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2011 DIGILAW 661 (UTT)

PAPPU ALIAS PUPENDRA v. STATE OF UTTARAKHAND

2011-11-02

BARIN GHOSH, U.C.DHYANI

body2011
JUDGMENT [Per : Hon'ble U.C. Dhyani, J.] This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 20.05.2002, passed by Addl. Sessions Judge, Roorkee, District Hardwar, in Sessions Trial No. 147 of 1997, whereby said court has convicted accused/appellant Pappu alias Pupendra under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.) and sentenced him to imprisonment for life and also directed to pay fine, of Rs. 5,000/-, in default of payment of which he has been further directed to undergo imprisonment for a period of six months. 2. Heard learned counsel for the appellant & learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that on 29.01.1997, Raghuvir, an employee of District Hospital, Haridwar came to police station Kotwali Haridwar and informed that on 28.01.1997, at 01:50 A.M., one person named Mitrasen, aged 80 years, resident of Manglore, who was brought to the hospital in serious condition has breathed his last on 31.01.1997, at 10:30 A.M. Investigation was taken up by P.W.8 S.I. Surendra Nath Yadav on 09.02.1997. During investigation it was found that Mitrasen had one brother named Amrit Singh. Mitrasen had no issue. Amrit Singh has three daughters, out of which Smt. Chinta was married and her matrimonial home is in village Susada, PS. Jhabreda at Haridwar. Amrit Singh has no son and he used to live with her married daughter Smt. Chinta after disposing of his assets. Deceased Mitrasen has renounced the world and used to live in a temple build by him after entering into an agreement with Bishambar regarding nine bighas of land. Pappu and Munnu, both sons of Smt. Chinta, did not relish this idea. They came to the village and gave threat that anyone who will purchase the land of their grandfather will have to face dire consequences. On 27.01.1997, at about 09:00 P.M., Munnu and Pappu came to village Balchandra Wala. Mitrasen was urinating alongside the road near temple. Both Munnu and Pappu fired shot at him and fled away from the scene of occurrence. On hearing the gunshot, villagers saw both of them running away. Mitrasen was immediately rushed to the hospital for treatment by the villagers, where he breathed his last on 31.01.1997. Mitrasen was urinating alongside the road near temple. Both Munnu and Pappu fired shot at him and fled away from the scene of occurrence. On hearing the gunshot, villagers saw both of them running away. Mitrasen was immediately rushed to the hospital for treatment by the villagers, where he breathed his last on 31.01.1997. On 09.02.1997, the first information report (Ext. Ka-12) of the incident, was lodged by S.I. Surendra Nath Yadav. A Crime No. 06 of 1997 was registered against Munnu and Pappu in respect of offence punishable under Section 302 of I.PC. The case was investigated by P.W.8 S.I. Surendra Nath Yadav. He took the dead body in his possession and prepared inquest report (Ext. Ka-6), site plan (Ext. Ka-10) and other necessary papers. The dead body was sent for postmortem examination in a sealed condition. The postmortem examination on the dead body of Mitrasen was conducted on 31.01.1999, at 11:50 A.M. by P.W.4 Dr. R.R. Verma. The Medical Officer opined in the autopsy report (Ext. Ka-2) that the deceased had died of shock and haemorrhage as a result of ante mortem fire arm injury. The injuries on the person of Mitrasen were earlier examined by P.W.5 Dr. Rajeev Verma, at the time when he was admitted in the hospital for treatment. Said Medical Officer in his injury report (Ext. Ka-3) recorded firearm wound of entry and firearm wound of exit. Both injuries were kept under observation and X-ray was advised. The nature of injury was ascertained to be caused by gunshot (firearm). The duration of injuries was fresh. Before the death of Mitrasen when he was admitted in the hospital in an injured state, P.W.3 Jagmohan Singh, Tehsildar Haridwar, on 28.01.1997, recorded his dying declaration. In his dying declaration Mitrasen has allegedly disclosed names of his grand children Pappu and Munnu who fired shot at him. The reason disclosed for this is that he possesses some land in his name. The accused after selling their land had an evil eye on his land too. Munnu has been released from jail only twenty days ago, and he has committed this crime. He has also disclosed that he recognized both of them. They were coming out from the house of Soran Pradhan. Soran had also purchased land of his brother Amrit. After interrogating the witnesses, and on completion of investigation, P.W.8 S.I. Surendra Nath Yadav submitted charge sheet (Ext. He has also disclosed that he recognized both of them. They were coming out from the house of Soran Pradhan. Soran had also purchased land of his brother Amrit. After interrogating the witnesses, and on completion of investigation, P.W.8 S.I. Surendra Nath Yadav submitted charge sheet (Ext. Ka-11) against the accused Munnu and Pappu in respect of offence punishable under Section 302 of I. P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case for trial to the court of sessions. Learned Addl. Sessions Judge, Roorkee, District Hardwar, after hearing the parties, on 29.04.1999, framed charge against accused Munnu and Pappu alias Pupendra relating to offence punishable under Section 302 read with Section 34 of I.P.C. Both the accused pleaded not guilty, and claimed to be tried. On this, prosecution got examined P.W.1 Rahtu; P.W.2 Sudeshpal; P.W.3 Jagmohan Singh; P.W.4 Dr. R.R. Verma (who conducted postmortem on the dead body); P.W.5 Dr. Rajeev Verma (who examined the injuries on the person of Mitrasen); P.W.6 SI B.N. Joshi (who prepared the inquest report); P.W.7 Jaipal and P.W. 8 SI Surendra Nath Yadav (who lodged the FIR and completed the investigation). Accused Munnu died during trial, and case against him stands abated. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which Pappu alias Pupendra alleged the prosecution evidence to be false and stated that he has been falsely implicated in the case. No evidence was adduced in defence. The trial court, after hearing the parties, found accused/appellant Pappu alias Pupendra guilty of charge of offence punishable under Section 302 read with Section 34 of I. P.C. and directed to pay a fine of Rs. 5.000/-. Aggrieved by said judgment and order dated 20.05.2002, the convict preferred this appeal. 5. Before further discussion we think it just and proper to mention here the ante mortem injuries found on the dead body of the deceased Mitrasen by Dr. R.R. Verma (P.W.4), who conducted postmortem examination and prepared autopsy report (Ext. Ka-2). The ante mortem injuries are being reproduced as under: i) Stitched wound measuring 5 cm present on left lateral side of chest 2.5 cm posterior and above the elliac crest. 6 stitches present. R.R. Verma (P.W.4), who conducted postmortem examination and prepared autopsy report (Ext. Ka-2). The ante mortem injuries are being reproduced as under: i) Stitched wound measuring 5 cm present on left lateral side of chest 2.5 cm posterior and above the elliac crest. 6 stitches present. After removing the stitches the direction of wound was forward and anterior and it was communicating the pleura! cavity. ii) Stitched wound measuring 7 cm, 2 cm anterior to the stitched wound no. 1.7 stitches present. This wound after removing the stitches was also chest cavity deep. On internal examination it was found that 7th and 8th ribs of left side were fractured. About 500 ml of blood found in the left chest cavity. Left lower lobe ruptured. The Medical Officer who conducted the postmortem examination opined that the cause of death is shock and haemorrhage as a result of ante mortem firearm injury. 6. P.W. 1 Rahatu did not support the prosecution story, although he has stated that Mitrasen fell to the bullet of assassin. He is not aware who had killed Mitrasen. This witness was declared hostile. He has not seen anybody killing Mitrasen. 7. P.W. 2 Sudesh Pal has stated that he along with his brother Munesh, Jaipal, Rakesh, Kala, Mitrasen were sitting in his drawing room. Mitrasen went out of the drawing room (baithak) for urination. In the meantime, they heard the sound of firing. As soon as they came out, they heard Mitrasen saying that he has been killed. Mitrasen did not disclose name of anybody but asked them to take him to the hospital. Mitrasen was taken to Govindpur Police Chowki and thereafter admitted to Hardwar Hospital where he died. The Magistrate went to the hospital and these people were asked to go out of the room (at the time of recording dying declaration). In the cross-examination, this witness has said that there was no light in the village at the time of occurrence. There was no light in the residence of Mitrasen either. They reached Mitrasen after 2-3 minutes of fire. Mitrasen was unconscious at this stage. Mitrasen did not name assailants in the Govindpur Police Chowki. In the cross-examination, this witness has said that there was no light in the village at the time of occurrence. There was no light in the residence of Mitrasen either. They reached Mitrasen after 2-3 minutes of fire. Mitrasen was unconscious at this stage. Mitrasen did not name assailants in the Govindpur Police Chowki. This witness stated that none of the accused present in the court are named Munnu or Pappu or Sadhuram (The trial court ought to have put its observation as to what are the names of the accused persons present in the court). Mitrasen was taken to hospital at 1 am. Mitrasen was unconscious at that stage also. Doctors administered many injections to him. They had no talks with Mitrasen before the Magistrate arrived. Mitrasen did not reveal that he has been fired by Munnu or Pappu. When the Magistrate came out from the room then also Mitrasen was unconscious. When Mitrasen was fired, his 3 bigha of land was on batai with him and rest of the land was with his elder brother who would have been the heir after his death. Thus this witness maintained through out that Mitrasen never regained consciousness after he was shot by the assailants. This witness also maintained that there was no light at the time of fire and the persons present in the drawing room (baithak) reached Mitrasen after 2-3 minutes, so there was no question of their identifying the assailants. Mitrasen also did not disclose the name of the killers to anyone. The Magistrate visited him but the dying declaration was not taken in presence of any witness. So the testimony of this witness does not provide assurance to the prosecution story, in as much as one is not sure whether the dying declaration of the deceased was taken when he was conscious and in a fit state of mind, Doctor's certificate notwithstanding. 8. P.W.3 Jagmohan Singh, Tehsildar recorded the dying declaration of Mitrasen (since deceased). The Doctor had told him that Mitrasen is in a position to give the statement and gave a certificate to this effect. This witness has proved the dying declaration Ext. Ka-1. The contents of the dying declaration will be dealt with subsequently. 9. P.W. 4 Doctor R.R.Verma conducted the postmortem of the dead body of Mitrasen and has proved the same as Ext. Ka-2. 10. This witness has proved the dying declaration Ext. Ka-1. The contents of the dying declaration will be dealt with subsequently. 9. P.W. 4 Doctor R.R.Verma conducted the postmortem of the dead body of Mitrasen and has proved the same as Ext. Ka-2. 10. P.W. 5 Doctor Rajeev Verma was Emergency Medical Officer on 28.01.1997 posted in District Hospital, Hardwar and found certain injuries on the body of Mitrasen, which are contained in Ext. Ka-3 as follows: i) 2 cm Firearm wound of entry 4 cm x 3 cm, left side chest (left lateral) cavity deep 3 cm posterior and above left iliac crest, blackening present, margins inverted. The injury was kept under observation. ii) Firearm wound of exit 5.5 cm x 4.5 cm, cavity deep, pieces of broken ribs and piece of rug were present inside the wound. This injury was 2 cm in front of injury no. (i) from stomach. Margins abraded and irregular. The injury was kept under observation. iii) One abraded contusion present on left side, 6 cm below the injury no. (i). Bed Head Ticket is Ext. Ka-4 and the entries recorded by the Medical Officer is contained in Ext. Ka-5. P.W. 6 B.N.Joshi, the then Sub Inspector proved the inquest report Ext. Ka-6 etc. He is a formal witness. P.W. 7 Jaipal is an eyewitness and P.W. 8 Surendera Nath Yadav, Reader S. P. Balia, is the Investigating Officer who finally submitted the charge-sheet Ext. Ka-11 against the accused persons Munnu and Pappu. The trial court has found the accused appellant Pappu alias Puppendra son of Sadhu Ram guilty of offence punishable under section 302IPC read with section 34IPC. During the trial co-accused Munnu died and hence the case against him was abated on 28.11.2001. 11. P.W. 7 Jaipal said that it was a dark night. Around 8-9 pm Mitrasen said that he wanted to retire to bed and went for urination. Somebody fired on his person. Hearing the sound they came out and saw that Mitrasen was lying on the ground. As soon as they reached him, Mitrasen told that Munnu and Pappu had fired at him. This witness did not recognize Munnu and Pappu who were present in the court Thereafter, Mitrasen died in the hospital. In the cross-examination, he has stated that the Investigating Officer took his statements after 15-20 days of the incident. As soon as they reached him, Mitrasen told that Munnu and Pappu had fired at him. This witness did not recognize Munnu and Pappu who were present in the court Thereafter, Mitrasen died in the hospital. In the cross-examination, he has stated that the Investigating Officer took his statements after 15-20 days of the incident. He did not disclose this fact to anybody before that. They reached Mitrasen after 2 minutes of the fire. They could not decipher the place where Mitrasen was fired because of darkness. Mitrasen was asking them to take him to the hospital. 12. This is a case in which the conviction was recorded by the learned Additional Sessions Judge, Roorkee on the basis of the dying declaration, which was recorded on 28.01.1997. The first information report was lodged by SI Surendra Nath Yadav on 09.02.1997. The charge-sheet was submitted against 2 accused persons on 27.02.1997. According to the dying declaration, which was recorded by Shri Jagmohan, Tehsildar, Hardwar on 28.01.1997, Mitrasen aged about 80 years, gave the statement that he is unmarried. His brother is Amrit who has got three daughters. The sons of the daughter of his brother fired at him on 27.01.1997 at 8:30 pm. The names of the assailants are Pappu and Munnu, both sons of Sadhuram. The reason attributed is that the land is recorded in his (Mitrasen's) name. They wanted to sell off his land. Munnu had been released from the jail about 20 days ago and soon after his release from the jail, he committed this crime. His brother Amrit resides with Munnu. He has identified both of them. Munnu and Pappu came out from the house of Soren Pradhan and fired at him. Soren had purchased land of Amrit. He (Mitrasen) had declined to part with his land saying that the land might be taken only after his death. In the dying declaration, there is a certificate of Doctor Rajeev Verma certifying that patient is fit to give the dying declaration and another certificate was given that the patient remained quite fit during the dying declaration. The dying declaration, Ext. Ka-1 bears right thumb impression of Mitrasen. The outcome of this case will depend on the appreciation of the validity of this dying declaration. The main assailant Munnu had died during the trial and, as said earlier, the case against him stood abated. The dying declaration, Ext. Ka-1 bears right thumb impression of Mitrasen. The outcome of this case will depend on the appreciation of the validity of this dying declaration. The main assailant Munnu had died during the trial and, as said earlier, the case against him stood abated. The dying declaration also named Pappu but the main assailant was Munnu. 13. Let us now proceed to consider the validity of this dying declaration in the background of the fact that the Investigating Officer has lodged the first information report after about 12 days. In normal circumstances the dying declaration is a very strong piece of evidence provided it is acceptable one. In this case, the dying declaration was recorded by the Tehsildar and the Police was brought by him. Dying declaration was recorded in the hospital. The death of Mitrasen took place because of fire arm injury. 14. P.W. 5 Doctor Rajeev Verma found one fire arm wound of entry on the left lateral chest (cavity deep) and one fire arm exit wound (cavity deep). It means there was one entry wound and one exit wound caused by fire arm. Deceased Mitrasen, in his dying declaration has said that Munnu fired at him, though subsequently, he has said that Munnu and Pappu fired at him. If the first sentence of his statement is taken to be true, the fire arm injures sustained by Mitrasen are caused by the bullet of Munnu, who is no more and died during the trial and hence main assailant has disappeared from the scene. Now it remains to be seen whether the case against co-accused Pappu for the charge of section 302 IPC read with section 34 IPC is proved against him or not. Both the accused persons are sons of the daughter of brother of Mitrasen. In all probability the bullet of Munnu hit the deceased and he was dead. The question remains to be seen whether the co-accused Pappu was also there and what is the evidence against him regarding offence punishable under section 302/34 IPC. Postmortem examination was conducted on 31.01.1997. First information report was not lodged promptly. It is delayed and no proper explanation of delay is forthcoming. The following facts are heavily loaded against the accused: a. The deceased Mitrasen was a bachelor b. His brother lived with his married daughter whose sons are ruffians/hooligans. Postmortem examination was conducted on 31.01.1997. First information report was not lodged promptly. It is delayed and no proper explanation of delay is forthcoming. The following facts are heavily loaded against the accused: a. The deceased Mitrasen was a bachelor b. His brother lived with his married daughter whose sons are ruffians/hooligans. c. Deceased and his brother had land. d. Brother's land was inherited by daughter. e. Brother's land was sold and now nothing is there with him. f. Hermit (Mitrasen) has land and if he dies, the land will be inherited by his brother Amrit. g. They wanted to sell-off the land of hermit (Mitrasen). h. Soren Pradhan had also purchased land from Amrit He had an eye over Mitrasen's land. i. Munnu was released from the jail, who is his grandson through daughter. j. They wanted to take the property of Mitrasen and kill him. k. There is dying declaration of Mitrasen against the accused-appellant. I. The accused-appellant has to come out of the aforesaid dying declaration. 15. The dying declaration is required to be disproved by the accused-appellant Pappu. The one and only way to disprove the dying dedaration is that the (right) thumb impression of the deceased is not acceptable and he was not conscious at the time of giving such a declration. It is to be noted here that the thumb impression is something which cannot be copied. The dying declaration becomes gospel truth under section 32 of the Indian Evidence Act. It is to be inquired in the instant case whether the dying declaration is a concocted production or not. 16. Learned AGA has submitted that the fact which is heavily tilted against the accused is that Pappu got encouraged because Munnu was with him. Soren Pradhan wanted some more land. They came out from Soren Pradhan's house and fired at him. The author of dying declaration knows that these two assailants are coming from a particular house. 17. Learned counsel for the accused-appellant has argued that only one injury is found on the body of the deceased and if accused Munnu has died, the conviction recorded against co-accused Pappu disappears like a thin air. It is settled proposition of law that if section 34 IPC is proved against Pappu, it is not necessary for the prosecution to show as to who fired at Mitrasen. 18. Mitrasen was leading a pious life. It is settled proposition of law that if section 34 IPC is proved against Pappu, it is not necessary for the prosecution to show as to who fired at Mitrasen. 18. Mitrasen was leading a pious life. He was an old man who got himself disassociated with his earthly life. The question which arises for consideration is whether the injuries were caused by his close relatives. Why the grandson through daughter should do it? but at the same time, it is also to be pondered over why the grandfather will make an untrue statement? 19. P.W.1 Rahtu's evidence is important who took the victim to the hospital. He told Something about the state of health of the deceased. His evidence may be relevant, although, P.W.1 Rahatu was declared hostile wherein he said that he had not seen the accused persons firing at Mitrasen. Mitrasen was taken to police chowki by his son Sudeshpal in his tractor. Thereafter, he was taken to hospital at Hardwar. When cross-examined by learned DGC, P.W.1 Rahatu has stated that Mitrasen had told him to take him to hospital and there only he will disclose the names of the assailants. He has categorically denied that Mitrasen told him that Munnu fired at him. On being questioned by the learned defence counsel, P.W.1 Rahatu stated that there was no light on the ground at the place where Mitrasen had fallen. When he fell to the bullet of the assassin, he was speaking. He was not unconscious. 20. P.W.2 Sudeshpal is Rahatu's son. He has also stated that Mitrasen did not disclose any name but asked him to take him to hospital. In his cross-examination, he has stated that when Mitrasen was taken to hospital in tractor-trolley, he was unconscious. He did not disclose the names of the persons in police chowki either. When Mitrasen was taken to hospital, he was unconscious. Mitrasen did not talk to him before the arrival of Magistrate. Mitrasen did not tell anybody in confidence that he has been fired by Munnu or Pappu. 21. So far as we have discussed the evidence of the eye witnesses. Their oral testimony is not going to help the prosecution in such a way as it ought to have helped in normal circumstances. 22. P.W.7 Jaipal is the person with whom Mitrasen was smoking hukka at Rahatu's house. It was a dark night. 21. So far as we have discussed the evidence of the eye witnesses. Their oral testimony is not going to help the prosecution in such a way as it ought to have helped in normal circumstances. 22. P.W.7 Jaipal is the person with whom Mitrasen was smoking hukka at Rahatu's house. It was a dark night. Around 8-9 pm, Mitrasen wanted to retire to bed and as soon as he went out of Rahatu's house they heard the sound of fire. They reached Mitrasen and then he disclosed that Munnu and Pappu has fired at him. But this witness does not know the accused persons who were present in the court. After 3-4 days the hermit (Mitrasen) died in hospital. But it is surprising to note that this fact was disclosed by this witness to the Investigating Officer after 15-20 days of the occurrence and he has clarified that he did not disclose this fact to anybody, much less any Police Officer before telling it to the Investigating Officer after 15-20 days of the occurrence. About presence of Rahatu, this witness has stated that he was not in the village at that time. He did not visualize on which part of the body the hermit has been shot at. He did not accompany the hermit up to the Hardwar and went only up to Laksar. He was sub-conscious and was saying this witness to take him to hospital. They stayed at Goverdhanpur police chowki for a while where a Constable met the hermit and had also talks with him. Thus a perusal of the testimony of this witness also reveals that he is not of much importance to the prosecution. If we accept that P.W. 7 Jaipal was also there, then his evidence is, at the most, a hearsay evidence. 23. P.W.3 Jagmohan Singh, Tehsildar is the most important witness and thus his testimony is the most important piece of evidence. The dying declaration, Ext. Ka-1 recorded by him is not in question-answer form. Doctor has certified that the patient is fit to give the dying declaration. According to the Tehsildar, he recorded the dying declaration of Mitrasen in the presence of Doctor who had stated that Mitrasen is fit to give the dying declaration. In his cross-examination, he has said that he received the information at about 3 am through a Home Guard. He reached GD. According to the Tehsildar, he recorded the dying declaration of Mitrasen in the presence of Doctor who had stated that Mitrasen is fit to give the dying declaration. In his cross-examination, he has said that he received the information at about 3 am through a Home Guard. He reached GD. Hospital around 3.45 am. The police was not there. The police did not come during or after Mitrasen's dying declaration was recorded. He did not prepare any other document except the dying declaration Ext. ka-1. Although, he has said that Mitrasen was identified by the Doctor but this fact of identification is not mentioned in Ext. Ka-1. The witness has also admitted that normally left thumb impression (LTI) of a person is appended on any document where as Ext. Ka-1 bears the RTI of Mitrasen. On being questioned by the court, the Tehsildar does not remember as to why his LTI was not affixed. The deponent had told his name (to be Mitrasen) duly identified by the Doctor. He did not know Mitrasen (personally) before this incident. His dying declaration was recorded in emergency ward. No other patient was there. Neither any family member of Mitrasen nor any villager was there in the emergency ward. The condition of Mitrasen was critical. Although he had asked questions to Mitrasen but the statement has not been recorded in question-answer form. He did not ask as to which of the culprit was having arms in his hand, whether both of them had fired shots or anyone of them had fired shot at him. He did not ask Mitrasen about the source of light. He had recorded only the reply given by Mitrasen. He had started taking statement of Mitrasen at 3:51 am and concluded it at 4:15 am. Tehsildar has stated that Mitrasen was fit to give the dying declaration. The Tehsildar said that he asked the questions in question-answer form but that is hardly reflected in the document Ext. Ka-1. Although the burden is squarely on the appellant to disprove the dying declaration and not to prove it but the most important thing in the instant case is the fact of regaining the consciousness (by the victim). The witness said that he was in the state of unconsciousness. Nobody has said that he got back consciousness. Ka-1. Although the burden is squarely on the appellant to disprove the dying declaration and not to prove it but the most important thing in the instant case is the fact of regaining the consciousness (by the victim). The witness said that he was in the state of unconsciousness. Nobody has said that he got back consciousness. If one of the witness has stated that he was in the state of consciousness yet his presence on the spot is doubtful, as P.W. 7 Jaipal has disclosed the fact to the IO only after 15-20 days of the occurrence and did not bring it to the notice of anybody, be it villager or the police officer. According to him, he was sub conscious. 24. The fact remains that if the man was not conscious how could he give the dying declaration? This is an incident of month of January. No source of light is there. It is not known whether it was full moonlight or moonless night. The prosecution story appears like elephant-mouse game. 25. The dying declaration does not get any approval in favour of the prosecution. The dying declaration, as such, does not inspire confidence. The dying declaration recorded in this case does not inspire full confidence in its truthfulness and correctness. It lacks in its intrinsic worth. Its tenor and contents determine that it is not wholly reliable. There are material infirmities in the statement of prosecution witnesses. The dying declaration recorded in this case is not wholly free from doubt. If the conviction is recorded on the basis of such a dying declaration, it may result in miscarriage of justice. FIR is also delayed one and cannot be said to be free from embellishments. The dying declaration does not appear to be unalloyed version of the deceased. It may be a distorted document. It does not pass the test of total reliability. Whether the victim was in a fit state of mind to give the statement is doubtful. Possibility of anxiety of planting the accused cannot be totally ruled out. Taking an overall view of the perspective of the evidence it is a case in which the veracity of prosecution witnesses and dying declaration is not free from doubt. Fog & clouds still remain there. Possibility of conjectures and surmises are there. Possibility of anxiety of planting the accused cannot be totally ruled out. Taking an overall view of the perspective of the evidence it is a case in which the veracity of prosecution witnesses and dying declaration is not free from doubt. Fog & clouds still remain there. Possibility of conjectures and surmises are there. Somehow the dying declaration does not inspire full confidence to the court in its truthfulness and correctness. Dying declaration is the last statement by its maker and great caution should be exercised in considering the weight to be given to this species of evidence. In the instant case, it appears that the Police was groping in the dark and finding no clue otherwise, ultimately fastened liabilities on the accused who was having criminal antecedents. Declaration did not show clarity of mind of the maker. Whether the condition of the patient was such that he was in a fit state of mind to give the statement ? The record is not able to project the declaration as a reliable piece of evidence. We are unable to agree with the findings of the learned trial court. The qualify of oral evidence coupled with dying declaration is not enough to sustain conviction. The main assailant has already died and the prosecution has not been able to prove its case against the accused-appellant Pappu for the offence punishable under section 302/34 IPC beyond reasonable doubt, hence this appeal deserves to be allowed. 26. Therefore, the appeal is allowed. The judgment and order dated 20.05.2002, passed by the Addl. Sessions Judge, Roorkee, District Hardwar in Sessions Trial No. 147 of 1997 is set aside. Consequently, conviction and sentence recorded by the trial court against the accused-appellant Pappu alias Pupendra is also set aside. Accused-appellant Pappu alias Pupendra is acquitted of charge of offence punishable under Section 302 IPC read with Section 34 of IPC. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. 27. Let lower court record be sent back.