Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 897 (GAU)

Parameswar Reddy @ Baburam v. State of Assam

2009-12-11

AMITAVA ROY, C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order dated 10.12.2006 passed by the learned Additional Sessions Judge, No. 2 (Ad-hoc), Tinsukia in Sessions Case No. 118 (T) of 2004. 2. The case of the prosecution, as unfolded, at trial, was, in-brief as follows: 3. On 1.6.2003 at about 9. p.m., Md. Akhtar Hussain ('the deceased'), who was the elder brother of the first informant, namely, Md. Jalim Hussain (PW No. 1) was attacked and assaulted by the accused-appellants, namely, Shri Parameswar Reddy alias Baburam, Shri Shibaram Reddy and Shri Nagraj Reddy with a dao (a sharp cutting weapon), in front of the house of Shri Bhim Bahadur Dorjee (PW6) at village-Dighali bari, as a result of which the deceased sustained injuries and succumbed to the same. An FIR being lodged with the Officer-in-Charge, Panitola Police Outpost, by the PW1 informing the police about the said occurrence, Police registered a case under Section 302/34 of IPC and launched investigation into the matter. During the investigation, police seized the incriminating weapon (material Exbt. 1) i.e., the dao from the place of occurrence, got the autopsy of the dead body of the deceased done by a Medical Officer, prepared the sketch map and recorded the statement of the witnesses, collected the inquest report and the post mortem examination report in respect of the dead body of the deceased. 4. At the close of the investigation, police submitted charge sheet against Shri Binod Gowala, Shri Ashok Rai, Shri Parameswar Reddy, Shri Dayaram Verma and Shri Sibaram Reddy and sent up them for trial. Shri Nagraj Reddy was not sent for trial. 5. The offence, under Section 302 of IPC, being exclusively triable by the court of Sessions, the learned Sub-Divisional Magistrate (S), Biswanath Chariali committed the case to the court of sessions. 6. The learned Additional Sessions Judge (FTC), Tinsukia, considering the materials on record, framed charge under Section 302/34, IPC, against the accused Shri Parameswar Reddy, Shri Baburam Reddy and Shri Dayaram Verma. Charge was also separately framed under Section 302, IPC against the said accused persons. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. As accused Ashok Rai and Shri Bonod gowala were declared absconder, they could not be tried together. 7. Charge was also separately framed under Section 302, IPC against the said accused persons. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. As accused Ashok Rai and Shri Bonod gowala were declared absconder, they could not be tried together. 7. In order to bring home the guilt to the accused, the prosecution examined as many as 10 (ten) witnesses and exhibited the seizure list, the sketch map, the charge sheet, the post mortem report, the inquest report and the seized dao. At the close of the evidence for the prosecution, the accused persons were examined under Section 313, Cr.PC. They denied all the allegations. In order to prove innocence, the defence examined two defence witnesses as DW1 and DW2. The defence version was that on the date of occurrence at about 7. p.m. the deceased, Shri Mitku Gowala and some others had kicked the bicycle of accused Shri Parameswar Reddy near the shop of one Shri Abdul Rahaman (PW4), as a result of which he had fallen down from his bicycle and that on being persuaded by said Abdul Rahaman, the said accused left for his home. 8. Having heard the learned Counsels, appearing for both the parties, and considering the evidence on record, the learned Sessions Judge, by the impugned judgment and order, convicted the accused appellants for the offence under Section 302/34 of IPC and sentenced them to suffer imprisonment for life and to pay fine of Rs. 5,000 each in default to undergo imprisonment for another period of six months. 9. Being aggrieved by the said judgment and order of conviction and sentence, the appellants have come up with this appeal, on the ground that the learned trial Judge committed illegality by convicting the appellants without sufficient, cogent and reliable evidence and that the prosecution failed to prove the case against the appellants beyond all reasonable doubt. 10. We have heard Mr. S.P. Roy, learned Counsel appearing for the appellants and Mr. Z. Kamar, learned Public Prosecutor for the State and carefully perused the memo of appeal, the impugned judgment and order as well as the evidence on record. Mr. 10. We have heard Mr. S.P. Roy, learned Counsel appearing for the appellants and Mr. Z. Kamar, learned Public Prosecutor for the State and carefully perused the memo of appeal, the impugned judgment and order as well as the evidence on record. Mr. S.P. Roy, learned Counsel appearing for the appellants, drawing our attention to the FIR as well as the evidence adduced by the witnesses, more particularly the evidence of PW1 and PW3, submitted that there was sufficient contradiction in their evidence as well as in the alleged dying declaration raising doubt against the prosecution story. The learned Counsel, further submitted that, in view of the contradictory statements made by the PW1 and PW3, the learned Sessions Judge committed illegality by recording the conviction relying on the evidence of the said witnesses, more particularly with regard to the dying declaration. It is also submitted that there is no substantive evidence on record to show that the seized dao was either possessed or used by any of the accused/appellants and as such the seizure of the said dao did not support the prosecution version. The learned Counsel further submitted that though there was a quarrel regarding knocking/kicking the bicycle of the appellant Shri Parameswar Reddy by the deceased, in view of the evidence that the accused appellants had left the place of occurrence, on being persuaded by the witnesses, more particularly the PW4, there is nothing on record to connect the said incident, which took place at 7. P.M. with that of the occurrence of this case which took place at about 9. P.M. He also submitted that the record reveals that the learned trial Judge had filled up two forms of charges i.e., one under Section 302 IPC and the other under Section 302/34 IPC and as such it was doubtful as to which of the two charges was read over and explained to the accused persons. The learned Counsel for the appellants also submitted that the examination under Section 313 Cr.PC, was not provided as no specific question regarding common intention etc, was asked to them and that this lapse rendered the impugned conviction and sentence illegal in the eye of law. 11. Controverting the said argument, advanced on behalf of the appellants, Mr. The learned Counsel for the appellants also submitted that the examination under Section 313 Cr.PC, was not provided as no specific question regarding common intention etc, was asked to them and that this lapse rendered the impugned conviction and sentence illegal in the eye of law. 11. Controverting the said argument, advanced on behalf of the appellants, Mr. Z. Kamar, learned Public Prosecutor, while supporting the impugned judgment and order, submitted that the occurrence was the fall out of the quarrel, which took place at 7. P.M. and that the deceased had, immediately before his death, specifically mentioned the names of the accused appellants in his dying declaration given in presence of the witnesses, more particularly the PW1 and PW3 and that the PW3 being an eye witness, her evidence, coupled with the said dying declaration and the seizure of the incriminating weapon i.e., the dao from the place of occurrence, was sufficient to believe that the appellants had assaulted the accused person resulting his death. It is also submitted that there was no illegality in framing the charges under Section 302 of IPC and also under Section 302 read with Section 34, IPC and that this irregularity, in view of the provisions provided by Section 464, Cr.PC, was not fatal for the prosecution. The learned Public Prosecutor further submitted that the quarrel, which took place at about 7. P.M. was followed by the assault made at 9. P.M. and that the seizure of the dao, the multiple injuries sustained by the deceased, which were apparently caused by a sharp weapon, were the sufficient circumstantial evidences to safely hold the involvement of the accused appellants in committing the said offence. 12. In order to appreciate the arguments advanced by the learned Counsel appearing for the parties and to examine the correctness of the impugned judgment and order, we feel inclined to briefly recapitulate the evidence on record. The younger brother of the deceased, namely Md. Jalim Hussain, who deposed as PW1 lodged the FIR. In the FIR, it was specifically mentioned that the accused (1) Shri Parameswar Reddy, (2) Shri Sibaram Reddy and (3) Shri Nagraj Reddy had attacked the deceased with a dao. The source of information of PW1 was the oral information received from PW3 and the dying declaration made by the deceased. In his evidence, PW1 stated that at about 9.30 p.m. Msstt. The source of information of PW1 was the oral information received from PW3 and the dying declaration made by the deceased. In his evidence, PW1 stated that at about 9.30 p.m. Msstt. Mumtaj Begum i.e., the PW3 came to his house and informed that accused Shri Nagraj Reddy, Shri Parameswar Reddy, Shri Dayaram Verma and Shri Mitku Gowala had assaulted and killed the deceased. On being so informed, this witness along with the members of his family rushed to the place of occurrence and found the deceased lying in injured condition in the house of Mr. Bhim Bahadur Dorjee (PW6). This witness noticed cut injuries on the neck and on the left arm of the deceased. According to this witness, the deceased had told him that the accused Shri Sibaram Reddy, Shri Parameswar Reddy and Shri Nagraj Reddy had caused the injuries by cutting him with a dao. In his cross-examination, this witness stated that the deceased was unable to talk properly. He denied the suggestion that he did not tell the I.O., while giving statement before him that Msstt. Mumtaj (PW3) had come to his house and informed that accused (1) Shri Sibram Reddy, (2) Shri Nagraj Reddy, (3) Shri Parameswar Reddy, (4) Shri Dayaram Verma and (5) Shri Mitku Gowala had killed the deceased by assaulting him. This contradiction of the PW1 was duly proved by the I.O., (PW8), who stated that Mr. Jalim Hussain (PW1) did not tell him that on 1.6.2003 at night Msstt. Mumtaj had gone to his house to inform that accused Shri Sibaram Ready, Shri Nagraj Reddy, Shri Parameswar Reddy, Shri Dayaram Verma had assaulted Akhtar Hussain causing his death. If he was informed by the PW3 regarding the involvement of the said five persons, there was no reason not to disclose such a vital fact to the investigating officer at the time of his examination under Section 161, Cr.PC which was the earliest point of opportunity to make statement. This contradiction raises doubt about the veracity of the evidence of PW1 as to whether the PW3 had informed him about the involvement of the said five persons. That apart, if the PW1 was informed by Msstt. Mumtaj (PW3) about involvement of the said five persons, we find no reason as to why names of only three persons were mentioned in the FIR without mentioning the names of all the said five persons. That apart, if the PW1 was informed by Msstt. Mumtaj (PW3) about involvement of the said five persons, we find no reason as to why names of only three persons were mentioned in the FIR without mentioning the names of all the said five persons. 13. PW3, who was the star witness, being the only eye witness to the occurrence, as claimed by the prosecution, contradicted the statement of the PW1 by saying that, when she came out from her house, hearing shouting "save me", "save me" (Bacha, bacha), she saw (1) Shri Sibram Reddy, (2) Shri Nagraj Reddy and. (3) Shri Baburam Reddy alias Parameswar Reddy causing injuries to the deceased on his neck with a dao. She further stated that she saw Shri Parameswar Reddy inflicting cut blows on the neck of the deceased. She also stated that having seen the occurrence she rushed to her in-law's house (she was the wife of the younger brother of the deceased) to inform about the incident. She has not mentioned the names of other accused persons namely Shri Dayaram Verma and Shri Mitku Gowala. Therefore, it is surprising as to how the PW1 could say that he was informed by the PW3 regarding involvement of the said five accused persons including (1) Shri Dayaram Verma and (2) Shri Mitku Gowala. If the evidence of PW1 and PW3 are read together, a careful application of the mind will lead one to find that either the PW1 had exaggerated by adding the names of (1) Shri Dayaram Verma and (2) Shri Mitku Gowaia or the PW3 had suppressed the truth by not mentioning the names of Shri Dayaram Verma and Shri Mitku Gowala, for the reasons best known to her. According to PW3, after informing her in-law, she, along with other members of the family, rushed back to the place of occurrence and found the injured in the house of PW6, wherein the injured had disclosed that he was assaulted by (1) Shri Sibaram Reddy and (2) Shri Dayaram Verma. As the PW3 did not see Shri Dayaram Verma at the place of occurrence it is quite doubtful as to how the deceased could mention the name of the Dayaram Verma. The said dying declaration does not support the oral evidence of PW3 regarding involvement, of Nagraj Reddy. As the PW3 did not see Shri Dayaram Verma at the place of occurrence it is quite doubtful as to how the deceased could mention the name of the Dayaram Verma. The said dying declaration does not support the oral evidence of PW3 regarding involvement, of Nagraj Reddy. The PW3 in her cross-examination stated that she could identify the accused persons from their voices. This clearly indicates that the PW3 did not see the occurrence through her eyes, but she could identify the accused hearing the voices. Therefore, it cannot be believed that she could see anything physically and as such her evidence that she saw the accused persons, more particularly Shri Parameswar Reddy, inflicting blows on the neck of the deceased with a Dao cannot be believed. She admitted, in her cross-examination that she did not tell the police, at the time of giving her statement, that she had witnessed the accused persons. As the PW3 was the only eye witness, it is quite doubtful as to why she had withheld the said fact, if that she had seen the occurrence herself. This withholding also raises doubt about the prosecution version, indicating development of her version at the time of deposing before the court as PW3. There is nothing on record to show that the deceased had made any dying declaration at two different points of time i.e., one before the PW3 and the other before the PW1. The evidence of PW1 and PW3 reveals that on being informed by the PW3, the PW1 and PW3 along with their family members rushed to the place of occurrence and found the deceased in the house of PW6, wherein he had made the dying declaration aforesaid. According to PW1, the deceased had told him that the accused (1) Shri Sibaram Reddy, (2) Shri Pararneswar Reddy and (3) Shri Nagraj Reddy had caused the injuries by cutting with a dao. Hence as per the version of the PW1, the deceased, in his dying-declaration, did not mention the name of Shri Dayaram Verma, but according to PW3 the deceased had mentioned the name of Shri Dayaram Verma and not the name of Shri Nagraj Reddy. If the deceased had mentioned the name of either Shri Nagraj Reddy or Shri Dayaram Verma also there should not have been such contradiction in the evidence of PW1 and PW3 on such vital point. If the deceased had mentioned the name of either Shri Nagraj Reddy or Shri Dayaram Verma also there should not have been such contradiction in the evidence of PW1 and PW3 on such vital point. That apart, according to PW5 Shri Mazibul Hussain the accused persons picked up a quarrel with the deceased and he had rushed of his uncle Shri Barek Ali's house to inform the matter and thereafter went to the house of the PW6, along with Shri Khaliluddin, wherein the deceased was found in injured condition. According to this witness the deceased was not in a position to speak. 14. Admittedly, the deceased was found by PW1, PW3 and PW5 in the house of PW6. The PW6, who was an independent witness, did not state anything regarding the dying declaration. As the PW6 failed to support the prosecution version regarding dying declaration, he was cross-examined by the prosecution after declaring him hostile witness and it was suggested by the prosecution that he had told the I.O., that the deceased, on being asked as to how he sustained the injuries, the deceased told him that (1) Shri Sibaram Reddy and (2) Shri Pararneswar Reddy had caused the injuries. Here it appears that the prosecution itself put suggestion to the PW6 indicating that the deceased had told that he was assaulted by (1) Shri Sibaram Reddy and (2) Shri Pararneswar Reddy. Though the said suggestion was denied by the PW6, the suggestion itself implies that according to the prosecution the deceased had made dying declaration involving only accused (1) Shri Sibaram Reddy and (2) Shri Pararneswar Reddy. If the said suggestion of the prosecution is accepted then the evidence of PW1 and PW3, regarding the dying declaration, becomes more doubtful and unsafe to rely upon. If the deceased had made any dying declaration, as stated by the prosecution, the PW6, being an independent witness, there was no reason not to disclose such fact. That apart, PW5, Mr. Mazibul Hussain, who was a cousin of the deceased, in his cross-examination stated that when he found the deceased in the house of PW6, he was not in a position to speak. That apart, PW5, Mr. Mazibul Hussain, who was a cousin of the deceased, in his cross-examination stated that when he found the deceased in the house of PW6, he was not in a position to speak. The Medical Officer, who performed the post mortem examination, deposing as, PW9, in his cross-examination, stated that in view of injuries sustained, more particularly the injury No. 1, by the deceased, he would have been in a position to speak in a low voice. Though the medical evidence indicates the possibility of speaking in a low voice, the evidence of PW5 and the contradiction found in the evidence of PW1 and PW3, make it quite doubtful as to whether the deceased had made any such dying declaration or not. 15. In support of the said dying declaration, the learned Public Prosecutor, relying on the decision held in the case of Ghanashyam Das v. State of Assam (2005) 13 SCC 387 , submitted that the said dying declaration being made by the deceased, immediately before his death, could be the basis for conviction. 16. In the above referred case, the deceased became unconscious after uttering the words that "Ghanashyam cut him". This utterance was made before the PW4. While accepting the said dying declaration, the Hon'ble Apex Court observed that there was absolutely no reason why the PW4 would come forward to give false version to implicate the accused. The oral dying declaration made to PW4 was believed by the trial court as well by the High Court. In the FIR, lodged without delay, the oral dying declaration was specifically mentioned. The Hon'ble Apex Court upheld the conviction recorded by the trial court as well as the High Court with the observation that the possibility of the deceased saying a few words before he became unconscious could not be ruled out especially when there was no cross-examination of the Medical-Officer on this aspect. In the said case, the dying declaration was made before the PW4, whose evidence could not be contradicted in any manner. But as pointed out by the learned Counsel for the appellants, the dying declaration was stated to be made before the two relatives i.e., PW1 and PW3, as discussed earlier, we have already noticed contradictions in the evidence of the said two witnesses on material point. But as pointed out by the learned Counsel for the appellants, the dying declaration was stated to be made before the two relatives i.e., PW1 and PW3, as discussed earlier, we have already noticed contradictions in the evidence of the said two witnesses on material point. Section 32 of the Indian Evidence Act, 1872 is an exception to the rule of hearsay and make admissible statement of a person, who dies after making statements, written or verbal of the relevant facts regarding the cause of his death. Such statements are relevant in respect of the cause of his death or as to any of the circumstance of the transaction which resulted in his death, in case, in which the cause of death of that person comes into question. In deciding the case of Varikuppal Srinivas v. State of Andhra Pradesh (2009) 3 SCC 415 the hon'ble Apex Court held: 10. Though a dying declaration is entitled to great weighty it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be said down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat, (SCC pp.480-81, paras 18-19) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat, (SCC pp.480-81, paras 18-19) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. See Munnu Raja v. State of M.P. (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration See K. Ramachanra Reddy v. Public Prosecutor. (iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. See Rasheed Beg v. State of M.P. (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. See Kake Singh v. State of M.P. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. See Ram Manorath v. State of U.P. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. See State of Maharashtra v. Krishnamurti Laxmipati Naidu. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. See Suraj Deo Ojha v. State of Bihar. (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. See Nanhau Ram v. State of M.P. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. See State of U.P. v. Madan Mohan. (xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. See Nanhau Ram v. State of M.P. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. See State of U.P. v. Madan Mohan. (xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable. It has to be accepted, See Mohanlal Gangaram Gehani v. State of Maharashtra. See Mohal Lal v. State of Haryana at SCC pp. 153-55, paras 9-10. 17. Referring to the observation made in the case of Arabind Singh v. State of Bihar (2001) 6 SCC 407 , the hon'ble Apex Court, in the case of Panchdeo Singh v. State of Bihar (2002) 1 SCC 577 observed that apart from the care and caution factors, the dying declaration should be accepted if the same is found to be trustworthy. 18. The court also observed: The issue, thus, becomes as to whether the dying declaration has been able to bring about a confidence thereon or not - is it trustworthy or is it a mere attempt to cover up the laches of investigation: it must allure to the satisfaction of the court that reliance ought to be placed thereon rather than a distrust: the confidence of the court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelief or distrust would not arise. In the event, however, of there being some infirmity howsoever negligible it be, the court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if, however, it is otherwise, question of requirement of a corroboration would not arise : dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration, neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the court since dying declarations need not be drawn with mathematical, precision - the declarant should be able to recollect the situation resulting in the available state of affairs. 19. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the court since dying declarations need not be drawn with mathematical, precision - the declarant should be able to recollect the situation resulting in the available state of affairs. 19. In the case of Sasikumar v. State of Tamil Nadu (2009) 7 SCC 216 , the Hon'ble Apex Court observed: Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 20. In view of the above principle of law said down by the hon'ble Apex Court, the dying declaration itself can be treated as a substantive piece of evidence and can be the basis of the order of conviction and sentence even in absence of any corroboration, provided the same inspires confidence of the court and is found to be trustworthy. Therefore, the dying declaration should be reliable and trustworthy. To test the reliability of the dying declaration, the reliability and the trustworthiness of the witness, before whom such declaration is stated to be made, should be reliable without any suspicion about veracity of his/her statement, more so, when such declaration is claimed to be made before the close relatives, that too, without any medical certificate regarding the capability of the victims to speak. If any substantive infirmity or discrepancy is found in the evidence of the witness, before whom such dying declaration is claimed to be made, it will not be safe to rely on such dying declaration, without sufficient corroborate on and in the absence of any other independent evidence. If any substantive infirmity or discrepancy is found in the evidence of the witness, before whom such dying declaration is claimed to be made, it will not be safe to rely on such dying declaration, without sufficient corroborate on and in the absence of any other independent evidence. In the case of Sarad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 , the hon'ble Apex Court observed that close relatives could have a natural tendency to exaggerate or add facts which may not be stated to them at all. Therefore, time and again it has been cautioned to carefully examine the evidence of close relatives. Admittedly, in the present case both the PW1 and the PW3 who claimed to have made the dying declaration by the deceased were close relatives. Hence, their tendency to exaggerate or add that the deceased had made the dying declaration in the house of the PW6 cannot be ruled out. 21. In view of the discrepancies as noticed earlier in respect of the evidences of the PW1, PW3, PW5 and PW6, we do not find it to be safe to rely on the said dying declaration. It was quite doubtful as to whether the deceased had made any such dying declaration implicating the accused persons. 22. The learned Public Prosecutor, drawing our attention to the quarrel, which took place in the evening at 7. p.m., the seizure of the incriminating 'dao', the dying declaration and the statement of the PWs, more particularly the evidence or PW1, 2, 3 and 5, submitted that there were sufficient circumstantial evidence implicating the involvement of the accused persons. 23. The evidence on record reveals that prior to the occurrence a quarrel had taken place between the deceased and the accused Shri Parameswar Reddy regarding knocking the bicycle of the latter. The alleged occurrence of causing assault to the deceased took place at about 9. p.m. i.e., after about two hours. It is on record that after the said first incident, on being persuaded by the witnesses both the quarrelling parties left the place of occurrence. Hence, there was considerable time gap between the said two occurrences. Of course it has been established that the investigating officer had seized a dao from the place of occurrence. 24. It is on record that after the said first incident, on being persuaded by the witnesses both the quarrelling parties left the place of occurrence. Hence, there was considerable time gap between the said two occurrences. Of course it has been established that the investigating officer had seized a dao from the place of occurrence. 24. In the case of Sarad Birdhichand Sarda (supra), the Supreme Court, while discussing a few decisions on the nature, character and essential proof required in a criminal case, which rests on circumstantial evidence and also referring to the most fundamental and basis decision of the Apex Court, in Hanumant v. State of Madhya Pradesh (1952) SCR 1091, laid down the following golden principles, which were termed as Panchashil: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : AIR 1973 SC 2622 where the following observations were made: certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (ii) The fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) That circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 25. We have already discussed and come to the conclusion that the dying declaration alleged to be made by the deceased, in presence of PW1 and PW3 cannot be believed to be trustworthy. 25. We have already discussed and come to the conclusion that the dying declaration alleged to be made by the deceased, in presence of PW1 and PW3 cannot be believed to be trustworthy. That apart, in view of the discrepancies noticed in the evidence of PW1 and PW3, we do not find it safe to believe that the PW3 had seen the accused persons, more particularly, the accused Shri Parameswar Reddy, inflicting the dao injury on the deceased. 26. Though the dao, i.e., the weapon was seized from the place of occurrence, there is nothing on record to show that the blood found in the said dao was the blood of the deceased or that the said weapon was either possessed or used by the accused persons. Hence, it cannot be believed that said 'dao' was used by the accused persons in committing the alleged offence. Therefore, the seizure of the said dao from the place of occurrence cannot be substantive evidence against the appellants. That apart, in that quarrel, which took place about two hours prior to the second occurrence, resulting the death of the deceased, does not form a complete chain consistent only with the hypothesis of the guilt of the accused. There is no substantial evidence on record to believe that none other than the appellants, in all human probability, had committed the alleged offence. Therefore, we do not find force in the contention of the learned Public Prosecutor that there was substantive circumstantial evidence to hold the accused persons were guilty of the alleged offence. 27. PW4, Abdul Rahaman stated about the first incident i.e., the first quarrel had taken place between the deceased and the appellants Shri Parameswar Reddy, Shri Mitku Gowala and another person in front of his shop at about 8.30/8.45 p.m. and that he had gent both the parties home after dissuading them from entering into the quarrel and thereafter he also entered home to have his meal. This witness old not see the second occurrence, in which the deceased was attacked by the appellants. In his cross-examination this witness clearly stated that he did not know between whom the second quarrel had taken place. In tune with the evidence of PW5, the PW6 Mr. Bhim Bahadur Dorjee, PW6A Mr. Putula Kherua and Mr. Sankar Bhumis, PW7 expressed their ignorance about the second occurrence i.e., the assault made on the deceased. In his cross-examination this witness clearly stated that he did not know between whom the second quarrel had taken place. In tune with the evidence of PW5, the PW6 Mr. Bhim Bahadur Dorjee, PW6A Mr. Putula Kherua and Mr. Sankar Bhumis, PW7 expressed their ignorance about the second occurrence i.e., the assault made on the deceased. The said witnesses revealed nothing to indicate the involvement of the appellants with the injuries sustained by the deceased and his consequential death. PW5, Mr. Mazibul Hussain stated that at about 9. p.m. he found the appellant Shri Parameswar Reddy, Shri Dayaram Verma, Shri Sibram Reddy, Shri Nagraj Ready and Shri Hari quarrelling with Akhtar near the shop of Asraf Ali and that on being intervened by him someone had given him a knock as a result of which he had fallen into a pit. After getting out from the said pit, he rushed to his maternal uncle's house namely Shri Barek Ali and requested him to rescue the deceased. Accordingly, this witness along with Shri Barek Ali and Shri Khaliluddin rushed to the place of occurrence and found the deceased lying in a pool of blood in the house of the PW6. In his cross-examination the PW5 clearly stated he did not see any weapon in the hands of the accused persons and that deceased not capable of speaking. From the evidence of this witness, it appears that he did not see the accused persons assaulting the deceased. If his evidence is believed, then it will indicate that a quarrel had taken place among the appellants and the deceased at the time of the occurrence. But the PW5 did not, see the accused assaulting the deceased. Considering the evidence of PW5, it appears that Shri Barek Ali and Shri Khaliluddin, who were informed by the PW5, immediately after the said quarrel, were vital witnesses to draw corroboration in favour of the PW5, but the failure of the prosecution to examine the said two important witnesses left the evidence of the PW5 without any corroboration. Therefore we find no substance in the evidence of the PW5 to hold that the appellants had inflicted the injuries sustained by the deceased. It is settled law that in a criminal case, the burden lies upon the prosecution to prove its case beyond all reasonable doubt. Therefore we find no substance in the evidence of the PW5 to hold that the appellants had inflicted the injuries sustained by the deceased. It is settled law that in a criminal case, the burden lies upon the prosecution to prove its case beyond all reasonable doubt. The hon'ble Apex Court in the case of Dhanpal v. State by Public Prosecution, Madraj AIR 2009 SCW 5973, while reiterating the said principle of law, observed that according to fundamental principles of the Indian Evidence Act, it is for the prosecution to prove its own case and the burden cannot be shifted to the accused. 28. The hon'ble Apex Court in the case of State of Haryana v. Surendar and Ors. AIR 2007 SC 2312 observed that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. 29. In the light of the above discussion and upon reappreciation of the evidence on record, we are of the considered opinion that the prosecution failed to establish, by adducing, substantive, reliable and cogent evidence that none other than the appellants caused the injuries to the deceased resulting his death. 30. In the light of the above settled principle of law and in view of the discussion made above, we have no hesitation in concluding that the prosecution failed to establish its case beyond all reasonable doubt and as such the conviction and sentence recorded by the learned trial Judge cannot stand. Accordingly, the impugned conviction and sentences are set aside. 31. The appeal is allowed. The accused-appellants be set at liberty and released forthwith. 32. Send down the lower court records. Appeal allowed.