JUDGMENT 1. - Three appellants, namely Sukhpal s/o Chhotu Lal, Shankar Lal s/o Chhotu Lal and Rodu s/o Ladhu, have preferred the present appeal to challenge the impugned judgment dated 19.12.2008 rendered by the Additional Sessions Judge (Fast Track) No.2, Ajmer, whereby all the three appellants were convicted for the offence under Sections 302/34, 323/34 and 341 IPC. 2. Having convicted the appellants for the aforesaid offences, vide a separate of even date, the learned trial Jude sentenced the accused-appellants as under:-U/s 302/34 IPC - to undergo life imprisonment and to pay a fine of Rs. 500/- each, in default of payment of fine, to further undergo three months' S.I. U/s 323/34 IPC - to undergo one year's R.I. and to pay a fine of Rs. 300/- each, in default of payment of fine, to further undergo three months' S.I. U/s 341 IPC - to undergo one month's S.I. and to pay a fine of Rs. 200/- each, in default of payment of fine, to further undergo fifteen days' S.I. 3. As per prosecution case, the appellants had committed the murder of Shivraj on 5.1.2007 at about 9:00 A.M. in a field on Dadiya Road in village Tihari. Indra Narayan Jat (P.W.1) is solitary eyewitness of the occurrence. He lodged the written report (Exhibit-P/1) at Police Station Sri Nagar, Ajmer, on the basis of which a formal FIR (Exhibit-P/26) was registered. Indra Narayan (P.W.1) having appeared in the witness box, resiled from his previous statement and was declared hostile. Thus, the solitary eyewitness has not supported the prosecution case. The prosecution case, after Indra Narayan (P.W.1) was declared hostile, rests upon oral dying declaration made by the deceased, Shivraj to Hari Prasad Sharma (P.W.2), Bhanwar Lal (P.W.3), Jeevana (P.W.4), Rameshwar Lal (P.W.6) and Laxman (P.W.14). 4. Surendra Singh (P.W.20), while appearing in the court stated that on 5.1.2007, he was posted as S.H.O at Police Station Sri Nagar, Ajmer. Indra Narayan (P.W.1) appeared before him and presented the written report (Exhibit-P/1), on the basis of which formal FIR (Exhibit-P/26) was registered for the offences under Sections 307, 323, 341 and 34 IPC. Investigation of the case was handed over the ASI, Mahipal Singh (P.W.21). Indra Narayan (P.W.1) appeared before him and presented the written report (Exhibit-P/1), on the basis of which formal FIR (Exhibit-P/26) was registered for the offences under Sections 307, 323, 341 and 34 IPC. Investigation of the case was handed over the ASI, Mahipal Singh (P.W.21). On 17.3.2007, Surendra Singh had presented the challan against the accused appellants for the offence under Sections 302, 323, 341 and 34 IPC.This witness further admitted that before presentation of the written report (Exhibit-P/1), a telephonic information was received at the Police Station regarding occurrence and ASI Bajrang Lal was sent to the spot. Bajrang Lal has not been examined by the prosecution. 5. On 5.1.2007, at 11:00 AM, Indra Narayan (P.W.1) presented the written report (Exhibit-P/1). The same when translated into English, reads as under:- "To SHO Police Station Sri Nagar Ajmer Subject: In respect of registering the case Sir, I the applicant, Indra Narayan Jat s/o Bhanwar Lal Jat, by caste Jat, is resident of Village and Post Sakhoon, Tehsil Dudu, District Jaipur. I have got my agricultural land in village Tihari. On 4.1.2007, at about 3:00 PM, I had come to village Tihari for getting the mutation opened. I was staying with Shivraj. On 5.1.2007, at about 9:00 AM, I and Shivraj had gone on motorcycle towards the field of Shivraj for taking fodder for the goats. We went on my motorcycle bearing registration No. RJ 14 5M 6179. When we were going towards the village Tihari on Dadiya Road, near Barwala Bara, we had seen three persons, who had concealed themselves after parking the motorcycle. Out of the said three persons, one was Rodu Jat, resident of Bijaliya Khera and Sukhpal Jat resident of Tihari. There was another person also. They were armed with iron rod and Kulhari (Axe). All the three persons waylaid us after stopping our motorcycle. Rodu Jat gave Sariya blow on the head of Shivraj. Thereafter, motorcycle had fallen. Shivraj was driving the motorcycle. Upon falling of the motorcycle, Rodu, Sukhpal and Shankar, all the three persons started causing us injuries with iron rod and Kulhari. They caused many injuries to Shivraj, due to which right foot of Shivraj was broken from the ankle. His both hands were also fractured. He had received many injuries on the head, hands and feet. The injuries were caused with iron rod and Kulhari. They caused many injuries to Shivraj, due to which right foot of Shivraj was broken from the ankle. His both hands were also fractured. He had received many injuries on the head, hands and feet. The injuries were caused with iron rod and Kulhari. Sukhpal Jat was raising alarm "Kill him and obstacles of the way be removed". These persons with intention to commit murder have caused fatal injuries to Shivraj. The occurrence was witnessed by persons, who were grazing goats in the nearby field. I made a telephonic call to the family members of Shivraj and told them that those persons after causing injuries ran away from the spot. Then Hari Ram and Bhanwar Lal Jat brought Shivraj in a Jeep to Government Hospital, Sri Nagar. After getting Shivraj admitted, I have come to the Police Station, Sri Nagar to lodge the report. Action be taken. Applicant Indra Narayan Jat 5.1.2007"Rajesh Kumar Gupta (P.W.19) on 5.1.2007, was posted as Medical Officer at Primary Health Center, Sri Nagar. On the request made by Police, he had examined Shivraj s/o Ghasi Ram, aged 30 years and had found following 13 injuries on his person vide Injury Report (Exhibit-P/25): "(i) Abrasion with diffuse swelling at right ankle region. (ii) Lacerated wound 3" x 1/2" x bone deep on left side of scalp (posterior part). (iii) Lacerated wound 3" x 1/2" bone deep on posterior side of left side of scalp. (iv) Abrasion with diffuse swelling on right elbow region. (v) Abrasion with swelling on left elbow region. (vi) Diffuse swelling on left forearm. (vii) Abrasion 1" x 1" on right middle finger. (viii) Lacerated wound 1/2" x 1/2" x " on left leg. (ix) Abrasion 1" x 1/2" on left knee. (x) Abrasion 1/2" x 1/2" on left ring finger. (xi) Tenderness and crepitation on left side of chest. (xii) Back cannot be examined because of the condition of patient - so injury on back can be added by treating doctor of JLN Hospital, Ajmer. (xiii) Bruise 4" x 1/2" on lateral side of left thigh." This witness stated that since the condition of the patient was not stable and any other injury was not found due to non-disclosure, same will be mentioned, if found during the treatment. (xiii) Bruise 4" x 1/2" on lateral side of left thigh." This witness stated that since the condition of the patient was not stable and any other injury was not found due to non-disclosure, same will be mentioned, if found during the treatment. This witness further stated that Shivraj was examined on 5.1.2007 at 11:30 AM.In cross-examination, this witness stated that it is correct that when Shivraj was medico-legally examined, he was not conscious - " ;g lgh gS fd f'kojkt dk esfMdy eqvk;uk fd;k x;k rc og gks'k esa ugha FkkA " 6. On the same day i.e. 5.1.2007, at 6:20 PM, Shivraj died in the Casualty Ward of JLN Hospital, Ajmer. Dr. Ashutosh Srivastava (P.W.18) being Medical Jurist, on 6.1.2007, conducted the autopsy on the dead body of Shivraj (vide Exhibit-P/24). He found linear fracture of fronto-parietal bone of the head. Further fracture was found on the back side of the head i.e. left side of occipital region. This witness also found fracture of right humerus, fingers, right patella of right knee, fracture of ankle, fracture of left tibia bone, fracture of left forearm bone. In Post-Mortem, this doctor found eighteen injuries. As per opinion of the doctor, haematoma was present on the fronto-parietal region and Injury No.2 in the Post-Mortem had proved fatal and the same was caused by blunt weapon. As per opinion of the doctor, cause of death was coma due to ante-mortem head injury, which was sufficient to cause death in the ordinary course of nature. 7. We have noted the injuries and the contents of the Post-Mortem Report (Exhibit-P/24), as a question has been raised before us regarding the fitness and competence of the deceased, Shivraj to make oral dying declaration to the witnesses. 8. Indra Narayan, the solitary eyewitness, who appeared in the witness box as P.W.1, stated in the court that he was going on motorcycle with Shivraj. On the way, three persons waylaid them and caused injuries. One out of those three persons had caused injury with the iron rod on the head of Shivraj. Further, this witness stated that he cannot tell the names of the persons, who had caused injuries. He further stated that those persons, who caused injuries to Shivraj are not present in the court. This witness had not identified the assailants. One out of those three persons had caused injury with the iron rod on the head of Shivraj. Further, this witness stated that he cannot tell the names of the persons, who had caused injuries. He further stated that those persons, who caused injuries to Shivraj are not present in the court. This witness had not identified the assailants. To be specific, this witness stated in the court as " f'kojkt dks jkLrs esa jksdus okys ,oa ekjihV djus okyh rhuksa O;fDr vkt U;k;ky; esa mifLFkr ugha gSA " 9. Hari Prasad Sharma (P.W.2) stated in the court that 5-6 months ago, at about 9:00 - 9:15 o'clock, Bhanwar Lal (P.W.3) came at the bus stand at Tihari where he was sitting along with Rameshwar, Babu Lal and Shivraj. Bhanwar Lal stated that at a distance of 2 kms at Dadiya Road, Shivraj is lying injured. All 4-5 persons left the bus stand in a Jeep to pick up Shivraj. They stopped the jeep on the road. Then two persons went inside the field and saw that Shivraj was lying in the field in an injured condition. He was asking for water. Then they had taken the vehicle in the field and picked up Shivraj and placed him in the Jeep. At Tihari bus stand, Indra Narayan and Jeevana sat in the Jeep and they tool him towards Sri Nagar hospital. On the way, Jeevana asked Shivraj as to who have caused him injuries, then the deceased disclosed that Rodu, Sukhpal and Shanker had given him beating. Near Jalawara, police vehicle arrived and Kalu, Constable also sat in their Jeep. Then, they left Shivraj in the Government Hospital. In the evening, they learnt that Shivraj had died. 10. Bhanwar Lal (P.W.3) stated in the court that at about 9:00-9:15 o'clock, he received a telephonic call from Indra Narayan that at Dadiya Road, Sukhpal, Rodu and Shanker are giving beating to Shivraj. He along with Rameshwar, Ramraj, Babu Lal and Hari came on a jeep. Shivraj was lying in the field in injured condition. He was crying. They lifted Shivraj and made him sit in the jeep. On the way, Indra Narayan and Jeevana also sat in the jeep from bus stand Tihari. On asking, Shivraj told that Sukhpal, Shanker and Rodu had caused him injuries. Shivraj was lying in the field in injured condition. He was crying. They lifted Shivraj and made him sit in the jeep. On the way, Indra Narayan and Jeevana also sat in the jeep from bus stand Tihari. On asking, Shivraj told that Sukhpal, Shanker and Rodu had caused him injuries. He further told that Sukhpal was armed with Kulhari, Rodu was armed with iron rod and Shanker was armed with stick. They brought Shivraj to hospital at Sri Nagar, where he died. 11. Jeevana (P.W.4) in the court stated that he knew Sukhpal. He is resident of Tihari. On 5.1.2007, at about 9:00- 9:30 AM, he was sitting near dairy at Chauraha when Shivraj was being carried away in a jeep by Babu Lal, Ramraj, Rameshwar, Bhanwar Lal and Hari. He saw that Shivraj's condition was precarious. He sat in the jeep and on the way Shivraj told that Sukhpal, Shanker and Rodu had caused him injuries. Shivraj further told that injuries have been caused with Kulhari, iron rod and stick. Shivraj died on the same day. 12. Rameshwar Lal (P.W.6) stated in the court that on 5.1.2007, at about 9:00 - 9:15 o' clock, he was sitting at the bus stand. Bhanwar Lal came and disclosed that Shivraj has been caused injuries near Barwara Bara. They in the jeep of Hari, along with Jeevana, Bhanwar Lal and Babu Lal had gone to the place of occurrence. There they saw that Shivraj was lying in a pool of blood. His feet and side of the head were broken. They brought him in a jeep to bus stand. Shivraj was telling that he be got admitted. They brought him to bus stand and from there, two persons sat in the jeep. On the way, when they asked Shivraj, he told that Sukhpal, Shanker and Rodu, all three had caused him injuries. They were armed with iron rod, kulhari and stick. This witness in cross-examination stated that Shivraj in the jeep had told regarding the occurrence to A.S.I. and a constable of the police. 13. Laxman (P.W.14) in the court stated that he was working in a factory. Two persons came to call him and informed that his brother, Shivraj has been caused injuries and he had been taken to the hospital. He went to the hospital. His brother was lying admitted in the hospital. 13. Laxman (P.W.14) in the court stated that he was working in a factory. Two persons came to call him and informed that his brother, Shivraj has been caused injuries and he had been taken to the hospital. He went to the hospital. His brother was lying admitted in the hospital. He had received many injuries on his body. On enquiry, Shivraj told him that he was caused injuries by Sukhpal, Shanker and Rodu. 14. We need not notice the testimony of various witnesses, who had participated in the investigation and had effected the recovery of weapon from the accused. 15. After the prosecution in all had examined 23 witnesses and had relied upon 31 documents, the statement of accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. The accused-appellants denied the same and pleaded innocence and false implication. 16. The accused-appellants in defence had examined three witnesses. 17. We have heard Mr. V.R. Bajwa, the learned counsel appearing for the appellants and Mr. Aladeen Khan, the learned Public Prosecutor appearing for the State. 18. We ourselves had perused the record of the case, gone through the contents of the paper book and since we are convinced that no reliance can be placed on the oral dying declaration and the same is to be discarded, we need not notice the statement of the defence witnesses. 19. Now, we shall state our reasons as to why oral dying declaration made to Hari Prasad (P.W.2), Bhanwar Lal (P.W.3) Jeevana (P.W.4), Rameshwar lal (P.W.6) and Laxman (P.W.14) is not credit worthy. 20. Babu Lal (P.W.17) was declared hostile. He stated that he along with Rameshwar, Ramraj, Bhanwar Lal, driver Hari had gone to the spot. Shivraj was lying in an injured condition. They brought him in jeep to the hospital. The police met him on the way. This witness stated that Shivraj has told them nothing. 21. Indra Narayan (P.W.1) stated in the court that he had relayed the information on the telephone to the family members of the deceased, Shivraj. It has come in the evidence that at bus stand, Hari Prasad (P.W.2), Rameshwar Lal (P.W.6), Ramraj and Babu Lal (P.W.17) were sitting. Bhanwar Lal came there and told them about the telephonic information received and they all had accompanied him to the place of occurrence. It has come in the evidence that at bus stand, Hari Prasad (P.W.2), Rameshwar Lal (P.W.6), Ramraj and Babu Lal (P.W.17) were sitting. Bhanwar Lal came there and told them about the telephonic information received and they all had accompanied him to the place of occurrence. While they were returning after carrying Shivraj, on the way, Indra Narayan and Jeevana sat in the jeep at bus stand Tihari. Bhanwar Lal (P.W.3) in the court stated that " jkLrs esa bZanj o tho.k tks Ms;jh cl LVsaM ls thi esa cSBs FksA ". Bhanwar Lal (P.W.3) has given no reasons as to how Indra Narayan (P.W.1) came at the bus stand. Indra Narayan (P.W.1) has been introduced as eyewitness. He co-travelled with the witnesses in the jeep, in which alleged dying declaration was made. No witness had stated that Indra Narayan, while travelling with them in jeep had narrated the incident. Indra Narayan, being eyewitness knew about the incident. Indra Narayan (P.W.1) in the court has not given the names of assailants. He has not identified them. The names of the appellants have emerged in the oral dying declaration. 22. It has come in the evidence of Hari Prasad (P.W.2) that Kalu, the constable sat in the jeep on the way. Rameshwar Lal (P.W.6) in cross-examination stated that on the way ASI and a constable sat in their jeep and Shivraj had narrated the entire occurrence to him." ;g lgh gS fd ml iqfyl thi ls mij dj ,d , ,l vkbZ vkSj flikgh gekjh thi esa cSB x;k FkkA f'kojkt us thi esa , ,l vkbZ o flikgh dks ?kVuk dh lkjh ckr crkbZ FkhA " 23. In case the deceased had told everything to the police officials, then the factum of oral dying declaration ought to have been emerged in the police investigation, or entry to this effect ought to have been made in the Rojnamcha. ASI of Police and a Constable are duty bound to record what is heard by them and narrated to them by Shivraj, the deceased. The occurrence in the present case has taken place on 5.1.2007 at 9:30 AM. The written report (Exhibit-P/1) was presented at Police Station Sri Nagar at 11:00 AM. The deceased died on the same day at 6:20 PM. Curiously enough, the statement of Bhanwar Lal (P.W.3) and Laxman (P.W.14) under Section 161 Cr.P.C. were recorded on 8.1.2007. The occurrence in the present case has taken place on 5.1.2007 at 9:30 AM. The written report (Exhibit-P/1) was presented at Police Station Sri Nagar at 11:00 AM. The deceased died on the same day at 6:20 PM. Curiously enough, the statement of Bhanwar Lal (P.W.3) and Laxman (P.W.14) under Section 161 Cr.P.C. were recorded on 8.1.2007. The statement of Babu Lal (P.W.17), another witness was recorded on 11.1.2007 and he stated that he had accompanied by witnesses to the field and had transported the deceased but he had not disclosed any fact regarding the occurrence. 24. Arjun Ram (P.W.23) in the court had stated that he had recorded the statement of Bhanwar Lal (P.W.3), Laxman (P.W.14), Hari Prasad (P.W.2), Jeevana (P.W.4), Rameshwar Lal (P.W.6), Buddha Ram (P.W.5) and Roop Singh (P.W.7) under Section 161 Cr.P.C. In cross-examination, this witness stated that the witnesses of Panchnama, Fateh Chand, Jeevana, Ranglal, Bhanwar Lal and Surajmal on 6.1.2007 while making Panchnama had neither made any statement from which any fact regarding occurrence was discernible nor they gave any information nor they told about any information received from the deceased. " iapukesa ds xokg Qrgpan] tho.k] jaxyky] Hkaojyky] lwjtey bUgksaus 6 rkjh[k dks iapukek cukrs le; ,sls dksbZ c;ku ugha fn;s fd mUgsa ?kVuk ds ckjs esa rF; ekywe gS rFkk ?kVuk ds ckjs esa e`rd us mUgsa dksbZ tkudkjh nh gksA " 25. This witness further stated that those police officials, who had brought injured Shivraj to the hospital, they have not given any information that Shivraj told them anything about the occurrence. It is to be noted that investigation was assigned to Arjun Ram (P.W.23) on 6.1.2007. Therefore, till death of the deceased, the fact that the deceased had told the witnesses as to who caused him injuries was not noted anywhere during the investigation. At the best, the statement of the witnesses have been recorded on 8.1.2007, three days after the death of the deceased, Shivraj. Therefore, we are of the view that it is not safe to rely upon the oral dying declaration made to the eyewitnesses. Thus, the witnesses intentionally and purposely have introduced themselves as witnesses to oral dying declaration, at a highly belated stage, either at the behest of the Investigating Agency, or to support the complainant, or to settle their score with the accused by naming them as assailants. 26. Thus, the witnesses intentionally and purposely have introduced themselves as witnesses to oral dying declaration, at a highly belated stage, either at the behest of the Investigating Agency, or to support the complainant, or to settle their score with the accused by naming them as assailants. 26. We also cannot become oblivious of another peculiar feature of the case. The occurrence in the present case had taken place at 9:30 AM. After the telephonic information was relayed, the deceased was picked up in a jeep and immediately the deceased was brought to the hospital. In the cross-examination, Dr. Rajesh Kumar Gupta (P.W.19), who had first medico-legally examined Shivraj, stated that when Shivraj reached at the hospital, he was unconscious. Considering number of injuries received, which consisted of numerous fractures and injuries caused to head, we have our doubts regarding fitness and competence of the deceased to make oral dying declaration. It is difficult to believe that on the way Shivraj narrated the incident to the witnesses and when he reached at the hospital, he was found unconscious by the doctor. Falsehood of the witnesses is also evident from the fact that Laxman (P.W.14), the brother of the deceased had stated in the court that he was working in factory. He got information and came to the hospital, where the deceased had narrated the incident to him. This statement is in contradiction to the statement made by doctor that when the deceased was admitted, he was unconscious. Further, in the present case, no dying declaration has been recorded either by the Magistrate, or by police officials. 27. Considering numerous suspicious circumstances, which have been enumerated by us, it is highly unsafe to rely upon the oral dying declaration. Thus, we shall exclude the oral dying declaration purportedly made by the deceased to the witnesses from consideration. By excluding the oral dying declaration and the solitary eyewitness, who has turned hostile and had not supported the prosecution case, there remains no tangible evidence with the prosecution to sustain the conviction of the appellants. 28. Consequently, we accept the appeal and the conviction pronounced and sentence awarded by the trial court upon the appellants is set aside. The appellants are acquitted of all the charges.Appeal allowed. *******