JUDGMENT [Per : Hon’ble Prafulla C. Pant, J. (Oral)] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 30.01.1996, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 27 of 1993, whereby said court has convicted appellants Bahadur Singh and Parwati Devi under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of them is sentenced to undergo imprisonment for life. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story in brief is that on 12.06.1993, at about 3:00 p.m. within the limits of Patti Boyal, Tehsil Gangolihat, District Pithoragarh, P.W.3 Narain Singh (complainant), son of Laxman Singh (deceased) was sitting outside the house of his uncle P.W.4 Dan Singh. The two saw Bahadur Singh (appellant No. 1) objecting to Laxman Singh (deceased) and questioning as to how he raised boundary on his land. In reply to this, Laxman Singh told the appellant No. 1 that he had paid price of the land. On this, Bahadur Singh along with Parwati Devi (appellant No. 2) started causing hurt to Laxman Singh with the help of stones (Ext. 1 to Ext. 3). Laxman Singh, suffered injuries. The incident was also witnessed by P.W.2 Bhagwan Singh (minor nephew of the deceased), and P.W.5 Jeewanti Devi. P.W.3 Narain Singh (complainant), on witnessing the incident, went to call a Doctor Khushal Singh, who was also sitting with the complainant along with Dan Singh, went to call Patwari of the area. (Vide U.P. Government Notification No. 494/VIII-418-16, dated 07.03.1916, certain revenue officials of Uttarakhand Hills are given police powers). P.W.3 Narain Singh lodged First Information Report (Ext. A-3) with the Patwari. P.W.9 Keshav Dutt Pandey, Patwari, on the basis of the First Information Report, prepared check report (Ext. A-7). He called P.W.1 Dr. Lakhan Lal Awasthi, who recorded the dying declaration (Ext. A-1) of Laxman Singh, who later succumbed to the injuries. The Patwari, investigated the crime, inspected the spot, prepared site plan, took the blood stained stones (Ext. 1 to Ext. 3) in his possession and prepared recovery memo (Ext. A-4). After death of Laxman Singh at 9:00 p.m., on 12.06.1993, inquest report (Ext. A-9) was prepared. The Investigating Officer also prepared sketch of the dead body (Ext. A-10), site plan (Ext. 1 to Ext. 3) in his possession and prepared recovery memo (Ext. A-4). After death of Laxman Singh at 9:00 p.m., on 12.06.1993, inquest report (Ext. A-9) was prepared. The Investigating Officer also prepared sketch of the dead body (Ext. A-10), site plan (Ext. A-14), sample seal (Ext. A-12), and letter to Chief Medical Officer (Ext. A-13) for post mortem examination. P.W.8 Dr. Harish Chandra Pathak, conducted post mortem examination on 13.06.1993, and prepared the post mortem report (Ext. A-6). He found that the deceased had died of shock due to extensive sub-cutaneous emphysema on account of ante mortem injury No. 1. The Investigating Officer after interrogating the witnesses, submitted charge sheet (Ext. A-15) against the accused/appellants Bahadur Singh and Parwati Devi, for their trial in respect of offence punishable under Section 302 of I.P.C. 4. The Magistrate, on receipt of charge sheet, after giving necessary copies, as required under Section 207 Cr.P.C., committed the case to the court of Sessions, for trial. Learned Sessions Judge, after hearing the parties, on 07.12.1993, framed charge of offence, punishable under Section 302 read with Section 34 I.P.C., to which both the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Dr. Lakhan Lal Awasthi (in whose presence dying declaration was recorded), P.W.2 Bhagwan Singh (a minor eye-witness), P.W.3 Narain Singh (complainant and eye-witness), P.W.4 Dan Singh (an eye-witness), P.W.5 Smt. Jeewanti Devi (eye-witness), P.W.6 Smt. Tara Joshi, P.W.7 Jiwan Singh, P.W.8 Dr. Harish Chandra Pathak (who conducted post mortem examination), and P.W.9 Keshav Dutt Pandey (Investigating Officer). The oral and documentary evidence were put to both the accused under Section 313 Cr.P.C. in reply to which they alleged the same to be false. It is pleaded by them that they were implicated due to enmity. However, no evidence in defence was given. The trial court after hearing the parties, found both the accused Bahadur Singh and Parwati Devi guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. After hearing on sentence, the trial court sentenced each of the convicts to imprisonment for life. Aggrieved by said judgment and order dated 30.01.1996, passed by learned Sessions Judge, Pithoragarh, this appeal was preferred by the convicts before Allahabad High Court on 07.02.1996, where it was admitted. Aggrieved by said judgment and order dated 30.01.1996, passed by learned Sessions Judge, Pithoragarh, this appeal was preferred by the convicts before Allahabad High Court on 07.02.1996, where it was admitted. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussion, we think it just and proper to mention the ante mortem injuries found by P.W.8 Dr. Harish Chandra Pathak on 13.06.1993, at about 3:15 p.m., after conducting the post mortem examination on the dead body of deceased Laxman Singh, which are recorded in the autopsy report (Ext. A-6). The same are being reproduced as under :- 1) Thee is crepitant swelling over chest, neck, face, upper arms including forearm abdomen scrotum, thigh including upper half of leg. Eye lids swollen. 2) Lacerated wound 10 x 3 cm obliquely directing from medial area, downwards and laterally lower end 7 cm above medial matteolus. 3) Bruises over right upper back. a) 6 x 4 cm over lower and outer end of scapula. b) 8 x 3 cm over acromion and superaspinatus area. 4) Face is of dark colouration. The Medical Officer after conducting the autopsy found that the deceased had died of shock and due to extensive sub cutaneous emphysema on account of ante mortem injury No. 1. From the perusal of the autopsy report, read with the statement of P.W.8 Dr. Harish Chandra Pathak, it is clearly established on the record that Laxman Singh had died homicidal death. 6. P.W.1 Dr. Lakhan Lal Awasthi, is the one who was called to attend the injured, soon after the incident and in whose presence dying declaration (Ext. A-1) was recorded on 12.06.1993. The Medical Officer has stated that Laxman Singh was in a fit state of making a statement. The dying declaration, recorded by P.W.9 Keshav Dutt Pandey, Patwari. 6. P.W.1 Dr. Lakhan Lal Awasthi, is the one who was called to attend the injured, soon after the incident and in whose presence dying declaration (Ext. A-1) was recorded on 12.06.1993. The Medical Officer has stated that Laxman Singh was in a fit state of making a statement. The dying declaration, recorded by P.W.9 Keshav Dutt Pandey, Patwari. The dying declaration is being produced below :- ßy{e.k flag] mez 80 o’kZ] S/o “kkscu flag xzke ldkj iwNus ij crk;k fd eSa vius edku ls vius ikj ds edku esa tgk¡ esjs rhu vU; yM+ds jgrs gSa tk jgk Fkk rks cgknqjflag iq= nhoku flag us esjs “kjhj esa cM+s iRFkj ls ekj fn;k esjs nkfgus iSj esa cgknqjflag dh iRuh us ekjkA esjs nkfgus vk¡[k ds ikl dh pksV] esjs ihB dh pksV cgknqj flag ds ekjs x;s iRFkjksa dh gSA esjs lkjs “kjhj esa nnZ gSA lk¡l ysus esa Hkh rdyhQ gks jgh gSA esjh cgknqj flag ls dksbZ iqjkuh jaft”k ugha gSA ;gh esjk dFku gSA Sd/- y{e.k flag S/o “kkscu flagÞ The above dying declaration clearly shows that the deceased after the incident and before his death made a statement that accused/appellant No. 1 Bahadur Singh gave blow on his person with a big stone. He has also stated that Parwati Devi (appellant No. 2) has caused hurt on the leg of the deceased. The cause of death found by P.W.8 Dr. Harish Chandra Pathak, does not indicate that the injury caused on leg, resulted in the death of the deceased. 7. Now, we come to the statements of the eye witnesses. P.W.3 Narain Singh, complainant and eye-witness, has stated that on 12.06.1993, at about 3:00 p.m., in his presence, accused Bahadur Singh gave blow on the person of Laxman Singh on the occipital region and shoulders. Though this witness has stated that Parwati Devi also caused hurt on the right leg of the deceased, but in the First Information Report (Ext. A-7), lodged by this witness, no role has been assigned to Parwati Devi. 8. P.W.2 Bhagwan Singh, an eye-witness, who is nephew of the deceased, P.W.4 Dan Singh, another eye-witness, and P.W.5 Jeewanti Devi, yet another eye-witness, have corroborated the prosecution story. A-7), lodged by this witness, no role has been assigned to Parwati Devi. 8. P.W.2 Bhagwan Singh, an eye-witness, who is nephew of the deceased, P.W.4 Dan Singh, another eye-witness, and P.W.5 Jeewanti Devi, yet another eye-witness, have corroborated the prosecution story. On reading the statement of all the eye-witnesses with the medical report (autopsy report) and dying declaration, we concur with the trial court that the prosecution has successfully proved charge of offence punishable under Section 302 I.P.C. as against accused/appellant Bahadur Singh. However, as to the role of accused/appellant No. 2 Parwati Devi, we are of the view that her role is not mentioned by the complainant eye-witness in the First Information Report. From the dying declaration also only this much is mentioned that Parwati Devi has caused hurt on the leg of the deceased. In the circumstances, it cannot be said that prosecution has successfully proved that Parwati Devi had common intention with Bahadur Singh in committing murder of Laxman Singh. As such, we are of the view that she is entitled to benefit of reasonable doubt. 9. For the reasons, as discussed above, the appeal of Bahadur Singh is liable to be dismissed. But the appeal of appellant No. 2 – Parwati Devi deserves to be allowed. Accordingly, the appeal of appellant No. 1 – Bahadur Singh is dismissed. Conviction and sentence awarded against the appellant No. 1 – Bahadur Singh, by the trial court, are hereby affirmed. Appeal of appellant No. 2 – Parwati Devi is allowed. Conviction and sentence recorded by the trial court against said appellant – Parwati Devi, is set aside. She is on bail. She need not to surrender. Registry is directed to send the lower court record back to Sessions Judge, Pithoragarh so that the appellant No. 1 – Bahadur Singh may be made to serve out the sentence awarded by the trial court against him.