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Allahabad High Court · body

2017 DIGILAW 499 (ALL)

STATE OF U. P. v. BADAN SINGH

2017-02-10

SHASHI KANT, SHASHI KANT GUPTA

body2017
JUDGMENT : 1. This Government appeal has been preferred by the State Government against the accused respondents namely Badan Singh and Jagdish Singh against the judgement and order dated 25.2.1985 passed by Sri V.V. Singh, Vth Addl. Sessions Judge, Etah in Session Trial No. 344 of 1983 acquitting the accused appellant of the charges framed under sections 302/34 I.P.C. 2. The present Govt. appeal was filed in the year 1985 against the impugned judgement and order dated 25.2.1985 and it has come up for hearing before us after the lapse of a period of about 31 years. 3. According to the FIR lodged by the informant Sadaram on 20.9.1981 at about 8.00 PM, his younger brother Ved Ram when he was standing in front of the door of his house, the accused-respondent, namely, Badan Singh and Jagdish armed with country made pistols suddenly appeared on the scene of offence and after firing at Vedram hitting him at his back, fled away towards their house. It was further stated in the FIR that the informant along with his mother and brother Vishundayal who were standing nearby witnessed the incident. Since the condition of Vedram was critical, he was rushed to Etah Hospital. Motive for the assault on the deceased was stated to be old enmity. It was further stated that due to night hours and lack of conveyance, there was delay in reaching the police station for lodging FIR. 4. The injured Vedram was medically examined by Dr. R.K. Gupta at 3:20 A.M. on 21.9.1981. Thereafter Sri Sadaram dictated the FIR, Ext. Ka-1 to Sri Yadram and lodged the FIR at police station Kotwali Etah at 4:30 A.M. The chick report was prepared and the necessary papers were sent to police station Sakit, where a case was registered at 6:20 P.M. on 21.9.1981. The investigation was entrusted to S.I. Sri R.K. Tyagi, who visited the spot and prepared the site plan. He recorded the statements of witnesses and submitted charge sheet against the accused under section 307 IPC on 6.10.1981. 5. Deceased Vedram remained under treatment in the District Hospital, Etah, but he finally succumbed to his injuries on 2.11.1981 at about 2:30 P.M. after about one and half months of the incident. The information about his death was immediately given to the police station Kotwali. 5. Deceased Vedram remained under treatment in the District Hospital, Etah, but he finally succumbed to his injuries on 2.11.1981 at about 2:30 P.M. after about one and half months of the incident. The information about his death was immediately given to the police station Kotwali. S.I. Sri Baburam Yadav visited the mortuary and prepared inquest on the dead body on the same day. It may also be noted that before the death, the dying declaration of Sri Vedram was also recorded by Sri K.M. Lal, the then learned S.D.M., Aliganj at 6:30 A.M. on 21.9.1981. The accused were committed to the Court of Sessions and were charged under sections 307/34 IPC. Subsequent to his death charges were converted for offence punishable under Sections 302/34 IPC. 6. The prosecution examined P.W. 1, Sadaram and P.W.2, Sri Vishun Dayal as eye witnesses of the occurrence. P.W. 1 has proved the F.I.R. Ext. Ka-1. P.W. 3 Dr. R.K. Gupta has proved the injury report Ext. Ka-2.which was prepared by him at 3:20 A.M. on 21.9.1981. 7. P.W. 4, C/M Netrapal Singh was posted at police station Sakit at the relevant period. He proved the G.D. entry made at 6:20 P.M. on 21.9.1981, whereby the case was registered at police station Sakit. 8. P.W. 5 Sri Baburam Yadav stated that he made the inquest on the dead body of the deceased. He proved the inquest report and allied papers ( Ext. Ka-4 to Ka- 9). He also proved Ext. Ka-10, the copy of the G.D. entry by which the FIR was lodged at 4:30 A.M. on 21.9.1981 and the chick report Ext. Ka-11 as also Ext. Ka-12 the G.D. entry by which the death of Ved Ram was notified at the police station. 9. P.W.6 R.K. Tyagi is the I.O. He proved the site plan Ext. Ka-13 and the charge sheet Ext. Ka-14 as also various aspects of the investigation. P.W. 7 Sri K.M. Lal has proved the dying declaration Ext. Ka-15 recorded by him, while P.W. 8 Dr. A.K. Malpani has proved the post mortem examination report Ext. Ka-16. 10. The accused persons pleaded not guilty. They claimed that there was party-bandi in the village. It was suggested that the accused belonged to the party of Sri Nathu, who lost election against Lalaram, who was supported by the complainant. Ka-15 recorded by him, while P.W. 8 Dr. A.K. Malpani has proved the post mortem examination report Ext. Ka-16. 10. The accused persons pleaded not guilty. They claimed that there was party-bandi in the village. It was suggested that the accused belonged to the party of Sri Nathu, who lost election against Lalaram, who was supported by the complainant. It was also suggested that deceased Vedram who was a criminal was killed at some unknown place by some unknown miscreants but the accused persons have been falsely implicated due to village party bandi . 11. Mr. S.N. Tripathi, learned A.G.A. while challenging the impugned judgement and order of acquittal submitted that the prosecution witnesses proved the case to the hilt and no dent could be caused by the defence in the prosecution case. It was further submitted that the evidence adduced by the prosecution does not suffer from any inconsistency and infirmity and there is nothing on record to show that the eye witnesses were not present on the spot at the time of occurrence. It was further submitted that the medical evidence also corroborates the testimonies of the witnesses. The minor contradictions in the testimonies of the prosecution witnesses does not make any difference so far as the merit of the case is concerned , particularly when a rustic or illiterate witness, hailing from a village depose before the court facing an astute lawyer. The prosecution has undoubtedly proved its case beyond any reasonable doubt and the findings recorded by the trial court are liable to be reversed . 12. It was further submitted that there was sufficient source of light in the form of moon light which enabled the witnesses to identify the appellant ; since the the dying declaration was recorded by a responsible Officer i.e. Sub Divisional Magistrate, as such, the appellant cannot challenge the authenticity of the dying declaration; merely some exaggeration, omission and defect in the site plan would not be sufficient to discard the testimony of the witnesses. It was further submitted that all the eye witnesses who had seen the appellants from a very close range had duly identified them. It was further submitted that all the eye witnesses who had seen the appellants from a very close range had duly identified them. Since deceased was in a very precarious condition and the witnesses were perturbed to save the life of the deceased, the question, as to whether scribe was called from his village or had met him in the hospital is also of little importance . 13. It was further submitted that the testimony of witnesses could not be discarded only on the ground that the witnesses are related to each other. Dying declaration has been discarded by the trial court on flimsy grounds. There is no provision that the dying declaration must be in question-answer form and failure to record it in question -answer form does not affect its evidentiary value. Mere some discrepancies in the testimonies of the prosecution witnesses are not sufficient to discard the dying declaration if the same is found to be otherwise trustworthy. 14. In support of his contention, learned A.G.A. has relied upon the law laid down in Dhaval Gipalbhai Darji Vs. State of Gujrat: 2013 Crl. L. J. 1225 and State of Karnataka Vs. Shariff : (2003)2 SCC 473 . 15. In reply, learned counsel for the accused respondents, while supporting the impugned judgement and order of the trial court submitted that the trial court was fully justified in passing the order of acquittal and the same does not suffer from any legal infirmity or perversity and, therefore, the same is not liable to be interfered by this court. 16. It was further submitted that the place of occurrence is disputed because, as per the prosecution version, much blood fell at the place of occurrence but, the I.O. deposed that he did not notice any blood stains at the place of occurrence. The clothes of the deceased and the quilt in which the injured was allegedly taken to the hospital , which, according to the witnesses, were soaked with blood, were not produced before the court. The deceased was a man of bad character and had criminal antecedents and it appears that he was murdered at some unknown place by some unknown miscreants. The accused persons have been implicated due to village party bandi and political rivalry. 17. It was further submitted that the F.I.R. was scribed by one Yadram resident of village Ganganagar. The deceased was a man of bad character and had criminal antecedents and it appears that he was murdered at some unknown place by some unknown miscreants. The accused persons have been implicated due to village party bandi and political rivalry. 17. It was further submitted that the F.I.R. was scribed by one Yadram resident of village Ganganagar. According to the statement of Sadaram, he met him by chance in the hospital where he was present as an attendant of a close relative who was also admitted in the same hospital. On the other hand, P.W. 2, Vishnu Dayal has very categorically stated that Yadram was called from his village in the odd hours of the night. Thus, the statements of both these witnesses with regard to scribing of F.I.R. by Yadram in the hospital are contradictory to each other. 18. It was further submitted that though it is alleged that the condition of the deceased was very precarious and admittedly the doctor was available near the place of occurrence but no immediate medical aid was provided to the deceased. It was further submitted that the incident allegedly took place at 8.00 P.M. but the injured was admitted in the hospital at 3.20 A.M. According to the statement of P.W. 1 Sadaram, vehicle could not be arranged till 2.00 A.M. on the fateful night, whereas , P.W. 2 Vishnu Dayal has stated that he got a matador at 11.00 P.M. and he along with the injured reached Etah in the mid night. If they had reached Etah in the mid night, then, there was no occasion for them to admit the injured in the hospital so late i.e. at 3.20 A.M. in the night. No sufficient explanation has been given for such an inordinate delay in admitting the deceased in the hospital. 19. It was further submitted that there are material contradictions in the dying declaration as well as in the testimonies of the witnesses. A perusal of the dying declaration shows that the injured not only gave a very detailed statement but also stated each and every moment's detail of the incident including the parentage, residence , name of the police station of the accused persons describing the alleged fire arm accurately carried by the assailants. The dying declaration was not recorded properly because it was not recorded in question- answer form. The dying declaration was not recorded properly because it was not recorded in question- answer form. Since the deceased was illiterate and his condition was very precarious, it was quite impossible for him to have given details in his dying declaration of the accused persons manner of assault and accurate description of fire arm. 20. It was further submitted that the version in the dying declaration is contradictory to the statements made by the P.W. 1 and P.W.2. According to the prosecution, the occurrence took place in the lane and not within the house as mentioned in the dying declaration. Both the eye witnesses categorically stated that the accused persons immediately fled away after firing the shots and did not wander around the house as mentioned in the dying declaration. According to the dying declaration, when the deceased was stepping out of his house, he saw the respondent-accused. When after seeing them, he tried to escape inside the house, they opened fire on him hitting the shot on his back. Immediately after being shot, the outer door was bolted from inside by his mother. When the villagers arrived at the spot, knocked the door and disclosed their identity, then only his mother opened the door. Lalaram, Sadaram and others brought the deceased in a critical condition to the hospital. Thus, the variance between the statements of these two alleged eye witnesses and the dying declaration itself creates serious doubts about the authenticity, credibility and reliability of the dying declaration as well as the prosecution story. 21. It was further submitted that admittedly there was no source of light and witness Sadaram has stated that he had seen the accused in the moon light. This statement apparently appears to be wrong because it was the 7th day of the dark fortnight of the month and on that date, the moon must have arisen in the mid night. 22. Heard Mr. S.N.Tripthi, learned A.G.A. for the State and Mr. Shiv Nath Singh, learned counsel for the accused respondents. 23. From perusal of the record, it transpires that more than 20 years before the incident, the complainant Sadaram and his brother with their aunt were locked up in land dispute in which Jwala Prasad, grandfather of accused respondent Badan Singh had appeared as a witness against the complainant. Shiv Nath Singh, learned counsel for the accused respondents. 23. From perusal of the record, it transpires that more than 20 years before the incident, the complainant Sadaram and his brother with their aunt were locked up in land dispute in which Jwala Prasad, grandfather of accused respondent Badan Singh had appeared as a witness against the complainant. This apparently gave rise to an enmity between the complainant and the accused Jagdish who is a nephew of Badan Singh. 24. According to the F.I.R. version, the incident occurred on 20.9.1981 at 8.00 P.M. when the deceased Vedram was standing in front of his door, the accused Badan Singh and Jagdish, who were armed with country made pistol, fired at him which hit him at his back and thereafter both of them fled away towards their house. The injured was admitted to the hospital at 3.20 A.M. Thereafter, F.I.R. was lodged which was scribed by Yadram. In the next morning the dying declaration was recorded by the S.D.M. Mr. K.M. Lal (P.W. 8) . A bare perusal of the testimonies of P.W. 1( Sadaram) and P.W. 2 (Vishnu Dayal) shows that there are material contradictions in the prosecution version. According to the F.I.R. version, at the time of the incident, the deceased was standing in front of his door. However, according to the site plan the deceased was standing at the time of the occurrence in the 'Gali' which is on the eastern side of his house. In front of the house of the deceased there is a Chabutra and in the right hand side there is a Gali . P.W. 2 also in his testimony has deposed that at the time of occurrence deceased Vedram was standing in Gali watching a quarrel going on between Mijaji and his wife when he was shot by the accused respondents. According to the site plan as well as the prosecution story, the accused Jagdish arrived at the scene from western side of the house and the other accused Badam Singh came from the eastern side, as such both the accused arrived at the spot through different routes. According to the prosecution, fire was shot by the accused Jagdish from place 'C' which was at a distance of about 15 paces .Accused appellant Badam Singh fired shot from place 'B', very close to the place where the deceased was standing. According to the prosecution, fire was shot by the accused Jagdish from place 'C' which was at a distance of about 15 paces .Accused appellant Badam Singh fired shot from place 'B', very close to the place where the deceased was standing. Except moon light, no source of light has been shown . 25. For ready reference, the relevant extracts of the statement of P.W. 1, Sadaram and P.W. 2, Vishun Dayal are quoted below: 26. P.W.1, Informant (Sada Ram, brother of the deceased): **esjs edku ds lkeus 8 x 8 gkFk dk pcwrjk gS eS fn'kk ugh tkurkA fetkth dk edku gekjs edku ls 5&6 dne nwj xyh ds ikj gSA esjs edku ds lkeus ?kVuk LFky ij xyh flQZ 4 gkFk pkSM+h gSA eqyfteku ds Hkkxus ds igys rd ?kVuk LFky ij esjs] esjh eak o HkkbZ fo'kqu n;ky ds vykok dksbZ ugh FkkA fetkth o mldh cgq ?kj ds vUnj Fkh og fn[kkbZ ugh ns jgh FkhA ?kVuk ds le; pkanuh jkr dh jks'kuh Fkh vkSj dksbZ jks'kuh xyh ;k pcwrjs ij ugh FkhA mlh pakn dh jks'kuh esa eSus nksuks eqyftekuks dks igpkuk FkkA* 27. P.W.2 (Vishnu Dayal- brother of the deceased): * esjs edku ds lkeus eM+Sb;k cuh gS eS o 'kksHkk jke bl eM+Sb;k ds iwoZ es FksA osnjke Hkh eM+Sb;k ds iwoZ Fks o iwoZ eqWg fd, [kM+s FksA txnh'k if'pe vkSj cnu flag iwoZ ls vk,A ftl xyh ls osnjke [kM+s Fks og esjs edku o pcwrjs ds iwoZ gSA rFkk iwoZ ls if'pe dks tkrh gSA tc xksyh pyh rks vuoj] ykykjke o 'ks"kiky gekjs fCkYdqy ikl gekjs pcwrjs [kM+s FksA ** 28. A bare perusal of the aforesaid statements of P.W. 1 and P.W. 2 as well as the site plan clearly shows that there are material contradictions in the F.I.R. version and the testimonies of the witnesses as well as other evidences adduced by the prosecution. It was stated by the P.W. 1 and P.W.2 in their testimonies that the deceased was standing in the Gali and watching quarrel between Mijaji and his wife but in the F.I.R. it was alleged that he was standing at the door of his house quite at a distance from the gali. 29. It was stated by the P.W. 1 and P.W.2 in their testimonies that the deceased was standing in the Gali and watching quarrel between Mijaji and his wife but in the F.I.R. it was alleged that he was standing at the door of his house quite at a distance from the gali. 29. It is also notable that in the dying declaration the deceased has categorically stated that at the time of occurrence at about 8.00 P.M. when he was stepping out of his door, he saw accused Jagdish and Badan Singh, with whom he was having enmity. After seeing them, he rushed inside his house and, at that very moment, these two accused fired shot at him, He fell down after receiving the gunshot injury immediately thereafter her mother Surja Devi and brother Vishun Dayal came on the spot and other inmates of the village including one Sadaram also reached there and his mother closed the door of the house from inside. The accused persons kept hovering near the house but his mother did not open the door. When on hearing the alarm, people in the vicinity arrived at the spot; the accused fled away from the scene. When the villagers knocked the door and disclosed their identity, his mother opened the door and then Lalaram, Sadaram and others rushed him to the hospital. 30. According to the dying declaration, when the deceased was stepping out of his house, he saw the respondent-accused. When after seeing them, he tried to escape inside the house, they opened fire on him hitting the shot on his back. However, according to the P.W. 1 and P.W. 2, the incident had occurred in the Gali. 31. There is one more aspect of the matter which merits serious consideration. It is alleged by the P.W.1 that after the incident, the lane was wet with blood, however,when the Investigating Officer reached the spot he neither found any stain of blood nor there is any evidence on record to show that any blood stained earth was taken by the I.O. for its examination whether it was human blood or not. This fact itself clearly goes to show that the place of the incident is highly doubtful . 32. There is one more aspect of the matter which also bears consideration. This fact itself clearly goes to show that the place of the incident is highly doubtful . 32. There is one more aspect of the matter which also bears consideration. According to P.W. 1, he met Yadram (scribe of the F.I.R.) in the hospital at 3.00 O' clock in the morning where he had come to see a close relative and F.I.R. was scribed there by him in the hospital in the night at 3 O' clock . However, according to the P.W. 2, Vishundayal, he was called at around 3 O' clock from Gaganpur village which was far away from the hospital for scribing the F.I.R., as such there is a material contradiction between the statements of these prosecution witnesses with regard to scribing of the F.I.R. It also appears improbable that the scribe, who was not even closely related to the deceased, would go to the hospital from his village for scribing the F.I.R. particularly in the odd hours of the night for simply scribing the F.I.R. Thus, this part of the story set up by the prosecution that Yadram was called from his house at 3 O'clock for scribing the F.I.R. in the hospital appears to be highly doubtful and also does not inspire confidence. 33. Now coming to the other aspect of the matter, we do not find that the incident took place at 8.00 P.M. The deceased was admitted in the hospital at 3.20 A.M. on 21.9.1981 i.e. after more than seven hours and according to the prosecution, the distance of hospital from the place of occurrence was hardly 8-9 Kms. From perusal of the record, it transpires that the deceased belonged to well to do family and it does not appeal to the reason that for so many hours he could not get any conveyance for taking the deceased to the hospital although the house of the deceased was near the G.T. Road. In this regard, it would be relevant to discuss the testimonies of P.W. 1 and P.W. 2. In this regard, it would be relevant to discuss the testimonies of P.W. 1 and P.W. 2. P.W. 1 Sadaram tried to explain this delay by stating that they could not get any vehicle for Etah till 2:00 A.M. P. W. 2 Sri Vishun Dayal, on the other hand, stated that they reached Etah with the injured in the mid night and they got a Metador at 11:00 P.M. If the injured had reached the hospital in the mid night, there was no justification for delay in admitting the deceased who was in a critical condition in the hospital at 3.20 A.M. 34. In the circumstances, the court below has rightly observed in the judgement that probably Ved Ram was either injured at Ganga Nagar or at some nearby place and in-fact Yadram probably had given the information of the incident to the brothers of the injured. The brothers of the deceased must have then proceeded to Ganganagar and after consultation brought the injured to Etah, otherwise there was no reason for delay in reaching Etah, which was hardly at a distance of six miles from village Kangraul. 35. It has also come in the testimonies of the prosecution witnesses that about 20-25 years ago there was some litigation over land between the complainant's side and his aunt and according to P.W.2, since last 20 years no litigation or quarrel took place between them. Therefore, there was no reason or occasion for the accused to commit the murder of the deceased in the heart of the village abadi. No explanation has been given as to why the accused did not cause any injury to the other brothers of the deceased who were allegedly present on the spot while committing the alleged offence. This fact itself shows that the deceased was injured by some unknown persons at a place where Sadaram and Vishnu Dayal were not present. Sadaram has admitted that there was a village party bandi and accused had supported one Nathu and denied that he had supported Lalaram who contested the election against Nathu. Both the witnesses, however, admitted that Lalaram not only helped the complainant in the village but also accompanied him and the injured to the hospital and the police station.This fact by itself shows that the complainant belongs to the party of pradhan Lalaram and not to Nathoo. Both the witnesses, however, admitted that Lalaram not only helped the complainant in the village but also accompanied him and the injured to the hospital and the police station.This fact by itself shows that the complainant belongs to the party of pradhan Lalaram and not to Nathoo. Thus, the court below has not committed any illegality or perversity in observing that on the date of the incident there was no reason for the accused to have taken the risk of committing the murder of the deceased in the heart of the village abadi. Moreover, had there been any enmity with the deceased family, the accused definitely would have had tried to kill the brothers (PW-1 & PW-2) of the deceased. Thus, the possibility of deceased's brothers (PW-1 & PW-2) being present on the spot at the time of the occurrence is doubtful. 36. There is material contradiction between the testimonies of P.W.1 and P.W. 2 with regard to the clothes worn by the accused Jagdish. According to P.W. 1, Sadaram, Jagdish was wearing a white kurta and Chooridar payjama whereas according to P.W. 2, Vishnu Dayal, Jagdish was wearing a blue pant and blue shirt. This contradiction creates dent in this prosecution story. 37. Much emphasis has been given by the learned counsel for the accused respondents on the dying declaration recorded by S.D.M. Mr. K.M.Lal, which has been discarded by the court below. A bare perusal of the dying declaration shows that the injured not only gave a very detailed statement but also stated each and every moment's detail of the incident including the parentage, residence , name of the police station of the accused persons and the description of the fire arm. The version of the dying declaration is in contradiction to the statement made by the P.W.1 and P.W. 2. According to the PW-1 and PW-2, the occurrence took place in the lane and not at the door of the house as mentioned in the dying declaration. Both the eye witnesses categorically stated that the assailants immediately fled away from the scene after committing the crime and did not hover near the house as mentioned in the dying declaration. According to dying declaration, deceased was shot by the accused when he rushed inside the house after seeing the assailants from the outer door of the house. Both the eye witnesses categorically stated that the assailants immediately fled away from the scene after committing the crime and did not hover near the house as mentioned in the dying declaration. According to dying declaration, deceased was shot by the accused when he rushed inside the house after seeing the assailants from the outer door of the house. There after the door was bolted from inside by his mother and only when the villagers knocked the door and disclosed their identity, the mother of the deceased opened the door and then Lalaram, Sadaram and others rushed the deceased to the hospital. The Trial Court has given its careful consideration to the entire evidence including the dying declaration produced by the prosecution and was of the opinion that it was not possible to place reliance on the dying declaration. 38. For ready reference, the dying declaration of the deceased is being quoted below: **esjk uke osnjke ,l@vks lksuiky vkj@vks daxjkSy Fkkuk ldhV ftyk ,Vk dk jgus okyk gW wA dy fnuakd 20&9&81 dks ?kj ls 'kke ds vkB cts [kkuk [kkdj fudyk tSls gh njokts ls ckgj nks iSj j[ks fd txnh'k ,l@vks eaxsyky vkj@vksdxjkSy o onu flag ,l@vks lwjtiky vkj@vks dxjkSy ls esjh iqjkuh jaft'k Fkh budsk ns[krs gh eS ?kj ds vUnj Hkkxk bu nksuk s yksxks us eq> ij ikSuk ¼ns'kh reapk½ ls Qk;j fd;k tks esjs yxk yxrs gh eS fxj x;k rFkk esjs fxjrs gh esjh ekrk th lqjtk nsoh o fo'kqu ¼vi0½ vk x;s rFkk lnkjke o iM+ksl ds yksx Hkkx dj vk x;s rFkk ekrk th eq>s ?kj ds vUnj xksyh yxus ds ckn cUn dj fn;k] blds ckn nksuks yksxks us eq>s ekjus ds fy;s ?kj ds vkl&ikl ?kwers jgs ysfdu njoktk ugh [kksyk] rc rd xako ds vU; yksx Hkh vk x;s rFkk mijksDr nksusk yksx fd/kj Hkkx x;s irk ugh pykA tc xako okyks us ?kj dk njoktk [kqyok;k rc ekrk th us njoktk [kksyk rc ykykjke\ vuoj flag lnkjke f'kon;ky eq>s vLirky yk;sA bls vykok eq>s dqN ugh dguk gSA 39. The trial court while dealing with the dying declaration observed as follows: "Much reliance has been placed on the dying declaration recorded by Sri K.M.Lal, S.D.M., There is force in the argument of the learned counsel for defence that this dying declaration has not been recorded properly. The dying declaration was not recorded in question and answer form. The trial court while dealing with the dying declaration observed as follows: "Much reliance has been placed on the dying declaration recorded by Sri K.M.Lal, S.D.M., There is force in the argument of the learned counsel for defence that this dying declaration has not been recorded properly. The dying declaration was not recorded in question and answer form. It is not possible to believe that the deceased who was illiterate, gave his name, parentage, residence etc. Without any prompting. According to Sri K.M.Lal, the injured not only gave a very elucide statement, he realized that the Magistrate has bot understood when he stated that the accused fired shot with Pauna and took the trouble of explaining that the Pauna is country made pistol. In any case this dying declaration completely shatters the prosecution story. According to this dying declaration the occurrence did not take place in the Gali. Sri Ved Ram stated that at about 8 P.M. just when he was stepping out of his door he saw the two accused and on seeing them immediately ran back within the house, but the two accused fired shot at him. Both these shots hit him and he fell down within the house. His mother and Vishun Dayal closed the door of the house from inside. The two accused tried their best to get the door opened so that they may kill Ved Ram, but the mother of the deceased did not open the door. When the accused were not able to get the door opened, they continued to wander around the house for some time. When more persons arrived, the accused went away to some unknown destination. Thereafter when the villagers knocked the door and disclosed their identify the mother of Ved Ram opened the door and then Lalaram, Sadaram and others brought him to the hospital. This version of Sri Ved Ram is entirely against the version given by the two witnesses.The prosecution case is that the occurrence took place in the Gali and not within the house as mentioned in the dying declaration. Both the eye witnesses stated that the two accused immediately ran away after firing the two shots and did not wander around the house as mentioned in the dying declaration. The two witnesses further stated that the two accused entered their house and did not go to unknown destination as mentioned in the dying declaration. Both the eye witnesses stated that the two accused immediately ran away after firing the two shots and did not wander around the house as mentioned in the dying declaration. The two witnesses further stated that the two accused entered their house and did not go to unknown destination as mentioned in the dying declaration. According to the witness there was no enmity for the last 25-30 years. If so, the deceased had no reason to rush back within his house on seeing the two accused. The story of the house being bolted from inside and the accused remaining near the house for a long time is against the prosecution version. According to the dying declaration the shots fired by both the accused hit him. This is against the statements of the witnesses and the medical evidence as contained in the injury report and the postmortem report. In the dying declaration there is no mention that Sadaram was present at the time of occurrence. In fact according to the dying declaration nobody was present when shots were fired and soon after the shots were fired Vishun Dayal and his mother came near the deceased. Sri Sadaram came with Lalaram and others. Sri K.M.Lal has stated that the relatives of deceased were present near him at the time when the dying declaration was recorded. Admittedly Sri Vedram was conscious. Sri Vishun Dayal has stated that the witnesses were talking in presence of Sri Ved Ram as to who have caused the injuries. It is to be noted that the medical report shows that the injuries were caused during the dark night and the injuries were received in the back. It is evident that Sri Ved Ram could not identify his assailants and readily gave statement against the accused who belong to the opposite party.” 40. Considering the facts and circumstances of the case as well as the testimonies of the prosecution, the dying declaration appears to be contrary to the prosecution version and the finding recorded by the trial court in this regard cannot be said to be illegal or perverse and the trial court has rightly discarded the dying declaration. In this regard, it would be relevant to refer to the principles laid down in S. Panneerselvam Vs. State of Tamil Nadu: 2008(3) G.L.H. 442. In this regard, it would be relevant to refer to the principles laid down in S. Panneerselvam Vs. State of Tamil Nadu: 2008(3) G.L.H. 442. The Hon'ble Apex Court, interalia, made the following observations in the aforementioned judgement : (iii) The Court has to scrutinize 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. (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. 41. Reference at this stage may be made to the law laid down by this court in the judgment and order dated 18.5.2016 passed in Criminal Appeal no. 257 of 1984, Netra Pal Vs. State of U.P. with regard to powers of Appellate Court while dealing with an Appeal against an order of acquittal. The observations made by this court in paras 25,26 , 27 and 28 of the said judgments are relevant and are reproduced below. "25. Further, in the case of Chandrappa Vs. State of Karnataka, 2007 4 SCC 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. 4. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. 4. An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 42. Even in the case of State of Goa V. Sanjay Thakran and Anr, 2007 3 SCC 755 , the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 43. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Ors, 2007 AIR(SCW) 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP, 2007 AIR(SCW) 5589. 44. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 45. After giving anxious consideration to the submission made by the learned counsel for the parties and considering the findings recorded by the court below and the principles laid down by the Apex Court while dealing with an appeal against an order of acquittal, we see no reason to differ from the view taken by the court below. 46. The present appeal preferred by the State has no substance and the same will have to be dismissed and is accordingly dismissed.