JUDGMENT Per Rajiv Sharma, Judge. This appeal is directed against the judgment dated 22.8.2008 rendered by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Sessions Trial No.5/7 of 2006, whereby appellants/accused, Sanjay Kumar and Gorakh Singh were convicted and sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- each, and in default of payment of fine to further undergo imprisonment for three years under Section 302/34 of the Indian Penal Code, while accused Vinod Kumar, Ramesh Chand and Hans Raj were acquitted under Section 302/149 of the Indian Penal Code. 2 The case of the prosecution, in a nutshell, is that PW1 Rikhi Ram gave a telephonic message on 25.10.2005 at 4.35 P.M. at Police Station Talai that one Roshan Lal had been beaten up by accused Sanjay Kumar and Gorakh Singh at Ropari Machwan, on the basis of which Rapat No.21, Ext. PW10/A was recorded. PW1 1 H.C. Karam Chand was asked to move to PHC Berthin for further action. Another telephonic message was given by PW1 Rikhi Ram to Police Station Talai at about 5.30 P.M. that Roshan Lal had been declared dead by the Doctor at PHC Berthin. Rapat No.23, Ext.PW10/B was recorded to this effect. PW 11 HC Karam Chand after arriving at PHC Berthin moved an application, Ext.PW1 1/A to seek opinion of the doctor, who vide endorsement Ext.PW13/B opined that Roshan Lal was brought dead. PW1 1 HC Karam Chand recorded statement of PW1 Rikhi Ram under Section 154 Cr.P.C.. According to him, he had engaged PW2 Kuldeep Singh, contractor for construction of lintel, who engaged Roshan Lal to remove shuttering of lintel. On 25.10.2005, at about 4.00 P.M., Roshan Lal was removing the shuttering. When he went to give tea to Roshan Lal, he heard cries from the house under construction. He went there and saw accused Sanjay Kumar and Gorakh Ram giving beatings to Roshan Lal. Accused Sanjay Kumar was carrying ‘Jhablu’ (iron rod) in his hand. On seeing him, both of them fled away from the spot. He went near Roshan Lal. He was crying and lying on the ground. He was bleeding from the head. He was told that accused Sanjay Kumar and Gorakh Singh had given beatings to him with ‘Jhablu’, leg and fist blows. On seeing him, both of them fled away from the spot. He went near Roshan Lal. He was crying and lying on the ground. He was bleeding from the head. He was told that accused Sanjay Kumar and Gorakh Singh had given beatings to him with ‘Jhablu’, leg and fist blows. PW1 Rikhi Ram also noticed blood stains on the clothes of the accused persons while running from the spot. He called PW2 Kuldeep Singh telephonically. He with the help of PW2 Kuldeep Singh, Joginder and Balbir Singh took Roshan Lal in a vehicle to PHC Berthin, where he was declared dead by the Doctor. Statement, Ext.PW1 /A was sent to the Police Station, on the basis of which, FIR, Ext.PW16/A was registered. PW14 ASI Chet Ram reached at PHC Berthin and conducted inquest of the dead body of Roshan Lal vide inquest reports, Ext.PW12/D and Ext.PW12/E. He moved an application, Ext.PW12/A for post­mortem on the body of Roshan Lal. The post-mortem was conducted on 26.10.2005 at 11.30 A.M. by PW12 Dr. G.D.Jassal vide post-mortem report, Ext.PW12/B. PW16, ASI Ram Dass also visited PHC Berthin. He visited the spot and prepared site plan Ext.PW16/B and seized blood stained soil, sample of soil, blood stained plastic shoes of deceased, Ext.P-6, ‘Jhablu’ Ext.P5 vide seizure memo Ext.PW1/B in the presence of PW2 Kuldeep Singh and Raj Kumar. He also prepared sketch of ‘Jhablu’, vide Ext.PW1/C. He took pictures Ext.PA to Ext.PP, negatives whereof were Ext.P-12 to Ext.P-27. He also recorded statements of the witnesses. PW17 S.I. Rai Singh also partly conducted investigation of the case. He also visited the spot on 27.10.2005. He got prepared Jamabandi and Tatima of the spot vide Ext.PW5/A and Ext.PW5/B from PW5 Subhash Kumar. He also seized clothes, Ext.P-1 to Ext.P-5 of accused Sanjay Kumar and Gorakh Ram vide seizure memo Ext.PW1/G in the presence of Hari Ram and Bansi Lal. He also recorded statements of Hari Ram, Bansi Lal, Sheela Devi and Krishnu Ram vide Ext.PW17/B, Ext.PW17/C, Mark S and Ext.PW17/d respectively. On the basis of disclosure statements made by accused Sanjay Kumar and Gorakh Ram vide Ext.PW6/A and Ext.PW6/B, spot was demarcated. PW17 S.I. Rai Singh also taken into possession compromise deed vide seizure memo Ext.PW1/D. Viscera of the deceased was analyzed by Chemical Examiner, Forensic Science Laboratory, vide report Ext.PW12/C. PW18 Dr. On the basis of disclosure statements made by accused Sanjay Kumar and Gorakh Ram vide Ext.PW6/A and Ext.PW6/B, spot was demarcated. PW17 S.I. Rai Singh also taken into possession compromise deed vide seizure memo Ext.PW1/D. Viscera of the deceased was analyzed by Chemical Examiner, Forensic Science Laboratory, vide report Ext.PW12/C. PW18 Dr. Gian Thakur gave his report Ext.Pw18/A. The matter was investigated and the challan was put in the court after completing all codal formalities. 3 The prosecution examined as many as nineteen witnesses to prove its case. The accused were examined under Section 313 Cr.P.C.. According to them, they were falsely implicated in the case. The learned trial court convicted and sentenced the accused Sanjay Kumar and Gorakh Singh and acquitted the accused Vinod Kumar, Ramesh Chand and Hans Raj, vide judgment dated 22.8.2008, as stated hereinabove. . 4 Mr. M.S. Chandel, learned Senior Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused persons. 5 Mr. V.S. Chauhan and Mr. Romesh Verma, learned Additional Advocates General, have supported the impugned judgment dated 22.8.2008. 6 I have heard learned counsel for the parties and have also gone through the impugned judgment, pleadings and record carefully. 7 PW1, Rikhi Ram, deposed that he was constructing a house at Ropari. Contract was given to Kuldeep Singh. On 25.10.2005, at about 4.00 P.M. Roshan Lal was removing shuttering of his house. He was taking tea for him. He heard cries of Roshan Lal from a distance of about 30-40 mts. When he reached the spot, he found that Gorakh Singh and Sanjay Kumar were giving beatings to Roshan Lal with legs, fists and Jhablu. On seeing him, both of them started running. He noticed that their clothes were stained with blood. He raised hue and cry and called relatives of Roshan Lal. He firstly telephonically called Kuldeep and thereafter police. Police asked him to bring Roshan Lal to Hospital. He arranged for a vehicle and Kuldeep also came. Name of owner of the vehicle was Vikram. At that time, Joginder, Balbir, Kuldeep and wife of Roshan Lal, Sheela were present. He along with Joginder, Kuldeep and Balbir Singh took Roshan Lal in the vehicle to PHC Berthin. The doctor checked Roshan Lal and declared him dead. He was told by Roshan Lal in the field that he was given beatings by Sanjay Kumar and Gorakh Singh. At that time, Joginder, Balbir, Kuldeep and wife of Roshan Lal, Sheela were present. He along with Joginder, Kuldeep and Balbir Singh took Roshan Lal in the vehicle to PHC Berthin. The doctor checked Roshan Lal and declared him dead. He was told by Roshan Lal in the field that he was given beatings by Sanjay Kumar and Gorakh Singh. Roshan Lal was dragged to the field, which was at a distance of 30-40 mts. from his house. At that time no other person was present. His statement was recorded by the police vide Ext.PW1/A. He did not notice accused Hans Raj, Vinod and Ramesh on the spot. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he deposed that the police had seized blood stained earth as well as sample earth from the spot. The police also seized Jhablu, Plastic shoes and earth in separate parcels vide seizure memo, Ext.PW1/B. He identified his signatures over the seizure memo Ext.PW1 /B. The police had also prepared the sketch of Jhablu vide Ext.PW1/C. Jhablu was left by accused Sanjay Kumar while running away from the spot. He had produced compromise arrived at between him and father of the accused persons, Sita Ram, which was taken into possession by the police vide memo Ext.PW1/D. Police also seized clothes of Sanjay Kumar and Gorakh Singh in his presence vide memo Ext.PW1/G. He identified Jhablu, Ext.P5. In cross-examination conducted by the learned counsel for the accused, he deposed that about 10- 20 persons had come to the spot after 10-15 minutes of his arrival at the spot. When he had gone to make call, about 4-5 persons had already come to the spot. Firstly he telephonically called Kuldeep Singh. When he came back after making telephonic call, about 10-15 persons had already assembled at the spot. He also called family members of Roshan Lal, who lived at Guga-Mohra. He had also called father of Roshan Lal. He found Sheela, Joginder and Balbir at the spot. When he had gone to call for the first time, about 4-5 persons namely, Bhag Singh, his wife, wife of Parkash Chand and their one son were present at the spot. According to him, when he came back after calling Kuldeep, about 10-15 persons were seeing Roshan Lal. They were from nearby place. When he had gone to call for the first time, about 4-5 persons namely, Bhag Singh, his wife, wife of Parkash Chand and their one son were present at the spot. According to him, when he came back after calling Kuldeep, about 10-15 persons were seeing Roshan Lal. They were from nearby place. About 4-5 persons were having their houses at a distance of about 10-15 mts. from the spot. He admitted that those 10-15 persons were his neighbours and he knew names of some of them. He denied suggestion that Roshan Lal was totally unconscious. They reached the Hospital at 5.15 P.M. where doctor checked Roshan Lal. Roshan Lal became unconscious at about 4.45 P.M.. When he talked to Roshan Lal, no other person was present there. Out of 15-20 persons, about 4-5 persons had talked to Roshan Lal. Remaining persons were listening the conversation. He was at a distance of 10 mts from the house under construction when the accused saw him. His old house was at a distance of 200 mts from the spot. The house under construction was visible from the old house. There were about 5-7 houses around his old house. He saw the accused, when he was at a distance of 60 mts from house of Sunder Ram. On seeing him, the accused fled away backwards. He admitted that he did not witness the quarrel which occurred at the spot. He also admitted that the police had not taken into possession the rafters and supports stained with blood. He saw Roshan Lal lying in the field for the first time from the distance of about 10-15 mts. He admitted that when his house was being constructed, Sita Ram father of the accused had obtained stay orders against him from the court at Ghumarwin. Stay order was obtained in the month of July 2005. The police visited the spot at 3.00 A.M. after apprehending the accused. He admitted that whole proceedings were done in the torch light. 8 PW2, Kuldeep Singh, deposed that he had constructed house of Rikhi Ram in the year 2005. On 25.10.2005, Rikhi Ram informed him telephonically at Village Karloti that Sanjay and Gorakh Ram had given beatings to Roshan Lal. He received the call at 4.00 P.M. and he reached the spot within 10-15 minutes. He was told the names of only two accused and none else. On 25.10.2005, Rikhi Ram informed him telephonically at Village Karloti that Sanjay and Gorakh Ram had given beatings to Roshan Lal. He received the call at 4.00 P.M. and he reached the spot within 10-15 minutes. He was told the names of only two accused and none else. He was declared hostile. In cross- examination conducted by the learned Public Prosecutor, he denied the suggestion that Rikhi Ram had informed him that Sanjay and Gorakh Ram were beating Roshan Lal and Ramesh, Vinod and Hans Raj were abusing him. Balbir, Sheela, Krishanu and Joginder etc. were present at the spot. When he reached the spot, Roshan Lal was made to lie on a cot and a jeep was arranged. Roshan Lal was taken to hospital by him, Rikhi Ram, Joginder, Balbir, Krishanu and Sheela, wife of the deceased. The doctor checked Roshan Lal and declared him dead. Police visited the spot in his presence and seized Jhablu, shoes, blood stained, sample earth vide memo Ext.PW1/B. In cross-examination conducted by learned counsel for the accused, he deposed that when he reached the spot, Roshan Lal was lying on the cot. There were about 10-15 persons on the spot. He admitted that Roshan Lal did not name Sanjay and Gorakh Singh with his tongue. He volunteered that on being asked by him was he beaten up by Sanjay and Gorakh, he answered in affirmative as he could not speak. The police had seized Jhablu, shoes and earth on 25th at about 2.30 A.M.. in torch light. 9 PW3, Sheela Devi, wife of Roshan Lal, deposed that on 25.10.2005, she was at her residence. She heard hue and cry at the house of Rikhi Ram at about 4.00-4.30 P.M. and went there. Her husband was beaten up severely and was made to lie on a cot. She asked her husband who had beaten him, who told her that Sanjay and Gorakh Singh gave beatings to him with iron Jhablu, supports, leg and fist blows. Thereafter, she became unconscious and did not know what happened. Her husband had told her that there were three other persons, namely, Vinod Hans Raj and Ramesh also, who gave beatings to him. In cross-examination, she admitted that there was Lindi Khad in between Guga-Mohra and Ropari. She denied that Guga-Mohra is 2 kms away from Ropari. She volunteered that the distance was 1 km. Her husband had told her that there were three other persons, namely, Vinod Hans Raj and Ramesh also, who gave beatings to him. In cross-examination, she admitted that there was Lindi Khad in between Guga-Mohra and Ropari. She denied that Guga-Mohra is 2 kms away from Ropari. She volunteered that the distance was 1 km. When she reached at Ropari, Balbir, Joginder and Kuldeep were not there. She volunteered that they came after her. There were 2-3 men and 2-3 women near her husband. Her husband was made to lie on the cot. She did not know the names of those women. The men were Rikhi Ram, his son and his father. When she talked to her husband no one was present. She reached Ropari from Guga-Mohra within 10 minutes. 10 PW4, Vikram Singh, deposed that he owned a Taxi bearing registration number HP02-H-2523. On 25.10.2005 at about 3.00–3.30 P.M., accused Ramesh Chand came to him and hired his taxi from Dhabiri to Ropari. He was paid Rs.70/-. Accused Ramesh boarded his taxi and the remaining accused boarded after a distance of about 1/2 km. They travelled in his taxi for a distance of about 2-3 kms and got down at Ropari. The accused were intoxicated. He came back after dropping them. When he reached at bridge, a telephonic call was received that there was a quarrel and vehicle be sent. He received the telephonic call at the shop of Charan Dass. He went to Ropari and brought Roshan Lal in his vehicle to PHC Berthin. In cross-examination, he deposed that he left the accused near a house at Ropari. When he reached at the spot, there were about 30-40 persons. He did not know them. He denied that when he took Roshan Lal, he was totally un­conscious. He volunteered that Roshan Lal was groaning. 11 PW5, Subhash Kumar, deposed that he visited the spot at the instance of police and prepared Jamabandi and Tatima at the spot vide Ext.PW5/A ad Ext.PW5/B respectively. 12PW6, Amarjit Singh, deposed that on 28.10.2005, Sanjay Kumar made a disclosure statement, Ext.PW6/A in his presence that he could identify the land where quarrel took place between him, his associates and Roshan Lal. Similarly, accused Gorakh Singh made a disclosure statement vide Ext.PW6/B. All five accused were taken to the spot in a government vehicle accompanied by SHO. The accused identified the place of occurrence. Similarly, accused Gorakh Singh made a disclosure statement vide Ext.PW6/B. All five accused were taken to the spot in a government vehicle accompanied by SHO. The accused identified the place of occurrence. 13PW7 Rakesh Kumar, deposed that he did not know the accused. They did not visit his liquor vend. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he denied that the accused Hans Raj came to him on 25.10.2005 and purchased a bottle of country liquor. He also denied that the same person again came at 2.00 P.M. on the same day and took one more bottle of country liquor from him. He also denied that all the five accused consumed liquor at a distance of 100 yards from the liquor vend and thereafter went away. 14PW8, Bansi Lal, deposed that police had seized some clothes in his presence, which had been kept by the police in a room before his arrival. He was also declared hostile. In cross-examination conducted by the learned Public Prosecutor, he admitted that clothes were stained with blood. All the accused were present at that time in the police station. None of them had taken off his clothes in his presence. In cross-examination conducted by the learned counsel for the accused, he deposed the deceased Roshan Lal was his brother- in-law. He went to the Police Station in connection with death of his brother-in-law. The seal with which the clothes were sealed was kept by the SHO with him. 15PW9 HHC Kashmir Singh, deposed that he deposited the case property at FSL Junga on 3 1.10.2005 vide RC No.141/05. 16PW10, MHC Shamsher Singh deposed that on 25.10.2005, Rikhi Ram gave an information at the Police Station Talai that Roshan Lal of Village Machwan had been beaten up. He recorded Rapat No.21 dated 25.10.2005 vide Ext.PW 10/A. Another call was received by him from Rikhi Ram that Roshan Lal had expired while going to Hospital. Rapat No.23 was recorded to this effect vide Ext.PW10/B. On 26.10.2005, ASI Ram Dass deposited five sealed parcels with him bearing seal impressions ‘A’ and ‘T’. On 29.10.2005, HHC Kashmir Singh deposited the viscera of deceased with him. He sent the case property vide R.C. No.141/2005 dated 30.10.2005 through HHC Kashmir Singh to FSL Junga. Rapat No.23 was recorded to this effect vide Ext.PW10/B. On 26.10.2005, ASI Ram Dass deposited five sealed parcels with him bearing seal impressions ‘A’ and ‘T’. On 29.10.2005, HHC Kashmir Singh deposited the viscera of deceased with him. He sent the case property vide R.C. No.141/2005 dated 30.10.2005 through HHC Kashmir Singh to FSL Junga. In cross-examination, he testified that he did not register the case on the basis of reports Ext.PW10/A and Ext.PW10/B because the Investigating Officer had gone to the spot for verification of the information. 17PW1 1, HC Karam Chand, deposed that on 25.10.2005, at 4.35 P.M., he received a telephonic message from MHC Shamsher that a quarrel had taken place at village Machwan Ropari and the injured Roshan Lal was taken to PHC Berthin. He was asked to go there. He reached PHC Berthin and moved an application Ext. PW 11/A before the doctor. The doctor told him that Roshan Lal was brought dead to the hospital. He recorded statement of Rikhi Ram Ext.PW1/A. He made an endorsement Ext.PW1 1/B and sent the statement Ext.PW1 /A to the Police Station for the registration of the case. 18 PW12, Dr. G.D. Jasal, deposed that on 26.10.2005, at 8.30 A.M., dead body of Roshan Lal was brought to Zonal Hospital Bilaspur by the police. The police moved an application Ext.PW12/A for post-mortem examination of the deceased Roshan Lal. At 11.30 A.M., he conducted post­mortem on the body of Roshan Lal. He found following injuries on the body of the deceased Roshan Lal:- 1) There was big wound on right side of frontal bone 2x2 inches deep upto brain. 2)There was lacerated wound with cut on right ear. 3)There was big wound on left side of frontal bone about 2x 3 inches. Brain matter was visible.4) There was big wound on back of head about 2x2 inches, deep upto brain, bleeding was present. There was excessive bleeding from all wounds, ear and nostril, hair were full of clotted blood upto chest. 5)There were two big abrasions on right side of neck from back towards front. 6) There was big abrasion on right shoulder and right side of chest near to axilla. 7) There were multiple fractures of both side ribs. 5 ribs of right side and 4 ribs of left side were fractured. 8) A wound on left lower leg below knee joint was present. 6) There was big abrasion on right shoulder and right side of chest near to axilla. 7) There were multiple fractures of both side ribs. 5 ribs of right side and 4 ribs of left side were fractured. 8) A wound on left lower leg below knee joint was present. 9) There was fracture of right femur head and neck. 10) There were multiple fractures of skull bone, base of skull was fractured. No other injury was seen on the body. All the injuries/fractures were ante-mortem. Skull There was fracture of skull and base of skull was fractured as mentioned above. Thorax 1) Walls, ribs and cartilages multiple fracture of both side of ribs. 2) Pleura and larynx and trachea normal. 3) Right lung and left lung –rupture due to fracture of ribs. 4) Pericardium, heart and –normal. Large vessels. Abdomen. 1) Walls, peritoneum, mouth larynx and esophagus, small intestines and their contents – all normal large intestines and their contents, liver, spleen, kidney, bladder, organs of generation external and internal. 2) Stomach and its contents-bloody semi-liquid material were present. Muscles Bones Joints There was multiple fracture of skull, base of skull, both sides of ribs, fracture of head and neck of right femur.” The probable duration between injury and death was more than one hour and between death and post-mortem less than 24 hours. He gave final opinion that the deceased died due to head injury, haemorrhagic shock and neurogenic shock. He had also gone through the police inquest reports, Ext.PW12/D and Ext.PW12/E. The probable duration between injury and death was about 1/1 1/4 hours. ‘Jhablu’ Ext.P5 could inflict injuries mentioned at Sr. No.1, 2, 3, 4, 9 and 10, while other injuries were possible if the deceased was given beatings with fist and leg blows or dragged in the injured condition. In cross-examination, he admitted that he had not mentioned date of death in post­mortem report. He admitted the suggestion that injuries No. 1,2, 3 and 4 were deep upto brain. He had opened the skull. The skull was fractured as a result of which injury was upto its inner side. The fracture comprised of a gap through which brain was visible. He admitted that if heavy weight fell on the head, such an injury could be received. He admitted that there were no blood stains at that time on Jhablu, Ext.P5. The skull was fractured as a result of which injury was upto its inner side. The fracture comprised of a gap through which brain was visible. He admitted that if heavy weight fell on the head, such an injury could be received. He admitted that there were no blood stains at that time on Jhablu, Ext.P5. He admitted that when he opened the skull and brain, cavity was full of blood, which was collected and oozed out from three injuries. The death was possible instantaneously in the case. He also admitted that after infliction of three injuries, the patient could have become unconscious immediately. He admitted that in such a case, once the deceased became unconscious, he could not regain consciousness. Timing of one hour given by him in the post mortem report between death and injury was based upon estimate as well as on the basis of inquest report. 19PW13, Doctor Resham Singh, deposed that on 25.10.2005, at about 5.20 P.M., Roshan Lal was brought dead to the Hospital. On the application of police, Ext.PW1 1/A, he gave his opinion that he was brought dead. 20PW14, ASI Chet Ram, deposed that on the receipt of telephonic message received from Rikhi Ram on 25.10.2005 that Roshan Lal had expired at PHC Berthin, he along with police party reached at PHC Berthin in government vehicle. He moved an application Ext. PW12/A for the post-mortem of Roshan Lal to Medical Officer, Bilaspur. He obtained post mortem report Ext.PW12/B. 21PW15 Krishan Kumar, deposed that on 28.10.2005, Rikhi Ram produced compromise Ext.PW1/E before the police, which was taken into possession vide seizure memo Ext.PW1/B. Patwari had also carried out demarcation of Khasra No.580 at the spot. Apart from this he did not witness anything. He was declared hostile. In cross-examination conducted by learned Public Prosecutor, he denied the suggestion that he had made statement before the police on 25.10.2005 at about 4-15 P.M. that when he was proceeding to his house from Dinwa Khad, three-four boys namely Ramesh Chand, Vinod Kumar and Hans Raj met him on the way, who were running at a fast speed. He denied that he had also given statement that clothes of Sanjay and Gorakh Singh were stained with blood and they ran away quickly on seeing him. He denied that he had also given statement that clothes of Sanjay and Gorakh Singh were stained with blood and they ran away quickly on seeing him. In cross-examination conducted by the learned counsel for the accused, he admitted that there existed a Nallah in between Ropari and Guga-Mohra. Guga-Mohra was at a distance of 2 kms from Machwan. 22PW16, ASI Ram Dass, deposed that on 25.10.2005, at about 7.25 P.M, a Ruqua, Ext.PW1/A was received at Police Station written by HC Karam Chand, on the basis of which FIR, Ext.PW16/A was registered. He proceeded to PHC Berthin. After spot inspection, he prepared site plan, Ext.PW16/B. He took into possession blood stained earth, sample earth, blood stained shoes of deceased Roshan Lal and Jhablu vide seizure memo Ext.PW1/B. He prepared sketch of Jhablu vide Ext.PW1/C. He took photographs of the spot vide Ext.PA to PP, negatives whereof were Ext.P12 to Ext.P27. He recorded supplementary statement of Rikhi Ram and statements of Kuldeep Singh and Raj Kumar under Section 161 Cr.P.C. On the basis of statement of witnesses, the accused Vinod, Ramesh and Hans Raj were found involved in the alleged offence. In cross-examination, he deposed that he had recorded about five accused in zimini at about 11.00 P.M. and 11.15 P.M.. He inspected the spot during night. He had not shown the place in the site plan Ext.PW16/B from where Rikhi Ram had seen the boys running away. He admitted that he had not shown in the site plan, Ext.PW16/B the spot from where two accused had fled away. He had shown by point C in the site plan Ext.PW16/B the factum of Rikhi Ram having seen the deceased when he arrived at the spot. He admitted that he had not shown the distance in between the place of running away and the place where the deceased was seen in the site plan Ext.PW16/B. He admitted that there is no mention of Sheela Devi in the FIR. The lintel wooden support had blood stains. 23PW17, Rai Singh, deposed that he was posted as SHO, Police Station Sahatalai in the year 2005-06. ASI Ram Dass presented file No.170/05 before him. Thereafter, he along with Constable Pradeep after verifying about the accused proceeded towards the spot. The lintel wooden support had blood stains. 23PW17, Rai Singh, deposed that he was posted as SHO, Police Station Sahatalai in the year 2005-06. ASI Ram Dass presented file No.170/05 before him. Thereafter, he along with Constable Pradeep after verifying about the accused proceeded towards the spot. He visited the spot and conducted inquiry as regards the vehicle in which the accused had come to the spot and recorded statement of the driver of the vehicle. He moved an application Ext.PW 17/A to the Patwari to get prepared the site plan and to know about the ownership. On 28.10.20005, he seized clothes worn by accused Sanjay Kumar and Gorakh Singh vide memo Ext.PW1/G. During investigation, accused Sanjay Kumar and Gorakh Singh made disclosure statements vide Ext.PW6/A and Ext.PW6/B respectively. The accused got demarcated the spot and the Patwari prepared the spot memo Ext.PW5/B as per demarcation. Rikhi Ram also produced papers of compromise Ext.PW1/E, which were seized vide memo Ext.PW1 /D. After investigation of the case, ASI Ram Dass handed over the file to him. He prepared the challan and put up the same in the Court. In cross-examination, he deposed that there was no mention of the clothes worn by the accused in the arrest memos and personal search memos. He had visited the spot on 27.10.2005. 24PW18, Dr. Gian Thakur, proved report Ext.PW 18/A. According to him, human blood was found on Ext.4, blood sample of Roshan Lal, Ext.5a T-shirt, Ext.5b under-wear, Ext.5c shirt, Ext.5d payjama, all clothes of Roshan Lal, Ext.P6 Jhablu, Ext.7 blood stained soil, Ext.9a shirt of Gorakh Singh, Ext.9b pant of Gorakh Singh, Ext. 10a, T-shirt of Sanjay Kumar, Ext. 10b pant of Sanjay Kumar, Ext. 11 shoes of Roshan Lal, but the blood grouping results were found inconclusive. 25PW19, Hari Ram deposed that the police had sealed clothes of both the accused in separate cloth parcels and took into possession vide seizure memo Ext.PW1/G. The police had handed over the seal to him after using the same. In cross- examination, he deposed that he had lost the seal. 26According to PW 1, Rikhi Ram in his examination-in chief, when he was taking tea for Roshan Lal, he heard his cries from a distance of about 30-40 mts. He noticed that accused Sanjay Kumar and Gorakh Singh were beating him with leg and fist blows. Sanjay Kumar was carrying Jhablu in his hand. 26According to PW 1, Rikhi Ram in his examination-in chief, when he was taking tea for Roshan Lal, he heard his cries from a distance of about 30-40 mts. He noticed that accused Sanjay Kumar and Gorakh Singh were beating him with leg and fist blows. Sanjay Kumar was carrying Jhablu in his hand. On seeing him, both ran away from the spot. In cross-examination, he admitted that he saw Roshan Lal lying in the fields for the first time from the distance of about 10-15 mts. According to spot map, Ext.PW16/B, Roshan Lal, was lying at point “C” in the field at a distance about 25 mts. from the house under construction. PW16, Ram Dass, admitted that he had not shown the place in the site plan, Ext.PW16/B, from where Rikhi Ram had seen the accused persons running away. He also admitted that he had not shown in the site plan, Ext.PW16/B from where two accused had run away. He had shown at point “C” in the site plan Ext.PW16/B from where for the first time Rikhi Ram had seen Roshan Lal on the spot. He had not shown the distance in between the place of running away and the place where the deceased was seen in the site plan Ext.PW16/B. It was incumbent upon PW16 Ram Dass while preparing site plan, Ext.PW16/B to point out the place from where Rikhi Ram had seen the accused running away. He should have pointed out the distance between the place of running away and from where the deceased was seen in the site plan, Ext.PW16/B. According to PW 1, he called PW2 Kuldeep Singh and also informed relatives of Roshan Lal. Vehicle was arranged by him. Joginder, Balbir and wife of Roshan Lal were also present on the spot. In cross- examination, he admitted that about 10-20 persons had come to the spot after 10-15 minutes of his arrival on the spot. When he had gone to make telephonic call, about 4-5 persons had already come on the spot. They were from nearby place. About 4-5 persons were residing at a distance of about 10-15 mts. from the spot. He admitted that those 10-15 persons were his neighbours and he knew names of some of them. However, prosecution has not examined these witnesses. They were from nearby place. About 4-5 persons were residing at a distance of about 10-15 mts. from the spot. He admitted that those 10-15 persons were his neighbours and he knew names of some of them. However, prosecution has not examined these witnesses. The prosecution has not even cited Balbir Singh, Joginder Singh, Bhag Singh, his wife, wife of Parkash Chand and their one son, as witnesses, who immediately visited the spot after PW1 Rikhi Ram made telephonic call to PW2 Kuldeep Singh. 27PW1 Rikhi Ram has made statement under Section 154 Cr.P.C. vide PW1/A, on the basis of which FIR, Ext.PW16/A was registered. In his statement made under Section 154 Cr.P.C, he stated that he heard cries coming from the under construction house. He went in that direction. He saw Sanjay Kumar and Gorakh Singh beating Roshan Lal. Sanjay Kumar was carrying Jhablu. They ran away from the spot. Roshan Lal was lying on the spot. He was groaning. Blood was oozing from his injuries. He told him that Sanjay Kumar and Gorakh Singh had beaten him with Jhablu, leg and fist blows. He had seen clothes of Sanjay Kumar and Gorakh Singh stained with blood. This statement was recorded on 25.10.2005. In his statement, Ext.PW16/C recorded under Section 161 Cr.P.C. on the same day, i.e. 25.10.2005, he stated that at the time of making statement under Section 154 Cr.P.C., he had forgotten to disclose he had seen three boys, namely, Ramesh Chand, Vinod Kumar and Hans Raj running from a distance of about 100 yards. When PW1 Rikhi Ram stepped into the witness box, he only named Sanjay Kumar and Gorakh Singh, who according to him, gave beatings to Roshan Lal. In examination-in-chief, he categorically testified that he did not notice Ramesh Chand, Vinod and Hans Raj present at the place of occurrence. He was declared hostile and cross-examined by learned Public Prosecutor. He was confronted with his statement made under Section 161 Cr.P.C. where he had mentioned that he had noticed Ramesh Chand, Vinod and Hans Raj running from the spot. He denied suggestion that he had told that by mistake he had not mentioned names of Ramesh Chand, Vinod and Hans Raj as accused. Thus, statement of PW1 Rikhi Ram is not reliable. He denied suggestion that he had told that by mistake he had not mentioned names of Ramesh Chand, Vinod and Hans Raj as accused. Thus, statement of PW1 Rikhi Ram is not reliable. He cannot be termed as an eye witness to the incident in view of variance in his statements recorded under Section 154 Cr.P.C, Ext.PW1/A, under Section 161 Cr.P.C., Ext.PW1/C and while appearing in the court as PW1 coupled with the cross- examination of PW16 Ram Dass. 28.According to PW4, Vikram Singh, one of the accused persons, namely, Ramesh Chand came to him and hired his taxi from Dhabiri to Ropari. He was paid Rs.70/-. Firstly, accused Ramesh Chand boarded his taxi. After covering distance of about 1/2 km, remaining accused also boarded his taxi. They travelled in the taxi for a distance of about 2-3 kms and got down at Ropari. The accused persons were intoxicated. Thus, according to him, accused were five in number, who travelled in his taxi. PW2, Kuldeep Singh, has testified that on 25.10.2005, he was informed by PW1 Rikhi Ram telephonically that Sanjay and Gorakh Ram had given beatings to Roshan Lal. He received the telephonic call at 4.00 P.M. He reached the spot within 10-15 minutes. He was told the names of only two accused and none else. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he denied the suggestion that Rikhi Ram had informed him that Sanjay and Gorakh Singh were beating Roshan Lal and Ramesh, Vinod and Hans Raj were abusing him. Thus, there is also variance in statements of PW1 Rikhi Ram, PW2 Kuldeep and PW4 Vikram Singh about the number of accused persons on the spot. 29.Now, the Court will advert to the evidence whether the deceased Roshan Lal had made any oral dying declaration naming Sanjay and Gorakh as accused or not. 30. PW1 Rikhi Ram deposed that Roshan Lal had told him that he was given beatings by Sanjay Kumar and Gorakh Singh. He had taken him to Hospital. The doctor had declared him dead on arrival. PW2 Kuldeep Singh was told by PW1 Rikhi Ram that Roshan Lal was given beatings by Sanjay Kumar and Gorakh Singh. 30. PW1 Rikhi Ram deposed that Roshan Lal had told him that he was given beatings by Sanjay Kumar and Gorakh Singh. He had taken him to Hospital. The doctor had declared him dead on arrival. PW2 Kuldeep Singh was told by PW1 Rikhi Ram that Roshan Lal was given beatings by Sanjay Kumar and Gorakh Singh. According to PW1 Rikhi Ram, he had been specifically told by Roshan Lal, who gave him beatings, but PW2 Kuldeep Singh deposed that Roshan Lal did not name Sanjay Kumar and Gorakh Singh with his tongue. When he asked him that had he been given beatings by Sanjay Kumar and Gorakh Singh, he answered in affirmative since he could not speak. PW3, Sheela Devi is wife of deceased Roshan Lal. According to her, Roshan Lal told her that he was given beatings by Sanjay Kumar and Gorakh Singh with iron Jhablu, supports, leg and fist blows. Thereafter, she became unconscious and did not know what happened. Her husband had also told her that there were three other persons. Names of three persons were disclosed by her husband as Vinod Kumar, Hans Raj and Ramesh. Once she became unconscious and did not know what happened, there was no occasion for her husband to disclose names of three other persons, namely, Vinod Kumar, Ramesh Kumar and Hans Raj. According to her, she heard hue and cry from the house of PW1 Rikhi Ram and reached there. According to her, Guga-Mohra is 1 km away from Ropari. PW15, Krishan Kumar also deposed that Guga­Mohra was at a distance of 2 kms from Machwan-Ropari. It is not believable that she could hear hue and cry at a distance of one km from the place of incident. She also deposed that a number of persons were present on the spot. Statement of PW3 Sheela Devi does not inspire confidence and is not reliable and trustworthy. 31.PW12, Dr. G.D. Jasal, had issued post mortem report Ext.PW12/B. According to him, deceased Roshan Lal died due to head injury, haemorrhagic shock and neurogenic shock. There was big wound on right side of frontal one 2x2 inch deep upto brain and big wound on left side of frontal bone about 2x 3 inches of the deceased. Brain matter was visible. There was also a big wound on back of head about 2x2 inches, deep upto brain and bleeding was present. There was big wound on right side of frontal one 2x2 inch deep upto brain and big wound on left side of frontal bone about 2x 3 inches of the deceased. Brain matter was visible. There was also a big wound on back of head about 2x2 inches, deep upto brain and bleeding was present. There was excessive bleeding from all wounds, ear and nostril and hair were full of clotted blood upto chest. There were multiple fractures of both side ribs. 5 ribs of right side and 4 ribs of left side were fractured. There was fracture of right femur head and neck. There were multiple fractures of skull bone. Base of skull was fractured. In cross-examination, he admitted the suggestion that injuries No. 1, 2, 3 and 4 were deep upto brain. He had opened the skull. The skull was fractured as a result of which injury was upto its inner side. The fracture comprised of a gap through which brain was visible. He also admitted that when he opened the skull and brain, cavity was full of blood, which was collected and oozed out from three injuries. The death was possible instantaneously in the case. He also admitted that after infliction of three injuries, the patient could have become unconscious immediately. It is not believable that a person, with so many injuries including fracture of the skull and neck, when brain matter was visible, would be in a position to speak. Statement of PW12 Dr. G.D. Jasal affirms statement of PW2 Kuldeep Singh that the deceased Roshan Lal did not name Sanjay Kumar and Gorakh Singh as he could not speak. When he asked Roshan Lal whether Sanjay Kumar and Gorakh Singh gave beatings to him, he answered in affirmative. The oral dying declaration was required to be stated verbatim. It must inspire confidence and should appeal to the court. In the instant case, statements of PW1 Rikhi Ram, PW2 Kuldeep Singh and PW3 Sheela Devi do not inspire confidence and it also casts doubt on the oral dying declaration, if any made by Roshan Lal, when he had received so many injuries, as noticed hereinabove. Moreover, PW12 Dr. G.D.Jasal, ought to have given specific time between death and injury in the post mortem report, instead of giving period of one hour, that too based upon estimate as well as on the basis of inquest report. Moreover, PW12 Dr. G.D.Jasal, ought to have given specific time between death and injury in the post mortem report, instead of giving period of one hour, that too based upon estimate as well as on the basis of inquest report. There is difference between oral dying declaration and written dying declaration. This distinction has to be borne in mind by the Court. It is difficult to determine time of death in a computerized and mathematical manner, but in the instant case, it is difficult to believe that with the magnitude of injuries the deceased Roshan Lal suffered, he could have survived for one hour. The post-mortem report is not substantive evidence. 32 Their Lordships of Hon’ble Supreme Court in Ram Nath Madhoprasad and others vs. State of Madhya Pradesh, AIR 1953 SC 420 have held that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. Their Lordships have held as under:- “12. It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without, further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered. P. W. 3, Narbada Prasad, and P. W. 7, Narayandas, gave evidence as to what they heard the deceased exclaiming soon after he was shot. Narbada Prasad stated as follows: “I rose from my bed and peeped outside from the window. I saw a man sitting on the road in front of Narayandas Soni’s house and then he lay down on the road and uttered something. He uttered Pratap, Purshotham and he uttered one more name which I could not catch and Mamaji ‘Ki bittia chud gai mar dala bachao’ . . “. I saw a man sitting on the road in front of Narayandas Soni’s house and then he lay down on the road and uttered something. He uttered Pratap, Purshotham and he uttered one more name which I could not catch and Mamaji ‘Ki bittia chud gai mar dala bachao’ . . “. The exclamation deposed to does not affix blame on any particular individual for the firing and does not amount to a statement that he had seen anyone firing at him. It may well be that having been suddenly shot at that hour of the night, Sunder’s first reaction was that nobody else but his arch enemies could have shot him and he cursed them and exclaimed that they had been successful in taking their revenge.” 33Their Lordships of Hon’ble Supreme Court in Kake Singh alias Surendra Singh vs. State of Madhya Pradesh, AIR 1982 Supreme Court 1021 have held that in a case where good part of brain was burnt, dying declaration could not be relied upon and the accused was acquitted. Their Lordships have held as under:- “2. The solitary evidence against the appellant consists of the dying declaration alleged to have been made by the deceased Tulsi Baba before Head Constable D. N. Verma (P. W. 8). We have gone through the dying declaration and we find that the dying declaration presents suspicious features. In the first place, Tulsi Baba had himself lodged a complaint before the police against the accused that there was some dispute about the house which Kake wanted Tulsi Baba to vacate and had given. threats that be would come to serious harm if he does not vacate the house. Despite this threat, according to the dying declaration, the deceased readily agreed to take a round in the jeep along with Kake and two others. Indeed, in view of the enmity it is hard to believe that the deceased would trust the accused and go with him at a late part of the night and invite trouble for himself. Another important circumstance that throws doubt on the dying declaration is that Tulsi Baba was alleged to have been missing from Jan. 30, 1975, as would appear from the report made before the Police station by P. W. 3. Another important circumstance that throws doubt on the dying declaration is that Tulsi Baba was alleged to have been missing from Jan. 30, 1975, as would appear from the report made before the Police station by P. W. 3. The doctor who held the autopsy of the deceased in his statement has not categorically stated that at the time when the deceased was burnt he was conscious or could give any coherent statement. The deceased was burnt and a good part of the brain was also burnt land therefore the possibility is that he must have become unconscious. This is intrinsically supported by another important factor. The doctor found not only burns on the body of the deceased but also other injuries which could have been inflicted on him by lathis which had caused lacerations and haematoma. In his statement the deceased makes no mention at all of any such injuries although one of the injuries caused to him resulted in fracture of sternum. There is no reference at all to the manner in which deceased could have got the fracture of the sternum. The cumulative effect of these circumstances therefore leads to the irresistible conclusion that the deceased was unconscious and never made any such statement. Once the dying declaration is disbelieved, then there remains no legal evidence on the basis of which the appellant could be convicted.” 34Their Lordships of Hon’ble Supreme Court in Paniben vs. State of Gujarat (1992) 2 Supreme Court Cases 474 have held culled out following principles governing dying declaration:- “18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring-corroboration is merely a rule of prudence. The Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of U.P. (1976) 2 SCR 764 ) ( AIR 1976 SC 2199 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416 ; Ramavati Devi v. State of Bihar, AIR 1983 SC 164 ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264 : ( AIR 1974 SC 332 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P., AIR 1982 SC 1021 ). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P., 1981 SCC (Crl) 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617 ). (viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505 ). (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617 ). (viii) Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505 ). (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State, AIR 1988 SC 912 ). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, AIR 1989 SC 1519 ). 19. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declarations made by the deceased Bai Kanta. This Court in Mohan Lal v. State of Maharashtra, AIR 1982 SC 839 held: “where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.” Of course, if the plurality of dying declarations could be held to be trust-worthy and reliable, they have to be accepted.” 35Their Lordships of Hon’ble Supreme Court in Jagdish Prasad and others vs. State of M.P., AIR 1994 Supreme Court 1251 have held that in a case where the witness was helping acquittal of one of the accused by omitting his name in his evidence and testimony of witness was clouded with grave suspicion and discrepancy in material particulars, recording conviction on his testimony was unsafe. Their Lordships have held as under:- “7. Now, let us scrutinize the testimony of P.W. 1 in the light of the observation made by this court in the above decision. It is seen from the evidence that P.W. 1 was an arch enemy of the fifth respondent as the former had. assaulted the fifth accused on a prior occasion. Probably this must have been the proximate motive for the occurrence in question. The trial court, in fact, took note of this and made the following observations :- “The description given by the witness (PW. assaulted the fifth accused on a prior occasion. Probably this must have been the proximate motive for the occurrence in question. The trial court, in fact, took note of this and made the following observations :- “The description given by the witness (PW. 1) regarding the part played by each of the five accused in hitting the deceased also does not seem to be correct, because the object of assault was in fact against this witness because of the previous enmity and that he was first aimed at by accused Bawan, but escaped the assault and, therefore, in the natural course of conduct, the witness ought to have left the spot at the next moment to save himself.” It is far-fetched to visualise that P.W. 1 could have witnessed the entire occurrence viz., the actual assault perpetrate on the deceased when he was fleeing for his life and thereafter hid himself inside a room of the hospital till 5 a.m. Though P.W. 1 claims to have known all the six accused persons it appears he has not menitioned the name of the accused Pangoo (acquitted) in his first report. Surprisingly, before the trial court P.W. 1 has mentioned only the names of five accused and specifically and deliberately omitted the name of the first accused in his evidence. The High Court has commented upon the conduct of P.W. 1 in its judgment stating “he deliberately tried to help the acquitted accused Mishrilal”. In fact, the trial court taking a very serious view of the conduct of P.W. I had gone to the extent o conducting a preliminary enquiry under S. 340 of the Code of Criminal Procedure for launching a prosecution against P.W. 1 for perjury. 8. The evidence of P.W. 1 is found to be discrepant in its material particulars by the High Court. We, after going through the evidence, hold that it is quite unsafe to act upon the evidence of P.W. 1 whose testimony is clouded with grave suspicion and serious doubts. For all the aforementioned reasons we are constrained to set aside the judgment of the High Court confirming the judgment of the Trial Court. In the result, the conviction of all the appellants (accused 2-5) u/ S. 302, IPC read with S. 34, IPC and the sentence of imprisonment for life imposed therefore are set aside and the appellants are acquitted. In the result, the conviction of all the appellants (accused 2-5) u/ S. 302, IPC read with S. 34, IPC and the sentence of imprisonment for life imposed therefore are set aside and the appellants are acquitted. Their bail bonds are cancelled. The appeals are thus allowed.” 36Learned Division Bench of Patna High Court in The State etc. vs. Hari Narayan Mahto and others, 2000 Cri.L.J. 5009 has held that where the declarant stated to have suffered injuries which severally damaged her spinal column of neck, larynx, trachea and oesophages, it is not possible for injured to speak after assault and the dying declaration could not be relied upon. The Division Bench has held as under:- “27. The evidence of the witnesses is to the effect that Gayatri was alive when they reached the house of Shankar. They have described her variously as writing in pain, screaming and shouting. While doing so, she was naming Hari Narain as her assailant. A reading of the deposition of these witnesses gives the impression that Gayatri was in a position to talk and she was talking to the witnesses as and when they came, mentioning the name of Hari Narain as her assailant. In this context, it would be important to remember that according to P.W. 5, the accused stayed in his house for about 20 minutes and only after half an hour after their departure did the witnesses reach his house. The witnesses were, therefore, deposing to the facts noticed by them about 50 minutes after the occurrence. It appears to me that the witnesses are not speaking the truth when they say that Gayatri was shouting or screaming and naming Hari Narain as her assailant. Having regard to medical evidence on record, I am inclined to accept the opinion of the doctor P.W. 6 that Gayatri Devi may have met instanteneous death after suffering the injuries described by him. In any event, even if she were alive, she would not be in a position to make a dying declaration in the manner alleged before the witnesses. The learned trial Court has tried to explain the opinion of the doctor by reference to Modi’s jurisprudence and has reached the conclusion that Gayatri must have been in a position to whisper. In any event, even if she were alive, she would not be in a position to make a dying declaration in the manner alleged before the witnesses. The learned trial Court has tried to explain the opinion of the doctor by reference to Modi’s jurisprudence and has reached the conclusion that Gayatri must have been in a position to whisper. This however, is not the evidence of the witnesses because their evidence is to the effect that Gayatri was shouting and screaming when they reached the house of Shankar. Moreover the trial Court has not given due importance to the extensive injuries found by the doctor. From the evidence of P.W. 6 as also from the post-mortem report prepared by him, it appears that the spinal column of the neck, larynx, trachea and oesophagus were severely damaged. The spinal chord was severely contused. There was a fraction of cervical vertebra. A bullet was found stuck which could not be extracted without severing the neck. These injuries, to my mind, may have resulted in instantaneous death. However, even if it is assumed that Gayatri survived for some time, it is impossible to imagine that she could have made a dying declaration in the manner alleged by the witnesses. The doctor who deposed as a witness had actually seen the injuries caused to the neck of the deceased and was, therefore, in a better position to give an opinion as to whether a person having suffered such injuries could speak at all. His opinion is to the effect that a person suffering such injuries could die instantaneously and in any event could not speak. I am, therefore, of the view that there was no good reason to discard the opinion of the doctor having regard to the nature of injuries found by him. The evidence on record supports the view that even if Gayatri was alive for some time, she could not have made a dying declaration. P.W. 3 has gone to the extent of saying that when Gayatri was brought to the hospital at Chandi, she was alive and was asking for water. Unfortunately, the doctor who attended her at Chandi hospital, has not been examined. 28. P.W. 3 has gone to the extent of saying that when Gayatri was brought to the hospital at Chandi, she was alive and was asking for water. Unfortunately, the doctor who attended her at Chandi hospital, has not been examined. 28. From the facts noticed above, I have no doubt that the witnesses were not speaking the truth when they stated that Gayatri was shouting and screaming when they reached the place of occurrence, and that she had named Hari Narain as her assailant. Having regard to the nature of injuries caused to her neck severely damaging the spinal column of the neck, larynx, trachea and oesophagus, and severely contusing the spinal chord, together with fracture of the cervical vertebra, she could not have spoken a word after suffering these injuries. She was a child 14 years of age, and it appears highly improbable that with such injuries, she could name her assailant before the witnesses. The medical evidence on record also accords with the conclusion reached by me.” 37Their Lordships of Hon’ble Supreme Court in Arvind Singh vs. State of Bihar, (2001) 6 Supreme Court Cases 407 have held that in dying declaration, corroboration is not necessary, but expedient. Care and caution must be exercise in accepting a dying declaration as trustworthy evidence. Their Lordships have held as under:- “17. Be it noted that the dying declaration herein has not been effected before any Doctor or any independent witness but to the mother who is said to have arrived at the place only in the morning the mother admittedly is an interested witness; though that by itself would not discredit the evidence tendered in Court but the fact remains the Doctor’s evidence considering the nature of the burn posed a considerable doubt as to whether such a statement could be made half an hour before the death of the accused. It is not that the statement of the unfortunate girl was otherwise not clear or there was existing some doubt as to the exact words on the contrary the definite evidence tendered is that there is clear unequivocal statement from the daughter of the family that the conjoint efforts of putting kerosene thereafter which lighted match stick has resulted the burn injury. The severity of the burn injury and its impact on the body speaks volume by reason of the death of the deceased. The severity of the burn injury and its impact on the body speaks volume by reason of the death of the deceased. It is the reliance on such a dying declaration by the High Court shall thus have to be scrutinised with certain degree of caution. 18. Dying declaration in the instant matter thus we must confess raised certain amount of eyebrows and Mr. Verma also with his usual eloquence did put a strong protest in regard thereto. The evidence of this declaration depicts that just before a few minutes of her death, the deceased would make a declaration quietly to the mother naming therein all the three relations along with the husband who poured kerosene to burn her alive. This is not acceptable, moreso having regard to the declaration being made to the mother only. In any event, is it conceivable that the husband along with the father-in- law, mother-in-law, brother-in-law would start pouring kerosene together on to the girl - as if each was prepared with a can of kerosene to pour simultaneously - This not only would lead to an absurdity but reliance on such a vague statement would be opposed to the basic tenets of law. Further it is in evidence that the deceased had an extensive burn including her mouth, nose and lips - if any credence is to be allowed to the same, then and in that event, the evidence of the mother about the confession stands belied by itself. Significantly, the doctor’s evidence as is available on record would also go a long way in the unacceptability of the evidence of the mother as regards confession. In no uncertain terms the doctor, P.W. 8 stated that the death may take place at once and within ten seconds by reason of the extensive nature of the burn and the deceased cannot have survived beyond 10 minutes. Another redeeming feature that the declaration of the deceased was made only to the mother but before the arrival of the mother, the incident was made known to the police authorities and, in fact, the police was present when the mother and the brother arrived. It is highly unlikely that the police will not make any attempt to have a statement by the deceased but if it was otherwise possible immediately on its arrival rather than wait for the mother to arrive. It is highly unlikely that the police will not make any attempt to have a statement by the deceased but if it was otherwise possible immediately on its arrival rather than wait for the mother to arrive. Two recent decisions of this Court may be of some assistance - the first in point of time is the decision of a three- Judge Bench of this Court in the case of Paparambaka Rosamma v. State of A.P. (1999) 7 SCC 695 : (1999 AIR SCW 3440 : AIR 1999 SC 3455 : 1999 Cri UJ 4321) wherein this Court in no uncertain terms observed that there ought not to be any hesitancy in the mind of the Court in regard to the truthfulness and voluntary nature of disclosure of the incident. In Rosamma’s case one Dr. K. Vishnupriya Devi has stated in the Court that the injured was conscious but she has not deposed that the injured was in a fit state of mind to make a statement. It did come on record that the girl has sustained 90% burn injuries and it is in that perspective, this Court held that “in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration” - the medical certification, therefore, was felt to be a primary element in the matter of dying declaration - unfortunately we do not have any certification of whatsoever nature, it is only the uncorroborated testimony of the mother to whom the deceased was supposed to have made the declaration as noticed above. In paragraph 9 of the report in Rosamma’s case (1999 AIR SCW 3440 : AIR 1999 SC 3455 : 1999 Cri UJ 4321) (supra) however, this Court had the following to state : “9. It is true that the medical officer Dr. K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified “patient is conscious while recording the statement.” It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P. Koteswara Rao (P.W. 9) who performed the post-mortem stated that the injured had sustained 90% burn injuries. K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified “patient is conscious while recording the statement.” It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P. Koteswara Rao (P.W. 9) who performed the post-mortem stated that the injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration as being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K. Vishnupriya Devi (P.W. 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the statement.” In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-14) as true and genuine and as made when the injured was in a fit state of mind. From the judgments of the Courts below, it appears that this aspect was not kept in mind and resultantly they erred in accepting the said dying declaration (Ex. P-14) as true, genuine and as made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Courts below.” 20. Dying declarations shall have to be dealt with care and caution and corroboration thereof though not essential as such, but is otherwise expedient to have the same in order to strengthen the evidentiary value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. In our view question of the dying declaration to the mother is not worth acceptance and the High Court thus clearly fell into an error in such an acceptance. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence. In our view question of the dying declaration to the mother is not worth acceptance and the High Court thus clearly fell into an error in such an acceptance. Significantly, the High Court has set aside the conviction and sentence under S. 304-B read with Ss. 34 and 120-B of the Indian penal Code so far as the father-in-law, the mother-in-law and the brother-in-law are concerned though maintained the conviction under S. 498-A. So far as the husband is concerned the High Court converted the charge from Ss. 304-B to 302 on the ground that the only motive of the murder could be attributed to the husband “who must be interested in committing such offence so that he can perform another marriage” - This is rather a far-fetched assumption without any cogent evidence available on record. Needless to record here that excepting one of the very keenly interested witness the episode of the applicant being married again does not come from any other witness and the factum of marriage also though stated but devoid of any particulars even as regards the name, the date of marriage etc. It is on record that on arrival of the mother and the brother of the deceased, they found an assembly of large number of mahalla people - but none of them were called to even have a corroboration to this part of the evidence of the accused marrying after the death of the deceased. No independent witness was thought of, though the factum of marriage could have been corroborated by an outside agency. The FIR and the other oral evidence available if read together and full credence is attributed to the same but that itself does not and cannot permit the High Court to come to such an assumption. The assumption is faulty and is wholly devoid of any substance. As a matter of fact no special role was even ascribed to the appellant herein for apart leading any evidence thereon. Presumptions and assumptions are not available in criminal jurisprudence and on the wake of the aforesaid we are unable to lend concurrence to the assumptions of the High Court as recorded herein before in this judgment. As a matter of fact no special role was even ascribed to the appellant herein for apart leading any evidence thereon. Presumptions and assumptions are not available in criminal jurisprudence and on the wake of the aforesaid we are unable to lend concurrence to the assumptions of the High Court as recorded herein before in this judgment. Significantly, even the dying declaration whatever it is worth, has implicated all the four accused in the manner similar. There is no additional piece of evidence implicating the husband which would permit the High Court to convert the charge of Ss. 304-B to 302. True punishment of life imprisonment is available under S. 304-B but that is the maximum available under the section and for S. 302 the same is the minimum available under the section. Though discretion to a further award minimum cannot be taken away from the Court. Section 302 is a much more heinous offence and unfortunately there is no evidence of such heinous activities attributable to the husband. The factum of the husband, if interested in committing such offence so that he can perform another marriage has not been put to the witnesses and in the absence of which, assumption to that effect, cannot be said to be an acceptable assumption since without any evidentiary support. The assumption by itself in our view is untenable.” 38Their Lordships of Hon’ble Supreme Court in Laxman vs. State of Maharashtra, (2002) 6 Supreme Court Cases 710 have held that the Court must decide that the declarant was in a fit state of mind to make the declaration. Their Lordships have held as under:- “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate,.if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such. statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 5. The court also in the aforesaid case relied upon the decision of this Court in Harjeet Kaurv. State of Punjab JT 1999 (5) SC 317: 1999 (6) SCC 545 wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma & Ors. v. State of Andhra Pradesh JT 1999 (6) SC 585: 1999 (7) SCC 695 to the effect that “... in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration” has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma & Ors. v. State of Andhra Pradesh JT 1999 (6) SC 585; 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid’down by this Court in Koli Chunilal Savji & Another v. State of Gujarat JT 1999 (7) SC 568, 1999 (9) SCC 562 case.” 39. Their Lordships of Hon’ble Supreme Court in Sabbita Satyavathi vs. Bandala Srinivasarao and others, 2004 Cri.L.J. 3337 have held that where a witness who lodged FIR mentioned about dying declaration made to him by deceased which implicated only three persons, however, in course of deposition, he sought to implicate four other persons, oral dying declaration alleged to have been made to said witness is not reliable. That apart, in case deceased having sustained injuries on his heart and lungs, could not be in state to give two dying declarations. Their Lordships have held as under:- “14. The only other witness who claimed to have witnessed the occurrence is PW-4. We have earlier noticed the fact that after witnessing the occurrence he had informed PW-1 about what he had seen and thereafter he had proceeded ahead. In cross-examination, this witness admitted that he did not inform anyone in village Mangaliguntapalem about the occurrence nor did he inform any of the relatives of the deceased. He could not identify the accused. He did not know A-1, A-2 and A­6. He could not say whether these accused were present at the time of occurrence. 16. The trial Court having noticed the evidence of the eye-witnesses has rightly not attached much importance to the evidence of PW-3 because this witness admitted that he neither went to the police station nor did he inform anyone about the occurrence for about two days. He had named all six accused as the assailants, which does not appear to be true. He had named all six accused as the assailants, which does not appear to be true. So far as PW-4 is concerned, the trial Court accepted his evidence to the effect that he had, after witnessing the occurrence reported the matter immediately to PW-1, who returned to the place of occurrence and thereafter took the injured to the Narsapur Hospital. Even assuming that this witness may have seen the occurrence, his evidence does not implicate the accused because he admitted in his deposition that he did not identify the assailants nor did he know A-1, A-2 and A-6. He also could not say whether these accused were present at the time of occurrence. The other thing to be noticed in the evidence of this witness is that according to him, he had informed PW-1 that 5 or 6 persons armed with rods, sticks and knives were assaulting the deceased which also appears to be untrue. This witness has, therefore, implicated 5 or 6 persons whom he could neither name nor identify. We, therefore, do not consider it safe to place reliance upon these two witnesses, namely PWs-3 and 4. 19. Having gone through the evidence on record, we are satisfied that PW-1 cannot be categorized as a fully reliable witness. In the F.I.R. lodged by him soon after the death of the deceased he had mentioned about the dying declaration made to him by the deceased which implicated only A-1 and A-2 apart from another unidentified person. However, in the course of deposition, he sought to implicate four other persons. He was obviously not speaking the truth because we find from the second dying declaration recorded by the Medical Officer that to her also the deceased is alleged to have reported that he was assaulted by A-1, A-2 and another unidentified person. It will, therefore, be dangerous to rely upon the oral dying declaration alleged to have been made by the deceased to PW-1. We shall, therefore, keep that dying declaration out of consideration. 21. There is yet another reason which casts a serious suspicion on the second dying declaration. According to the Medical Officer, PW-13, the injured was brought to the hospital at about 8.45 p.m. and was alive for about 1- 20 minutes thereafter. We shall, therefore, keep that dying declaration out of consideration. 21. There is yet another reason which casts a serious suspicion on the second dying declaration. According to the Medical Officer, PW-13, the injured was brought to the hospital at about 8.45 p.m. and was alive for about 1- 20 minutes thereafter. She started the treatment of the injured in right earnest and 5 or 6 minutes thereafter she recorded the statement of the deceased which took about 10 to 15 minutes. According to her, at 9.15 p.m. the patient started gasping for breath and became unconscious. The picture that we get is that as soon as the Medical Officer completed recording his statement the injured became unconscious. He is said to have ultimately died at about 10.10 p.m. The respondents have contended that the presence of large number of political personalities at the hospital, having regard to the fact that the deceased was also a person well-known in the locality makes it doubtful whether the statement was correctly recorded or recorded at all. In fact, it is contended that having regard to the injuries sustained by the deceased, he would not have been in a position to make any statement even if he was alive. He must have become unconscious soon after suffering the injuries and there was no question of his either making a statement before PW-1 or before the Medical Officer. There is substance in the argument advanced on behalf of A-1 and A-2. PW-13 admitted that death of the deceased was due to injuries to vital organs such as heart and left lung. We find from the postmortem report that the left lung had suffered incised injuries at two places. Apart from the injuries to the left lung, it was also found that one of the injuries caused on the left side of the chest had pierced the body to such an extent that the ventricle of the heart also suffered an incised injury over the anterior aspect. It appears from the postmortem report that the same stab injury caused damage to the left lung as also to the heart. This only indicates that the stab injuries were caused to the deceased with such great force that they not only fractured one of his ribs but also entered the thoracic cavity and injured the left lung and the ventricle of the heart. This only indicates that the stab injuries were caused to the deceased with such great force that they not only fractured one of his ribs but also entered the thoracic cavity and injured the left lung and the ventricle of the heart. With such injuries, we entertain serious doubts as to whether the injured could have given two dying declarations as alleged by the prosecution, one at about 7.00 p.m. and the other at about 8.45-9.00 p.m. This is also supported by the medical evidence on record inasmuch as PW-13 has herself stated that if such an injury is caused to the heart, the injured would become unconscious immediately. It, therefore, appears to us that after suffering the injuries the deceased must have become unconscious immediately. There was, therefore, no question of his making a dying declaration to anyone thereafter. We also notice the fact that according to PW-1 after making a dying declaration, the accused walked a few steps with him with his help till such time they got a rickshaw which carried them to the hospital. According to the Medical Officer, PW-13, a person with such injuries could not walk at all even with the help of someone else. Having regard to the severe nature of injuries and the vital organs involved which suffered incised injuries such as heart and the lungs, we entertain a serious doubt about the recording of the second dying declaration by the Medical Officer almost two hours after the occurrence.” 40Their Lordships of Hon’ble Supreme Court in Arun Bhanudas Pawar vs. State of Maharashtra, (2008) 11 Supreme Court Cases 232 have held that oral dying declaration must be considered with care and caution. Deceased’s mother being an interested witness, her testimony needs corroboration from independent witnesses. Their Lordships have held as under:- “24. PW Sunderbai is an interested witness and her testimony without corroboration from independent witness including the medical officer cannot be blindly accepted to prove that deceased Raju had regained consciousness when she met him in the hospital and named the appellant - Arun to be an assailant along with his two other associates who inflicted knife injuries on the body of the deceased. Her testimony cannot be accepted for another reason that she has not stated in her statement recorded by the police under Section 161 of the Code of Criminal Procedure that before his death injured Raju named the appellant as an assailant and it was for the first time in the Court that she made the said statement. 25 It is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination. In the present case, admittedly, the alleged dying declaration had not been made to any doctor or to any independent witness, but only to the mother who, as stated above, arrived at the hospital only on the following day at about 3.30 p.m. when Dr. Nitin had already operated Raju for his injuries and thereafter he was lying on the bed in unconscious condition with oxygen tubes having been inserted in his nostrils. The prosecution has not brought on record any medical certification to prove that after operation the deceased was in a fit condition to make the declaration before his mother. The evidence of alleged oral dying declaration by the deceased Raju to his mother P.W.- Sunderbai relied upon by the prosecution and accepted by the trial court and the High Court, in our view, was not cogent, satisfactory and convincing to hold that deceased Raju before his death was in a fit condition to make oral declaration to his mother.” 41Their Lordships of Hon’ble Supreme Court in Atbir vs. Government of NCT of Delhi, (2010) 9 SCC 1 have summarized the following tests, which are required to be taken while recording the dying declaration including mental condition of the maker, alertness of his/her mind and memory, evidentiary value etc.: - “(A) Dying Declaration 14. It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account. 15) In Munnu Raja and Another vs. The State of Madhya Pradesh, (1976) 3 SCC 104 , this Court held:- “It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated....; It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged. 16) In Paras Yadav and Ors. vs. State of Bihar, (1999) 2 SCC 126 , this Court held that lapse on the part of the Investigation Officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement. 17) The effect of dying declaration not recorded by the Magistrate was considered and reiterated in Balbir Singh & Anr. Vs. State of Punjab, (2006) 12 SCC 283 . 11 Paragraph 23 of the said judgment is relevant which reads as under: “23. However, in State of Karnataka v. Shariff, (2003) 2 SCC 473 , this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. Vs. State of Punjab, (2006) 12 SCC 283 . 11 Paragraph 23 of the said judgment is relevant which reads as under: “23. However, in State of Karnataka v. Shariff, (2003) 2 SCC 473 , this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 , wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra, (2002) 6 SCC 710 ).” It is clear that merely because the dying declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the whole prosecution case. It also clarified that where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. This Court further held that the statement of the injured, in event of her death may also be treated as FIR. 12) 18. In State of Rajasthan vs. Wakteng, (2007) 14 SCC 550 , the view in Balbir Singh’s case(supra) has been reiterated. The following conclusions are relevant which read as under: “14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity. 15. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant 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 is sufficient for the purpose of conviction” 19) In Bijoy Das vs. State of West Bengal, (2008) 4 SCC 511 , this Court after quoting various earlier decisions, reiterated the same position. 20) In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N., (2005) 9 SCC 113 , the following discussion and the ultimate conclusion are relevant which read as under: “14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence” 21) The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474 . 22) The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court. (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it. 42Their Lordships of Hon’ble Supreme Court in Waikhom Yaima Singh vs. State of Manipur (2011) 13 Supreme Court Cases 125 have held that a wholly reliable, voluntary and truthful dying declaration can be the sole basis for conviction. Oral declaration is a weak kind of evidence. If exacts words uttered by deceased are not available and they differ from witness to witness, dying declaration cannot be relied upon. Their Lordships have held as under:- “20. There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW-12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement.” 43Their Lordships of Hon’ble Supreme Court in Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012) 4 Supreme Court Cases 327 have discussed the case law on dying declaration. Their Lordships have further discussed admissibility of evidence of hostile witness. Their Lordships have further discussed admissibility of evidence of hostile witness. Their Lordships have held that the court will always have to take very cautious decision while referring to the statements of such witnesses who turn hostile or go back from their earlier statement recorded, particularly, under Section 164 Cr.P.C.. What value should be attached and how much reliance can be placed on such statement is a matter to be examined by the courts with reference to the facts of a given case. Their Lordships have held as under:- “22. The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle that Section 32 of the Indian Evidence Act, 1872 (for short `the Act’) is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a `dying declaration’. 23. The ‘dying declaration’ essentially means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. The admissibility of the dying declaration is based on the principle that the sense of impending death produces in a man’s mind, the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon the consideration that the declaration was made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to file a false suit is silenced in the mind and the person deposing is induced by the most powerful considerations to speak the truth. 24. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. 25. 24. Once the Court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. 25. There is a clear distinction between the principles governing the evaluation of a dying declaration under the English law and the Indian law. Under the English law, credence and relevancy of a dying declaration is only when the person making such a statement is in hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declaration should have been made when in the actual danger of death and that the declarant should have had a full apprehension that his death would ensue. However, under the Indian law, the dying declaration is relevant, whether the person who makes it was or was not under expectation of death at the time of such declaration. The dying declaration is admissible not only in the case of homicide but also in civil suits. The admissibility of a dying declaration rests upon the principle of nemo meritorious praesumuntur mentiri (a man will not meet his maker with a lie in his mouth). 27. Another consideration that may weigh with the Court, of course with reference to the facts of a given case, is whether the dying declaration has been able to bring a confidence thereupon or not, is it trust-worthy or is merely an attempt to cover up the latches of investigation. It must allure the satisfaction of the Court that reliance ought to be placed thereon rather than distrust. 28. In regard to the above stated principles, we may refer to the judgments of this Court in the cases of Ravikumar @ Kutti Ravi v. State of Tamil Nadu (2006) 9 SCC 240 , Vikas and Others v. State of Maharashtra (2008) 2 SCC 516 , Kishan Lal v. State of Rajasthan (2000) 1 SCC 310 , Laxmi (Smt.) v. Om Prakash & Ors. (2001) 6 SCC 118 , Panchdeo Singh v. State of Bihar (2002) 1 SCC 577 . 29. (2001) 6 SCC 118 , Panchdeo Singh v. State of Bihar (2002) 1 SCC 577 . 29. In the case of Jaishree Anant Khandekar v. State of Maharashtra (2009) 11 SCC 647 , discussing the contours of the American Law in relation to the ‘dying declaration’ and its applicability to the Indian law, this Court held as under: - “24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one’s life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eyewitness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. 25. American law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle. On certainty of death, the same strict test of English law has been applied in American jurisprudence. The test has been variously expressed as “no hope of recovery”, “a settled expectation of death”. The core concept is that the expectation of death must be absolute and not susceptible to doubts and there should be no chance of operation of worldly motives.” 30. It will also be of some help to refer to the judgment of this Court in the case of Muthu Kutty and Another v. State by Inspector of Police, T.N., (2005) 9 SCC 113 where the Court, in paragraph 15, held as under:- “15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [ (1992) 2 SCC 474 : 1992 SCC (Cri) 403: AIR 1992 SC 1817 ] (SCC pp. 480-81, paras 18-19) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.) + (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction onit, without corroboration. (See State of U.P. v. Ram Sagar Yadav and Ramawati Devi v. State of Bihar.) (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor) (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.) (viii) Equally, merely because it is a brief statement, it is not to be discarded. (See Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu.) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar.) (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan.) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)” 31. Learned counsel for the parties have relied upon the judgments in the case of Ravikumar @ Kutti Ravi (supra), Kishan Lal (supra); Laxmi (Smt.) (supra),; Panchdeo Singh (supra). These judgments do not set any other principle than what we have already spelt above. The first attempt of the court has to be, to rely upon the dying declaration, whether corroborated or not, unless it suffers from certain infirmities, is not voluntary and has been produced to overcome the latches in the investigation of the case. There has to be a very serious doubt or infirmity in the dying declaration for the courts to not rely upon the same. Of course, if it falls in that class of cases, we have no doubt in our minds that the dying declaration cannot form the sole basis of conviction. However, that is not the case here. 34. There has to be a very serious doubt or infirmity in the dying declaration for the courts to not rely upon the same. Of course, if it falls in that class of cases, we have no doubt in our minds that the dying declaration cannot form the sole basis of conviction. However, that is not the case here. 34. Paragraph 6 of the said judgment reads as under:- “6 It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of Bombay). The High Court, it is true, has held that the evidence of the two eyewitnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.” 39. The later part of their statement, in cross- examination done either by the accused or by the prosecution, would not be of any advantage to the case of the prosecution. However, the accused may refer thereto. But the court will always have to take a very cautious decision while referring to the statements of such witnesses who turn hostile or go back from their earlier statements recorded, particularly, under Section 164 of the Cr.P.C. What value should be attached and how much reliance can be placed on such statement is a matter to be examined by the Courts with reference to the facts of a given case.” 44The prosecution has also not proved what could be the motive of Sanjay Kumar and Gorakh Singh to kill Roshan Lal. PW1 Rikhi Ram had hired PW2 Kuldeep Singh for construction of the house. PW2 Kuldeep Singh further hired Roshan Lal as labourer. It has come in the statement of PW 1 Rikhi Ram that civil litigation was going on between him and family of accused persons. Father of Sanjay Kumar had obtained stay order from the Court at Ghumarwin in the month of July 2005. The incident had taken place on 25.10.2005. PW2 Kuldeep Singh further hired Roshan Lal as labourer. It has come in the statement of PW 1 Rikhi Ram that civil litigation was going on between him and family of accused persons. Father of Sanjay Kumar had obtained stay order from the Court at Ghumarwin in the month of July 2005. The incident had taken place on 25.10.2005. Once the father of the accused had obtained stay order from the court in the month of July 2005, there was no occasion for them to go to the house of PW1 Rikhi Ram and beat the labourer. 45According to the case of prosecution, Sanjay Kumar had given beatings to deceased Roshan Lal with Jhablu. PW1 Rikhi Ram, as noticed above, had seen blood on Ext.P5, Jhablu at the time of its seizure. As per Chemical Examiner’s Report, Ext.PW18/B, though blood was found on the exhibits, but result of blood grouping was found inconclusive. According to the report, Ext.PW18/B, blood was seen on Jhablu, Ext.P5, but PW12 Dr.G.D.Jasal, categorically admitted that he had not noticed any blood on Jhablu, Ext.P5. Even PW16 ASI Ram Dass has admitted that he has not mentioned in the memo Ext.PW1/B that Jhablu was stained with blood. 46It has come in the statement of PW4, Vikram Singh that all the accused persons were intoxicated, however, Rakesh Kumar, deposed that none of the accused persons had come to his liquor vend to purchase liquor. He was declared hostile. There is also doubt the manner in which the clothes of accused persons were taken into possession vide Ext.PW1/G. PW8, Bansi Lal, has not supported the case of the prosecution to this effect. According to him, the clothes were already kept by the police before his arrival at the Police Station. He was declared hostile. There is also reference to the papers of compromise Ext.PW1/E and Ext.PW1/F, which were taken into possession by the police vide memo Ext.PW1 /D. It is not evident whether the suit filed by the father of the accused Sanjay Kumar and Gorakh Singh was ever withdrawn or not. Moreover, in case a compromise had arrived at between the complainant PW1 Rikhi Ram and family of the accused persons, there was no occasion for the accused Sanjay Kumar and Gorakh Singh to visit the house of Rikhi Ram, which was under construction, and beat a labourer engaged by him. Moreover, in case a compromise had arrived at between the complainant PW1 Rikhi Ram and family of the accused persons, there was no occasion for the accused Sanjay Kumar and Gorakh Singh to visit the house of Rikhi Ram, which was under construction, and beat a labourer engaged by him. 47According to prosecution case, deceased Roshan Lal was removing shuttering. The police has placed on record photographs of the house under construction showing shuttering and part of the shuttering lying on the floor as per Ext.P-A to Ext.P-P, where the blood is also seen. Shuttering of lintel is removed only with the help of Jhablu. The removal of shuttering of the lintel is a hazardous task. The possibility of shuttering falling down on the deceased Roshan Lal cannot be ruled out, more particularly, in view of the severity of injuries sustained by Roshan Lal. Version of the prosecution that the accused persons had dragged the deceased Roshan Lal to a distance of 25 mts. as per site map, Ext.PW16/B is also not believable. PW12 Dr. G.D. Jasal has not noticed any bruises etc. over body of the deceased on suggestion put by the learned counsel for the accused persons. 48As noticed above, PW1 Rikhi Ram in his statement recorded under Section 154 Cr.P.C. and while stepping into the witness box, has named only Sanjay Kumar and Gorakh Singh, but in his statement recorded under Section 161 Cr.P.C., he has given names of five persons, who alleged to have beaten up deceased Roshan Lal. There was animosity between the complainant PW1 Rikhi Ram and family of accused Sanjay Kumar and Gorakh Singh owing to civil litigation. It can be safely inferred that PW 1 Rikhi Ram has tried to implicate accused Sanjay Kumar and Gorakh Singh by omitting names of other three accused persons, namely, Vinod Kumar, Ramesh Chand and Hans Raj in the case in hand. In view of this also, testimony of PW1 Rikhi Ram cannot be relied upon. There is reasonable doubt in the mind of the Court whether deceased Roshan Lal was beaten up by the accused persons. 49In the instant case, PW1 Rikhi Ram, PW2 Kuldeep Singh, PW7 Rakesh Kumar, PW8 Bansi Lal and PW15 Krishan Kumar have turned hostile. In view of this also, testimony of PW1 Rikhi Ram cannot be relied upon. There is reasonable doubt in the mind of the Court whether deceased Roshan Lal was beaten up by the accused persons. 49In the instant case, PW1 Rikhi Ram, PW2 Kuldeep Singh, PW7 Rakesh Kumar, PW8 Bansi Lal and PW15 Krishan Kumar have turned hostile. Though, it is well settled that their testimonies in entirety cannot be discarded, but in view of the facts and circumstances of the case, discussed hereinabove, their testimonies are not creditworthy. There are material contradictions, improvement, inconsistencies and embellishments in the statements of the prosecution witnesses, which belie the case of the prosecution. 50The prosecution has failed to prove the case against the accused persons. The trial court has convicted the appellant on a mere superfluous approach without in-depth analysis of the relevant facts. 51In view of the observations and analysis made hereinabove, the appeal is allowed and the judgment dated 22.8.2008 rendered by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Sessions Trial No.5/7 of 2006, convicting and sentencing the accused, Sanjay Kumar and Gorakh Singh under Section 302/34 of the Indian Penal Code is set aside. They are acquitted of the charges framed against them. The fine amount, if any deposited by the accused persons is ordered to be refunded to them. The accused, who are in jail, be released forthwith, if not required in connection with any other case. 52 The Registry is directed to prepare the release warrant of the accused persons and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.