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2017 DIGILAW 1256 (ALL)

PHALLOO v. STATE OF U. P.

2017-05-11

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : The arguments of this case concluded on 11.05.2017. 2. We then made the following order :- "Heard Sri G.S. Hajela for the appellants and Sri A.N. Mulla, Sri Saghir Ahmad, Sri J.K. Upadhyay, Kumari Meena, learned A.G.As. for the State and Smt. Manju Thakur, learned Brief Holder for the State. We will give reasons later but we are making the operative order now. In totality, the appeal is allowed in part. Qua appellant no.1- Phalloo, the impugned judgment and order of conviction dated 30.03.1988 passed by Sessions Judge, Lalitpur, in Sessions Trial No.41 of 1987, convicting and sentencing the appellant Phalloo to undergo life imprisonment under Section 302 read with Section 34 I.P.C. is hereby set aside by us. Appellant Phalloo is acquitted of all charges. Hence, this appeal is allowed qua appellant no.1- Phalloo. Appellant no.1- Phalloo is on bail. He need not surrender. His personal bonds are cancelled and sureties discharged. However, he will comply with the provisions of Section 437-A Cr.P.C. Qua appellant no.2- Ram Swaroop, his conviction recorded by the learned Sessions Judge, Lalitpur u/s 302/34 I.P.C. is modified to one u/s 302 I.P.C., while sentence of life imprisonment awarded to him is confirmed. The impugned judgment and order stands modified accordingly qua appellant no.2- Ram Swaroop. Hence, this appeal is allowed in part qua appellant no.2- Ram Swaroop. Appellant no.2- Ram Swaroop is on bail. He be taken into custody forthwith and sent to jail. His personal bonds are cancelled and sureties discharged." 3. Here are the reasons :- This criminal appeal has been preferred by appellants Phalloo and Ram Swaroop against the judgment and order dated 30.03.1988 passed by Sessions Judge, Lalitpur in S.T. No. 41 of 1987 convicting the appellants under Section 302 IPC read with Section 34 IPC and sentencing them to undergo life imprisonment. 4. Briefly stated the facts of this case are that accused appellant no.1 Phalloo (A-1) had four sons, namely, Ram Swaroop A-2, Nand Lal, Rati Ram and Hannoo. Deceased Asha Ram was the real brother of Phalloo A-1 and and uncle of A-2 Ram Swaroop. Viran -informant of the case is son of the deceased Asha Ram. There was a joint holding of A-1 Phalloo and deceased Asha Ram which was subsequently partitioned by metes and bounds between A-1 Phalloo and deceased Asha Ram and they were cultivating their respective shares in the holding separately. Viran -informant of the case is son of the deceased Asha Ram. There was a joint holding of A-1 Phalloo and deceased Asha Ram which was subsequently partitioned by metes and bounds between A-1 Phalloo and deceased Asha Ram and they were cultivating their respective shares in the holding separately. Asha Ram received incised and lacerated wounds on 21.03.1987 at about 9.00 a.m.. He died subsequently on the same day at 5.20 p.m. in District Hospital, Lalitpur on account of above injuries. The written report of the occurrence was given by PW-1 Viran at P.S. Banpur on the same day at about 11.15 a.m. In the written report, it was stated by PW-1 that when he and his father had gone to their field to guard the standing crop on 21.03.1987 at about 9.00 a.m., they saw A-1 Phalloo, A-2 Ram Swaroop, Hannoo, Nand Lal and Rati Ram all sons of A-1 Phalloo, who were also residents of the same village as the informants, grazing their cattle in his field in which he had sown the crop of gram. When his father asked them to remove their animals from his field all five of them started abusing him and refused to remove their animals, his father started chasing their animals out of his field on which A-1 Phalloo, A-2 Ram Swaroop, Nand Lal and Rati Ram, who were armed lathi and axe assaulted him with their respective weapons whereupon PW-1 informant ran away from the place of occurrence raising cries for help and in the meantime all the four assailants surrounded his father and attacked him with axe and lathis and as a result of the injuries so received by him, he fell down on the ground. The incident was witnessed by PW-3 Buddha son of Hazari, PW-2 Tulsi son of Nand Kishore, PW-5 Ram Kishan son of Darau and PW-6 Bhaiya Ram son of Jugal etc., who were working in the adjacent fields and when they challenged the assailants they escaped towards the Jamni river threatening anybody who dared to follow them with dire consequences. PW-1 informant Viran they took his father in an injured condition to the police station for lodging the FIR of the incident. On the basis of the written report Ext.Ka-1 given by PW-1 Viran at P.S. Banpur, District Lalitpur, case crime no. PW-1 informant Viran they took his father in an injured condition to the police station for lodging the FIR of the incident. On the basis of the written report Ext.Ka-1 given by PW-1 Viran at P.S. Banpur, District Lalitpur, case crime no. 15 of 1987, under Sections 323, 324, 504 and 506 IPC was registered against Phalloo A-1, Ram Swaroop A-2, Nand Lal, Rati Ram, Check FIR, Ext.Ka-3 and the relevant G.D. entry Ext.Ka.-4 were prepared by PW-5 Ram Kishan at 11.15 a.m., The Investigating Officer of the case thereafter recorded the statements of Asharam and PW-1 Viran at the police station. Asha Ram was then sent to Primary Health Centre, Mehrauni for his medical examination. The doctor of Primary Health Centre, Mehrauni referred the injured Asha Ram to District Hospital Lalitpur. The injuries of injured Asha Ram were examined on 21.03.1987 at about 3.30 p.m. in District Hospital Lalitpur by PW-16 Dr. Satish Chandra, who also prepared his injury report Ext.Ka-24. The dying declaration of Asha Ram was recorded by Magistrate in District Hospital between 4.20 p.m. - 4.40 p.m. on the same day. 5. Asha Ram subsequently succumbed to his injuries at 5.30 p.m. on the same day. The information of the death of Asha Ram was received at P.S. Kotwali, Lalitpur on 21.03.1987 vide death memo Ext.Ka-14 sent by Dr. S.C. Agarwal, where after the case was converted to one under Section 302 IPC. The inquest of the dead body of Asha Ram was conducted by PW-14 S.I. Jai Narain on 22.03.1987 who after completing the inquest prepared the inquest report. Ext.Ka-15 and other related document, photo lash Ext.Ka-16, challan lash Ext.Ka-17, impression of sample seal Ext.Ka-18, letters addressed to CMS District Hospital, Lalitpur and RI Ext.Ka-19 and Ext.Ka-20. He then handed over the dead body of Asha Ram, Constable Khem Chandra and Ashok Kumar in a sealed stage for being taken for conducting the post mortem. 6. During investigation, the Investigating Officer recovered the axe at the pointing out of the A-2 Sam Swaroop and two lathis one each on the pointing out of A-1 Phalloo and Nand Lal on 25.03.1987 from their own field on which wheat crop was standing. He also got another lathi recovered at the pointing out of accused Rati Ram on 26.03.1987 from the field of one Hallu. 7. PW-4 Dr. He also got another lathi recovered at the pointing out of accused Rati Ram on 26.03.1987 from the field of one Hallu. 7. PW-4 Dr. J.C.Gupta conducted post mortem on the dead body of the deceased Asha Ram on 22.03.1987 at 4.00 p.m. and prepared his post mortem examination report Ext.Ka-2. 8. The blood stained and plain earth was seized by Investigating Officer from the place of occurrence. The axe and the lathis allegedly recovered on the pointing our of A-2 Ram Swaroop, A-1 Phalloo and Nand Lal were sent to the Forensic Lab. According to the report of forensic expert Ext.Ka-37 no blood was found on the axe and lathis recovered at the pointing out of A-1 Phalloo, A-2 Ram Swaroop while blood on the blood stained earth collected from the place of occurrence was found to be human blood. After completing the investigation Investigating Officer of the case submitted charge sheet all against the accused before C.J.M., Lalitpur on 04.051987. The accused were summoned and then committed to the court of Sessions. They were charged and tried for the offences under Section 302 read with Section 149 IPC. The accused appellant no.2 Ram Swaroop was further charged and tried for the offences under Section 148 IPC and accused A-1 Phalloo, Nand Lal, Rati Ram and Hannoo were charged and tried also for the offences under Section 147 IPC. 9. In order to prove the charges framed against the accused-appellants the prosecution examined as many as 21 witnesses and produced and proved 37 documents marked as Ext.Ka-1 to Ext.Ka-37 besides material Ext.Ka-1 to Ext.Ka-8. 10. The accused appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution charges and pleaded not guilty. The accused appellant no.1 Phalloo further stated that mutual partition between him and the deceased had taken place more than 10 years before the occurrence. Witness Nand Kishore and Tulsi had given false evidence against him on account of village politics. 11. Learned Sessions Judge, Lalitpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary, by the impugned judgment and order convicted the accused-appellants under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life, while accused-appellants Rati Ram, Nand Lal and Hannoo were acquitted of all the charges. 12. Hence this appeal. 12. Hence this appeal. 13. Learned counsel for the appellant submitted that the prosecution had miserably failed to prove its case against the accused appellant by any cogent and reliable evidence, yet learned trial judge has convicted the accused-appellants on the basis of oral evidence on record and the dying declaration of the deceased, which do not inspire any confidence. In fact no one had seen the incident and after the dead body of the deceased Asha Ram was discovered, the FIR of the incident was prepared after due deliberation and consultations falsely implicating A-1 Phalloo and and his four sons A-2 Ram Swaroop, Nand Lal and Rati Ram and Hannoo. 14. He next submitted that the prosecution has failed to prove the motive for the accused-appellants to commit the murder of Asha Ram. He also submitted that in any view of the matter conviction of the appellant no.1 Phalloo recorded by the trial judge on the basis of the evidence on record by taking aid of Section 34 IPC is perse illegal and unsustainable in the eye of law. The medical evidence on record does not support the ocular version at all. In case the prosecution version is to be believed then it was not at all possible for the accused-appellants to have caused the number of ante mortem injuries found on the dead body of the deceased Asha Ram within the short span of time during which the occurrence had allegedly taken place. Such being the state of evidence neither the recorded conviction of the accused-appellants nor the sentence awarded to them can be sustained and are liable to be set aside. 15. Per contra Sri A.N.Mulla, learned AGA submitted that the incident in his case had taken place in broad day light at about 9.00 a.m. on 21.03.1987 and the FIR of the incident was lodged promptly at about 11.15 a.m. considering the distance between the place of occurrence and police station being 16 kms. as mentioned in the check FIR and hence there was no opportunity for the informant to have concocted or fabricated a false prosecution story implicating the accused-appellants. The prosecution case stands fully proved from the eye witness account of PW-1 Viran, PW-2 Tulsi and PW-3 Buddha and the dying declaration of the deceased Ext.Ka-30. The medical evidence on record fully collates the eye witness account. The prosecution case stands fully proved from the eye witness account of PW-1 Viran, PW-2 Tulsi and PW-3 Buddha and the dying declaration of the deceased Ext.Ka-30. The medical evidence on record fully collates the eye witness account. The recovery of the crime weapons on the pointing out of the accused-appellants, further indicates their complicity in the commission of the murder of Asha Ram. Neither the recorded conviction of the appellants nor the sentence awarded to them suffer from any illegality or infirmity warranting any interference by this Court. This appeal lacks merit and is liable to be dismissed. 16. We have very carefully considered the submissions made by Sri G.S.Hajela, learned counsel for the appellants, A.N.Mulla, learned A.G.A. and perused the entire lower court record. 17. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not and for that purpose we will have to evaluate and scrutinize the entire evidence on record. 18. PW-1 Viran is the complainant of the case and son of deceased Asha Ram. He is alleged to be an eye witness of the occurrence. He has stated about the motive and the factum of the occurrence. He has proved his written report Ex.Ka-1 lodged by him about the occurrence. He has deposed that statement of his father was recorded in his presence by the Investigating Officer of the case at the police station at the time when the report was lodged. He has also said that his father Asha Ram died on the date of occurrence itself in District Hospital, Lalitpur in the evening. 19. PW-2 Tulsi, PW-3 Buddha, PW-5 Ram Kishan and PW-6 Bhaiya Ram are other eye witnesses of the occurrence. They have stated about the factum of the occurrence. These witnesses have also stated about the motive. 20. PW-2 Tulsi deposed that when he had reached the place of occurrence, the accused-appellants were present there and when Asharam objected to the act of A-2 Ram Swaroop, of pushing his cattle into his gram field Ram Swaroop abused him. Accused appellant no.1 Phalloo handed over the axe, which he was carrying in his hand to Ram Swaroop who first assaulted Asha Ram with lathi and after he had fallen down he assaulted him with the axe. 21. Accused appellant no.1 Phalloo handed over the axe, which he was carrying in his hand to Ram Swaroop who first assaulted Asha Ram with lathi and after he had fallen down he assaulted him with the axe. 21. PW-3 Buddha in his evidence tendered during the trial qua A-1 Phalloo deposed that at the time time when occurrence had taken place A-1 Phalloo was sitting at a place which was at a distance of about 60 paces from the place of occurrence and he had not said anything. It was Ram Swaroop A-2 alone who had assaulted Asha Ram with lathi and axe. 22. PW-5 Ram Kishan deposed that just before the incident A-1 Phalloo and A-2 Ram Swaroop were sitting on the boundry of their field after a scuffle had taken place between Asha Ram and A-2 Ram Swaroop and at that time A-2 Ram Swaroop had a lathi in his hand, thereafter A-2 Ram Swaroop again started abusing Asha Ram and assaulted Asha Ram with lathi and after Asha Ram had fallen on the ground he attacked him with axe. 23. PW-6 Bhaiya Ram also deposed that Asha Ram had been assaulted by A-2 Ram Swaroop with lathi and axe, when he objected to grazing of cattle of A-2 Ram Swaroop by him in his gram field. As regards A-1 Phalloo, he deposed that he had not seen him at the place of occurrence. All the above four witnesses were declared hostile on the request of D.G.C.(Criminal) who cross examined them with the permission of the court but they stuck to the version of the occurrence given by them in their examinations-in-chief in general respectively. 24. PW-16 Dr. Satish Chandra, Medical Officer in the District Hospital, Lalitpur had examined the injuries of Asha Ram on 21.03.1987 at 3.30 p.m. in District Hospital when brought by Constable Ram Charan Chaubey of police station Banpur and he had prepared his injury report Ext.Ka-24. This witness found following injuries on the person of Asha Ram. (1) Lacerated wound 2.5 cms x 0.5 cm x joint cavity deep over the antero- medial aspect of left knee, just above margin of patella. Bleeding present. Kept under observation. (2) Incised wound 2 cms x 0.5 cm x bone deep over antero lateral aspect of right ankle, 2 dms. above and front of lateral malleolus. Kept under observation. (1) Lacerated wound 2.5 cms x 0.5 cm x joint cavity deep over the antero- medial aspect of left knee, just above margin of patella. Bleeding present. Kept under observation. (2) Incised wound 2 cms x 0.5 cm x bone deep over antero lateral aspect of right ankle, 2 dms. above and front of lateral malleolus. Kept under observation. (3) Contusion 14 cms x 10 cms over antero medial aspect of middle 1/3 of right leg. Kept under observation. (4) Incised wound 7 cms x 0.5 cm x bone deep over right parietal bone, 11 cms. Above the right mastoid. Kept under observation. (5) Lacerated wound 4 cms x 0.3 cm x bone deep over post part of right parietal bone, 7 cms below and post to injury no.4. Kept under observation. (6) Lacerated wound 4 cms x 0.5 cm x bone deep, bleeding present over the post part of left tempero- parietal region behind left pinna, 5 cms. above left mastoid. Kept under observation. (7) Incised wound 1.5 cms x 3 cms x bone deep, present over the left occipito- parietal region, 11 cms behind left mastoid. Bleeding present. Kept under observation. (8) Lacerated wound 1.5 cms x 0.3 cm x bone deep with underlying contusion over occipital protuberance. Kept under observation. (9) Lacerated wound 1.5 cms x 0.3 cm x bone deep over bridge of nose, bleeding present +ve. Kept under observation. (10) Incised wound 1.5 cms x 0.3 cm x muscle deep present over outer 1/3 of right lower lid, blackening of lower lid. (11) Lacerated wound 3.5 cms x 1 cm x bone deep, present over post aspect of upper 1/3 of left fore-arm, 5.5 cms below left elbow (olecraveon process). Kept under observation. (12) Lacerated wound 2 cms x 0.5 cm x muscle deep, over post aspect of 1/3 of left fore-arm, 2 cms. below injury no.11. (13) Contusion swelling 11 cms x 8 cms over the post aspect of left fore-arm in its middle 1/3. Kept under observation. (14) Multiple contusions (8 in number) over back of chest, measuring from 7 cms x 2/5 cms to 13 cms x 2.5 cms. (15) Abrasion 3 cms x 2 cms over right side of lumber region 2 cms. lateral to mid line. 25. The injuries no. 10, 12 and 15 were found to be simple in nature. Kept under observation. (14) Multiple contusions (8 in number) over back of chest, measuring from 7 cms x 2/5 cms to 13 cms x 2.5 cms. (15) Abrasion 3 cms x 2 cms over right side of lumber region 2 cms. lateral to mid line. 25. The injuries no. 10, 12 and 15 were found to be simple in nature. Rest were kept under observation and X-ray was advised for them. The injuries no. 2, 4, 7 and 10 in his opinion were caused by some sharp edged weapon and the duration of the injuries at the time of medical examination was about 6 to 12 hours. The condition of the injured was critical and he was admitted in the hospital for treatment. Magistrate was called for recording dying declaration of the patient Asha Ram. 26. S.D.M., Lalitpur Sri Surya Prakash Misra recorded the dying declaration of Asha Ram Ext.Ka-13 between 4.20 and 4.40 p.m.. PW-16 Dr. Satish Chandra Agarwal gave certificates, one in the beginning and the and the other in the end of recording the above dying declaration about the fitness of the mind of the injured Asha Ram and about his consciousness to give statement. The above dying declaration was recorded in the presence of this witness Dr. Satish Chandra Agarwal. Asha Ram died on account of the injuries sustained by him subsequently at 5.20 p.m. Information about the death of Asha Ram was sent by this witness Dr. Satish Chandra Agarwal to police station Kotwali Lalitpur. 27. PW-16 Dr. Satish Chandra deposed about the above facts and has proved his report Ext.Ka-24 and the dying declaration Ext.Ka-13 of the deceased Asha Ram and the certificates given by him on the above dying declaration. 28. PW-4 Dr. J.C.Gupta conducted autopsy on the dead body of the deceased Asha Ram on 22.03.1987 at 4 p.m. when the dead body was produced before him in a sealed cover with the relevant papers by Constable Khem Chandra and Ashok Kumar and he prepared his post mortem examination report Ext.Ka-2. The deceased was about 55 years of age at the time of his death. He expired in the District Hospital, Lalitpur on 21.03.1987 at 5.20 p.m.. He was old man of average built. Rigor mortis was present on both upper and lower extremities. 29. The deceased was about 55 years of age at the time of his death. He expired in the District Hospital, Lalitpur on 21.03.1987 at 5.20 p.m.. He was old man of average built. Rigor mortis was present on both upper and lower extremities. 29. Following ante mortem injuries were present on the dead body of Asha Ram as per Ext.Ka-2 :- 1. Incised wound 4 cms x 0.5 cm x bone deep on right side of dead, 12 cms. above right ear. 2. Lacerated wound 4 cms x 0.5 cm x bone deep on right side of head, 7 cms. away from injury no.1. 3. Lacerated wound 4 cms x 0.5 cm x bone deep on right side of head, 3 cm. above left ear. 4. Incised wound 1.5 cms x 0.5 cm x bone deep on left side of hear, 4 cms. away from injury no.3. 5. Lacerated wound 1.5 cms x 0.3 cm x bone deep on the back of head, 7 cms. above. 6. Lacerated wound 1.5 cms x 0.5 cm x bone deep on bridge of nose. 7. Incised wound 1.5 cms x 0.3 cm x muscle deep over lower eye lid (right) on lateral part. 8. Lacerated wound 3.5 cmx x 1 cm x bone deep over post aspect of upper 1/3rd of left fore-arm, 5 cms. below tip of elbow joint. 9. Lacerated wound 2 cms x 0.5 cm x muscle deep over post aspect of upper 1/3rd of left fore-arm, 2 cms. below injury no.1. 10. Contused swelling 11 cms x 8 cms in middle of left fore-arm on post aspect. 11. Multiple contusion all over back of chest (8 in number) minimum being of 7 cms x 2.5 cms and maximum being 13 cms x 2.5 cms. 12. Lacerated wound 2.5 cms x 0.5 cm x joint cavity deep over left knee joint. Coagulated blood present. 13. Incised wound 2 cms x 0.5 cms on lateral aspect of right ankle joint, 2 cms. above lateral malleolus. 14. Contusion 14 cms x 10 cms on medial aspect of right leg. 30. On internal examination multiple incised wounds were found present in the scalp and skull. The membrances and brain were congested. Lungs were congested. Heart was full of blood in right side but it was empty in left side. Pulpi food material about 4 ounces was present in the stomach. 30. On internal examination multiple incised wounds were found present in the scalp and skull. The membrances and brain were congested. Lungs were congested. Heart was full of blood in right side but it was empty in left side. Pulpi food material about 4 ounces was present in the stomach. Semi- digested food material was present in small intestines. Faecal matter and gases were present in the large intestines. Gall bladder and spleen were both congested. Death was due to shock and haemorrhage as a result of aforesaid ante-mortem injuries. 31. The post mortem examination report along with other papers was kept in a sealed envelope. One Dhoti and one Chadar recovered from the dead body were put in sealed bundle. The sealed envelope and sealed bundle were handed over to the Constables mentioned above. 32. P.W.-4 Dr. J.C.Gupta deposed about the above facts and proved the post-mortem examination report Ext.Ka-2. 33. PW-9 Sri Surya Prakash Misra was posted as S.D.M., Lalitpur on 21.03.1987. He recorded dying declaration Ext.Ka-13 of Asha Ram in between 4.20 and 4.40 p.m. on 21.03.1987 in District Hospital, Lalitpur when information was sent to him about it. He obtained certificate about fitness of the mind of injured to make the statement from Dr. S.C.Agarwal before recording the statement Ext.Ka-13. He recorded the statement of the injured in accordance with law. After recording the statement of the injured, he again obtained certificate of above Dr.S.C.Agarwal about the consciousness and fitness of the mind of the injured throughout the period of recording the statement. PW-9 Sri Surya Narain Mishra deposed aforesaid facts and proved the dying declaration Ext.Ka-13 and the two certificates of Dr. S.C.Agarwal on it. 34. PW-14 S.I. Jai Narain Verma then posted at the police station Kotwali Lalitpur earlier had prepared the inquest report of the dead body of Asha Ram on 22.03.1987 which started at 7.30 a.m. after appointing inquest witnesses and obtaining their opinion. The information of the death was received at police station Kotwali, Lalitput on 21.03.1987. The death memo Ext.Ka-14 sent by Dr. S.C.Agarwal was received at the police station. PW-14 starting at 6/35 p.m. from the police station reached the Hospital along with Constable Khem Chandra and Ashok Kumar. He took the dead body in police custody but since it had become dark at that time, the inquest proceedings could not be conducted on the that date. S.C.Agarwal was received at the police station. PW-14 starting at 6/35 p.m. from the police station reached the Hospital along with Constable Khem Chandra and Ashok Kumar. He took the dead body in police custody but since it had become dark at that time, the inquest proceedings could not be conducted on the that date. The proceedings of inquest were then done on next day. PW-14 and inquest report Ext.Ka-15 prepared according to law. He also prepared photo lash, challan lash Ext.Ka-17 of the dead body. He put the dead body in sealed cover and prepared sample seal Ext. Ka-18. He prepared letters addressed to S.M.S., District Hospital, Lalitpur and R.I. Ext.Ka-19 and Ext.Ka-20. He then handed over the dead body to the above constables for taking it for post mortem examination. 35. PW-14 S.I.Jai Narain Verma has deposed about the above facts and proved Ext.Ka-14 to Ext.Ka-20 referred to above. 36. PW-7 Head Constable Brahma Swaroop was posted as head Mohrrir at police station Banpur at the relevant time. He deposed that he recorded the check report Ext.Ka-3, registered the case under Sections 324, 323, 504 and 506 IPC and made entries in G.D. as Ext.Ka-4 on the basis of the written report Ext.Ka-1 lodged by PW-1 Viran on 21.03.1987 at 11.15 a.m. at police station Banpur. He inspected and recorded the injuries of Asha Ram who was also brought at the police station in the G.D. Ext.Ka-4. The injured was sent for medical examination with constable Ram Charan Chaubey. S.O., S.P.Singh took the investigation in his own hands. 37. He also proved the G.D. entry by which upon receiving the information about the death of Asha Ram, the case was converted to one under Section 302 IPC vide Rapat no. 23, 9.30 a.m. dated 23.03.1987 as Ext.Ka-8. 38. PW-17 Amar Singh proved the recovery of lathi allegedly used in committing the murder of Asharam on the pointing out of accused Rati Ram from a place near the well in the agricultural field of Hullu and proved the same as material Ext.Ka-1. 39. 23, 9.30 a.m. dated 23.03.1987 as Ext.Ka-8. 38. PW-17 Amar Singh proved the recovery of lathi allegedly used in committing the murder of Asharam on the pointing out of accused Rati Ram from a place near the well in the agricultural field of Hullu and proved the same as material Ext.Ka-1. 39. PW-18 Jagdish son of Ramdeen who was examined by the prosecution to prove that axe and two lathis allegedly used in committing the murder of Asha Ram were recovered on the pointing out of accused-appellant no.1 Phalloo and A-2 Ram Swaroop and accused Nand Lal, in his evidence tendered during the trial failed to support the recovery of crime weapons on the pointing out of appellants Phalloo, Ram Swaroop and accused Nand Lal from the places mentioned in the recovery memo. He was declared hostile on the request of the State counsel and cross examined by him with the permission of the trial judge, however, he struck to his evidence tendered by him in his examination-in-chief that the recovery of the crime weapons was not made in his presence on the pointing out of the accused-appellants. 40. PW-19 Hukum Singh, the other witness of recovery of blood stained axe and two lathis allegedly used in the commission of the murder of Asha Ram from a place near the well from agricultural field of accused-appellant Phalloo A-1 on the pointing out of the accused-appellants proved the axe and the lathi so recovered as material Exts. Ka-4 and Ka-2. 41. S.I. S.K.Singh, Investigating Officer of this case, who was examined as PW-21, in his evidence tendered before the trial court disclosed the various steps taken by him during the course of investigation, proved the check FIR Ext.Ka-3. Statement of deceased Asharam recorded by him under Section 161 Cr.P.C. as Ext.Ka-26, Site plan of the place of occurrence Ext.Ka-27, recovery memo of the simple and blood stained earth received from the forensic lab after chemical examination, recovery memo of axe and two lathis Ext.Ka-21, recovery memo of a lathi Material Ext.Ka-1 on the pointing out of the Rati Ram Ext.Ka-29 and the charge sheet filed by him against the accused-appellants and other co-accused Ext.Ka-32. 42. 42. Apart from the examining the aforesaid witnesses the prosecution has brought on record affidavits of formal witnesses, namely, PW-8, Constable 159 Khem Chandra who had taken the dead body of the deceased from the place of occurrence to the mortuary, PW-10 Raj Kumar Jain, Junior Clerk, District Hospital, Lalitpur who had dispatched the case properties for chemical examination to Medico Legal Examiner, Agra, U.P., PW-11 Constable 195 C.P. Ram Prasad Awasthi, who had deposited inquest report of deceased Asha Ram and other related documents in the Malkhana of P.S. Banpur on 23.03.1987 vide G.D. entry no. 22, PW-12 Lady Constable Savitri Devi who had deposited one bundle in which the case property was sealed along with post mortem report of the deceased and other papers in the Malkhana of P.S. Banpur after receiving the same from the Malkhana of P.S. Kotwali, PW-13 Vishram Singh who had stated in his affidavit that on 15.12.1987 Constable 385 Dhani Ram of P.S. Banpur had deposited four sealed bundles and one lathi in the Sadar Malkhana and had sent two containers containing simple and blood stained earth, two lathis and one axe to Medico Legal Examiner, Agra but the axe was not received back. 43. Thus after going through the entire evidence on record and scrutinizing the same thread bare, we find that the prosecution has succeeded in establishing the guilt of A-2 Ram Swaroop. However, as far as the A-1 Phalloo is concerned, we find that there is no reliable evidence on record on the basis of which his conviction recorded by the learned trial judge with the aid of Section 34 of the IPC can be sustained. It is true that PW-1 informant Viran has in the FIR and as also in his evidence tendered before the trial court stated that his father Asha Ram was assaulted by A-2 Ram Swaroop by axe and A-1 Phalloo and his sons Nand Lal, Rati Ram with lathis but the four other eye witnesses of the occurrence produced by the prosecution to prove its charge against accused appellants failed to support the prosecution case qua A-1 and deposed that A-1 Phalloo was merely present at the place of the incident, no overt act of any kind has been attributed by them to A-1 Phalloo. Now we are left only with the evidence of PW-1 Viran and the facts deposed by deceased Asha Ram in his dying declaration Ext.Ka-16 in this regard. From the facts deposed by PW-1 on page 17 of the paper book in paragraph 9 of his examination-in-chief itself it appears that he had not witnessed the actual assault and on noticing the presence of the assailants armed with axe and lathi, he out of fear had run away from the place of occurrence raising cries for help. 44. Now coming to the facts stated by deceased Asharam in his dying declaration, we find that he has in his dying declaration made sweeping and general allegations of his being assaulted with lathis and axe by A-1 Phalloo and his nephews (sons of A-1 Phalloo) Hannu, Ram Swaroop A-2, Nand Lal, Rati Ram and Phulwa. An extremely striking feature of the dying declaration of the deceased Asha Ram is that in his dying declaration, he has not spoken about the presence of his son PW-1 Viran with him at the time and place of occurrence. He has very clearly stated that the incident had been witnessed by Buddha son of Hazari and Tulsi son of Nand Kishore. The trial judge while acquitting Hannoo, Nand Lal, Rati Ram and Phulwa had partially disbelieved the facts stated by him in his dying declaration as well as the evidence of PW-1 with regard to the participation of the aforesaid co-accused in the commission of murder of Asha Ram. 45. The report of the chemical examiner Ext.Ka-37, indicates that no human blood was found on the lathi which was allegedly recovered on the pointing out of A-1 Phalloo. From the facts stated by the deceased in his dying declaration also the presence of PW-1 at the place of occurrence at the time of incident become extremely doubtful and no reliance can be placed on the evidence given by him on the material points relating to the manner of assault and the identity of the perpetrators of crime for the purpose of convicting the accused appellants. It appears that in view of the grudge which he nurtured against A-1 Phalloo and his sons and the animosity he harboured against them on account of dispute between him and A-1 Phalloo emanating from the partition of their joint holdings between them and the constant complaint of accused appellants that they had been allotted land of inferior quality in the partition, when A-2 Ram Swaroop inflicted injuries on him by assaulting him with lathi and axe, deceased Asharam in his dying declaration as a measure of vendetta implicated the entire family of A-1 Phalloo including A-2 Ram Swaroop and his three other sons Nand Lal, Rati Ram and Hannoo. The evidence of PW-2 and PW-3 evinces that A-1 Phalloo was merely present near the place of incident. The evidence of PW-5 indicates that he had arrived at the place of incident after the occurrence, while PW-6 deposed that he had not seen A-1 Phalloo at the place of incident at the time of occurrence. Thus the evidence of PW-2 Tulsi, PW-3 Budha, PW-5 Ram Kishan and PW-6 Bhaiya Ram on the point of alleged involvement of A-1 Phalloo in committing the murder of Asha Ram does not corroborate the facts stated by deceased Asha Ram in his dying declaration assigning the role of inflicting lathi injuries on him to A-1 Phalloo. Thus the dying declaration of the deceased in our opinion does not appear to be reliable and trustworthy insofar as it purports to indict, A-1 Phalloo. The participation of A-2 Ram Swaroop is fully proved not only from the facts stated by the deceased in his dying declaration but also from the evidence of PW-2 Tulsi, PW-3 Buddha, PW-5 Ram Kishan and PW-6 Bhaiya Ram, who have consistently deposed that it was A-2 Ram Swaroop, who had assaulted Asha Ram with lathi and axe causing severe injuries to him. It is true that all the aforesaid four witnesses were declared hostile but in view of the settled legal position that the testimony of a hostile witness is not liable to be discarded in toto and the part of testimony of hostile witness, which supports the prosecution or defense case can be relied upon by the court. 46. It is true that all the aforesaid four witnesses were declared hostile but in view of the settled legal position that the testimony of a hostile witness is not liable to be discarded in toto and the part of testimony of hostile witness, which supports the prosecution or defense case can be relied upon by the court. 46. Thus in view of the foregoing discussion, we hold that the prosecution has succeeded in proving beyond all reasonable doubts that deceased Asha Ram died on 21.03.1987 at about 5.20 p.m. as a result of the injuries inflicted on him by A-2 Ram Swaroop on the same day at about 9.00 a.m. by assaulting him with axe and lathi in his field. As far as appellant no.1 Phalloo is concerned, we are of the view that the prosecution has failed to prove his complicity and participation in the murder of deceased Asha Ram by any cogent and reliable evidence and hence he is entitled to benefit of doubt. As such, the recorded conviction of A-2 Ram Swaroop and the sentence of life imprisonment awarded to him under Section 302/34 IPC is modified to one under Section 302 IPC in view of the failure of the prosecution to prove that apart from A-2 any other person had also assaulted deceased Asha Ram in furtherance of any common intention. The conviction of A-1 Phallo and the sentence of life imprisonment awarded to him by the trial court under Section 302/34 IPC cannot be sustained are liable to be set aside. 47. These are the reasons upon which we set aside judgment and order.