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2011 DIGILAW 253 (CHH)

RAJENDRA GANDHI v. STATE OF C. G.

2011-07-28

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT T.P. Sharma, J. :- 1. Cr.A.Nos.815/2005 & 907/2010 filed on behalf of accused persons/ appellants Rajendra Gandhi, Haresh Kothari, Arun Diwan, Hori MandaI, Babii @ Sandeep Kundu & Ramjan Beg against the judgment of conviction &.order of sentence dated 29-9-2005 passed by the 3rd Additional Sessions Judge, Jagdalpur in Sessions Trial No. 160/2001 and Cr.A.No.459/2006 filed on behalf of absconding accused/appellant Ram Kumar against the judgment of conviction. & order of sentence dated 6-5-2006 passed by the 3rd Additional Sections Judge, Jagdaipur in Sessions Trial No. 160/2001 relating to commission of same offences, are being disposed of by this common judgment. 2. Vide judgment of conviction & order of sentence dated 29-9-2005, the yd Additional Sessions Judge, Jagdalpur, in Sessions Tria1No.160/2001, has convicted & sentenced the appellants in Cr.A.Nos.815/2005 & 907/2010 for commission of culpable homicide amounting to murder in furtherance of common object of the unlawful assembly formed by them who were armed with deadly weapons and for commission of the offence of kidnapping & extortion, under Sections 148, 302 read with Section 149, 329 read with Section 149, 348 & 364 of the IPC. Appellant Ram Kumar in Cr.A.No.459/2006 was absconding, subsequently he was arrested and after trial he was also convicted & sentenced under Sections 148,302 read with Section 149,329 read with Section 149,348 & 364 of the IPC vide judgment dated 6-5-2006 passed by the 3rd Additional Sessions Judge, Jagdalpur, in Sessions Trial No. 160/2001. All the appellants have been convicted and sentenced in the following manner for causing homicidal death amounting to murder of Vinod Gupta after kidnapping and extortion:- Conviction Sentence Section 148 of the IPC RI for one year & fine of Rs.1 ,000/- each, in default additional RI for three months. Section 302 read with Imprisonment for life & fine of Rs. Section 149 of the IPC 5,000/each, in default additional RI for one year. Section 329 read Rs. RI for seven years & fine Section 149 of the IPC of Rs.5,000/ each, in default additional RI for one year. Section 348 of the IPC RI for one year & fine of Rs.1 ,000/- each, in default additional RI for three months. Section 364 of the IPC RI for seven years & fine of Rs.5,000/ each, in default additional RI for one year. 3. Section 348 of the IPC RI for one year & fine of Rs.1 ,000/- each, in default additional RI for three months. Section 364 of the IPC RI for seven years & fine of Rs.5,000/ each, in default additional RI for one year. 3. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants and thereby committed illegality. 4. As per case of the prosecution, Vinod Gupta (since deceased) was working in the shop of appellant Haresh Kothari. As per case of the appellants and material collected on behalf of the prosecution, on account of suspicion of commission of theft of Rs.3 lakhs from the Kothari Complex, the appellants kidnapped Vinod Gupta and took him to the house of Kothari Seth situate at Rautpara, Jagdalpur where they assaulted and caused injuries to Vinod Gupta by burning polythene & cigarette, thereby, they caused serious injuries to Vinod Gupta. Vinod Gupta was confined by the appellants from 26-4-2000 till 28-42000. Thereafter, on 28-4-2000 at 11 p.m. appellant Haresh Kothari telephoned to Police Station Jagdalpur that Vinod Gupta has been confined in Parpa Dhaba for interrogation relating to theft of Rs.3 lakhs from his shop. Police immediately rushed to Parpa Dhaba where Vinod Gupta was present in injured condition, on being asked, he told that appellant Rajendra Gandhi along with other persons has kidnapped him and has caused aforesaid injuries by burning polythene and other articles. Vinod Gupta was not in a position to talk, he was badly injured. Immediately he was taken to the police station and was sent for medical examination. Roznamcha No.1 687 was recorded at 11 p.m. on 28-4-2000. Vinod Gupta was sent for medical examination on 28-4-2000 and he was examined by Dr. K. Vinay Kumar (PW -9) vide EX.P•14 and following injuries & symptoms were found. 1. Defused swelling over right hand and right leg with tenderness of 65 cm. in round shape. 2. Abrasion over right hand in black colour of 9 cm. x 5 cm. 3. Two abrasions over right wrist of 1 1/2 cm, x 1 cm, and-1/2 cm. x 1/2 cm. in black colour 4. Abrasion of 5 cm. x 5 cm, over upper side of hand in black colour. 5. Multiple abrasions over all fingers. 6. Defused swelling over right hand of 65 cm. in round shape having unbearable pain. 7. 3. Two abrasions over right wrist of 1 1/2 cm, x 1 cm, and-1/2 cm. x 1/2 cm. in black colour 4. Abrasion of 5 cm. x 5 cm, over upper side of hand in black colour. 5. Multiple abrasions over all fingers. 6. Defused swelling over right hand of 65 cm. in round shape having unbearable pain. 7. Multiple abrasions over left hand of 2 cm. x 1/2 cm. and 1/2 cm. in black colour. 8. Defused abrasion of 29 cm. x 7 cm. in black colour on lower part of hand with unbearable pain. 9. Multiple abrasions over all fingers of left hand with discharge of water like substance. 10. Defused swelling over right eye, hairs of eyelids were burnt and colour was black. 11. Four abrasions over right side of face in the size of 1 cm. to 2 cm. and 1/2 cm. 12. Four abrasions over right side of face in the size of 2 cm. to 11/2 cm. and 1 cm. 13. Three abrasions over chin of 11/2 cm. to 1 cm. 14. Multiple abrasions, twelve in number, over right thigh and leg in the size of 2 cm. to 1 cm. x 1 cm. 15. Multiple abrasions over left thigh and lower part of foot, thirteen in number, in the size of 1 cm. to 1/2 cm. x 1 cm. 16. Abrasion over left knee of 8 cm. x 5 cm. in black colour. 17. Multiple burn injuries, 12•15 in number, like water drops in the size of 1/2 cm. in circular shape over back portion and stomach. 18. Superficial burn injuries over chest of 9 cm. x 2 cm., colour of skin was black and skin was peeling of. 19. Three superficial burn injuries of 1 cm. x 1/2 cm., skin was peeling of over chest. 20. Three abrasions over left side of waist in the size of 10 cm. x 5 cm. and 3 cm. x 21/2 cm. in black colour. 21. Blood clot on front part of penis. 22. Abrasion over left buttock of 8 cm. x 5 cm. 23. Hairs of forehead were burnt. Injured Vinod Gupta was advised for x-ray of both hands and chest. He was admitted in the hospital for further treatment. During treatment, relatives of Vinod Gupta took him to Visakhapatnam for treatment where he died on 9-5-2000. 22. Abrasion over left buttock of 8 cm. x 5 cm. 23. Hairs of forehead were burnt. Injured Vinod Gupta was advised for x-ray of both hands and chest. He was admitted in the hospital for further treatment. During treatment, relatives of Vinod Gupta took him to Visakhapatnam for treatment where he died on 9-5-2000. Thereafter, on being asked by the police vide Ex.P-32, Dr. K. Vinay Kumar (PW-9) opined that the injuries found over the body of the injured may be sufficient to cause death. On 2-5-2000 at about 8 p.m. at Maharani Hospital, Jagdalpur during treatment of Vinod Gupta, he lodged dehati nalsi vide Ex.P- 33. On the basis of Ex.P-33, FIR Ex.P-34 was registered. Vinod Gupta also made dying declaration before his mother & wife namely Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW-13), respectively. Injured Vinod Gupta was admitted in Seven Hills Hospital, Visakhapatnam on 7-5-2000 and he died on 9-5-2000 during the course of treatment. Death of Vinod Gupta was intimated vide Ex.P-22. Merg was recorded vide Ex.P-21A at Police Station Bodhghat. After summoning the witnesses vide Ex.P-9, inquest over the dead body of Vinod Gupta was prepared vide Ex.P-8. Dead body was sent for autopsy to Andhra Medical College, Visakhapatnam vide Ex.P-20. Dr. N.V.S.L. Narasimham (PW -11) conducted autopsy vide Ex.P-19 and found following injuries & symptoms:- Swelling around right eyes and eyelids. Skin was peeled of. Staining was visible. Mark of stamp ink was present on right thumb. Burn injuries were found over neck. Injuries were found on both shoulders, both hands, chest, back, abdomen, buttocks, knee and penis. No bum injuries were found over arms. Burn injuries are superficial and 40%. Cause of death was burn injuries, infection, septic, toxic and its complications. During the course of investigation, accused persons were taken into custody. Accused/appellant Hori Mandai made discloser statement of stick vide Ex.P1 and same was recovered at his instance vide Ex.P-2. Accused/appellant Haresh Kothari made discloser statement of nylon rope vide Ex.P-3 and same was recovered at his instance vide Ex.P-4. Accused/appellant Mirja Ramjan Beg made discloser statement of electric wire, ploythene and wax candle vide Ex.P-6. House of Ramjan was searched, but nothing was found, panchnama was prepared vide Ex.P-10. Accused/appellant Haresh Kothari made discloser statement of nylon rope vide Ex.P-3 and same was recovered at his instance vide Ex.P-4. Accused/appellant Mirja Ramjan Beg made discloser statement of electric wire, ploythene and wax candle vide Ex.P-6. House of Ramjan was searched, but nothing was found, panchnama was prepared vide Ex.P-10. Accused/appellant Ram Kumar made discloser statement of Maruti van vide Ex.P-11 and same was recovered at the instance of accused/appellant Haresh Kothari vide Ex.P-12 along with papers of the vehicle. Papers of the vehicle were also seized vide Ex.P-I3. Accused/appellant Babli @ Sandeep Kundu made discloser statement of pieces of stone (gitti) vide Ex.P-16. Spot map was prepared vide Exs.P-23 & P-24. The accused persons were arrested vide Exs.P-25 to P-31. 5. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Jagdalpur, who committed the case to the Court of Sessions, Jagdalpur, from where learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellants, the prosecution has examined as many as sixteen witnesses. During the course of trial, accused/ appellant Ram Kumar absconded. The case was bifurcated against other appellants except Ram Kumar. Subsequently, Ram Kumar was arrested, he was again tried and was convicted & sentenced as aforementioned vide judgment dated 6-5-2006. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants as aforementioned vide the two judgments. 8. We have heard learned counsel for the parties, perused the judgments and record of the trial Court. 9. Mr. Surendra Singh, learned Senior Advocate appearing on behalf of appellants Haresh Kothari, Arun Diwan & Hori Mandal, submits that as per case of the prosecution, on account of recovery of money alleged to have been stolen by deceased Vinod Gupta, the appellants have extorted Vinod Gupta and tried to recover Rs.3 lakhs from him. During the course of such extortion, injuries were caused to Vinod Gupta which shows that the appellants have not committed culpable homicide amounting to murder of Vinod Gupta. During the course of such extortion, injuries were caused to Vinod Gupta which shows that the appellants have not committed culpable homicide amounting to murder of Vinod Gupta. The persons who committed the aforesaid offence may be liable for conviction and sentence under Section 330 of the IPC. The doctor has not opined/the prosecution has not collected any evidence to establish that the injuries caused to Vinod Gupta were sufficient for causing his death in ordinary course of nature. Inter alia, as per the doctor's opinion, especially evidence of Dr. K. Vinay Kumar (PW9) and Ex.P-15, on account of injuries found over the body of Vinod Gupta, death was probable. Mr. Surendra Singh further submits that as per case of the prosecution, Vinod Gupta was kidnapped on 26-4-2000 and was extorted up to 28-4-2000, thereafter, appellant Haresh Kothari telephoned to Police Station Jagdalpur relating to kidnap of Vinod Gupta. The police officers immediately rushed to Parpa Dhaba where Vinod Gupta was confined, police officers brought him to the police station and In-charge Police Station Bhalekar recorded roznamcha No.1687 on 28-4-2000 at 11 p.m. which clearly reveals that on being asked, Vinod Gupta (since deceased) made statement before Bhalekar the he was badly assaulted by Ramjan along with two other persons and was kidnapped & extorted since 26-4-2000 till 28-4-2000 on account of theft, and they have assaulted him by hands, crushed him by legs, burnt him by ploythene and wax candle over different parts of the body. Vinod Gupta was shifted to the hospital for treatment. This shows that the aforesaid roznamcha was the first dying declaration of the deceased in which he has pointed only one accused Ramjan along with two other persons, but he has not named other persons. However, for the reasons best known to the prosecution, the prosecution has not proved the aforesaid roznamcha, though the prosecution was under obligation to produce and prove such roznamcha. This roznamcha was the first dying declaration which reveals the commission of offence by one accused and other unidentified persons whom Vinod Gupta has not identified later on till his death. Therefore, conviction and sentences imposed upon the appellants, except appellant Ramjan, are not sustainable under the law. Mr. This roznamcha was the first dying declaration which reveals the commission of offence by one accused and other unidentified persons whom Vinod Gupta has not identified later on till his death. Therefore, conviction and sentences imposed upon the appellants, except appellant Ramjan, are not sustainable under the law. Mr. Surendra Singh also submits that dehati nalsi Ex.P-33 has been recorded on 2-5-2000 in which Vinod Gupta (since deceased) has mentioned the names of six accused persons namely Ramjan Musalman, Arun, Hori Mandal, Gandhi, Kothari Seth & Sabli @ Sandeep but has not named another accused Ram Kumar. After the alleged dehati nalsi Ex.P-33, allegedly recorded on 2-5-2000, the deceased died on 9-5-2000, after lapse of seven days, but the police has not tried to record his dying declaration by the competent authority, even the police has not recorded his statement under Section 161 of the CrPC. The aforesaid dehati nalsi is a suspicious document and does not inspire confidence, it is not trustworthy and same cannot be relied upon for conviction of the appellants. Mr. Surendra Singh contends that Smt. Geeta Gupta (PW-12) - mother of Vinod Gupta & Smt. Anuradha Gupta (PW-13)wife of Vinod Gupta have deposed in their evidence that Vinod Gupta has made dying declaration before them in which he has named all the appellants. Evidence of the aforesaid witnesses does not inspire confidence and is not trustworthy. Their statements under Section 161 of the CrPC as Exs.D-1 & D-3 have been recorded by the police on 2-5-2000 and supplementary, statement of Smt. Anuradha Gupta (PW-13) as Ex.D-2 has been recorded on 18-5-2000. This shows that the police have recorded the aforesaid statements after registration of the alleged dehati nalsi. Mr. Surendra Singh further contends that roznamcha dated 28-4-2000, dehati nalsi EX.P-33 and statements of Smt. Geeta Gupta (PW12) & Smt. Anuradha Gupta (PW-13) are self-contradictory and in absence of dying declaration recorded by competent authority, no reliance can be placed upon the aforesaid alleged dying declarations. Except the aforesaid dying declarations, the prosecution has not collected any material against the appellants to prove their guilt. Mr. Surendra Singh also contends that in view of the aforesaid circumstances, conviction & sentences imposed upon the appellants are )ad in law and are not sustainable under the law. 10. During the course of argument, Mr. Except the aforesaid dying declarations, the prosecution has not collected any material against the appellants to prove their guilt. Mr. Surendra Singh also contends that in view of the aforesaid circumstances, conviction & sentences imposed upon the appellants are )ad in law and are not sustainable under the law. 10. During the course of argument, Mr. Surendra Singh, learned Senior --.Advocate, produced one photocopy of roznamcha No. 1687 dated 28-4-2000 appears to be recorded at Police Station Jagdalpur which was taken on record. 11. Mr. Surendra Singh, learned Senior Advocate appearing on behalf of appellants Haresh Kothari, Arun Diwan & Hori Mandal, placed reliance in the matter of Bhagawantibai Vs. State of MP in which by relying upon the dictum in the matters of Samedas Vs. State of MP and Lallusingh Vs. State of MP'3, the Madhya Pradesh High Court (Indore Bench) has held that document filed on behalf of the prosecution but not proved can be relied upon and used by the defence in their support. Mr. Surendra Singh further placed reliance in the matter of K. Ramachandra Reddy and another Vs. The Public Prosecutor in which the Supreme Court has held that dying declaration can be accepted and may be basis of conviction if accepted as true and voluntary Dying declaration being a statement not on oath having no opportunity of cross-examination for testing its truthfulness before accepting it. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. Mr. Surendra Singh also placed reliance in the matter of State of Assam Vs. Mafizuddin Ahmed in which the Supreme Court has held that dying declaration can be sole basis of conviction provided it is truthful. In para 13 the Supreme Court has observed as follows:- "13. The cumulative effect of all the circumstances which weighed with the High Court is that they cast doubt about the truthfulness of the dying declaration. Mafizuddin Ahmed in which the Supreme Court has held that dying declaration can be sole basis of conviction provided it is truthful. In para 13 the Supreme Court has observed as follows:- "13. The cumulative effect of all the circumstances which weighed with the High Court is that they cast doubt about the truthfulness of the dying declaration. It is not outside the realm of probability that her statement may have been inspired by her uncle and, therefore, it will not be safe to base the conviction of respondent on such a dying declaration." Mr. Surendra Singh relied upon the matter of State of Gujarat Vs. Khumansingh Karsan Singh and other in which the Supreme has held that inconsistency between two dying declarations suggesting possibility of tutoring and false involvement due to strained relations with both accused, conviction cannot be based on such inconsistent dying declarations. Mr. Surendra Singh further relied upon the matter of Sharda Vs. State of Rajasthan in which the Supreme Court has held that evidence relating to dying declaration is based on legal maxim, "Nemo moriturus proesumitur mentiri", it implies that a man who is on death bed would not tell a lie to falsely implicate innocent person. The Supreme Court has further held that conviction can be based on the dying declaration if same is found trustworthy, in case of more than one dying declarations the court is required to scrutinize minutely before relying upon them. 12. Mr. Surendra Singh also relied upon the matter of Ram Jattan and others Vs. State of UP in which the Supreme Court has held that multiple injuries inflicted by twelve accused on non-vital parts, common intention to cause death absent, medical report not certifying injuries sufficient to cause death in ordinary course of nature, Clause first and third of Section 300 of the IPC not attracted, conviction would be under Section 304 Part-II read with Section 149 of the IPC and sentence of R1 for five years was imposed. Mr. Surendra Singh placed reliance in the matter of Dalip Singh and others Vs. Mr. Surendra Singh placed reliance in the matter of Dalip Singh and others Vs. State of Haryana in which the Supreme Court has held that in case of custodial death, in absence of intention of causing murder, accused sharing common intention to beat deceased violently, they must be attributed knowledge only that by inflicting injuries, they were likely to cause death, case falls under Section 304 Part-II of the IPC not under Section 304 Part-I of the IPC and sentence of RI for five years was found sufficient. Mr. Surendra Singh further placed reliance in the matter of Adu Ram Vs. Mukna and others in which the Supreme Court has held that alteration of conviction from Section 302 to Section 304 Part-I of the IPC, number of injuries on deceased person not always determinative of offence, weapon used, part of body where injuries were inflicted and nature of injuries are relevant factors, assaults made in course of quarrel, 34 injuries including several fractures on non-vital parts found over the body of the deceased, no grievance injury found over head and all injuries on head were simple in nature, conviction would be under Section 304 Part-I of the IPC and custodial sentence of six years would be sufficient. Mr. Surendra Singh also placed reliance in the matter of B.K. Channappa Vs. State of Karnataka in which the Supreme Court has held that as many as 18 injuries found on the dead body of the deceased including large crush injury or lacerated injuries on chin, right leg, left knee, left wrist, right shoulder, right forearm etc., as per evidence of doctor none of injuries was found on any of vital part of body, conviction would be under Section 304 Part-II of the IPC. 13. By adopting the arguments advanced on behalf of Mr. Surendra Singh, Mr. Pawan Kesharwani, learned counsel appearing on behalf of appellant Rajendra Gandhi, and Mr. B.D. Guru, learned counsel appearing on behalf of appellant Babli @ Sandeep Kundu, submit that the prosecution has not proved its case beyond all reasonable doubts and has not collected evidence against the appellants to show their involvement. In absence of evidence, appellants Rajendra Gandhi & Babli @ Sandeep Kundu are entitled for acquittal. 14. By adopting the arguments advanced on behalf of Mr. Surendra Singh, Mr. In absence of evidence, appellants Rajendra Gandhi & Babli @ Sandeep Kundu are entitled for acquittal. 14. By adopting the arguments advanced on behalf of Mr. Surendra Singh, Mr. Prafull Bharat, learned counsel appearing on behalf of appellants Ram Kumar & Ramjan Beg, submits that act of appellant Ramjan Beg does not travel beyond the scope of Section 330 of the IPC and evidence adduced on behalf of the prosecution is not sufficient for drawing definite conclusion that Ramjan Beg having no interest in extortion, has committed the offence. Mr. Prafull Bharat further submits that as far as the case of appellant Ram Kumar is concerned, the prosecution has collected the only material and evidence that Ram Kumar is driver of appellant Haresh Kothari, he was driving Maruti van and on the basis of discloser statement of Maruti van vide Ex.P-11, Maruti van has been recovered from Kothari Complex vide EX.P-12. Mr. Prafull Bharat also submits that driving of the vehicle of co-accused Haresh Kothari by itself is not an offence, the prosecution has not collected other evidence especially relating to presence of appellant Ram Kumar at the time of alleaed incident or any act attributed to him. In absence of such evidence, virtually, this is a case of no evidence relating to appellant Ram Kumar. 15. On the other hand, Mr. D.K. Gwalre, learned Government Advocate appearing on behalf of the State/respondent, vehemently opposes the appeals and submits that the alleged roznamcha has not been produced & proved by the other party, the appellants have tried to take the benefit of the alleged roznamcha at the appellate stage and it was incumbent upon the appellants to examine witnesses to prove the roznamcha before relying upon it, but for the reasons best known to the appellants, they have not tried to examine any witness to prove the roznamcha. At the stage of appeal, the appellants want to take benefit of the alleged unproved document which is not permissible under the law. The prosecution is not under obligation to produce and prove all the documents and in absence of such proving of the document, no adverse inference can be drawn against the prosecution. Even otherwise, contents of roznamcha are self-explanatory and same are completely against the appellants. Mr. The prosecution is not under obligation to produce and prove all the documents and in absence of such proving of the document, no adverse inference can be drawn against the prosecution. Even otherwise, contents of roznamcha are self-explanatory and same are completely against the appellants. Mr. D.K. Gwalre further submits that evidence adduced on behalf of the prosecution, especially the alleged roznamcha cannot be treated as dying declaration of Vinod Gupta (since deceased), however dehati nalsi Ex.P-33 lodged by Vinod Gupta which is his first dying declaration and report of Vinod Gupta well corroborated by the oral dying declaration made by Vinod Gupta to his mother & wife namely Smt. Geeta Gupta (PW -12) & Smt. Anuradha Gupta (PW -13), respectively, are found trustworthy and same are safe to rely. After placing reliance upon the aforesaid dying declaration, the trial Court has rightly convicted & sentenced the appellants. Initially, the appellants have kidnapped the deceased for extortion, but during the course of extortion, they have caused huge number of injuries up-on the deceased mercilessly and brutally by polythene bums and wax candle burns for two days which shows the extent of torture and brutality without any medical assistance. These circumstances are sufficient to establish the fact that from 26-4-2000 to 28-4-2000 at the time of causing injuries in brutal manner all the appellants were having definite knowledge that by their act they will succeed in recovery of money from Vinod Gupta and Vinod Gupta will definitely die. After appreciating the evidence available on record, the trial Court has rightly convicted & sentenced the appellants. 16. Mr. D.K. Gwalre, learned Government Advocate, also submits that roznamcha No.1687 of Police Station Jagdalpur has been recorded at the instance of appellant Haresh Kothari, the complainant of Crime No. 173/2000 which was the criminal case for the offence punishable under Sections 457 & 380 of the IPC registered against Vinod Gupta (since deceased). The aforesaid roznamcha was part and parcel of the aforesaid offence and was not related to this case. Therefore, the prosecution was not under obligation to prove this roznamcha in the present case. Even otherwise, defence has tried to rely upon the alleged roznamcha that too at the stage of appeal. The aforesaid roznamcha was part and parcel of the aforesaid offence and was not related to this case. Therefore, the prosecution was not under obligation to prove this roznamcha in the present case. Even otherwise, defence has tried to rely upon the alleged roznamcha that too at the stage of appeal. Therefore, defence was under obligation to examine witnesses to prove the alleged roznamcha, but for the reasons best known to the appellants, they have not examined any witness to prove the said roznamcha. Unproved document, may be of the prosecution, especially the document of another case, cannot be taken into evidence without proving the same in accordance with the provisions of the Evidence Act. Mr. D.K. Gwalre contends that when Vinod Gupta (since deceased) was brought to the police station from the custody of the appellants, he was unconscious, after regaining consciousness he has lodged dehati nalsi at Maharani Hospital, Jagdalpur vide EX.P-33 in which he has mentioned the names of all the appellants and the act attributed to them. Vinod Gupta has also made oral dying declaration to his mother & wife Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW-13) which also corroborates EX.P-33 dehati nalsi which is having the value of dying declaration after the death of Vinod Gupta. Both the evidence are sufficient for conviction of the appellants. The appellants have mercilessly and brutally caused injuries upon the deceased by burning polythene after melting it and roping the polythene which was in liquid form and of high cegree temperature on different parts of the body, they also caused injuries by different objects including rope and for two days they have committed such offence, and no medical facility was provided to Vinod Gupta which shows grave intention of the appellants for causing homicidal death of deceased Vinod Gupta. 17. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 18. In the present case, cause of death of Vinod Gupta has not been substantially disputed on behalf of the appellants. The appellants have tried to dispute the homicidal death of the deceased. Even otherwise, homicidal death of deceased Vinod Gupta has been established by evidence of Dr. 18. In the present case, cause of death of Vinod Gupta has not been substantially disputed on behalf of the appellants. The appellants have tried to dispute the homicidal death of the deceased. Even otherwise, homicidal death of deceased Vinod Gupta has been established by evidence of Dr. K. Vinay Kumar (PW -9) who has attended the deceased first time on 28-4-2000 at about 10.40 p.m. at night and his report EX.P-14 in which he has noticed bum injuries and other injuries of huge number including blood clot in front of penis, peeling of skin over the bum injuries which shows deteriorating stage of the body as a result of bum injuries. Relatives of deceased Vinod Gupta took him to Visakhapatnam for further treatment which shows that they were not satisfied by the treatment of District Hospital, Jagdalpur, and Vinod Gupta was treated at Andhra Medical College, Visakhapatnam. Autopsy has been conducted by Dr. N. V.S.L Narasimham (PW -11) vide Ex.P-19 and cause of death was septic, toxic and complications due to inflicted bums. Peeling of skin over the bum injuries shows the stage of deterioration and infection on 28-4-2000 in absence of medical facility and treatment for two days which shows that death of Vinod Gupta was homicidal in nature. 19. As regards complicity of the appellants in the crime in question, defence has heavily relied upon roznamcha No. 1687 dated 28-4-2000 recorded at Police Station Jagdalpur. 20. As per roznamcha No.1687, appellant Haresh Kothari, owner of the shop where the alleged offence of theft has been committed by deceased Vinod Gupta, was in dominating position over all the other appellants who were servants or closely associated with appellant Haresh Kothari. Appellant Haresh Kothari has telephoned to Police Station Jagdalpur that they have kidnapped Vinod Gupta for extortion at Parpa Dhaba on which the police officials rushed to the said dhaba where appellant Haresh Kothari, one Haisibhai Kothari, driver Ram Kumar (appellant in Cr.A. No.459/2006) & one Virendra Kumar were present with Vinod Gupta, Vinod Gupta was badly injured, injuries and bum injuries with swelling were found in huge number on the body of Vinod Gupta. On being asked, Vinod Gupta told to appellant Ramjan along with two other persons have kidnapped him since 26-4-2000 and have badly assaulted him, they have also wounded him by putting stones on his hands and pressing with legs, and they also caused bum injuries by burning polythene & wax candle on the ground of extortion i.e. interrogation relating to money stolen from the shop of Haresh Kothari. 21. As per the roznamcha, Vinod Gupta was badly wounded and was not in a position to talk. Considering the injuries found over the body of Vinod Gupta, immediately after preparing the requisition form for medical treatment, he was sent to Maharani Hospital, Jagdalpur for examination where he was admitted in the cmergency ward. As per the roznamcha, Vinod Gupta also informed the police that he has admitted the commission of theft and told that he has given Rs. 1,60,000/- to his father-in-law Haresh Driver Reddy at Sukma. Roznamcha further reveals that Vinod Gupta was under watch as a suspicious accused and the police party proceeded for further enquiry relating to the aforesaid money entrusted to father-in-law of Vinod. 22. This is the document recorded by the police official i.e. public servant Station Incharge Bhalekar. As per submission of counsel for the appellants, during the course of trial, Bhalekar died and, therefore, they were unable to examine Bhalekar, the then Station Incharge, but they have asked relevant questions to the other police official namely S.B. Singh Rana (PW-16) - Sub Inspector, who has admitted in para 8 of his cross-examination that he had gone to Sukma for investigation of theft, after admitting Vinod Gupta in the hospital. S.B. Singh Rana (PW -16) has further admitted in para 10 of his cross-examination that deceased Vinod Gupta had admitted before Tl Bhalekar that he has committed theft of money from the shop of Haresh Kothari and about Rs.2 lakhs were with his father-in-law Reddy. On the basis of aforesaid admission of Vinod Gupta, Bhalekar has directed him to enquire into the matter on which he went to Sukma for such enquiry. In para 23 of his cross-examination, he has further admitted that he has recorded in the diary relating to inquiry of theft at Sukma and also prepared panchnama which is attached in the case of theft in Crime No. 173/2000. In para 23 of his cross-examination, he has further admitted that he has recorded in the diary relating to inquiry of theft at Sukma and also prepared panchnama which is attached in the case of theft in Crime No. 173/2000. Virtually, as per evidence of this witness, roznamcha No. 1687 was not the part of this offence, but was the part of alleged Crime No.173/2000. Therefore, the prosecution was not under obligation to produce & prove the roznamcha in the present case, though the appellants were having opportunity to examine the witnesses to prove this roznamcha. Present roznamcha has been recorded by the public servant. This is the roznamcha which has been recorded in discharge of official duty of public servant having more evidentiary value than a private document prepared by private person. Although the roznamcha has not been produced & proved by any of the parties before the trial Court, but existence of roznamcha has not been denied by any of the parties, especially the appellants placed reliance upon the roznamcha. Existence of roznamcha also finds corroboration from Ex.P-14, the medical examination report of Vinod Gupta on the basis of requisition of S.B. Singh Rana (PW -16) - Sub Inspector as admitted by him in para 13 of his cross-examination. 'S.B. Singh Rana (PW16) has also admitted in para 3 of his evidence that in Crime No. 173/2000, FIR dated 15-4-2000 for the offence punishable under Sections 457 & 380 of the IPC, he has conducted investigation on 2-5-2000 and thereafter, it was investigated by Police Station Bodhghat. 23. In the present case, existence of roznamcha and its recording by the public officer in Crime No. 173/2000 cannot be denied and at this stage, it cannot be considered as a suspicious document or the document prepared after thought. Although this roznamcha was not part of the present case, but it was recorded by the public servant in Crime No.173/2000. As held by the Madhya Pradesh High Court (Indore Bench) in Bhagawantibai's easel (supra) after placing reliance in the matters of Samedai (supra) and Lallusingh (supra) in paras 10 & 12 of its judgment, we are of the considered view that the document of prosecution can be used by the defence and if it is used by the defence, then it is also available for the prosecution to use the, same. 24. 24. Although the alleged roznamcha was not part of the present case, but it was recorded by a public servant i.e. the police officer relating to commission of offence by the deceased herein. The aforesaid roznamcha reveals presence of Haresh Kothari, Haisibhai Kothari, Ram Kumar & Virendra Kumar. The appellants herein had heavily relied upon the roznamcha. Statement relating to presence of accused at some place or in the house of appellant Haresh Kothari along with injured Vinod Gupta in Parpa Dhaba by itself is not confessional statement. Therefore, it can be relied upon and can be used for presence perhaps of Haresh Kothari & Ram Kumar. 25. As per the aforesaid roznamcha, on being asked, injured Vinod Gupta told Station Incharge Bhalekar that he was badly wounded by appellant Ramjan and two other persons, but the said roznamcha reveals that Vinod Gupta has been badly wounded and was not in a position to talk. As a result of such roznamcha, instead of taking action against the aforesaid persons, after sending Vinod Gupta for examination and treatment, the police has sent him for investigation of the offence punishable under Sections 457 & 380 of the IPC and for the first time, report against the appellants has been recorded on 2-5-2000 after four days of the aforesaid roznamcha which shows that the police officers were not very serious in other words they were reluctant for investigation of crime against kidnap & extortion of Vinod Gupta till 2-5-2000. The contradictory part of roznamcha reads as follows: **ijik 26. This reveals that Vinod Gupta was badly injured and was not in a position to talk, in such condition it was not possible for him to name any person or number of the accused on that day i.e. on 28-4-2000. Even otherwise" the roznamcha has been written by Bhalekar which he noticed, found and was informed at Parpa dhaba where some of the assailants/appellants viz., Haresh Kothari & Ram Kumar were present. In these circumstances, even it was not possible for Vinod Gupta to tell the names of aforesaid accused/appellants in presence of aforesaid appellants. 27. Even otherwise" the roznamcha has been written by Bhalekar which he noticed, found and was informed at Parpa dhaba where some of the assailants/appellants viz., Haresh Kothari & Ram Kumar were present. In these circumstances, even it was not possible for Vinod Gupta to tell the names of aforesaid accused/appellants in presence of aforesaid appellants. 27. Another document which has been relied upon by the prosecution is roznamcha i.e. dehati nalsi dated 2-5-2000 EX.P-33 recorded at Maharani Hospital, Jagdalpur in which deceased Vinod Gupta has stated to the police that accused/appellants Ramjan, Arun, Hori Mandai, Gandhi, Kothari Seth & Babli Sandeep Autowala have committed such offence. Part of the aforesaid roznamcha reads thus, **fnukad 26-04-2000 dh jkf= djhc 8 cts xaxkeq.Mk fLFkr vius fdjk;s ds edku esa Fkk fd jkf= djhc 8 cts vpkud esjs ?kj jetku] v:.k] gksjh eaMy] dksBkjh lsB] ccyh lanhi vkVks okyk ,d lkFk vk;s vkSj eq>s ?kj ls mBkdj dksBkjh lsB ds jkmrikj fLFkr edku esa ys x;s vkSj cksys rqeus dksBkjh dkEiysDl esa uxnh 3 yk[k :i;k dks pksjh fd;k gS iSlk dgk j[kk gS] crk] eSaus pksjh djus ls badkj fd;k rks os lHkh yksx eq>s ekjihV djus yxsA jetku us IykfLVd f>Yyh dks tykdj esjs cnu esa Vidk;k Fkk rFkk uk;yksu jLlh ls dksBkjh lsB ekjrk Fkk nksuksa gkFk dks fxV~Vh mij j[kdj v:.k] xka/kh] jetku us iSj j[kdj elyrs Fks] gksjh eaMy maMk ls ekjihV fd;k gSA fephZ ikuh dks vka[k esa Mkyrs FksA rFkk fctyh dk djsaV Hkh os lHkh yksx feydj yxk;s gS esjs iwjs ‘kjhj esa nnZ gks jgk gSa fjiksVZ djrk gWwA tkap fd;k tk;sA nksuksa gkFk esa iV~Vh ca/k gS gLRkk{kj ugha dj ldrkA** 28. Thumb impression of Vinod Gupta (since deceased) finds in Ex.P33 roznamcha. On the basis of roznamcha Ex.P-33, FIR EX.P-34 was recorded on 2-5-2000 by Keshav Ram Sahu (PW -15) - Head Constable who has recorded the statements of Smt. Geeta Gupta (PW -12) & Smt. Anuradha Gupta (PW13) vide Exs.D-1 & D-2, respectively. Keshav Ram Sahu (PW -15) has admitted in para 12 of his cross-examination that when the police officer records the commission of offence out of the police station, he is required record dehati nalsi, but when some person is sent to the hospital for treatment or examination on the basis of medical requisition then there is no need to record dehati nalsi. 29. 29. In the present case, dehati nalsi EX.P-33 has been recorded at Maharani Hospital, Jagdalpur where the injured was admitted, but he has not been sent for medical examination or treatment in connection with the present offence, but was sent to Maharani Hospital, Jagdalpur for examination & treatment on 28-4-2000 in connection with Crime No. 173/2000 registered against injured Vinod Gupta (since deceased). Therefore, definitely, as deposed by Keshav Ram Sahu (PW -15), dehati nalsi was not necessary in connection with Crime No.173/2000, but it was necessary in connection with the, offence committed by the appellants herein or by other persons against Vinod Gupta. 30. S.B. Singh Rana (PW-16) has recorded dehati nalsi Ex.P-33. He has deposed in his evidence that on 2-5-2000 he went to Maharani Bospital, Jagdalpur for recording the discloser statement/statement of accused relating to commission of theft by Vinod Gupta. Vinod Gupta was injured and admitted in the hospital. He recorded EX.P-33 as statement of Vinod Gupta and same day sent to Police Station Bodhghat for registration of first information report. In para 5 of his cross-examination, he has admitted that there is police outpost at Maharani Hospital, Jagdalpur and in medico legal cases, if some person is required to be admitted in the hospital, then it was the duty of the doctor to inform the incharge of police out post in the form of dehati nalsi. Defence has cross-examined this witness in detail especially relating to procedure for recording of dehati nalsi, recording of FIR, jurisdiction of the police station and investigation of Crime No. 173/2000. In para 19 of his cross-examination he has admitted that in Ex.P-33, he has not mentioned the hand of which thumb impression was taken viz., whether he has taken the thumb impression of left hand or right hand. He has further admitted that in fact, pad was made available by the hospital for taking such impression and hands of injured Vinod Gupta were dressed by bandage. He has specifically deposed that thumb of Vinod Gupta was not bum. He has specifically admitted in para 20 of his cross-examination that at the time of recording dehati nalsi Ex.P-33, Vinod Gupta was in conscious stage and he was in a position to answer the questions put to him. He has specifically deposed that thumb of Vinod Gupta was not bum. He has specifically admitted in para 20 of his cross-examination that at the time of recording dehati nalsi Ex.P-33, Vinod Gupta was in conscious stage and he was in a position to answer the questions put to him. In para 21 of his evidence he has denied the suggestion that he has not recorded dehati nalsi EX.P-33 at the instance of and on the basis of the statement of Vinod Gupta. In his detailed cross-examination, he has specifically deposed that he visited Maharani Hospital, Jagdalpur in connection with investigation of the offence punishable under Sections 457 & 380 of the IPC registered against Vinod Gupta in which he has recorded the statement of Vinod Gupta in the form of dehati naisi. He has recorded the statement whatever made by Vinod Gupta. 31. The prosecution has also examined Smt. Geeta Gupta (PW-12) mother of Vinod Gupta & Smt. Anuradha Gupta (PW-13) - wife of Vinod Gupta. As per evidence of Smt. Geeta Gupta (PW -12), deceased Vinod Gupta was residing at Ganga Muda, she was informed by the police that her son Vinod Gupta was admitted in the hospital, then she went to the hospital, she asked her son Vinod Gupta on which Vinod Gupta told her that on the ground of theft of Rs.3 lakhs from the shop of Haresh Kothari; Haresh Kothari, Sandeep, Raiendra Gandhi, Ramjan, Hori Mandal & Arun Diwan kidnapped him from his house. Her son was in trouble, he was agonizing, polythene bums were found over the body of her son and on being asked, he made dying declaration that the accused persons came to his house and took him to one house which was under construction and they interrogated him relating to theft of Rs.3 lakhs from the shop of Haresh Kothari which he denied, he requested the accused persons that he has not committed the theft, even thereafter, Kothari assaulted him by nylon rope. Hori Mandai assaulted by stick and Arun Diwan, Rajendra Gandhi & Ramjan spread pieces of stone over leg & palm of her son and crushed by legs. Accused Sandeep caused injury by electric current. The accused persons also poured chilly water in the eyes of her son and again they shifted him to the house of Haresh situate at Rawatpara where they caused injuries to her son. Accused Sandeep caused injury by electric current. The accused persons also poured chilly water in the eyes of her son and again they shifted him to the house of Haresh situate at Rawatpara where they caused injuries to her son. This witness shifted her son for better treatment to Seven Hills Hospital, Visakhapatnam, where he died on 9-5-2000 during the course of treatment. 32. Smt. Anuradha Gupta (PW -13) has corroborated the evidence of Smt. Geeta Gupta (PW-12). Smt. Anuradha Gupta (PW-13) has specifically deposed that appellants Ramjan, Hori Mandai, Gandhi, Kothari Seth, Arun Diwan etc. took Vinod Gupta by vehicle to the house of Ramjan which was under construction where they assaulted him by nylon rope and caused burn injuries after burning polythene and dropping the hot liquid form of polythene on his body. They also caused injuries by electric current. The accused persons also shifted Vinod Gupta to the house of Kothari Seth situate at Rawatpara where also they caused injuries by assaulting, burning, electric current and by putting chilly etc. Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination to discredit their testimony especially relating to injuries found over the body of Vinod Gupta and the fact that Vinod Gupta has not made dying declaration before them to the effect that all appellants have caused injuries to him. 33. Evidence of S.B. Singh Rana (PW -16) relating to recording of dehati nalsi EX.P-33 at the instance of Vinod Gupta and evidence of Smt. Geeta Gupta (PW-12) - mother of Vinod Gupta & Smt. Anuradha Gupta (PW-13) - wife of Vinod Gupta, find corroboration from evidence of Smt. Geeta Gupta (PW12) & Smt. Anuradha Gupta (PW-13) relating to dying declaration made by Vinod Gupta. 34. No specific procedure has been prescribed under the law relating to recording of dehati nalsi. Any person to whom the person who is in danger of his life may state the cause of his death and the aforesaid statement given by such person may be recorded by any person. The aforesaid oral or written statement of the person relating to his cause of death may be treated as dying declaration in terms of Section 32 of the Evidence Act. The aforesaid oral or written statement of the person relating to his cause of death may be treated as dying declaration in terms of Section 32 of the Evidence Act. The dying declaration is a hearsay evidence in which the opposite party has no right to test its trustfulness by cross-examination, but the dying declaration is also evidence and relevant. 35. The principle of dying declaration is based on legal maxim "nemo moriturus proesumitur mentiri"-a man will not meet his maker with a lie in his mouth. 36. Lord Chief Justice Baron Eyre {See. R. v. Woodcock, (1789) 1 Lea 502} expressed his view relating to dying declaration as follows:"...That such declarations are 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 mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court of justice.. ..." , 37. While dealing with the question of evidentiary value of dying declaration, the Supreme Court in the matter of State of UP. Vs. Ram Sagar Yadav has held that if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. 38. Smt. Geeta Gupta (PW -12) & Smt. Anuradha Gupta (PW -13) are mother & wife of Vinod Gupta (since deceased), respectively, in other words, they are close relatives of deceased Vinod Gupta, but their evidence cannot be discarded only on the ground of relation. Even otherwise, ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person, there may be chances of exaggeration, the Court is required to scrutinize the evidence of relative witnesses minutely. 39. While dealing with the question of evidentiary value of relative witnesses, the Supreme Court in the matter of Dalip Singh and others Vs. The State of Punjabl3 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:" 26. The State of Punjabl3 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:" 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be' governed by its own facts." 40. While dealing with aforesaid question, the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra14 has held that close relatives of the victim have tendency to exaggerate or add facts, Court should examine their evidence with great care and caution. Para 48 of the judgment of the Supreme Court in the above cited case reads thus, "48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it." 41. While dealing with the question of evidentiary value of interested witnesses and need of deep scrutiny, the Supreme Court in the matter of Ramanand Yadav Vs. Prdbhu Nath Jha and otheri5 has observed, in para 15 that : "But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyze the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above the Court has to analyze the evidence with care and caution." 42. Statements of the relative witnesses cannot be discarded only on the ground of their relationship. The Courts are required to scrutinize their evidence with great care and caution. 43. As regards the evidence against appellant Ram Kumar, as per his defence he was driver of vehicle of Haresh Kothari and Maruti van has been recovered at his instance from the possession of Haresh Kothari. This is not the case that Maruti van was hidden at some place and it was not visible to other persons. 43. As regards the evidence against appellant Ram Kumar, as per his defence he was driver of vehicle of Haresh Kothari and Maruti van has been recovered at his instance from the possession of Haresh Kothari. This is not the case that Maruti van was hidden at some place and it was not visible to other persons. Therefore, mere possession or recovery of Maruti van at the instance of appellant Ram Kumar is not the incriminating circumstance against appellant Ram Kumar. As per dehati nalsi Ex.P-33, other six accused persons came and took Vinod Gupta from his house to the house situate at Rawatpara. Likewise, as per para 2 of evidence of Smt. Geeta Gupta (PW -12) & Smt. Anuradha Gupta (PW-13), the accused persons took Vinod Gupta by vehicle to the house of Ramjan which was under construction and committed the offence. Roznamcha No. 1687 dated 28-4-2000 recorded at Police Station Jagdalpur, written by the Station House Officer of Police Station Jagdalpur namely Bhalekar, has not been denied by the prosecution witnesses. S.B. Singh Rana (PW-16) has specifically admitted in para 10 of his cross-examination that the said roznamcha was recorded by Bhalekar. 44. Alth1ugh the aforesaid roznamcha which has been taken on record during the course of arguments is not the roznamcha relating to this case, but is the roznamcha of Crime No. 173/2000, registered at the instance of appellant Haresh Kothari. However, if it is used then also it would not support case of the defence on the ground that at the time of recording such roznamcha, injured Vinod Gupta was not in a position to talk, he was badly injured and as a result of huge number of bum injuries body of Vinod Gupta was in deteriorating stage and skin was peeling off which shows that he has not made dying declaration relating to Ramjan and two other persons. The aforesaid roznamcha supports case of the prosecution to the extent that Haresh Kothari, Ram Kumar and other persons were present on the spot where Vinod Gupta was found badly injured in the house of Haresh Kothari. 45. The aforesaid roznamcha supports case of the prosecution to the extent that Haresh Kothari, Ram Kumar and other persons were present on the spot where Vinod Gupta was found badly injured in the house of Haresh Kothari. 45. As held by the Supreme Court in the matter of K. Ramachandra Reddl (supra), in order to accept the dying declaration the court is required to satisfy itself as to whether the dying declaration was true and voluritary, if the dying declaration is true and voluntary then no corroboration is necessary. In order to pass the test of reliability of the dying declaration, it has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in absence of the accused who has no opportunity of testing the veracity of the statement by cross-examination. 46. As held by the Supreme Court in Khumansingh s case (supra), in case of more than one dying declaration and inconsistency in both the dying declarations, no reliance can be placed on the said dying declarations. As held in Mafizuddin s cases (supra), the dying declaration can be sole basis for conviction provided it is truthful. 47. As held by the Supreme Court in Shardas case' (supra), principle on which the dying declarations are admitted in evidence is indicated in legal maxim, "Nemo moriturus praesumitur mentiri". The Supreme Court has observed in para 33 of its judgment as follows: "33. It is indicative of the fact that a man who is on a death bed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence." 48. In the present case, the dying declaration in the form of dehati nalsi EX.P-33 corroborated by evidence of Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW-13) satisfies the aforesaid test held by the Supreme Court. In the present case, the dying declaration in the form of dehati nalsi EX.P-33 corroborated by evidence of Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW-13) satisfies the aforesaid test held by the Supreme Court. At the time of such dying declaration at the first opportunity available to the victim/injured/deceased, he has made detailed statement to the police, virtually, when he was interrogated in relation to commission of offence registered in Crime No. 173/2000. He has further made dying declaration to his mother & wife who are his close relatives. When the victimized person was under danger of life on account of huge number of inflicted burn injuries, it was very natural for him to give such statement. There is no inconsistency between oral and written dying declarations. The investigating officer was not conscious at the time of recording such statement. Virtually, it was innocent recording of statement and inspires no confidence. The dying declaration has been recorded after knowing the fact that he is recording the dying declaration of the deceased. The aforesaid dying declaration of deceased Vinod Gupta clearly reveals that all the appellants took him by vehicle driven by appellant Ram Kumar Ram Kumar was also present on 28-4-2000 at Parpa dhaba along with some accused persons. Vinod Gupta was badly injured by nylon rope and ploythene burns. Although the doctor has not found any injury relating to electric shock, but only on the ground of exaggeration of evidence relating to electric shock, the entire dying declaration relating to other injuries caused by the accused persons cannot be discarded. Evidence of Smt. Geeta Gupta (PW-12) & Smt. Anuradha Gupta (PW -13) relating to the aforesaid dying declaration inspires confidence and is trustworthy. These evidence are sufficient to establish the fact that all the appellants have committed homicidal death of deceased Vinod Gupta. 49. As regards extortion the accused persons kidnapped Vinod Gupta for causing his homicidal death and they have wrongfully confined him to extort confession for which they have formed unlawful assembly and in furtherance of common object of the unlawful assembly, armed with deadly weapons, they have committed the offence. 50. As regards, intention of the accused/appellants for causing homicidal death amounting to murder of Vinod Gupta, intention can be gathered from the weapons used, nature of injuries, parts of the body effected and like other circumstances. 51. 50. As regards, intention of the accused/appellants for causing homicidal death amounting to murder of Vinod Gupta, intention can be gathered from the weapons used, nature of injuries, parts of the body effected and like other circumstances. 51. In Adu Ram’s case (supra), the Supreme Court has held that number of injuries on deceased person is not always determinative of offence; weapon used, part of body where injuries were inflicted and nature of injuries are relevant factors, if injuries were caused on non-vital parts of body resulting in death of the deceased then conviction would be under Section 304 Part-II of the IPC. 52. In the matter of Dalip Singh and others Vs. State of Haryana (supra), the Supreme Court has held that in case of death of the deceased in police custody on account of extortion, case falls under Part-II of Section 304 of the IPC and not Part-I. 53. Definitely, in the present case, the deceased was kidnapped for the purpose of extortion on 26-4-2000, the appellants caused injuries by dropping melted ploythene after burning it in high degree temperature over different parts of the body and caused huge number of injuries, no medical facility or treatment has been provided to the deceased for two days and they had caused aforesaid injuries continuously for two days. On 28-4-2000, position of the deceased was deteriorating and skin was peeling of over the burn injuries,. which shows that the injuries were badly inflicted. Finally, the deceased died as a result of septic, toxic and complications of burn injuries which is very common in case of burn injuries, especially delay in treatment. Although there were superficial burn injuries of 40%, but not providing medical assistance or treatment by the appellants when the deceased was in custody of the appellants also corroborates the intention of the appellants. However, evidence adduced on behalf of the prosecution clearly reveals that initially, the appellants have kidnapped the deceased for the purpose of extortion, but at the time of extortion the) have caused aforesaid injuries, though not on vital parts of body. The burn injuries left untreated for two days and deteriorating condition of the deceased showing peeling of skin over the injuries, were alarming for the deceased and it can be inferred safely that by the said act of the appellants, they have knowledge that injured Vinod Gupta may die. The burn injuries left untreated for two days and deteriorating condition of the deceased showing peeling of skin over the injuries, were alarming for the deceased and it can be inferred safely that by the said act of the appellants, they have knowledge that injured Vinod Gupta may die. These circumstances and evidence are sufficient for drawing inference that although the appellants have not committed homicidal death of the deceased with intent to cause death, but at the time of causing such huge number of injuries mercilessly and brutally without providing medical help or treatment, the appellants were having knowledge that by their act the deceased may die. This evidence is not sufficient for conviction of the appellants under Section 302 of the IPC, but is sufficient to establish that the act attributed to the appellants comes within the ambit of Section 304 Part I of the IPC and not under Section 304 Part-II of the IPC. 54. While convicting and sentencing the appellants under Section 302 read with Section 149, of the IPC along with other offences, the trial Court has not considered the aforesaid facts and circumstances relating to homicidal death of the deceased with intent to cause death by the appellants, and thereby committed illegality. 55. For the foregoing reasons, Cr.A.No.815/2005 filed on behalf of Rajendra Gandhi, Haresh Kothari, Amn Diwan, Hori Mandal & Babli @ Sandeep Kundu; Cr.A.No.459/2006 filed on behalf of Ram Kumar; and Cr.A. No.907/2010 filed on behalf of Ramjan Beg, are partly allowed. (1) Conviction & sentences imposed upon all the appellants under Sections 148,329 read with Section 149,348 & 364 of the IPC are hereby maintained. (2) Conviction of all the appellants under Section 302 read with Section 149 of the IPC is altered to Section 304 Part-I read with Section 149 of the' IPC. As regards the question of sentence, considering merciless & brutal act of the appellants and burning by . dropping melted plastic/ploythene, the appellants do not deserve any sympathy, they are hereby sentenced to RI for ten years, instead of imprisonment for life, and pay fine of Rs. 5,000/- each, in default of payment of fine to further undergo RI for one year. Appeal Partly Allowed.