JUDGMENT 1. - This criminal appeal has been filed by the appellant-State against the judgment dated 25.08.1995 passed by Additional Sessions Judge, Bali (hereinafter referred to as the 'trial court') in Sessions Case No. 1/90, whereby the trial court has acquitted the respondent No. 4 - Mohanlal, whereas the accused-respondent No. 1- Hansa Ram has been convicted for the offence punishable under Section 325 IPC; the respondent No. 2 - Ghishi W/o Hansa Ram and respondent No. 3 - Ghishi @ Mamta W/o Sohanlal have been convicted for the offence punishable under Section 323 IPC, however, the trial court has directed to release the respondent No. 2 Hansa Ram on probation for two years and the respondent Nos. 2 and 3 on probation for one year on furnishing the stipulated bail bonds. 2. Brief facts, necessary for the disposal of this appeal, are that on 16.10.1989 at about 10:45 AM, the SHO, Police Station, Sumerpur recorded the statement of Ruparam S/o Bhabhutaji resident of village Badgaon, wherein he stated that Shrawan son of accused - Hansa Ram resident of Sumerpur came to his house yesterday at about 04:00 PM and asked him to accompany to their house in Sumerpur, where Prakash S/o Ruparam was ill and he was supposed to do some Dora Mantra (Magical voodooism) and he stayed in the house of Hansa Ram that night. At about 03:00 AM Prakash died due to illness and after his death Mohan, who is a retired master and brother of Hansa Ram, Hansa Ram's daughter-in-law Gheesli, Hansa Ram's wife Ghisi and Hansa Ram's two daughters Jasiya and Leela and Hansa Ram himself had assaulted him with the lathis and thereafter thrown him out of their house at about 05:00 AM while saying that now he would die. At about 07:00 AM, he came to his house at Badgaon in rikshaw for which fare of Rs. 12/- was paid by his wife. Thereafter, his brother Shantilal took him to Sheoganj Hospital as he received injuries on right side of his ribs, both shoulders, back of his head, both thighs, both hands, temple and on all his body. He further stated that in front of Hansa Ram's house, two persons belonging to Meena community brought a tempo and helped him in sitting in that tempo. He further stated that in front of Hansa Ram's house, two persons belonging to Meena community brought a tempo and helped him in sitting in that tempo. He further stated that he had narrated the incident to his wife and his brother Shantilal and his brother took him hospital and got him admitted in the hospital for treatment, his turban, shoes and stick are lying in the house of Hansa Ram. 3. On the basis of the said complaint, the police had registered FIR No. 224/1989 at Police Station, Sumerpur dated 16.10.1989 at about 01:00 PM for the offences punishable under Sections 147, 148, 149, 342, 307 and 323 IPC against Hansa Ram, Ghishi W/o Hansa Ram, Ghishi @ Mamta W/o Sohanlal, Mohanlal, Jasiya and Leela daughters of Hansa Ram. During the course of investigation, dying declaration (Ex.P/16) of injured Ruparam was also recorded by the Judicial Magistrate, Sumerpur on 16.10.1989 at about 11:20 AM. Injured Ruparam died during the course of treatment on 16.10.1989 itself and postmortem of his dead body was conducted on 17.10.1989. In the postmortem report, doctor opined that the deceased Ruparam died on account of multiple injuries involving vital organs and internal hemorrhage leading to the shock and death. 4. After conclusion of investigation, the police filed charge-sheet against the accused respondents for the offences punishable under Sections 302, 147, 148, 342, 323 and 149 IPC along with two minor accused Jasiya and Leela daughters of accused Hansa Ram. 5. After committal the case, the trial court framed charges against the accused respondents for the offences punishable under Sections 147, 342, 302, 302/149 IPC. The trial of the other accused Jasiya and Leela was conducted by the Juvenile Court as they were minor. During the trial, the prosecution produced as many as ten witnesses and also exhibited 25 documents. The statements of the accused respondents were recorded under Section 313 Cr.P.C., wherein the accused respondents denied the charges and the accused Hansa Ram stated that the deceased Ruparam was practicing magical trick and as his son Prakash was ill, Ruparam had been doing magical tricks on him since long and due to that, Prakash died. The statements of the accused respondents were recorded under Section 313 Cr.P.C., wherein the accused respondents denied the charges and the accused Hansa Ram stated that the deceased Ruparam was practicing magical trick and as his son Prakash was ill, Ruparam had been doing magical tricks on him since long and due to that, Prakash died. On his death Ruparam became afraid and ran away from the room situated on the terrace and while running, he fell down from the stairs and went out of the house, nobody had assaulted Ruparam and he might have received injuries on account of falling from the stairs. He further stated that Ruparam was afraid that they would lodge a case against him and, therefore, he and his wife filed this false case against them. 6. Trial court, after hearing Additional Public Prosecutor and counsel appearing for the accused and after taking into consideration the evidence produced by the parties, has acquitted the accused respondent No. 4 Mohanlal from all the charges, however, convicted the accused respondent No. 1 Hansa Ram for the offence punishable under Section 325 IPC and the accused respondent No. 2 Ghishi W/o Hansa Ram and respondent No. 3 Ghishi @ Mamta W/o Sohanlal for the offence punishable under Section 323 IPC and further directed to release them on probation of two years and one year respectively on furnishing bail bonds. 7. Assailing the impugned judgment, learned Public Prosecutor has argued that the dying declaration (Ex.P/16) of deceased Ruparam was recorded on 16.10.1989 by the Judicial Magistrate, Sumerpur in which he specifically stated that the accused persons along with two minor accused assaulted him with lathi and on account of that he received injuries. He has further submitted that dying declaration of deceased Ruparam was corroborated by the statements of PW-5 Mst. Falu W/o Rupaji and PW-6 Shantilal to whom the deceased narrated the whole story immediately after the incident. Learned Public Prosecutor has further argued that the then Judicial Magistrate, Abu Road PW-7 has also clearly stated in his statement that at the time of recording of dying declaration (Ex.P/16), deceased Ruparam was fit to give his statement as per the certificate given by the doctors and whatever he had stated, he had written in the dying declaration. Learned Public Prosecutor has further argued that the then Judicial Magistrate, Abu Road PW-7 has also clearly stated in his statement that at the time of recording of dying declaration (Ex.P/16), deceased Ruparam was fit to give his statement as per the certificate given by the doctors and whatever he had stated, he had written in the dying declaration. Learned Public Prosecutor has therefore, argued that by producing the above evidence, the prosecution has proved the case against the accused-respondents beyond reasonable doubt, however, the trial court has discarded the said piece of evidence without giving any justifiable reason. He has further stated that the trial court has acquitted the accused respondent for the offence punishable under Sections 302 and 302/149 IPC on the basis of surmises and conjectures and, therefore, the impugned judgment is liable to be set aside. 8. Per contra, learned counsel appearing for the respondents has argued that the dying declaration (Ex.P/16) of the deceased Ruparam was rightly discarded by the trial court as the Magistrate has himself stated in his statement before the Court that the deceased Ruparam was not in a position to put his signatures on the dying declaration as his condition was not proper. He has further stated that PW-7 has admitted in his statement that at the time of recording of dying declaration, the drugs were administered to the injured Ruparam through drip. Learned counsel for the respondents has further stated that at the time of recording of dying declaration of deceased Ruparam his relatives were also present and, therefore, it can very well be presumed that the deceased was under the influence of drugs and was also under pressure from his relatives. Learned counsel for the respondents has argued that the trial court has, therefore, rightly disbelieved the dying declaration (Ex.16). He further aruged that from the statements of PW-10 Dr. Takhat Singh, who has prepared the injury report, and PW-3 Dr. Vijay Kumar Purohit, who has conducted the postmortem, it is clear that as per the injuries mentioned in the injury report Ex.P/25, the death of Ruparam was caused because his broken ribs pierced into the lungs and on account of that, the lungs tore. Learned counsel for the respondents has submitted that as opined by the doctor PW-3 Dr. Vijay Kumar Purohit, who has conducted the postmortem, it is clear that as per the injuries mentioned in the injury report Ex.P/25, the death of Ruparam was caused because his broken ribs pierced into the lungs and on account of that, the lungs tore. Learned counsel for the respondents has submitted that as opined by the doctor PW-3 Dr. Vijay Kumar Purohit the injuries in the lungs could have been caused to the deceased Ruparam when he was brought to the hospital in the vehicle or on account of massage given to him by his relatives. Learned counsel for the respondents has, therefore, argued that the trial court after taking into consideration the statements of the doctors has rightly concluded that the fatal injury could have been caused to the deceased Ruparam not on account of assaulting by the accused respondents but on account of massage or improper handling of the patient while shifting in hospital through the vehicle. Learned counsel for the respondents has, therefore, argued that the trial court has not committed any illegality in passing the impugned judgment and, therefore, no interference is called for. 9. Heard learned counsel for the parties and carefully scrutinised the record. 10. As per the injury report Ex.P/25 of deceased Ruparam, he has received the following injuries:- 1. Contusion on right side chest wall on lataral side thorasic region 7th 8th & 9th rips 10X2 & 11X2 C.M. 2. Contusion on right scapular region on back 4X6 & 4X3 C.M. 3. Bleeding from right nostril. 4. Contusion on right arm on leteral side 5X3 C.M. On leteral lower 1/3 part. 5. Abrasion on right forearm 1 X 11/2, 2X1 & 1/2 X 1 C.M. 6. Abrasion on right hand on back 3 X 1/2 C.M. 7. A lacerated wound on occipital region 11/2 X 1 C.M. 8. Abrasion on right leg 2X1 & 3 X 1/2 C.M. 9. Multiple abrasion on left leg 1 X 1/2, 1X1 & 1X 1/2 X 1 C.M. 10. Abrasion on left arm on lateral side 1 C.M. Diameter. 11. Abrasion on left fore arm 6X1 C.M. 12. Contusion on left shoulder 8X5 C.M. 13. Contusion on right scapula thorasic region 12 X 13 C.M. 14. Contusion on left thigh on lateral side 5 X 4 C.M. 11. PW-10 Dr. Abrasion on left arm on lateral side 1 C.M. Diameter. 11. Abrasion on left fore arm 6X1 C.M. 12. Contusion on left shoulder 8X5 C.M. 13. Contusion on right scapula thorasic region 12 X 13 C.M. 14. Contusion on left thigh on lateral side 5 X 4 C.M. 11. PW-10 Dr. Takhat Singh, who prepared Ex.P/25, has stated in his statement before the Court that except the injury No. 1, all the other injuries are simple in nature. He further stated that opinion for x-ray was given for injury No. 1 but in the absence of x-ray no opinion regarding the nature of said injury was given because without x-ray it cannot be opined that whether injury No. 1 was grievous or simple. The said witness has further stated that all the injuries mentioned in the Ex.P/25 are possible if a person falls from the stairs. He further stated that at that time when he examined the deceased Ruparam, he was not suffering from surgical emphysema. He has also stated that if ribs of a patient are broken and if he is transported in vehicle and at that time if any pressure is put on the broken ribs, the same can pierce into the lungs resulting in tearing of lungs. 12. Similarly PW-3 Vijay Kumar Purohit, who conducted postmortem on the dead body of deceased Ruparam has stated in statement in chief that injury No. 20 (fractures of ribs) was sufficient in the ordinary course of nature to cause death of him. However, in the cross-examination he has specifically stated that if only the ribs are broken and there is no injury on the lungs a person cannot die. He further suggested that if any pressure is put on the broken ribs, it may result in piercing into lungs resulting in tearing them and on account of that, any person can die. It is important to note that PW-6 Shantilal in his statement has admitted that when Ruparam reached Badgoan in the night, he was massaged below the throat and at that time he was unconscious but became conscious after consuming tea. He further stated that after reaching hospital at Sheoganj, Ruparam was conscious and gave his statement to the Judicial Magistrate and at that time, a drip was being administered to him and injections were also given to him. He further stated that after reaching hospital at Sheoganj, Ruparam was conscious and gave his statement to the Judicial Magistrate and at that time, a drip was being administered to him and injections were also given to him. He further stated that in the hospital, Ruparam gained consciousness from time to time. 13. Looking to the over all facts and circumstances of the case and particularly in view of the statements of PW-10 Dr. Takhat Singh and PW-3 Dr. Vijay Kumar Purohit, the fractures on the ribs of Ruparam were not fatal but the broken ribs pierced into the lungs resulted in tearing of lungs and on account of that Ruparam died. 14. As per statements of PW-5 and PW-6, initially Ruparam was brought to Sheoganj Hospital on a cart and thereafter to Sirohi in a vehicle and he was also massaged below throat and in such circumstances, we are of the opinion that the trial court has rightly observed that the fatal injury was caused to Ruparam either by massage or while transporting him to the hospital in a cart or a vehicle. 15. So far as the dying declaration (Ex.P/16) of deceased Ruparam is concerned, it was admitted that at that time of recording of his dying declaration, he was not in a position to put his signatures and drugs were also being administered to him through drip. The presence of his relatives at the time of recording of dying declaration has also come on record and looking to all these circumstances, the trial court has rightly not relied upon the said piece of evidence. 16. In the above noted circumstances, we find that there is no illegality in the impugned judgment passed by the trial court. Hence, no case for interference is made out.Resultantly, the appeal is hereby dismissed.Appeal dismissed. *******