Dharnidhar Jha, Ashok Srivastava, JJ. This appeal, pre ferred by the solitary appellant Ramjanak, arises out of judgment of convic tion and order of sentence passed by the learned IV Additional Sessions Judge, Gorakhpur on 23.11.1982 in Sessions Trial No. 26 of 1982, by which the appel lant was held guilty of committing of fence under section 302 I.P.C. and after being heard on sentence, was directed to suffer rigorous imprisonment for life. 2. The short facts leading to the present appeal may be noticed. 3. The written report of deceased Ram Dev was the basis of prosecuting the present appellant. It was stated that he had alienated a land situated west of his house to the present appellant, who had constructed a house and that con struction was made after encroaching upon some of the land of the deceased in excess of the area which was sold by him. The deceased stated that he pro tested on many occasions, but the appel lant was not paying any heed to his pro test and continued avoiding it. 4. It was stated that on 27.7.1981 while the deceased was going to attend to the call of nature at about 7.30 a.m. and when he had come in front of the Darwaja of this appellant, he started quarreling with the deceased so much so that they entered into a scuffle. Per sons, like, Prem Harijan ( not examined) Phool Chand ( PW-1), Ramji ( not examined) and others, who reached there in tervened in the scuffle and separated the deceased and the appellant. But, in the meantime the appellant picked up a Tangi which was lying at his darwaja and wielded a blow with that on the head of the deceased causing a serious injury to him. 5. As per the prosecution story the written report was dictated by the de ceased Ram Deo to PW-4 Mewa Lal, who presented the same before the Officer-in-charge of Gagaha Police Station in the district of Gorakhpur, upon which the case was lodged and the deceased was sent for medical examination con ducted by PW-8 Dr. V.N.P. Baranwal, who found the following injuries on his person: ( I) Incised wound of 1.0 cm x 2 cm x bone deep on right side of the head. The brain tissues appear com ing out of the wound. ( II) Lacerated wound 1 cm x 1 cm.
V.N.P. Baranwal, who found the following injuries on his person: ( I) Incised wound of 1.0 cm x 2 cm x bone deep on right side of the head. The brain tissues appear com ing out of the wound. ( II) Lacerated wound 1 cm x 1 cm. muscle deep on left chest. 6. Dr. V.N.P. Baranwal ( PW-8) was of the opinion that the injury No. 1 was caused by some sharp cutting weapon and injury No. 2 was caused by a hard blunt object. 7. It appears from the evidence of PW-7 Sub-inspector S.N.P. Srivastava, who investigated the case that the de ceased was undergoing treatment in the hospital and died on 22.8.1981, i.e., after about 25 days of the incident and his dead body was sent for post-mortem examination, which was conducted by Dr. Sabhajit Singh ( PW-9). 8. The evidence of Dr. Sabhajit Singh, who held the post-mortem ex amination Indicated that he found a lac erated wound, which has developed septic, was measuring 2" x 1½ " x brain deep on the right side of head 5" above the right ear. PW-9 stated that the brain matter including the protruding one was coming through the wound and was associated with a fracture of right parietal bone in multiple pieces and as per his opinion the wound initially may have been incised also as appears from paragraph 3 of PW-9. PW-9 had as signed the reason for lacerated appear ance of the wound, as appears from his same paragraph 3 and specially that part of the paragraph, which has spilled over page No. 47 of the paper book. 9. We uphold the opinion of Dr. Sabhajit Singh as to why the wound was appearing lacerated as he was perfectly correct in pointing out that the appear ance of the wound as an incised wound could have disappeared on account of healing process during treatment. 10. As regards the question as to whether the written report, Ext. Ka.2/1 could be treated as dying declaration or not, we may refer to the evidence of the scribe of the documents Mewa Lal ( PW-4), who stated in his evidence that he wrote down the document as per the dictation of the officer-in-charge of the police station.
10. As regards the question as to whether the written report, Ext. Ka.2/1 could be treated as dying declaration or not, we may refer to the evidence of the scribe of the documents Mewa Lal ( PW-4), who stated in his evidence that he wrote down the document as per the dictation of the officer-in-charge of the police station. Thus, in the light of very particular evidence of the scribe, it pails into doubt as to whether the statement contained in Ex.Ka.1 was indeed dic tated by the deceased. The law is trite that a statement which could be a writ ten statement of a dead person, for be ing admitted into the evidence under section 32( 1) of the Indian Evidence Act, the scribe of the statement should come before the Court and depose that he had written the statement, as narrated to him word by word, by the deceased and that the same statement was being ten dered by him in evidence during the trial. This legal-mandatory-necessity not being observed or not coming out of the evidence of PW-4, our considered view, renders the case of the prosecution doubtful as regards the document Ext. Ka.2/1 being treated as dying declara tion. 11. As regards the oral evidence we find that PW-1 Phool Chand, who was named to have intervened during the scuffle between the deceased and the present appellant to separate the two, did not support the prosecution story and as such, he was declared hostile on account of not stating any word in sup port of the prospection version. The other witness PW-2 Smt. Kawalwasi who was the wife of the deceased, had given reasons for her presence at the scene of occurrence. She stated that when her husband came out of his house to go towards the field in the southern side of the village, she also came along him, and when the deceased reached near the house of Ram Janak the present appellant, there was some exchange of words which turned into a scuffle between the two, during which course the appellant picked up a tangi to give a blow on the head of the de ceased.
We further find that she stated in her cross-examination in paragraph 15 that when her husband went out to go to attend the call of nature, she was cleaning her house and it is a pertinent outer part which had been described as dwar. The site plan prepared by PW-7 S.N.P. Srivastava is available to us at page 75 of the paper book in the form of Ext. Ka.9 and on perusal of the same as also after considering the evidence of PW-2 Smt. Kawalwasi, the wife of the deceased, we find that if the occurrence had occurred at place X-1 and the in formant was somewhere either inside of the house or out of it to the north of the same, then the vision was definitely ob structed by the two houses of the appel lant which was situated to the west of the house of the deceased and as such, she could not have seen the occurrence. In addition to the above, we also have doubt about the claim that she was ac companying her husband while he was going to attend the call of nature. The claim appears unusual against 'ordinary human conduct that a wife would be accompanying her husband while he was going to ease himself. 12. While considering the-evidence of PW-2 in its entirety, we always had doubt lingering in our mind regarding the claim of the lady of being a compe tent eye-witness. We do not find her a trustworthy and reliable witness on ac count of two reasons which we have just assigned. It is true that Ram Deo died. It is also true that he had received a very serious blow on his head and that too by a sharp cutting weapon, so much so that some part of the brain matter had poped out of the cut scalp, but we find the evi dence insufficient to support the order of conviction as also to sustain it. We have doubt about the genesis and man ner of occurrence and the presence of witnesses specially PW-2, to witness it. 13. In the result, we find that it was a case in which the appellant ought to have been acquitted after being ex tended the benefit of doubt. Accord ingly, we acquit him of the charge of which he had been convicted and sen tenced by allowing the present appeal.
13. In the result, we find that it was a case in which the appellant ought to have been acquitted after being ex tended the benefit of doubt. Accord ingly, we acquit him of the charge of which he had been convicted and sen tenced by allowing the present appeal. The appellant is on bail. He shall stand discharged from the liability of his bail bond.