemortem in nature vertically placed. 7. Scratch over right knee joint. 8. Multiple contusions over left upper arm posterio lateral aspect. 9. Contusions over left foot dorsal aspect. 10. Lacerated wound 2" x 1/2" x 1/2" bone deep almost middle left leg. 11. There was swelling on the right side of neck about the region of arnco-therocic region. 12. In this case also, there was fracture of right parital bone extending upto occipital bone with subdural hemorrhage with the laceration of brain tissue with rupture of brain membranes. 13. Since during investigation, it came to the notice of the police from the statement of Jaswinder Lal (since deceased) that they were made to take water in which something was mixed, Viscera was sent for chemical examination by keeping the opinion of the cause of death reserved for some time in both the cases. As the chemical report did not show any poison in the contents of Viscera, the investigating agency sought categoric opinion about the cause of death of both the deceased, upon which PW Dr. Renu Jamwal gave opinion EXPW-RJ/4 in respect of Manjit Kumar and EXPW-RJ/6 in respect of Jaswinder Lal to the effect that the cause of death was multiple injuries on scalp, brain and lungs as mentioned in the post mortem report. Renu Jamwal gave opinion EXPW-RJ/4 in respect of Manjit Kumar and EXPW-RJ/6 in respect of Jaswinder Lal to the effect that the cause of death was multiple injuries on scalp, brain and lungs as mentioned in the post mortem report. Weapons of offences were also shown to the doctor, which were exhibited EXPW- ML/1, EXPW-ML/2, EXPW-KK/3 & EXPW-KK/4 and she opined that the injuries on the person of both deceased could be caused by those weapons. 14. The prosecution has examined as many as nineteen witness namely (1) Parveen Kumar (2) Mst. Shanti (3) Hardev Singh (4) Suresh Kumar (5) Kuldeep Raj (6) Chhajo Ram (7) Dr. Renu Jamwal (8) Jagdish Raj (9) Kewal Krishan (10) Chaman Lal (11) Prakash Chand (12) Head Constable Raj Mal (13) Head Constable Gopal Ram (14) Rajinder Kumar (15) Mohan Lal (16) Mir Chand (17) Badri Nath (18) Shamsher Bhadur Bakshi and (19) S.I. Basant Singh. 15. Defence plea of the accused mainly emerges from the statement of Lal Chand (since deceased) recorded under Section 342 Cr.P.C., in which he, in fact, has admitted the occurrence, but tendering different explanation to it. His case was that he was sleeping in the house on the bed when two boys entered his room. One of them had assaulted on his head with Lathi. He had received injuries at the hands of those persons and fell unconscious. His categoric case is that when he was injured by two persons, at that time his wife, daughter-in-law, his own daughter aged 16-17 years and his two sons namely Mulak Raj and Janak Raj were also present and they had resisted the assault. The cause of assault projected is that he was having litigation with PWs Master Mohan Lal and Kewal Krishan, who were his nephews, and they were nursing grudge for that reason. They being rich people had hired those two persons for attacking him. 16. One Dr. Daljit Singh was examined under Section 540 Cr.P.C. at the instance of the defence to prove the injuries on the person of Lal Chand-accused, but no other witness was summoned or examined by the accused party. 17. So far as direct evidence is concerned, the prosecution primarily rests upon the statement of PW Parveen Kumar, Hardev Singh, Chhajo Ram and Mst. Shanti. Mst. Shanti has resiled from her earlier version made before the police during the investigation and declared hostile. 17. So far as direct evidence is concerned, the prosecution primarily rests upon the statement of PW Parveen Kumar, Hardev Singh, Chhajo Ram and Mst. Shanti. Mst. Shanti has resiled from her earlier version made before the police during the investigation and declared hostile. However, Chhajo Ram, who was otherwise not declared hostile, has put forth the prosecution case somewhat in different manner. 18. Gist of the statement of PW Hardev Singh is that on the date of occurrence PW Parveen Kumar, who knew him earlier, met him and told him to accompany him to Jagatpur and when both of them reached near the house of the accused, they had caught hold of Parveen Kumar and took him inside. It is then his case that he got perturbed and started going back, when on his way, Manjit Kumar and Jaswinder Lal (since deceased) had met him, who were apprised of the assault on Parveen Kumar and then all three went to the place of occurrence. He further stated that Jaswinder Lal and Manjit Kumar were ahead of him and when they reached near the house of the accused, they were also assaulted and confined in the room. He, however, left the place of occurrence for Kathua and came subsequently in a Matador and saw that the police party was already there. He talks of presence of Chhajo Ram- Lumberdar, when Manjit Kumar and Jaswinder Lal were taken to the hospital. 19. PW- Parveen Kumar has reiterated his case as disclosed by him before the police at the time of recording of his statement under Section 161 Cr.P.C. 20. Apart from aforesaid set of evidence, the prosecution is relying upon `Dying Declaration of Jaswinder Lal recorded by SI Basant Singh on 16.05.1990, after getting the opinion of Dr. Mrs. Renu Jamwal, who declared him fit to make statement as is clear from the trial Court record. At that time, the other injured Manjit Kumar was unfit to make the statement. We have gone through the statement of Jaswinder Lal, recorded in vernacular (Urdu). Mrs. Renu Jamwal, who declared him fit to make statement as is clear from the trial Court record. At that time, the other injured Manjit Kumar was unfit to make the statement. We have gone through the statement of Jaswinder Lal, recorded in vernacular (Urdu). He states that on 16.05.1990 at about 12 p.m., he alongwith Manjit Kumar had gone to village Jagatpur to get fodder and when they were in the street (gali), Lalu (referring to Lal Chand-accused) Bias Raj, Basant Kumar, Romesh, Madan Lal and other sons of Lal Chand had caught hold of them and dragged them inside the room of their house. He then states that both of them were assaulted with Saria, Dangs (Dandas) and Drat (sharp edged weapon). His case is that the accused kept on assaulting them and ultimately the police reached, took them out and brought them to the hospital at Kathua. However, he states that they had no prior enmity with the accused. His statement further is to the effect that during the course of assault the accused had also given them water, but it was tasteless (in vernacular it is stated `Feeka Laga). He then alleges that the accused Basant Kumar had taken Rs.300/- from his pocket and during this assault his wrist watch had also fallen at the place of occurrence. 21. So far as recovery of weapon of offences is concerned, the case of the prosecution is that an iron rod was recovered at the disclosure statement of Basant Kumar-accused on 21.05.1990; a `Pawa (wooden blunt weapon) is recovered from Lal Chand (since deceased). Accused- Bias Raj recovered a `Drat (sharp edged weapon). The disclosure statements of other accused were also recorded with regard to `Lathies used by them, but no recovery has been effected. On certain weapon of offences, there were blood stains and, as such, those were sent alongwith clothes of the deceased to the Chemical Examiner for determining the blood group and origin, but somehow or the other, the report had not received the trial Court from Director, FSL Srinagar on account of disturbed conditions in the valley. On certain weapon of offences, there were blood stains and, as such, those were sent alongwith clothes of the deceased to the Chemical Examiner for determining the blood group and origin, but somehow or the other, the report had not received the trial Court from Director, FSL Srinagar on account of disturbed conditions in the valley. We are not, in fact, giving any importance to this aspect, as in our considered view, it would be of no help to either side mainly for the reason that the prosecution case is dependent upon two main aspects viz., (i) the eye version account; and (ii) the dying declaration. 22. One fact, which is very clear and also admitted by the accused side that the occurrence has taken place in the house of the accused. May be as per prosecution, it initially started outside the house. 23. We have heard Mr. L. K. Sharma, Advocate, assisted by Mr. Vishal Sharma, Advocate, Mr. M. M. Gupta, Advocate, appearing for the appellants and Mr. P. C. Sharma, Addl. Advocate General representing the State. Trial Court record has also been perused by us minutely. 24. In fact, both the learned counsel for the accused have attacked the prosecution case primarily on the following grounds:- 1) the story as put forth by the prosecution does not appear to be plausible; 2) the motive as projected by the prosecution is not such for which the accused would go to the extent of killing two persons; 3) the prosecution is suppressing the genesis of fight by not explaining the injuries on the person of Lal Chand; and 4) the `dying declaration as it suffers from many infirmities and, therefore, not believable. 5) individual role to each accused is not ascribed specifically. 25. Dwelling upon their arguments, they submit that whole of the occurrence revolves around the presence of Parveen Kumar, who happened to be in front of the house of the accused and waylaid by raising a lalkara by Basant Kumar-accused that `Rs.50/- would be given to him with interest. He is the one, who was initially assaulted and confined in the room. Manjit Kumar and Jaswinder Lal (the two deceased) subsequently reached there when PW Hardev Singh had informed them of the assault on Parveen Kumar. He is the one, who was initially assaulted and confined in the room. Manjit Kumar and Jaswinder Lal (the two deceased) subsequently reached there when PW Hardev Singh had informed them of the assault on Parveen Kumar. Learned counsel submit that Parveen Kumar somehow or the other has not received any injury in this case and even managed to run away from the spot whereas Manjit Kumar and Jaswinder Lal were assaulted by all the accused. Even Hardev Singh did not stop there and left the place of occurrence. This, according to the learned counsel, does not appeal at all and it appears that the occurrence had taken place in a manner different than the one as projected by the prosecution. This fact alone is sufficient to see the entire case with an eye of suspicion and it looks that subsequently a story of choice of the complainant was projected by the police in connivance with the complainant party simply that two persons had received injuries in the house of the accused. 26. The learned counsel then submit that not only the case of the prosecution is suffering from the aforesaid infirmity, the prosecution does not talk even a word about the injury on the person of Lal Chand- accused (since deceased). So it can be comfortably said that the prosecution is suppressing the genesis of the occurrence. Strengthening their arguments on this aspect, the learned counsel submit that in the present set of circumstances, the defence version as projected by the accused becomes more plausible whereas the accused are not supposed to prove the defence to the hilt as is expected of the prosecution, but from the attending circumstances of this case, the defence plea appears to be favourable to the accused for extending benefit of doubt. However, according to the learned counsel, Lal Chand has come up with a specific plea of defence to the effect that he was assaulted by two persons, who had entered his house and were accompanied by PWs Master Mohan Lal and Kewal Krishan with whom he was litigating and this defence, on the face of it, appears to be more probable as compared to prosecution case, now projected. 27. 27. The learned counsel then submit that on one side a motive of Rs.50/- has been projected saying that one of the accused owed that money to Parveen Kumar, whereas on the other hand, Jaswinder Lal on whose statement the police swung into action, says that he and Manjit Kumar had no animosity with the accused at all. So motive as projected is also very weak in nature. 28. The learned counsel then submit that the case of the prosecution is not only failing on the aforesaid flaws, even the `dying declaration of Jaswinder Lal, on which the prosecution is relying heavily, is also not trustworthy. They contend that after receipt of so many injuries, Jaswinder Lal could not be in a position to make a statement before SI Basant Singh and it appears that the statement has been coined up by the Investigating Officer himself so as to give advantage to the complainants side, who was the aggressor and opened assault on Lal Chand. 29. The learned counsel then submit that, even otherwise, after obtaining the opinion of the doctor, SI Basant Singh should have called some Magistrate to record the `dying declaration and in that eventuality all sanctity could be attached to it without any corroboration. In the present case, it is not so done and the corroborative evidence produced by the prosecution is also weak in its nature and, therefore, the `dying declaration should also not be considered for the purpose of maintaining the conviction of the accused. 30. The learned counsel lastly contend that, even otherwise, no specific part/ role has been attributed to individual accused and, therefore, Section 149 R.P.C. is not attracted in this case. 31. On the basis of the aforesaid submissions, the learned counsel submit that the prosecution has not been able to prove its case against any of the accused and, as such, they deserve acquittal. 32. Per contra, Mr. P. C. Sharma submits that there appears to be no reason to disbelieve the `dying declaration of Jaswinder Lal, which is the basis of present case and recorded in the presence of Dr. Mrs. Renu Jamwal after obtaining the opinion about the condition of the patient to make the statement. 32. Per contra, Mr. P. C. Sharma submits that there appears to be no reason to disbelieve the `dying declaration of Jaswinder Lal, which is the basis of present case and recorded in the presence of Dr. Mrs. Renu Jamwal after obtaining the opinion about the condition of the patient to make the statement. He submits that the conviction can be based on `dying declaration alone by leaving the other set of evidence led by the prosecution, whereas the evidence in the shape of Parveen Kumar and Hardev Singh is also enough to unfold the prosecution case. Their evidence in any case can be taken as corroborative piece of evidence alongwith `dying declaration so as to uphold the conviction already recorded by the learned trial Court. He, thus, prays for dismissal of the appeal. 33. After hearing rival contentions of the respective counsel for either side and going through the record, we are of the considered view that the prosecution has been able to prove its case beyond any shadow of reasonable doubt against all the accused. We, hereby, put forth our reasons for arriving at the said conclusion by dealing with all the submissions advanced by learned counsel for the appellants collectively. 34. The prosecution case is that both the deceased were assaulted with sharp edged weapon and blunt weapon in the shape of Drat, Iron rod, Pawa and Lathies (sticks). Perusal of the post mortem report of both the deceased indicates that there is no dearth of injuries on the persons of both the deceased. Both the deceased have received injuries almost of the same nature. If one goes by injuries figuring at serial Nos. 9 & 10 of Manjit Kumar and injury figuring at serial No.8 of Jaswinder Lal, it is stated by the doctor that there are multiple bruises and contusions. These injuries are certainly by blunt weapon and is clear that repeated attacks were made on both the deceased. It was, in fact, a joint attack on both the deceased. In a case of such like attack, a photographic version of role of individual accused is not expected from the prosecution witnesses. This would be rather most unnatural. Therefore, the arguments advanced by learned counsel for the appellants that individual act of each accused is not ascribed specifically, deserves to be rejected out rightly. 35. In a case of such like attack, a photographic version of role of individual accused is not expected from the prosecution witnesses. This would be rather most unnatural. Therefore, the arguments advanced by learned counsel for the appellants that individual act of each accused is not ascribed specifically, deserves to be rejected out rightly. 35. Let us now examine the present case yet from another angle. The case set up by Lal Chand (since accused) as emerges from his statement recorded under Section 342 Cr.P.C., is that he was sleeping in his room when attacked by two persons sent by PWs Master Mohan Lal and Kewal Krishan. His categoric plea is that at that time, certain ladies were in the house alongwith his two other sons namely Janak Raj and Mulak Raj. He does not talk of the presence of remaining accused at all. The other accused also do not talk of their presence at the time of the occurrence. No doubt, Lal Chand has received injuries in this case as is clear from the statement of DW Dr. Daljit Singh, who was posted as Medical Officer in District Hospital Kathua and examined him on the date of occurrence at 10 p.m., but these injuries are just insignificant. The injuries on the person of Lal Chand are as under:- "1. Complains of pain on left gluteal region. No mark of external injury. 2. A lacerated wound 1-1/2" long on the occiput just to the left side of the middle, scalp deep, blood clotted." 36. Injury No.1 is virtually no injury as it was a complaint of pain. Injury No.2 is just scalp deep on the occipital region. Admittedly, no one else received any injury from the side of the accused. Comparing the injuries on the persons of two deceased on one side and only one injury received by Lal Chand-accused, perhaps there cannot be any difficulty for us to arrive at the conclusion that the assault was opened by the accused side only and the story now put forth by the accused in their defence is most improbable on the face of it. Lal Chand alone being an old man could not cause several injuries on the persons of two deceased that too with different weapons. Ladies have also not caused any injury to those persons, who entered the room of Lal Chand and now deceased before us. Lal Chand alone being an old man could not cause several injuries on the persons of two deceased that too with different weapons. Ladies have also not caused any injury to those persons, who entered the room of Lal Chand and now deceased before us. Janak Raj and Mulak Raj have also not caused any injury to them as it is not the case of the defence. No doubt, the accused side is not to prove their case to hilt as is settled legal position and it can take the advantage from the weaknesses of the prosecution case and we are also conscious of another settled legal position that even if a specific plea of self defence is not taken by the accused and it if it otherwise evident from the evidence on record, it can be made available to the accused. But in the case on hand, in the present set of circumstances, the accused side cannot be benefited at all. The factual aspect is that out of the present accused, who are appellants before us, none except Lal Chand had received injury that too only one on the occipital region, which can be received during an ordinary assault. So from these facts on record, it can not be said that the prosecution is suppressing the genesis of the fight by not explaining the injuries on the person of the accused. It is otherwise well settled that non-explanation of injury is not always fatal to the prosecution. It is also settled that once the accused are found to be aggressors, the injuries on the persons of accused become irrelevant. It depends upon the facts of each case and in the present case, we are of the considered view that on this aspect the case of the prosecution can not be discarded. 37. We do find certain discrepancies in the statement of PWs Parveen Kumar and Hardev Singh, but those are just insignificant and ignorable in the light of the fact that the factum of occurrence is admitted by the accused and that even the situs of occurrence is also fixed. 37. We do find certain discrepancies in the statement of PWs Parveen Kumar and Hardev Singh, but those are just insignificant and ignorable in the light of the fact that the factum of occurrence is admitted by the accused and that even the situs of occurrence is also fixed. Assuming for the sake of an argument, even if the presence of Parveen Kumar and Hardev Singh is taken out of consideration, still the prosecution has the basis to ask for the conviction of the accused relying upon the statement of Jaswinder Lal now termed as the `dying declaration upon which aspect we shall be commenting at a later stage independently. 38. We may also observe here that even if the motive as projected by the prosecution with regard to the payment of Rs.50/- due from the accused is too weak in its nature, still it would not dent the case of the prosecution at all in the light of direct evidence and the `dying declaration. In this situation, motive pales into insignificance. 39. Let us now advert to `dying declaration(EXPW-BS) of Jaswinder Lal recorded by SI Basant Singh after obtaining the opinion of Dr. Mrs. Renu Jamwal. 40. Nemo moriturus praesumitur mentire: No one at the time of death is presumed to tell lie is the philosophy underlying admittance in evidence of dying declaration. This is the reason that dying declaration enjoys a sacrosanct status as a piece of evidence being in the shape of last words coming from the mouth of the deceased (victim). On the basis of this principle, the Honble Apex Court in `Khushal Rao Vs. State of Bombay AIR 1958 SC 22, held that it is not a rule of law or even the rule of prudence that `dying declaration cannot be made the sole foundation of conviction. In a recent judgment rendered by the Honble Apex Court in case `Dayal Singh Vs. State of Maharashtra 2007 (3) A.I.C.L.R. (All India Criminal Law Reporter) (S.C.) Page 346, their Lordships while dealing with various aspects of the `dying declaration in which the view taken in Khushal Raos case (supra) was reiterated, observed that it is well settled that as a matter of law the `dying declaration can be acted upon without corroboration. It is observed that the primary effort of the Court has to be to find out whether the `dying declaration is true. It is observed that the primary effort of the Court has to be to find out whether the `dying declaration is true. If it is true, no question of corroboration arises. It is only if the circumstances surrounding the `dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the `dying declaration. In the said judgment, on this aspect, their Lordships relied upon another judgment of Honble Supreme Court rendered in `State of Uttar Pradesh Vs. Ram Sagar Yadav(1985) 1 SCC 552. 41. In the aforesaid case, another aspect including the recording of the `dying declaration by a Magistrate was also considered and observed that it is not essential that a `dying declaration should be made only before a Magistrate. Section 32 of the Evidence Act no where states that the `dying declaration must be recorded in the presence of a Magistrate and the `dying declaration recorded by the police official in the present of the doctor, who had given the opinion that the deceased was in a fit state of mind to make the statement, was held to be credible, reliable and sufficient to establish the guilt of the accused. 42. We have tested the statement of Jaswinder Lal (since deceased) on the point of its reliability following the ratio of the aforesaid judgments and are of the considered view that it does not suffer from any inherent weaknesses. 43. We are examining the statement of Jaswinder Lal (since deceased) from another angle also. Admittedly, he and Manjit Kumar have received several injuries on their persons including injury by sharp edged weapon. Manjit Kumar was not in a position to make the statement as is clear from the record. Both were lifted from the place of occurrence and brought to the hospital. At that time, in this situation, the service of a Magistrate could not be requisitioned. Had the investigating officer sufficient time with him for calling the Magistrate, it could be said that some lapse has been shown on his part, but in the present case, he never wanted to waste even a single second, seeing the condition of both the injured and the moment Dr. Mrs. Renu Jamwal declared Jaswinder Lal fit to make the statement, he immediately recorded the same. Virtually, no time is wasted in this case by SI Basant Singh. 44. Mrs. Renu Jamwal declared Jaswinder Lal fit to make the statement, he immediately recorded the same. Virtually, no time is wasted in this case by SI Basant Singh. 44. The matter does not rest here. Had SI Basant Singh to involve the persons of the choice of the complainant in the `dying declaration he could name the other two sons of Lal Chand initially. It is not done like that. Only five persons namely Bias Raj, Mohinder Pal, Madan Lal, Basant Kumar and Lal Chand have been ascribed the role of assaulting Jaswinder Lal and Manjit Kumar. The word `etc. is used for others and subsequently Om Parkash and Krishan Chand were booked in this case alongwith the already named accused and those two have now earned acquittal vide impugned judgment itself. This rather reflects that the statement of Jaswinder Lal recorded by SI Basant Singh and now treated as the `dying declaration is true to the core and no fault can be pointed out. In this situation, assuming for the sake of an argument, we take it that the `dying declaration is not getting support from any corroborative evidence, still the conviction of all the accused can be based on this `dying declaration alone. 45. Once we have found the case of the prosecution to be reliable on all counts, the charge of Section 148 R.P.C., for which the accused stand convicted also by the learned trial Court, stands proved and, therefore, their conviction is also maintainable with the aid of Section 149 R.P.C., as all the accused had the common intention viz., to commit murder of both the deceased. We may observe here that no charge of Section 342 or 382 R.P.C., was framed and, therefore, no comments. 46. We may also observe here that may be the State has not preferred any appeal against the acquittal earned by Om Parkash and Krishan Chand, but we do not find any infirmity in the impugned judgment in this regard and there is sufficient material to hold them not responsible for the commission of offence. 47. The net result is that the appeal on hand is dismissed and the conviction of all the accused namely Lal Chand (since deceased), Bias Raj, Mohinder Pal, Madan Lal and Basant Kumar, as already recorded by the learned trial Court, is hereby upheld. 48. Confirmation No.38/1991 also stands disposed of accordingly. 47. The net result is that the appeal on hand is dismissed and the conviction of all the accused namely Lal Chand (since deceased), Bias Raj, Mohinder Pal, Madan Lal and Basant Kumar, as already recorded by the learned trial Court, is hereby upheld. 48. Confirmation No.38/1991 also stands disposed of accordingly. Since Lal Chand is already dead and the remaining aforesaid four accused are stated to be on bail during the pendency of the instant appeal, their bail bonds now stand cancelled. Requisite steps be taken at once for taking them into custody for serving the remainder of their sentence as already awarded by the learned trial Court and now confirmed by us. Registrar Judicial to inform all concerned quarter(s) in this regard without any delay.