JUDGMENT 1. - Both these appeals arise out of the same judgment and order dated 30th April, 2007 passed by the learned Addl. District & Sessions Judge (Fast Track) No. 3, Jhunjhunu (hereinafter referred to as "the trial court") in Sessions case No. 29/07, whereby the trial court convicted the accused Ravindra Singh @ Dholiya for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment and also to pay the fine of Rs. 2,000/-, and acquitted the said accused from the charges levelled against him for the offence under Sections 147, 148 and 149 of Indian Penal Code. The trial court also acquitted the accused Jasveer Singh and Prabhu Singh from the charges levelled against them for the offences under Sections 147, 148 and 302 read with Section 149 of Indian Penal Code. It appears that the complainant Bhawani Singh had also preferred the DB Cr. Revision Petition being No. 959/07 against the said judgment of the trial court acquitting the said two accused, however, the said revision petition came to be dismissed by this Court as per the order dated 3.2.2011, granting the complainant liberty to assist the learned Public Prosecutor in the Cr. Appeal No. 28/2010 filed by the State. Accordingly, the Registry was directed to show the name of the learned advocate Mr. V.S. Yadav as the counsel for the complainant in the said appeal. 2. The short facts giving rise to the present appeals are that the complainant Bhawani Singh submitted a report to the SHO, P.S. Buhana, District Jhunjhunu on 5.7.02 at about 9.00 P.M., on the basis of which an FIR being No. 176/02 came to be registered at the said police station at about 10.00 P.M. against the four accused i.e. Prabhu Singh S/o Ganga Singh, Ravindra Singh @ Dholiya, Kapindra Singh both sons of Prabhu Singh, Jasveer Singh S/o Jaswant Singh and two others for the offences under Sections 147, 149 and 302 of Indian Penal Code. It was alleged by the complainant in his complaint interalia that on 5.7.02 at about 8.15 PM, when he and his brother were at the PCO, one Yogesh Singh S/o Narpal Singh came and told him that his father was badly beaten in the field of Narpal Singh S/o Bhur Singh some time back; that complainant alongwith Kushal Singh S/o Ram Singh and Yogesh Singh S/o Narpal Singh went to the field of Narpal Singh and he saw that his father was lying there in a very serious condition; that, therefore, he sent Kushal Singh to the village for getting some vehicle and sent Yogesh Singh to get the tractor; that thereafter his father asked him to straighten his leg, which he did; that when he asked his father about the names of persons who had beaten him, his father told the names of Prabhu Singh S/o Ganga Singh, Ravindra Singh @ Dholiya, Kapindra Singh both sons of Prabhu Singh and Jasveer Singh S/o Jaswant Singh and two other persons; that within few minutes thereafter his voice stopped and, therefore, he rushed to the house of Krishanpal Singh, from where he gave information to the police station. 3. After the registration of the FIR on the basis of the said complainant, the Investigating Officer carried out the investigation and after collecting sufficient evidence against the accused Ravindra Singh and Jasveer Singh, filed charge-sheet before the court of Magistrate, Khetri for the offence under Sections 147, 148, 149 and 302 of Indian Penal Code whereas kept the investigation against the accused Prabhu Singh and Kapindra Singh pending under Section 173(8) of Code of Criminal Procedure Subsequently, the charge-sheet was filed against the accused Prabhu Singh on 4.6.03 and against Kapindra Singh on 3.3.04. The trial court framed the charge against all the four accused for the offences under Section 147, 148 and 302 read with Section 149 of Indian Penal Code, however, subsequently as per the order passed by the High Court, Jaipur Bench, the trial of the accused Kapindra was separated on 4.4.06 and he was sent to the Juvenile Court for trial. Accordingly, the trial was proceeded against the remaining three accused. i.e. Ravindra Singh @ Dholiya, Jasveer Singh and Prabhu Singh. The prosecution led oral evidence by examining 20 witnesses and also produced the documentary evidence in support of its case. Accordingly, the trial was proceeded against the remaining three accused. i.e. Ravindra Singh @ Dholiya, Jasveer Singh and Prabhu Singh. The prosecution led oral evidence by examining 20 witnesses and also produced the documentary evidence in support of its case. The trial court after appreciating the evidence on record and hearing learned advocates for the parties passed the judgment and order convicting the accused Ravindra @ Dholiya, as acquitting the accused Jasveer Singh and Prabhu Singh as stated herein above. Being aggrieved by the said judgment and order of the trial court, the accused Ravindra Singh has preferred DB Cr. Appeal No. 1051/07 and the State has preferred DB Cr. Appeal No. 28/10. 4. It was sought to be submitted by learned advocate Mr. A.K. Gupta for the accused-Appellant that the entire case hinged upon the circumstantial evidence inasmuch as there was No. eye-witness to the occurrence of the alleged incident and that the trial court has convicted the accused Ravindra Singh @ Dholiya mis-appreciating the evidence on record, and merely on the basis of surmises and conjectures. Relying upon the judgment of Hon'ble Supreme Court in the case of Chandmal and Anr. v. State of Rajasthan, AIR 1976 SC 917 Mr. Gupta submitted that the prosecution has miserably failed to prove the entire chain of circumstances by leading cogent evidence, unerringly pointing towards the guilt of the accused. Mr. Gupta further submitted that as per the settled legal position, the oral dying declaration is a very weak piece of evidence and the courts should be loath in relying upon such evidence. In the instant case, runs the submission of Mr. Gupta, the so-called oral dying declaration was made by the deceased Amrit Singh before his son Bhawani Singh, only few minutes before his death and that looking to the injuries sustained by the said Amrit Singh, it was not believable that he would have made such dying declaration giving the names of the four accused. He also submitted that even the trial court has not fully relied upon the said oral dying declaration of the deceased, as the trial court has acquitted the two accused Jasveer Singh and Prabhu Singh, though their names were allegedly given by the deceased alongwith the name of Ravindra Singh. Mr. He also submitted that even the trial court has not fully relied upon the said oral dying declaration of the deceased, as the trial court has acquitted the two accused Jasveer Singh and Prabhu Singh, though their names were allegedly given by the deceased alongwith the name of Ravindra Singh. Mr. Gupta has relied upon the judgment of Hon'ble Supreme Court in the case of Mohar Singh v. State of Rajasthan & Ors., AIR 1998 SC 2912 in support of his submission in that regard. Relying on the judgment of Apex Court in the case of Niranjan Panja v. State of West Bengal, 2010 (2) WLC (SC) Cri. 48 : (2010) 6 SCC 525 Mr. Gupta submitted that the motive is an important circumstance in the case based on the circumstantial evidence, which the prosecution has failed to prove in the instant case. 5. Mr. Gupta taking the court to the depositions of the witnesses recorded before the trial court submitted that the witnesses had made improvements in their statements before the court, which were not found in their statements before the police, which had resulted into contradictions and omissions in their respective testimonies. According to Mr. Gupta, P.W. 15 Bhawani Singh, the complainant also had made improvements in his testimony before the court, inasmuch as he did not name any of the accused while giving telephonic information to the police as per Ex. P.21-A and that number of contradictions were found in his evidence before the court and statements before the police. Placing heavy reliance on the judgment of the Apex Court in the case of Sunil Kumar and Ors. v. State of Madhya Pradesh, AIR 1997 SC 940 , and in case of Superintendent of Police, CBI and Ors. v. Tapan Kr. Singh, 2003 (1) WLC (SC) Cri 629 : AIR 2003 SC 4140 , Mr. Gupta submitted that the document at Ex. P.21-A should have been treated as FIR and the report Ex. P.9 of the complainant should be treated as his statement under Section 161 of Code of Criminal Procedure. 6. As regards the recovery of article "saria" (iron pipe), Mr. Gupta submitted that the recovery of said article allegedly made at the instance of the accused was doubtful in view of the entry made in the recovery memo at Malkhana Register Ex. P.25-A and Recovery Memo Ex. P.12. 6. As regards the recovery of article "saria" (iron pipe), Mr. Gupta submitted that the recovery of said article allegedly made at the instance of the accused was doubtful in view of the entry made in the recovery memo at Malkhana Register Ex. P.25-A and Recovery Memo Ex. P.12. He also submitted that though some blood stains were allegedly found on the said iron pipe, there is No. evidence to show that the articles recovered from the scene of offence as well as recovered from the residence of the accused remained in the sealed condition in the police station and were deposited in FSL in sealed condition. According to him, it was the duty of the prosecution to show the said article iron pipe to the Dr. Ashok Mahawar, who has been examined as P.W. 4 in order to establish that the injuries seen on the dead-body of the deceased were possible with such weapon. In this regard Mr. Gupta has relied upon the judgment of this Court in the case of Durga Lal v. The State, 1987 (12) RCC 386 and judgment of Apex Court in the case of Mohd. Aman and Anr. v. State of Rajasthan, AIR 1997 SC 2960 . 7. Mr. Gupta has lastly relied upon the judgment of Hon'ble Supreme Court in the case of Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC 51 , to submit that it is the duty of the chemical examiner to indicate the number of blood stains found by him on each of the exhibits and the extent of each stain, unless they are too minute or too numerous to describe in detail. According to Mr. Gupta the chemical examiner while giving report at Ex. P.31 had failed to mention the number of blood stains and also the extent of each stain and, therefore, the said report could not be believed to convict the accused Ravindra Singh. @ Dholiya. 8. The learned Public Prosecutor Mr. Sanjay Kumar Mahla with learned advocate Mr. V.S. Yadav for the complainant, on the other hand supporting the judgment of the trial court convicting the accused Ravindra Singh submitted that the trial court has rightly appreciated the evidence against the said accused, which does not call for any interference by this Court. @ Dholiya. 8. The learned Public Prosecutor Mr. Sanjay Kumar Mahla with learned advocate Mr. V.S. Yadav for the complainant, on the other hand supporting the judgment of the trial court convicting the accused Ravindra Singh submitted that the trial court has rightly appreciated the evidence against the said accused, which does not call for any interference by this Court. The learned Counsel submitted that the incident had occurred around 7.30 to 8.00 P.M. on 5.7.02, the complainant came to know about the said incident at about 8.15 P.M. and he immediately reached to the scene of offence, which was the field of Narpal Singh. According to them, when the complainant Bhawani Singh asked his father Amrit Singh who was severely injured about the names of the persons who had beaten him his father told the names of the accused. The complainant immediately thereafter rushed to the house of Krishanpal Singh for giving information to the police station on telephone, and subsequently he gave written report as per Ex. P.9. The learned Counsel submitted that there was No. delay either in informing the police telephonically or in giving the written report, in which the complainant had mentioned about the dying declaration made by his father giving names of all the four accused, and that there is No. reason not to believe the said oral dying declaration made by the deceased before his son. Relying upon the judgment of Hon'ble Supreme Court in the case of Animireddy Venkata Ramana and Ors. v. Public Prosecutor, High Court of Andhra Pradesh, 2008 (2) WLC (SC) Cri. 46 : (2008) 5 SCC 368 , the learned P.P. submitted that when the information is received by the Officer Incharge of Police Station, he is expected to reach to the place of occurrence as early as possible and it is not necessary for him to wait till the registration of the FIR and that the information mentioned in the general diary could not be treated as an FIR. The learned Counsels have also relied upon the judgments of this Court in case of Vishnu Dutta Soni v. State of Rajasthan, 2006 (1) WLC (Raj.) 780) and in case of Kailash Kumar @ Kalji and Ors. v. State of Rajasthan, 2004 (1) WLC (Raj.) 604 in this regard. The learned Counsels have also relied upon the judgments of this Court in case of Vishnu Dutta Soni v. State of Rajasthan, 2006 (1) WLC (Raj.) 780) and in case of Kailash Kumar @ Kalji and Ors. v. State of Rajasthan, 2004 (1) WLC (Raj.) 604 in this regard. Learned Counsel for the State also relied upon the judgment of Hon'ble Supreme Court in the case of Sucha Singh and Anr. v. State of Punjab, 2003 (2) WLC (SC) 285 to submit that normal discrepancies in the evidence of witnesses would not corrode the credibility of the case of the prosecution, as normal errors of memory of witnesses are bound to occur due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence. The learned Counsel also submitted that the trial court had materially erred in law in discarding the evidence of P.W. 7 Jagdish treating him as a chance witness, on the ground that the said witness did not take any action to rescue the deceased, though he had given sufficient explanation in that regard. The learned Counsel has relied upon the observations made by the Supreme Court in the case of Sucha Singh (supra), in which it has been observed that when there is an instinct of self preservation, the inaction of the witnesses in not coming to the rescue of the deceased cannot be a ground for discarding his evidence. 9. The learned Counsel for the State also relied upon the judgment of Hon'ble Supreme Court in the case of State of U.P. v. Ram Sewak and Ors., (2003) 2 SCC 161 to submit that the oral dying declaration of the deceased before his son was supported by the other corroborating and oral evidence, and therefore could not be discarded. He further submitted that the recovery of article "saria" made from the house of the accused at his instance provided a very vital link to connect the accused with the alleged crime, as the accused knew about the place where he had hidden the said incriminating article. He also submitted that the said article "saria" having blood stains thereon was sent to the FSL for examination and as per the report of the FSL Ex. P.31, the blood group of the deceased matched with the blood stains found on the said article. He also submitted that the said article "saria" having blood stains thereon was sent to the FSL for examination and as per the report of the FSL Ex. P.31, the blood group of the deceased matched with the blood stains found on the said article. Relying upon the evidence of P.W.16 the learned Counsel submitted that the articles were received and deposited in the sealed condition in the FSL and there was No. possibility of tampering with the said article. According to him merely because number of blood stains and the extent of stains were not mentioned in the report of FSL, the said evidence could not be discarded, more particularly when it was sufficiently corroborated by the other evidence adduced by the prosecution. Lastly learned Counsel for the State submitted that though the trial court had rightly convicted the accused Ravinder Singh, the trial court had committed error of law in mis-appreciating the evidence while acquitting the other two accused Jasveer Singh and Prabhu Singh. 10. Having regard to the record and proceedings and to the submissions made by learned Counsel for the parties, it transpires that in the instant case there was No. eyewitness to the occurrence of incident and the prosecution had sought to establish the guilt against all the accused relying on the circumstantial evidence. The law on circumstantial evidence is well-settled by the Apex Court as back as in the case of Hanumant Govind Margundkar and Anr. v. State of Madhya Pradesh, 1953 Cri. L.J. 129 (S.C.) , in which it was observed as under: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 11. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 11. The said principles have been reiterated in number of cases and recently in the cases of Kulvindra Singh and Anr. v. State of Haryana, (2011) 5 SCC 258 , in the case of Rukia Begum and Ors. v. State of Karnataka, 2011 (2) WLC (SC) Cri 675 : (2011) 4 SCC 779 , and in the case of Wakkar v. State of U.P., 2011 (1) WLC (SC) Cri 483 : (2011) 3 SCC 306 . 12. It is not disputed that the deceased Amrit Singh died because of the fatal injuries caused to him on his body and that his death was homicidal and not natural one. Even as per the Postmortem report Ex. P.2 the cause of death of Amrit Singh was on account of cardiac arrest, as a result of bleeding from various parts mainly from the right lung. The external and internal injuries found on the dead body of the deceased have been narrated therein and the doctor has opined that all the wounds were anti-mortem in nature. Dr. Ashok Mahawar, who had carried out postmortem, has been examined as P.W.4 and he, in his deposition has stated in detail about the injuries found on the dead-body of the deceased as also the cause of death. The dead-body of the deceased was also found at the field of Narpal Singh. The inquest "panchnama" is on record as Ex.P.3 and the site plan as at Ex. P.1. On consideration of the said evidence it is duly established by the prosecution that the deceased Amrit Singh was severely injured and his death was caused due to cardiac arrest as a result of pro-fused bleeding, mainly from the right lung. 13. As transpiring from the record, the case of prosecution rests on four major circumstances i.e. dying declaration of the deceased before his son Bhawani Singh, the motive being the dispute of shops, the recovery of weapon at the instance of the accused and the evidence of witnesses who had seen the accused some time prior to the incident near the scene of offence. So far as dying declaration is concerned, it cannot be gainsaid that as per Section 32 of the Indian Evidence Act, the statements, written or verbal of the relevant facts made by a person who is dead are relevant facts, when the same are made as to the cause of his death or as to any of the circumstance of the transaction which resulted in his death, when the cause of that person's death comes into question. A very pertinent observations made by the Apex Court in the case of Ramawati Devi v. State of Bihar, 1983 1 SCC 211 , as regards the dying declaration are required to be reproduced as under: "In our opinion neither of these two decisions relied on by the Appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead 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, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is No. requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case." 14. In the case of Laxman v. State of Maharashtra, 2002 (2) WLC (SC) Cri 473 : 2002 6 SCC 710 , at para 3, it was observed as follows: "The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has No. power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness." 15. Similar view has been taken in case of State of Rajasthan v. Champalal, 2009 (1) WLC (SC) Cri 792 : AIR 2009 SC Suppl 1808 . In the instant case, as per the case of prosecution, the dying declaration was made by the deceased Amrit Singh, immediately prior to his death, before his son Bhawani Singh as to the cause of his death and as to who had beaten him. The said Bhawani Singh has been examined by the prosecution as P.W. 15. Hence let us examine whether the prosecution had duly proved the said dying declaration as truthful and trustworthy. The said Bhawani Singh was also the informant who had initially informed the police by making a phone call and subsequently given written complaint at Ex. P.9, which was registered as an FIR being No. 176/02, Ex. P.10. 16. The learned Counsel for the Appellant, Mr. A.K. Gupta has submitted that the telephonic message received at the Police Station, at Ex. P.21-A should have been treated as the FIR and not the subsequent complaint at Ex. P.9. Now, as per the said document at Ex. P.21-A, the information was given by the said Bhawani Singh to the Police Station at 8.20 P.M. on 5.7.2002 that his father Amrit Singh was killed and was lying in the field of Narpal Singh, and that police should come immediately. P.9. Now, as per the said document at Ex. P.21-A, the information was given by the said Bhawani Singh to the Police Station at 8.20 P.M. on 5.7.2002 that his father Amrit Singh was killed and was lying in the field of Narpal Singh, and that police should come immediately. Now, as per Section 154 of the Code of Criminal Procedure, even information relating to the commission of a cognizable offence, if given orally to an officer in charge of a Police Station, is required to be reduced in writing by him, and be read over to the informant and also is required to be signed by the informant, and the substance thereof is required to be entered in a book to be kept by such officer. In the instant case, the information was given by Bhawani Singh about the death of his father and he had asked the officer in charge of the Police Station to come immediately. Such an information not disclosing the full details and not read over to the informant, nor signed by the informant can not be treated as an FIR under Section 154 of the Code of Criminal Procedure A beneficial reference of the decision of the Apex Court in case of Patai alias Krishna Kumar v. State of U.P., 2010 (1) WLC (SC) Cri 667 : AIR 2010 SC 2254 in which it has been observed as under: "In order for a message or communication to be qualified to be a First Information Report, there must be something in the nature of a complaint or accusation or at least some information of the crime given with the object of setting the police or criminal law into motion. It is true that a First Information Report need not contain the minutest details as to how the offence had taken place nor it is required to contain the names of the offenders or the witnesses. But it must at least contain some information about the crime committed as also some information about the manner in which the cognizable offence has been committed. A cryptic message recording an occurrence cannot be termed as a First Information Report." 17. But it must at least contain some information about the crime committed as also some information about the manner in which the cognizable offence has been committed. A cryptic message recording an occurrence cannot be termed as a First Information Report." 17. In case of Sidhartha Vashisht @ Manu Sharma v. State (N.C.T. of Delhi), AIR 2010 SC 2352 , it has been observed that: "Cryptic telephonic messages could not be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR. The said intention can also be clearly culled out from a bare reading of Section 154 of the Code of Criminal Procedure which states that the information, if given orally, should be reduced in writing, read over to the informant, signed by the informant and a copy of the same be given free of cost to the informant." 18. In view of the above-stated legal position, the submission of Mr. Gupta that the telephonic information received at the Police Station, at Ex. P. 21-A should have been treated as the FIR, can not be accepted. 19. In the instant case the evidence of P.W.15 Bhawani Singh who happened to be the son of the deceased is very relevant. He had given the written report Ex. P.9 before the Police Station, Buhana to the effect that when he was at his PCO alongwith his brother, at about 8.15 P.M., one Yogesh Singh came and told him that his father was beaten up and was lying in the field of Narpal Singh. He, therefore, rushed to the said place after making enquiry at his house as to when his father went out and when he reached at the field of Narpal Singh, he found his father lying in the field badly injured. When he asked his father as to who had beaten him, his father had given the names of Prabhu Singh, Ravindra Singh @ Dholiya, Kapindra Singh and Jasveer Singh. The said Bhawani Singh had also stated in the report that thereafter his father calmed down forever and he had informed to the police telephonically from the house of Krishanpal Singh. In his evidence before the court, Bhawani Singh has reiterated the said version. The said Bhawani Singh had also stated in the report that thereafter his father calmed down forever and he had informed to the police telephonically from the house of Krishanpal Singh. In his evidence before the court, Bhawani Singh has reiterated the said version. At this juncture it is pertinent to note that the said witness Bhawani Singh had received the message from Yogesh Singh at about 8.00 P.M. and he immediately rushed to the field of Narpal Singh and after having a short talk with his father, his father died. Immediately thereafter the said Bhawani Singh informed the police telephonically which was received in the Police Station at 8.20 P.M. as per Ex. P.21-A and given the report in writing at about 9.00 P.M. giving the names of the accused, as stated by his father who had beaten him before his death. Thus, there was No. delay on the part of Bhawani Singh in lodging the report before the police stating the names of the accused in the FIR. It is true that in the cross-examination the said Bhawani Singh had also stated about the role played by each of the accused which did not find place in the report. However, that alone would not be a reason to disbelieve the said version of Bhawani Singh about the dying declaration made by his father immediately before his death. The names of all the four accused were specifically mentioned in his written report, as having been told by his father, and the report was also lodged immediately after the death of his father. Under the circumstances, this Court has No. reason to disbelieve the contents of the said report in the form of complaint Ex. P.9. 20. As regards motive, the said Bhawani Singh has stated in his evidence that there was dispute going on between the accused and his father regarding the shops situated near the bus stand, and that keeping grudge against his father, the accused had beaten him. P.W. 1 Krishanpal Singh also has supported the said version of Bhawani Singh that some dispute was going on between the deceased Amrit Singh and the accused Ravindra Singh @ Dholiya and Prabhu Singh with regard to the shops. P.W. 1 Krishanpal Singh also has supported the said version of Bhawani Singh that some dispute was going on between the deceased Amrit Singh and the accused Ravindra Singh @ Dholiya and Prabhu Singh with regard to the shops. He has also stated that Bhawani Singh had come to his house for making a phone call to the Police Station as his father was murdered and that thereafter at about 9.30 P.M. the police had come on the spot. Similarly P.W. 5 Ranjeet Singh, who happened to be the brother of the deceased Amrit Singh has also corroborated the version of the witness Bhawani Singh. He stated that on 5.7.02 at about 6.30 P.M. when he was going to the shop, after meeting his brother Amrit Singh, he had met Prabhu Singh, Jasveer and the son of Prabhu Singh who were going towards the well; that about 1 and half hour thereafter, when he was going towards their STD booth, he saw Bhawani Singh and Ashok Singh running and at that time Bhawani Singh had told him that his father was being beaten by Dholiya and Ors.; that thereafter he went to his home and after taking his torch went to the field of Narpal Singh, where Amrit Singh was lying dead and Bhawani Singh and Ashok were sitting near the well; that Bhawani Singh told him that Ravindra Singh, Prabhu Singh, Jasveer and another son of Prabhu Singh had beaten his father Amrit Singh, as there was dispute of shops amongst them; that Bhawani Singh thereafter made a phone call to the police and police had arrived on the spot. The said witness Ranjeet Singh was also 'Panch' witness of the Ex. P.4 Seizure memo of clothes of deceased, and the Ex. P 5 to 7 seizure memo of the articles seized from the place of occurrence and regarding "paijama of deceased Amrit Singh. Nothing material turns from his cross-examination, except that he was the brother of the deceased. The said witness Ranjeet Singh was also 'Panch' witness of the Ex. P.4 Seizure memo of clothes of deceased, and the Ex. P 5 to 7 seizure memo of the articles seized from the place of occurrence and regarding "paijama of deceased Amrit Singh. Nothing material turns from his cross-examination, except that he was the brother of the deceased. P.W.6 Virendra Singh S/o Randheer Singh has also been examined, who had stated in his evidence before the court that on the date of incident at about 7.30 P.M. when he was coming home from his field, he had seen Jasveer Singh near the house of Madan Singh and that Jasveer Singh was carrying one iron pipe in his hand; that on reaching his house, the daughter of Amrit Singh told him that her father was killed; that he, therefore, went to the field of Narpal Singh where Amrit Singh was lying dead and Bhawani Singh was sitting nearby; that at that time Bhawani Singh told him that his father was beaten by Jasveer Singh, Ravinder Singh @ Dholiya, Prabhu Singh and Kapindra Singh. In the cross-examination, he denied the suggestion that he had not met anybody on the way and that No. talks had taken place between him and Bhawani Singh. P.W. 8 Ashok Singh, who happened to be the son of the deceased Amrit Singh had also supported the version of Bhawani Singh and other witnesses as regards the oral dying declaration made by the deceased Amrit Singh before Bhawani Singh about the accused. 21. It is also pertinent to note that one Jagdish S/o Dhumi Ram has been examined as P.W.7, who happened to be the chance witnesses. He had stated interalia before the trial court that on the date of incident when he was passing near the field of Narpal Singh, he had heard the voice as "maar diya maar diya" and thereafter he saw that one person was lying in the field and some four other persons i.e. Ravindra Singh @ Dholiya, Jasveer Singh, Kapindra and Prabhu Singh were beating that person, however, he did not know as to who was being beaten, and subsequently he came to know that Amrit Singh was being beaten by them. He has further stated that on the next day when Ashok S/o Amrit Singh met him he told him that on the previous night his father was killed, and at that time he told Ashok that Dholiya was beating his father with "saria" and Jasveer was also beating him with pipe and Kapindra and Prabhu had caught hold of Amrit Singh. He had further explained that since few days back Dholiya had murdered another person and had also threatened him, he had not gone to rescue Amrit Singh. This witness was confronted with his statement before the police and the said contradiction is on record at Ex. D.4. Now even if the evidence of said P.W.7 Jagdish is not believed, there being contradiction in his evidence before the court and his statement before the police as regards he having seen the four accused beating deceased Amrit Singh, there is No. reason for the court not to believe the evidence of P.W.1 Krishanpal Singh, P.W.5 Ranjeet Singh, P.W.6 Virendra Singh and P.W.8 Ashok Singh, who have given consistent statements corroborating the version of witness Bhawani Singh as regards the dying declaration made by Amrit Singh stating that he was beaten by Ravindra Singh @ Dholiya and others. The defence has not been able to bring on record any major contradictions in the cross-examination of the said witnesses, which would constrain the court not to believe their evidence. If some minor discrepancies are found in their evidence, they are very natural and are bound to take place as the evidence was recorded after a gap of 3-4 years of the date of incident. It is also settled legal position that merely because the witnesses examined by the prosecution were the relatives of the deceased, their testimonies could not be discarded. A very pertinent observations made by the Apex Court in the recent case of M.C. Ali and Anr. v. State of Kerala, 2010 (1) WLC (SC) Cri 676 : (2010) 4 SCC 573 are required to be reproduced as Under: "On the basis of the law as settled by this Court in a number of judgments which are noticed by the High Court, it is held that relationship is not a factor to affect credibility of a witness. v. State of Kerala, 2010 (1) WLC (SC) Cri 676 : (2010) 4 SCC 573 are required to be reproduced as Under: "On the basis of the law as settled by this Court in a number of judgments which are noticed by the High Court, it is held that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person leaving a way for the real accused to escape." 22. Thus, considering the evidence of Bhawani Singh and other witnesses in the light of report Ex. P.9 given by the said Bhawani Singh, which was lodged at the earliest point of time after the incident stating about the dying declaration made by the deceased, involving the accused, the trial court has not committed any error in relying upon the dying declaration made by the deceased before his son Bhawani Singh. It was sought to be submitted by learned Advocate Mr. A.K. Gupta relying upon the decision in case of Niranjan Panja (supra) that the motive to cause death of Amrit Singh was a significant circumstance in the case, which has not been proved by the prosecution. However, there is No. substance in the said submission of Mr. Gupta. The witness Bhawani Singh and all other witnesses P.W.1 Krishanpal Singh, P.W.5 Ranjeet Singh, P.W.6 Virendra Singh and P.W.8 Ashok Singh have categorically stated that there was a dispute going on between the deceased Amrit Singh and accused Ravindra Singh and Prabhu Singh regarding the shops at the Bus Stand and because of said enmity the accused had beaten and caused fatal injuries to the deceased Amrit Singh. 23. So far as the recovery of incriminating article "saria" from the accused Ravindra Singh @ Dholiya is concerned, the prosecution had examined P.W.13 Udaipal Singh, who was "Panch" witness. He has stated that the accused Ravindra Singh had taken him and the police at his home and produced one iron pipe ("saria") which was seized by the police by putting the same in one white cloth packet and was sealed in his presence, and that the recovery memo Ex. P.12 was also prepared in his presence and his signature was also obtained. He has also stated that Ex. P.12 was also prepared in his presence and his signature was also obtained. He has also stated that Ex. P.13, P.14, P.15, P.16 and P.17 were also prepared in his presence and his signatures were obtained therein. In the cross-examination he has admitted that the deceased happened to be his uncle and that on 12.7.02 he had gone to the scene of offence alongwith Bhawani Singh. He has also admitted that the family members of the accused Ravindra Singh @ Dholiya were staying in the said house, however, has denied that No. such recovery of "saria" as stated by him, was made in his presence. The prosecution had also relied upon the entry made in "Malkhana" Register Ex. P.25-A, and also relied upon the recovery memo Ex. P.12 in which the description of "saria" recovered from the house of accused Ravindra Singh was given to the effect that the said "saria" was having sharp edge on one side and there were blood stains found on the same. 24. Assailing the said evidence of seizure of "saria", Mr. Gupta has submitted that the said recovery of "saria" from the house of accused Ravindra Singh was doubtful and the prosecution had also not laid the evidence to show that the said "saria" was kept in the Police Station in sealed condition in between the period it remained in the Police Station till the same was sent to FSL for examination. There is hardly any substance in the said submission of Mr. Gupta. As stated earlier, the prosecution had already examined the "Panch" witness Udaypal Singh to show that the "saria" seized from the house of accused Ravindra at his instance was packed in white cloth and sealed by marking mark "E". The prosecution had also examined P.W.16 Surendra Kumar, who was the Constable at Police Station, Buhana and he had stated in his deposition that on 28.9.02 he had received 5 packets in sealed condition from the "Malkhana" In-charge in respect of FIR No. 176/02 and the said packets were deposited by him in the FSL Jaipur as per the receipt Ex. P.20. Ex. P.20 is the receipt of FSL in which it has been stated that 5 packets in sealed condition were received from the Constable Surendra Kumar. In the report of FSL Ex. P.31 also the description of articles received has been mentioned. P.20. Ex. P.20 is the receipt of FSL in which it has been stated that 5 packets in sealed condition were received from the Constable Surendra Kumar. In the report of FSL Ex. P.31 also the description of articles received has been mentioned. Therefore, it could not be said that the said articles sent to FSL were tampered with at any time in between the period when they were lying in the Police Station till they were sent to the FSL. The entry with regard to sending the incriminating articles in sealed packets to the FSL through the Constable Surendra Singh also finds place in the "Malkhana" Register Ex. P.25-A. It is true that though there is an entry made in the said "Malkhana" Register with regard to "saria" recovered at the instance of the accused Ravindra Singh marked as "E", the date had remained to be entered therein. However, non-mentioning of the date in the "Malkhana" Register would not make the recovery of said "saria" doubtful, more particularly, in view of the documents at Ex. P.27 i.e. information memo prepared under Section 27 of the Evidence Act, Ex. P.12, the recovery memo of the said "saria" marked as "E" and Ex. P.13 site plan of the place of recovery of the said "saria", as also in view of evidence of 'Panch" witness Udaipal Singh Ex. P.W.13. 25. It is also pertinent to note that the said information as to where the incriminating article "saria" was hidden, was in the exclusive knowledge of the accused Ravindra alone and the place of discovery of "saria" was also his own house and not any public place. As per the settled legal position such discovery of incriminating article at the instance of the accused would be admissible piece of evidence under Section 27 of the Evidence Act and would be a very vital link connecting the accused with the alleged crime. The Hon'ble Supreme Court in case of Sanatan Naskar and Anr. v. State of West Bengal, 2010 (2) WLC (SC) Cri 517 : (2010) 8 SCC 249 has reiterated the principles enunciated under Section 27 of the Evidence Act, and observed in para 14 as under: "Usefully, reference can also be made to the judgments of this Court enunciating the principles under Section 27 of the Act. v. State of West Bengal, 2010 (2) WLC (SC) Cri 517 : (2010) 8 SCC 249 has reiterated the principles enunciated under Section 27 of the Evidence Act, and observed in para 14 as under: "Usefully, reference can also be made to the judgments of this Court enunciating the principles under Section 27 of the Act. The Court in Anter Singh v. State of Rajasthan has held that (SCC p.664, para 14): "14....the first condition necessary for bringing [Section 27] into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that, only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded." The Court further held as under: (Anter Singh case, SCC p. 665, para 16) "16. The various requirements of the section can be summed up as follows: 1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. 2. The fact must have been discovered. 3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act. 4. The person giving the information must be accused of any offence. 5. He must be in the custody of a police officer. 6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to. 7. Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 26. 5. He must be in the custody of a police officer. 6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to. 7. Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 26. Similar view was also taken by the Apex Court in case of Salim Akhtar v. State of U.P., 2003 (2) WLC (SC) Cri 450 : AIR 2003 SC 4076 So far as the facts of present case are concerned, it is required to be noted that the discovery of incriminating article "saria" was made in consequence of the information given by the accused Ravindra; the said accused was in police custody; the said fact discovered was very relevant to the issue, and was duly proved by prosecution by examining the concerned "Panch" witness Udaypal and the Investigating Officer. Thus all requirements of Section 27 of the Evidence Act have been satisfied by the prosecution, which also provided vital link between the accused Ravindra with the alleged crime. 27. Now the said 5 sealed packets deposited by Shri Surendra Kumar with the FSL in sealed condition were examined by the Asstt. Director, State FSL, Jaipur and the report was produced on record at Ex. P.31. It was opined interalia that the Exhibitt No. 1 to 2 from "A", Exhibit No. 6 from "E" were found to be stained with AB group blood. It is pertinent to note that Ex. No. 1-2 in packet marked "A" contained "Kacha" and shirt of the deceased and Ex. No. 6 in packet marked "E" contained the incriminating article "saria" with blood stains, recovered at the instance of the accused Ravindra Singh @ Dholiya. Thus it was duly established from the report of the FSL that the blood group of the blood stains found on the incriminating article "saria" matched with the blood group of the deceased Amrit Singh. The said report of FSL Ex. P.31 was assailed by learned Counsel for the Appellant Mr. Thus it was duly established from the report of the FSL that the blood group of the blood stains found on the incriminating article "saria" matched with the blood group of the deceased Amrit Singh. The said report of FSL Ex. P.31 was assailed by learned Counsel for the Appellant Mr. Gupta placing heavy reliance on the judgment of Hon'ble Supreme Court in the case of Prabhu Babaji Navle v. State of Bombay, reported in AIR 1956 SC 51 in which in para 19 it was observed as under: "The Chemical Examiner's report about the blood stains is slovenly and perfunctory and we have noticed with regret the same slovenliness in the reports of other Chemical Examiners in some other cases that have recently come before us. The Chemical Examiner's duty is to indicate the number of blood stains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. Merely to say that blood was detected on an exhibit, as this report states, is not enough. It may well lead to a miscarriage of justice compelling judges to acquit when they would have convicted had the report been more revealing. We trust these observations will be brought to the notice of all Chemical Examiners in the country. Not that they all act like this. Many give full and detained reports as they should." 28. From the aforesaid observations made by the Apex Court it clearly appears that the Apex Court in order to avoid miscarriage of justice and compelling the judges to acquit the accused, had directed the Chemical Examiners to give full and detailed reports so that proper justice is done. It has nowhere been observed that non-observance or non-mentioning of number of blood stains or extent of blood stains in the report/opinion by the Chemical Examiner would be fatal to the case of the prosecution, and in favour of the accused, even if the other circumstances are duly proved by the prosecution. As such in number of cases, when the incriminating articles were not sent to the FSL for examination, the Apex Court had treated such lacuna as defective investigation and not fatal to the case of the prosecution. As such in number of cases, when the incriminating articles were not sent to the FSL for examination, the Apex Court had treated such lacuna as defective investigation and not fatal to the case of the prosecution. To cite a few decisions are in case of Dheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654 ; in case of Surendra Paswan v. State of Jharkhand, (2003) 12 SCC 360 ; in case of Amar Singh v. Balvinder Singh, 2003 (1) WLC (SC) Cri 443 : (2003) 2 SCC 518 . So far as the present case is concerned, not only that the incriminating articles were sent to the FSL in sealed condition, the Chemical Examiner has also given the opinion which clearly implicates the accused Ravindra Singh @ Dholiya and connects him with the alleged crime. It is needless to say that such report given by the Government Scientific Expert could be used as evidence in the trial in view of Section 293 read with Section 294 of the Code of Criminal Procedure. 29. In view of the above stated findings and reasons this Court has No. hesitation in holding that the prosecution had proved beyond reasonable doubt the guilt of the accused Ravindra Singh @ Dholiya by leading cogent evidence as regards the dying declaration of the deceased, the motive of the accused Ravindra Singh @ Dholiya to cause death of the deceased, the recovery of incriminating article "saria" containing blood stains of the deceased at the instance of the accused Ravindra Singh @ Dholiya and the evidence of other witnesses corroborating the version of the complainant Bhawani Singh, as also the report of FSL, which unerringly point out the guilt of the accused as regards the charges levelled against him. This Court, therefore, finds No. infirmity or illegality in the judgment and order passed by the trial court convicting the accused Ravindra Singh @ Dholiya for the charges levelled against him. 30. At this juncture, a very pertinent observation made by Hon'ble Supreme Court in case of Sucha Singh (supra) at para 17 are required to be reproduced as under: "Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law." 31. So far as other appeal preferred by the State against the acquittal of the other two accused Prabhu Singh and Jasveer Singh is concerned, it was sought to be submitted by the learned Public Prosecutor Mr. Sanjay Kumar Mahla that when one "saria" was also recovered at the instance of the accused Jasveer Singh and his name alongwoth other accused Prabhu Singh was also given by the deceased Amrit Singh in his dying declaration before Bhawani Singh, and therefore both of them were also required to be convicted for the charges levelled against them. It is true that the prosecution had sought to prove the guilt of the said accused Jasveer Singh by leading the evidence as regards the recovery of another article "saria" at the instance of the said accused, however, the said "saria" was not sent for examination to the FSL. The prosecution had also failed to prove motive against the said accused Jasveer Singh as was proved in case of the accused Ravindra. Since the names of the accused Jasveer Singh and Prabhu Singh were given by the deceased in his dying declaration, a strong suspicion is raised against them also, however in absence of other cogent evidence, it is difficult to hold them guilty. It is trite to say that the suspicion howsoever strong cannot take place of proof, and when two views are possible, the benefit of doubt should be given to the accused. In that view of the matter, it is difficult to accept the submission made by the learned Public Prosecutor for the State to convict the said two accused setting aside the order of acquittal passed by the trial court. 32. In view of the above, the judgment and order passed by the trial court is confirmed. Both the appeals are dismissed accordingly.Both Appeals Dismissed. *******