JUDGMENT (ORAL) Per A.K, Trivedi. J. Appellants Hari Sharan Chaudhary, Rama Chaudhary @ Ram Chaudhary, Nathuni Chaudhary (since deceased), Bilas Chaudhary, Harendra Chaudhary who have been found guilty for an offence punishable under Sections 302/34 of the IPC and directed to undergo R.I. for life, appellant, Nathuni Chaudhary (since deceased) who has been found guilty for an offence punishable under Section 323 IPC and further directed to undergo R.I. for one year by the 1st Additional Sessions Judge, Gopalganj vide its judgment dated 14.02.1989 passed in Sessions Tr. No. 244/82/48/85 have preferred the instant appeal. 2. On account of death of Nathuni Chaudhary, the appeal against him stood abated and that has been recorded vide order dated 13.02.2013. 3. Bhikham Prasad (PW 8) gave his fardbeyan (Ext-1) alleging inter alia that on 01.07.1980 at about 10:00 a.m. while he was sleeping at his darwaza got awaken on cry and saw Hari Sharan Chaudhary, Rama Chaudhary @ Ram Chaudhary, and Nathuni Chaudhary at one side and his cousin brother Sheo Prasad (deceased) at other side engaged in a verbal duel. Seeing this, he intervened. Subsequently, on an order of Nathuni Chaudhary, Hari Sharan Chaudhary brought barchhi from his house while Ram Chaudhary @ Ram Chaudhary bhala and they both pierced in the stomach of Sheo Prasad. Nathuni Chaudhary also assaulted him with lathi causing injury over head. He (PW 8) was also assaulted by Nathuni Chaudhary over his back by lathi. Then thereafter, all the accused persons escaped therefrom. His cousin brother, Sheo Prasad fell down. Ramdhari Rawat came and lifted him and Sheo Prasad to the hospital. The motive has been shown dispute on account of cutting of ridge of the field. 4. On the basis of the aforesaid fardbeyan Gopalganj P.S. Case No. 1 of 1980 was registered under Sections 307, 324, 323/34 of the IPC. During course of which as is evident from different exhibits dying declaration of deceased. Sheo Prasad was recorded and subsequently thereof he died at SKMCH, Muzaffarpur during course of treatment. Hence after completing investigation charge-sheet was submitted against accused Hari Sharan Chaudhary, Rama Chaudhary @ Ram Chaudhary, and Nathuni Chaudhary, Bilas Chaudhary and Harendra Chaudhary under Section 302, IPC along with allied Sections. Accordingly, on being committed faced trial meeting with ultimate consequence the subject matter of instant appeal. 5. Hence after completing investigation charge-sheet was submitted against accused Hari Sharan Chaudhary, Rama Chaudhary @ Ram Chaudhary, and Nathuni Chaudhary, Bilas Chaudhary and Harendra Chaudhary under Section 302, IPC along with allied Sections. Accordingly, on being committed faced trial meeting with ultimate consequence the subject matter of instant appeal. 5. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr PC is of complete denial of the occurrence. Neither any witness nor exhibit has been brought on record on their behalf. 6. While assailing the judgment of conviction and sentence manifold argument has been raised on behalf of the appellants. The first and foremost argument is that all the material witnesses have turned hostile to the extent that they have not supported the case of the prosecution. Only PW 1 came forward to support the case of the prosecution who surprisingly is not an FIR named witness. Apart from this, it has also been submitted that in the aforesaid background the non-examination of I.O. had caused prejudice to the interest of the appellants more particularly relating to manner of occurrence as well as with regard to objective finding perceived by the I.O. during course of investigation. Then, it has been submitted that there is full of inconsistency amongst the ocular evidence inconsonance with the medical evidence. To buttress his plea learned counsel for the appellants drew our attention towards the contents of fardbeyan wherein two separate weapons that means to say barchhi and bhala have been alleged to be pierced in the stomach of the deceased which was found during course of examination by PW 12 but PW 9 during course of conduction of post-mortem found three independent stitched injuries. The remaining one virtually remained unexplained. In similar way it has also been submitted that there is specific disclosure in the fardbeyan with regard to assault over head of the deceased which had caused injury thereupon but surprisingly neither the aforesaid injury was found by PW 12 during course of his examination nor by PW 9 the Doctor who had conducted post-mortem. 7. It has further been submitted that prosecution had brought Ext-5 the dying declaration. Though. 7. It has further been submitted that prosecution had brought Ext-5 the dying declaration. Though. PW 12 has not been cross-examined with regard to mental condition of the deceased but the same cannot be taken as a sacrosanct document because of the fact, it is totally inconsistent with the assertion of fardbeyan. It has further been pleaded that if the dying declaration is taken into consideration the same is found to be inconsistent with the evidence of PW 1 and so the evidence in the aforesaid ground has to be scrutinized along with propriety of genuineness of the dying declaration. In the aforesaid background neither the evidence of PW 1 could be accepted nor could the status of dying declaration be accepted as pious document. Therefore, neither the evidence of PW 1 nor the dying declaration Ext-5 are subject to reliance. Hence, it could very safely be inferred that prosecution could not be able to substantiate its case. 8. On the other hand learned APP counter meeting with the submission raised on behalf of the appellants submitted that mere declaration of hostile against a witness will not erase his evidence rather the same has to be taken into consideration to the extent of supporting the case of the prosecution. When the evidence of the remaining witnesses that means to say, PWs 2, 6, 7, including 8, the informant is taken it is evident that there is presence of all the five accused/appellants at the spot. Therefore, during course of commission of crime of the appellants were there out of them some of the appellants indulged in criminal activity wherein deceased was injured and that is the evidence of PW 1 supported by dying declaration. Learned APP fairly submitted that there is some sort of infirmity or inconsistency in between the evidence of PW 1 as well as Ext-5 dying declaration in that position the dying declaration has to be taken into account and on the basis thereof the prosecution case could very well be found to be proved. Moreso, it has also been submitted that none of the appellants has been found guilty for an offence punishable under Section 302 of the IPC. 9. In order to substantiate its case prosecution had examined altogether 12 PWs out of whom PW 1 is Kedar Choudhary. PW 2 is Shankar Choudhary. PW 3 is Tej Nr. Singh. Moreso, it has also been submitted that none of the appellants has been found guilty for an offence punishable under Section 302 of the IPC. 9. In order to substantiate its case prosecution had examined altogether 12 PWs out of whom PW 1 is Kedar Choudhary. PW 2 is Shankar Choudhary. PW 3 is Tej Nr. Singh. PW 4 is Baij Nath Sahi. PW 5 is Sushil Kr. Dubey. PW 6 is Ram Dhari Choudhary. PW 7 is Shankar Choudhary. PW 8 is Bhikham Choudhary. PW 9 is Dr. Binod Kr. Mahto. PW 10 is Shinghansan Prasad, PW 11 is Ganesh Yadav, PW 12 is Lakhi Chand Pd. as well as had also exhibited Ext-l fardbeyan. Ext-2 Formal First Information Report, Ext-3 seizure list, Ext4 post-mortem report. Ext-5 dying declaration, Ext-6 certificate of Doctor endorsed over Ext-5 and Ext-7 inquest report. Neither any DW nor any exhibit has been on behalf of defence. 10. With regard to status of the witnesses. PWs 2, 6, 7 and 8 were declared hostile while PWs 3, 4, 5 and 11 are formal in nature PW 12 is the Doctor who had examined deceased Sheo Prasad at first occasion as well as he had also examined PW 8, informant Bhikam Choudhary while PW 9 is Dr. Binod Kumar Mahto who had conducted post-mortem. PW 10 is the Magistrate who had recorded dying declaration. 11. Now coming to the evidence on record, first of all we would like to refer the evidence of Doctor. PW 12, namely, Lakhi Chand Prasad which is as follows :- 1. On 1.7.80 I was posted at Sadar Hospital Gopalganj as C.A.S. On that day at 10:30 a.m. I had examined Sheo Prasad Chaudhary s/o Raksha Chaudhary of village Manikpur P.S. and District Gopalganj and found the following injuries on his person. (i) Penetrating injury on right side of abdomen with omentum protruding. (ii) Penetrating injury on left side of abdomen with loops of intestine protruding. Both the injuries were grievous and caused by sharp penetrating substance may be by bhala and barchhi. Age of injury within three hours. The wounds were not measured as the condition of the injured was very low. He was referred to Muzaffarpur Medical College Hospital for further treatment. 2. Both the injuries were grievous and caused by sharp penetrating substance may be by bhala and barchhi. Age of injury within three hours. The wounds were not measured as the condition of the injured was very low. He was referred to Muzaffarpur Medical College Hospital for further treatment. 2. On the same day at 5.00 p.m. I had examined Bhikham Chaudhary s/o Ramdhari Chaudhary of same place and found the following injuries on his person. (i) A swelling with tenderness 2"x 1" on right side of the back. The injury was simple caused by hard blunt substance may be by bamboo. Age of injury within 12 hours. 3. These two injuries reports are written by me and bear my signature. It is marked Ext-8 and 8/1. 12. Seeing the critical condition of patient Sheo Prasad, he was referred to SKMCH, Muzaffarpur where he undergone treatment for so many days but succumbed and then through PW 9 the post-mortem has been brought on record which is as follows :- (i) A stitched wound having 3 stitches in number 1 1/2" in length on left side of abdomen. (ii) A stitched wound having 2 stitches in number 1" in length on right side of lower part of abdomen. (iii) A stitched wound 16 stitches in number were found in midline of whole abdomen 5" in length. On cutting the stitches the following were observed. (i) There was a stitched wound in stomach having 3 stitches in number about 1" in length. (ii) A stitched wound in large intestine having 2 stitches in number about 1" length. (iii) A stitched wound in small intestine having two stitches in number about 1" in length. On dissection of chest lungs looked pale. Heart-both chambers were partially filled with blood. Stomach and bladder were empty, Genital-normal. Opinion-The deceased died due to shock and haemorrhage as a result of above mentioned ante mortem injuries probably caused by some sharp cutting weapon such as bhala and barchhi. Time since death-within 48 hours. This is the post-mortem report which is in may pen and bears my signature. It is marked exhibit-4. Each injury was sufficient to cause death in ordinary course of nature. 13. Neither prosecution nor the defence examined/cross-examined these two PWs to show whether the deceased on account of receiving of such kind of injuries was very much able to give dying declaration. It is marked exhibit-4. Each injury was sufficient to cause death in ordinary course of nature. 13. Neither prosecution nor the defence examined/cross-examined these two PWs to show whether the deceased on account of receiving of such kind of injuries was very much able to give dying declaration. More particularly, while examining PW 12 the prosecution ignored him to such extent that it did not even refer Ext-6 the endorsement made by PW 12 over the dying declaration. After all, it is an obligation on the part of the prosecution to support its case beyond all reasonable doubt. Any lacuna laches or slackness on the part of the prosecution if comes to the root of the case then in that event it is the prosecution who has to face its consequences. PW 10 was not at all an expert on this very score and the same is itself evident when his evidence is gone through. 14. PW 10 has stated that he had recorded dying declaration of Sheo Prasad as ordered by Chief Judicial Magistrate and after recording the same he had endorsed his certificate. When paragraph-2 of his examination-in-chief is gone through it is evident that his incompetency on this very score is apparent who had stated that Dr. L.C. Prasad (PW 12) had endorsed the certificate in his presence. From his examination-in-chief it is crystal clear that prosecution failed to bring on record regarding mental condition of deceased to the extent that he was able to make dying declaration. PW 12 while being examined on behalf of prosecution as stated above, was not at all confronted on this score by the prosecution to bring on record that deceased at the time of giving his dying declaration was in a fit mental condition as well as conscious to the extent to make such dying declaration. As such the relevance of dying declaration in the present context has lost its identity. 15. Now coming to the evidence of material witness certainly even the hostile witnesses have shown presence of all the appellants at the spot but from this juncture it appears that as they resiled forcing the prosecution to declare them hostile respectively. 16. In the aforesaid background when the evidence of PW 1 is taken into consideration he had shown as per Ext-1 fardbeyan. 16. In the aforesaid background when the evidence of PW 1 is taken into consideration he had shown as per Ext-1 fardbeyan. Hari Sharan Chaudhary and Rama Chaudhary to he the assailants of deceased Sheo Prasad which if taken into consideration along with Ext-5 dying declaration is found to be total contradicted to the extent that PW 5 had named Harendra Chaudhary and Bilas Chaudhary to be his assailants as well as Hart Sharan Chaudhary to be assailant by means of lathi brushing aside the status of Nathuni Chaudhary, Hari Sharan and Rama. This variance appears to be adverse to the prosecution case. 17. True it is that the dying declaration has been treated as pious document in the background of the fact that at the verge of death no one is expected to speak lie. Side by side its authenticity should be critically examined on account of having the accused deprived of an opportunity to cross-examine the witnesses. Therefore, the validity and sanctity of the dying declaration should accordingly be viewed. 18. When the evidence on record along with Ext-5 is taken together it does not appeal us to accept either of the two. Therefore, the prosecution case as flashed during course of trial, it is found to be suspicious to the extent that it gives an opportunity to the appellants to avail of the benefit of doubt. 19. Thus, the finding of guilt and sentence recorded by the learned lower Court is set aside. The appeal is allowed. 20. Since appellants namely Hari Sharan Chaudhary, Rama Chaudhary @ Ram Chaudhary, Bilas Chaudhary, Harendra Chaudhary are on bail they are discharged from the liability of bail bond. Appeal allowed.