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2022 DIGILAW 2498 (RAJ)

Raysa S/o. Badra v. State of Rajasthan

2022-09-22

FARJAND ALI, SANDEEP MEHTA

body2022
JUDGMENT : Farjand Ali, J. 1. The instant appeal has been filed under Section 374(2) of Cr.P.C. against the judgment of conviction and order of sentence dated 08.11.1989 passed by learned Sessions Judge, Jalore in Sessions Case No. 35/1988 whereby the appellants were held guilty for the offence under Section 302/149 IPC and they were sentenced to suffer imprisonment for life and a fine of Rs. 200/-; in default of payment of fine, they were ordered to further undergo one month rigorous imprisonment. In addition, they were also convicted for the offence under Section 148 IPC and were sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 100/-; in default of payment of fine, they were to further undergo one month rigorous imprisonment. Both the sentences were to run concurrently. 2. During the course of appeal, seven out of the 10 appellants have passed away and therefore, the appeal to their extent stands abated by this Court vide orders dated 09.08.1999, 20.07.2015 and 28.07.2016. As per the police report dated 29.07.2022, appellant No.1-Raysa S/o Badra, appellant No.2-Moda S/o Shri Pratapa and appellant No.3-Moda S/o Shri Bhoora survive and are residing in Dhumbdia village presently. Thus, the appeal is now being heard to the extent of appellant No.1-Raysa S/o Badra, appellant No.2-Moda S/o Shri Pratapa and appellant No.3-Moda S/o Shri Bhoora. 3. The facts of the case in a nutshell are that PW-2 Ira used to live in village Dhumbdia with his two younger brothers, namely Ganesha and Dana. On the fateful day of the incident, i.e. 12.08.1988, Ganesha had gone to fetch water and Dana was cooking food. Upon hearing fervent cries of Ganesha; Dana, Ira and Ira’s son -Bhopa rushed towards the sound. After covering a certain distance, Ira and Bhopa saw from the hedge (baad) that the accused persons were beating Ganesha and Dana with lathis. PW-2 Ira went to the Police Out-Post at Narsana where his Parcha Bayan was recorded by the Sub-Inspector. Subsequent to this, they returned to the place of incident and found that Dana and Ganesha were in a severely injured state. PW-2 Ira went to the Police Out-Post at Narsana where his Parcha Bayan was recorded by the Sub-Inspector. Subsequent to this, they returned to the place of incident and found that Dana and Ganesha were in a severely injured state. The Sub-Inspector-Devisingh (PW-8) boarded Ganesha as well as Dana, along with Ira and Bhopa, in his jeep and took them to the hospital where they reached at around 09.00 p.m. While Ganesha was alive, the Sub-Inspector recorded his statement (Exhibit P-12) wherein, he stated that the accused persons had thrashed him and Dana. As many as ten accused persons were named in the statement (Exhibit P-12), including the three surviving appellants. Almost identical account of the incident was reiterated in the statement of Ganesha (Exhibit P-1) recorded by the medical officer. Both Dana and Ganesha succumbed to the injuries received by them during the assault. On the basis of the Parcha Bayan, an FIR (Exhibit P11) was lodged against the accused-appellants for the offence of committing murder of the deceased Dana and Ganesha under Section 302 as well as for the offences under Sections 147, 148, 149 and 341 of IPC. 4. As per the prosecution, the police inspected the spot, prepared the memos, recorded statements of the witnesses and arrested the accused named in the report. During the course of investigation, the accused made disclosure statements under Section 27 of the Indian Evidence Act and in pursuance thereof, the murder weapons-'lathis’ were recovered at their instance. After usual formal investigation, charge-sheet was submitted against the ten accused persons before the Magistrate. 5. Learned Magistrate took cognizance of the offence and made an order of committal and thus, the matter was received by the learned Sessions Judge, Jalore who framed charges against the accused persons under Sections 302 r/w 149 and 148 of IPC after hearing the parties. The accused denied the charges and claimed trial. 6. During the course of trial, eight witnesses were examined and reliance was placed on certain documents which got exhibited in the trial. 7. Thereafter, an explanation was sought from the accused under Section 313 of the Cr.P.C. for the evidence produced against them by the prosecution. In reply to which, the accused pleaded innocence and claimed the evidence to be false. 7. Thereafter, an explanation was sought from the accused under Section 313 of the Cr.P.C. for the evidence produced against them by the prosecution. In reply to which, the accused pleaded innocence and claimed the evidence to be false. The defence examined five witnesses during the trial, out of which, DW-3 Mal Singh supported the plea of alibi of one of the three surviving appellants, namely Moda S/o Shri Pratapa. 8. After hearing the counsel for the parties and appreciating the evidence available on record, the learned Trial Court found the accused persons to be guilty of committing the murders of Ganesha and Dana and convicted them for the offences under Sections 302/149 and 148 of IPC and they were sentenced as mentioned above vide impugned judgment and order of sentence dated 08.11.1989 which is under challenge in this appeal. 9. Mr. Dhirendra Singh, learned senior counsel, strenuously urged that the learned Trial Court committed grave error in relying on the statements of Ganesha (Exhibit P-1 and Exhibit P-12). It has been pointed out that the note verifying the sound state of mind of Ganesha was appended to the dying declaration recorded by Dr. Madharam and the time mentioned on the note was 09.15 p.m., thus, it can be assumed that the dying declaration of Ganesha must have been recorded prior to 09.15 p.m. by Dr. Madharam. However, in the report submitted by the Sub-Inspector, he stated that he had reached the hospital at 09.00 p.m. and he had also stated in his statement that he recorded the statement of Ganesha just five minutes before Dr. Madharam recorded the statement of Ganesha. Firstly, it was not possible for the Sub-Inspector to reach the hospital at Bagoda from the village Dhumbdia at 09.00 p.m. Arguendo, even if it is assumed that the Sub-Inspector brought the injured to the hospital at 09.00 p.m., it seems impossible that the doctor attended to Ganesha and the Sub-Inspector as well as the doctor managed to record two separate, detailed statements of the deceased Ganesha within a span of fifteen minutes. It has been further argued that as per the cross-examination conducted from the doctor, he treated Ganesha, injected him with 'Novalgin', attempted to record his blood pressure and noticed that his pulse was also dropping fast. It has been further argued that as per the cross-examination conducted from the doctor, he treated Ganesha, injected him with 'Novalgin', attempted to record his blood pressure and noticed that his pulse was also dropping fast. It fortifies the fact that the dying declaration could not have been recorded by the doctor before 09.15 p.m. and thus, Exhibit P-1 is a fabricated and false document. He has, thus, urged that the incongruency appearing in the prosecution case on this material aspect puts a grave shadow of doubt on the sanctity of dying declaration. It has been submitted that Ganesha died within an hour of reaching at the hospital and his condition was poor when he arrived since his pulse was virtually unrecordable and his blood pressure was also dropping and, therefore, he could not have been physically fit and in a sound state of mind so as to give such statements. 10. Arguing further, it has been submitted that the language of Exhibit P-1 and the manner in which it had been recorded, i.e. detailing the names of the ten accused along with their castes, fathers' names, village etc., reflects that the statement could not have been recorded at the instance of the deceased rather it seems to be a fabricated document and thus, it is not a reliable piece of evidence. 11. He has further argued that the conviction of the accused cannot be based upon the testimonies of PW-2 Ira and PW-3 Bhopa as both of them could not have witnessed the whole incident clearly standing at the well which was 200 yards away from Seria, i.e. the place of incident. The alleged eye-witness Ira had named only seven accused persons before the Trial Court initially but added the names of two more persons during examination-in-chief. A conviction based on such unreliable statement is not sustainable. A bare perusal of the statement of child witness Bhopa (PW-3) reveals that he had concocted a pack of exaggerated lies. He had stated that hot iron rods were used to hit the deceased and that a gun was also fired. It has been submitted that the learned trial court failed to appreciate the strong evidence produced by defence to establish the alibi of the accused. He had stated that hot iron rods were used to hit the deceased and that a gun was also fired. It has been submitted that the learned trial court failed to appreciate the strong evidence produced by defence to establish the alibi of the accused. On these submissions, Shri Dhirendra Singh implored the Court to accept this appeal and quash and set aside the impugned judgment passed by the learned trial Court. 12. Per contra, learned public prosecutor, Mr. B.R. Bishnoi, has vehemently and fervently urged that the trial judge meticulously appreciated the evidence brought on record; the impugned judgment is well-reasoned and logical; the learned judge dealt with all the legal and factual aspects of the matter with abundant caution and thus, finding of guilt as reached by the learned trial judge does not require interference of this Court. He has further submitted that the prosecution firmly established its case against the accused beyond every shadow of reasonable doubt. There is no reason to disbelieve the last words of the deceased, i.e. the dying declaration. 13. It has been further submitted that the sanctity of dying declaration should not be allowed to be questioned unless patent illegality in recording the statement is shown or a serious doubt is manifested regarding the truthfulness of the statement. On these submissions, learned Public Prosecutor prays for dismissal of the appeal. 14. After considering the submissions made by learned counsel for the parties and anxious examination of the material available on record, the adjudication by this Court is as under: 15. We begin with the inception of the case. A report, i.e. Exhibit P-4 (Parcha Bayan) was registered on the basis of statement made by PW-2 Ira to PW-8 Sub-Inspector Devi Singh at Out-Post, Narsana of Police Station Bagoda wherein it was alleged by Ira that his brothers Dana and Ganesha were being beaten up by the accused persons near their residence. The witness Devi Singh (PW-8) rushed to the place of incident immediately where injured Dana and Ganesha were found lying on the ground. He boarded the victims in his jeep with a view to evacuate them to a government hospital. However, Dana expired before reaching the hospital. Looking to the moribund state of injured Ganesha, Shri Devi Singh recorded his statement marked as Exhibit P-12. 16. We have carefully scanned the evidence adduced in this regard. He boarded the victims in his jeep with a view to evacuate them to a government hospital. However, Dana expired before reaching the hospital. Looking to the moribund state of injured Ganesha, Shri Devi Singh recorded his statement marked as Exhibit P-12. 16. We have carefully scanned the evidence adduced in this regard. PW-8 was the Station House Officer of the concerned Police Station and thus, jotting down report of the incident as per the first informant’s narration in the parcha bayan, rushing to the crime scene, taking the injured to the hospital and recording the statement of severely injured Ganesha cannot be said to be an unnatural series of actions. He was the police officer in charge of affairs and an independent source who neither had a personal grudge with the accused persons nor was he related to the victim party. 17. After lodging the FIR (Exhibit P-11), on the basis of Parcha Bayan, he conducted usual investigation, recorded the statements of witnesses, arrested the accused and as per the information provided by the accused, recovered the lathis. Shri Devi Singh testified on oath as PW-8, narrated the entire sequence of events before the trial court and firmly stated that he had recorded the statement of injured Ganesha wherein he had stated that the accused-appellants had brutally beaten him and his brother Dana with sticks owing to previous enmity. Taking into account the critical condition of injured Ganesha, this witness recorded the statement of injured Ganesha as worded by him. 18. PW-8 firmly stated that he recorded the statement (Exhibit P-12) as narrated by the injured Ganesha. He was cross-examined thoroughly by the defence but nothing emerged which could shake the credibility of this witness. Since the injured Ganesha had died after recording of the statement, therefore, the statement Exhibit P-12 can be treated as dying declaration which is covered under Section 32(1) of the Indian Evidence Act which reads thus:- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Since the injured Ganesha had died after recording of the statement, therefore, the statement Exhibit P-12 can be treated as dying declaration which is covered under Section 32(1) of the Indian Evidence Act which reads thus:- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When it relates to cause of death. -When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 19. The doctrine of dying declaration finds basis in the legal maxim 'nemomoriturus praesumitur mentire' which simply means that 'a man will not meet his Maker with a lie in his mouth'. The Indian criminal jurisprudence accepts this reasoning and the Indian courts have by and large believed that the mind of a man who is at death’s door, with no glimmer of hope to survive, will not choose to utter untrue words when every impetus to lie has ceased to exist. 20. The imperative factors to be taken into consideration while basing conviction of an accused upon dying declaration are the mental state of the person making the declaration and whether the declaration seems to be true and voluntary. His soundness of mind needs to be established beyond any doubt so that the decision of the court based on the declaration remains just and fair. The person making the statement is not taking oath in the court and his deposition is not being tested by cross-examination, therefore, the circumstances that are at play in the case need to be examined with due care and caution. The person making the statement is not taking oath in the court and his deposition is not being tested by cross-examination, therefore, the circumstances that are at play in the case need to be examined with due care and caution. These surrounding circumstances include possibility of tutoring and the assessment regarding the fit state of mind of the accused. 21. In a recent judgment titled Jayamma and Ors. Vs. State of Karnataka passed in Criminal Appeal Nos. 758 of 2010 and 573 of 2016 on 07.05.2021, Hon’ble the Supreme Court had reversed a judgment of conviction passed by the High Court of Karnataka as the facts in that particular matter did not warrant conviction solely on the basis of the dying declaration, however, the views of the Apex Court on the evidence of dying declaration in general were as follows : “15. It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such statement, classified as a “dying declaration” is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.” 22. A scrutiny of the statement of PW-8 Devi Singh, in context of the legal propositions, reveals nothing suspicious or unnatural so as to make him an unreliable witness. 23. Ganesha’s statement before dying was also recorded by Dr. A scrutiny of the statement of PW-8 Devi Singh, in context of the legal propositions, reveals nothing suspicious or unnatural so as to make him an unreliable witness. 23. Ganesha’s statement before dying was also recorded by Dr. Madharam who was examined as PW-1 in the trial. It was stated by the Medical Officer that Ganesha was in a sound state of mind while making the statement (Exhibit P-1) wherein he stated that he and his brother were assaulted by the accused persons, named above, with lathis at around dusk. The statement of Ganesha was duly tendered into evidence and marked as Exhibit P-1. The statement recites the circumstances under which the victim Ganesha received injuries and went into a decadent state and ultimately after some time, he succumbed to his injuries which are noted down in the Post Mortem Report (Exhibit P-3). This Court is in agreement with the observation of the learned trial court that there was no reason or personal interest of the doctor so as to belie his opinion regarding sound disposition of mind of Ganesha while making the dying declaration or to implicate the accused persons falsely in a murder case. We find nothing which may make him an unreliable witness. He was a medical officer and an independent witness having no interest in the case of the prosecution. He firmly stated that he had inquired from the injured Ganesha and had noted down his dying declaration as narrated by him. He asserted that the dying declaration (Exhibit P-1) was recorded by him in his handwriting and that he appended his signature over it. He also verified that the deceased put his left thumb impression at place ‘x’ on Exhibit P-1. The doctor stated in unambiguous terms that injured Ganesha was in a sound state of mind and that Exhibit P-1 contained the true and full account of statement made by Ganesha. As per the statement recorded by him, the accused persons gave beating to Ganesha and his brother with sticks. The injured Ganesha named all the ten accused persons including the present surviving appellants. This witness further deposed that the statement was read over to Ganesha who affirmed its correctness. 24. Dr. As per the statement recorded by him, the accused persons gave beating to Ganesha and his brother with sticks. The injured Ganesha named all the ten accused persons including the present surviving appellants. This witness further deposed that the statement was read over to Ganesha who affirmed its correctness. 24. Dr. Madharam PW-1 conducted autopsy and prepared the Post Mortem Report (Exhibit P-2) of the deceased Dana and found about 22 injuries on his body and in his opinion, the cause of death of Dana was shock as a result of multiple injuries and fractures. He also conducted autopsy and prepared Post Mortem Report (Exhibit P-3) of Ganesha who had died in the hospital at 10 p.m. on 12.08.1986 and found 18 injuries on his body and cause of death was shown to be multiple injuries and fractures. 25. The victims Ganesha and Dana were lying in a moribund state and thus, it can be inferred that they were in a dangerously ill condition and were sinking fast. Hence, PW-1, being the medical officer, speculated the severity of the injuries and rightly anticipated that the victim Ganesha would not survive, therefore, due to paucity of time, in his wisdom, he thought it best to record Ganesha’s statement on his own without waiting for any other intervention. The recording of the victim’s statement by this witness cannot be doubted as he recorded the same in bonafide, owing to his precarious condition. In our considered opinion, he didn’t act in an unusual manner. 26. When the medical officer (PW-1) stated that he found the dying person in a fit state of mind; able enough to narrate the state of affairs regarding the manner in which assault was made, who made assault over him and who led him to the wounded condition; then, in the firm view of this Court, the satisfaction recorded by him ought not to be discarded simply on the submissions based on conjectures. As there is no reason to discard or disbelieve the statement made by medical officer PW-1, therefore, we place implicit reliance on his statement from which it can be inferred safely that the death of the duo of Dana and Ganesha was homicidal in nature and was caused by multiple injuries inflicted on them. 27. As there is no reason to discard or disbelieve the statement made by medical officer PW-1, therefore, we place implicit reliance on his statement from which it can be inferred safely that the death of the duo of Dana and Ganesha was homicidal in nature and was caused by multiple injuries inflicted on them. 27. It is emanating from the record that both Dana and Ganesha were brutally beaten up and received several grievous and simple injuries and the same is also bolstered by Parcha Bayan (Exhibit P4) and the endorsement made by the Sub-Inspector over it. 28. These allegations find further corroboration from the factual aspect discussed in the preceding paragraphs. As per the evidence of PW-8 Devi Singh who, without any delay, immediately rushed to the crime scene and saw the injured persons lying in a pool of blood with broken bones and in a prostrate condition. He made endorsement of this state in Exhibit P-4 (parcha bayan) that the deceased seemed to be in a critical condition and had been beaten black and blue. As a matter of prudence and with a view to satisfy himself, he spoke to the injured Ganesha and whatever was stated by him; he jotted down in Exhibit P-12. 29. There seem to be no conflict/discrepancy/inconsistency on material aspects in the two dying declarations, namely Exhibit P-12 and Exhibit P-1. The two dying declarations, one recorded by the medical officer and other recorded by the Sub-Inspector, are in conformity with the case of the prosecution that both Dana and Ganesha were beaten by the 10 named accused by inflicting blows using lathis resulting in multiple injuries and fractures on their bodies; which fact got fortification from PMR. There is nothing on record suggestive of the fact that the dying declarations, as referred above, were tainted, tutored or made out of ill will. Therefore, we are of the firm opinion that Exhibits P-1 and P-12 are documents of impeccable quality and reliance can be placed on both of these documents constituting dying declarations narrated by Shri Ganesha. 30. The Apex Court has opined in Mohanlal Gangaram Gehani Vs. Therefore, we are of the firm opinion that Exhibits P-1 and P-12 are documents of impeccable quality and reliance can be placed on both of these documents constituting dying declarations narrated by Shri Ganesha. 30. The Apex Court has opined in Mohanlal Gangaram Gehani Vs. State of Maharashtra reported in AIR 1982 SC 839 that in cases where two statements have been made that can be considered to be the dying declarations and if both of the declarations are found to be true and reliable piece of evidence, then both can be accepted. As the plurality of dying declarations has been found to be trustworthy and reliable in the present case, both can be considered for forming the basis for conviction of the accused persons. 31. In Laxman Vs. State of Maharashtra, reported in AIR 2002 SC 2973 , Hon’ble the Supreme Court has held that if the court is satisfied that the declaration was truthful and voluntary, then there is no need to adopt a hyper-technical view regarding opinion by the doctor on the fitness of the person making the dying declaration. The Apex Court has further opined that the testimony of the eye witness regarding the fact that whether the person making the statement was in a fit state of mind to identify the assailant would suffice and medical endorsement of this fact need not be sine qua non for relying on the evidence of dying declaration. 32. The argument of the learned counsel for the appellant that the language of the dying declaration does not seem to be one that Ganesha would have used is not a cogent argument and is of no import as in this case, the dying declaration was made orally and then it was reduced to writing respectively by the police officer and the doctor who was treating Ganesha, thus, the language or format of the dying declaration can be formal but the crux of it is that the statement was made by the deceased when he was in a fit state of mind. The presence of both the above-mentioned witnesses, i.e. the police officer and the medical officer, cannot be doubted and there is no plea of defence to this effect. The presence of both the above-mentioned witnesses, i.e. the police officer and the medical officer, cannot be doubted and there is no plea of defence to this effect. Additionally, a dying declaration cannot be rejected merely because it contains the details as to the occurrence; the same has been opined by Hon’ble the Supreme Court in State of Maharashtra Vs. Krishnamurthi Laxmipati Naidu reported in AIR 1981 SC 61. 33. There is no specific form/format in which the dying declaration is required to be recorded. Likewise, the police rules do not prescribe that an officer of the particular rank shall record the statement of a dying person. The only mandate of law as per statute and as a rule of caution is that the statement must be genuine and it should be a true narration of the incident indicating the transactions leading to death of the person making the statement. It should not be prompted, tutored, made with ill will or borne out of imagination. It may be oral, written or implied with gestures or signs but what is essential is that it should be of such a nature that the court can place reliance on it as a copper-bottomed piece of evidence. 34. This court is of the considered view that Exhibit P-1 and Exhibit P-12 are absolutely reliable pieces of evidence yet as a rule of prudence, if we examine the case to see the sanctity of the dying declarations referred above, we find that the fact of the dying declarations is getting further corroboration from the statements of eye-witnesses. 35. Although the conviction can be based solely upon the two dying declarations for which this court has formed an opinion that they are of sterling worth yet since the arguments have been made in respect of credibility of the witnesses, Ira and Bhopa, we deem it appropriate to discuss their testimonies. 36. A scrutiny of testimony of the prime witness, PW-2 Ira, reveals that he saw all the accused persons beating Ganesha and Dana with wooden sticks, spear and other weapons. PW-2 Ira, stated, in unambiguous terms, before the trial court that he had seen the incident and there is no inconsistency in his testimony and the evidence mentioned above. 37. 36. A scrutiny of testimony of the prime witness, PW-2 Ira, reveals that he saw all the accused persons beating Ganesha and Dana with wooden sticks, spear and other weapons. PW-2 Ira, stated, in unambiguous terms, before the trial court that he had seen the incident and there is no inconsistency in his testimony and the evidence mentioned above. 37. Bhopa was examined as PW-3 in the trial and though he was 10 years old at that point in time, the learned Trial Court found him to be an able witness according to his answers to the preliminary questions as well as the questions specific to the incident. During his sworn testimony, he firmly stated that the accused-appellants gave barbaric beating to his uncles Dana and Ganesha. 38. The witness PW-2 Ira is the sibling of the deceased Ganesha and Dana and there is evidence that all three brothers were living at one place under one roof, thus, the presence of this witness at the place of incident was natural and obvious. The presence of witness PW-3 Bhopa, by virtue of being son of Ira, was also natural. The incident took place at or nearby their place of abode. Looking to the time of incident, it can be presumed that normally the villagers return to their home after 'godhuli bela', i.e. dusk or just before sunset and thus, the presence of Ira (PW-2) and Bhopa (PW-3) at home was a natural consequence of their daily routine. 39. It is well-nigh entrenched that the evidence of a relative/ partisan witness cannot be discarded or disbelieved merely on submission of their being relative. In the given facts and circumstances, when the assault was made near their home, it was commonplace to find their presence there at the time of incident and whatever they deposed before the court receives substantiation from other sources ergo there is no reason to disbelieve their deposition. 40. It is well settled in legal jurisprudence that the testimony of a child witness can be relied upon, however it has to be scrutinized properly just to avoid the possibility of prompting or tutoring. We have carefully examined the testimony of PW-3 Bhopa placed on record and we found nothing significant which may make him unworthy of credence. 40. It is well settled in legal jurisprudence that the testimony of a child witness can be relied upon, however it has to be scrutinized properly just to avoid the possibility of prompting or tutoring. We have carefully examined the testimony of PW-3 Bhopa placed on record and we found nothing significant which may make him unworthy of credence. His statement is in consonance with the other material available on record to the extent of his presence near the spot and his witnessing the incident wherein assault was made by the accused persons upon the two victims and blows were inflicted to them by lathis and dharia. The minor discrepancies can be ignored looking to the facts that he was a boy aged of 10 years and a rustic, illiterate villager and in the firm opinion of this Court, the same do not put any dent on the credibility of his evidentiary worth. Thus, this Court is of the firm view that testimony of PW-3 Bhopa is a reliable piece of evidence. 41. The facts that Ganesha and Dana were attacked when they were near their dwelling by the ten named accused-persons with lathis and that all of the ten accused persons inflicted injuries upon them, as corroborated by the injuries enumerated in the PMR, which caused their death, are indisputably proved from the evidence on record. The above series of events are facts of vital importance and there are no discrepancies and ambiguities in respect of the above set of facts. There is only one possible inference that can be drawn from the afore-mentioned facts that the accused-appellants made an assault over the deceased Dana and Ganesha and as a consequence of the injuries received by them, they died. 42. No particular number of witnesses are required to prove any fact. The conviction can be based upon establishing proof of recording of dying declaration, provided that it is found to be genuine. According to Section 134 of the Indian Evidence act, quality of evidence is imperative rather than the quantity of witnesses. 43. There is direct evidence linking the accused persons to the commission of offences and pointing unequivocally towards their guilt. Too much emphasis on benefit of doubt is not the ideal approach governing adjudication of criminal matters. The doubt must be such for which any prudent person can believe regarding the truthfulness of it. 43. There is direct evidence linking the accused persons to the commission of offences and pointing unequivocally towards their guilt. Too much emphasis on benefit of doubt is not the ideal approach governing adjudication of criminal matters. The doubt must be such for which any prudent person can believe regarding the truthfulness of it. Firm logic should be the genesis of creating doubt rather than any hypothetical or imaginary thinking. The doubt raised must be substantive and supported with sound reasoning. 44. The essence of the afore-mentioned observations has been encapsulated by Hon’ble the Supreme Court in the case of Pattu Rajan Vs. The State of Tamil Nadu, reported in AIR 2019 SC 1674 , wherein it was held as under : “It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the Rule of proof, in as much as the benefit of doubt must always be reasonable and not fanciful.” 45. In addition to the above, the case of the prosecution gets further corroboration from the application of doctrine of ‘res gestae’ in this matter. The doctrine of ‘res gestae’ dictates that any fact which is so connected to the main transaction that it becomes a part of the same naturally or automatically is relevant. It is an exception to hearsay evidence. Though hearsay evidence is not admissible in court of law, but if it is ‘res gestae’, then it may be admissible in court of law provided that it is a reliable piece of evidence. The doctrine of ‘res gestae’ is encapsulated in Section 6 of the Indian Evidence Act. 46. Section 6 of the Indian Evidence Act reads as follows : 6. Relevancy of facts forming part of same transaction.-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. 47. 46. Section 6 of the Indian Evidence Act reads as follows : 6. Relevancy of facts forming part of same transaction.-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. 47. The parcha bayan (Exhibit P-4) was recorded by the Sub-Inspector Devi Singh. After noting down the report of the first informant, whatever he had noticed, observed and perceived first hand after seeing the condition of the injured Dana and Ganesha, he mentioned the same in the parcha bayan on his own. It is mentioned therein by the Sub-Inspector that the victims Dana and Ganesha had been brutally beaten up and their hands and legs were broken and they were whimpering in pain. Therefore, the Sub-Inspector deemed it appropriate to evacuate both of them to the government hospital. 48. The Sub-Inspector made an endorsement to this effect in the parcha bayan which reads as follows : ^^bl oDr eu SHO E; gejk;ku ljgn ?kwEcfM;k igq¡psA ekSds ij et:cku (injured) nkuk o x.ks'kk gkFk iko VwVs gq, cqjh rjg xaHkhj voLFkk djgk jgs gSa ftudk rqjUr mipkj djokuk t:jh gksus ls bu nksuksa dks ljdkjh okgu esa Mkydj eu SHO E; gejk;ku o Ãjk o Hkksik dks gejkg ysdj ckxksMk dks jokuk gqvk** 49. The fact that the Sub-Inspector noticed the despicable and miserable condition of Dana and Ganesha due to the injuries they had sustained when he arrived at the spot and endorsed the same in his parcha bayan (Exhibit P-4), when connected to the fact of injuries received by the deceased Dana and Ganesha which were the cause of their death as corroborated by the Post-Mortem Report (Exhibits P-2 and P-3 respectively) prepared by the doctor, make these facts relevant to the main transaction and also fortify the reliability of the evidence of dying declaration and thus, the above facts, by virtue of being relevant, become admissible in evidence. 50. The case of the prosecution is further substantiated in light of the statement made by PW-8 Devi Singh that while in custody, the accused persons had made disclosure statements before him and in pursuance thereof, recoveries of lathis had been effected which were recorded in Exhibits P-18A to P-27. 50. The case of the prosecution is further substantiated in light of the statement made by PW-8 Devi Singh that while in custody, the accused persons had made disclosure statements before him and in pursuance thereof, recoveries of lathis had been effected which were recorded in Exhibits P-18A to P-27. There is nothing on record from which it can be gathered that the recoveries were a farce or that they were planted. Nothing is there to suggest that the Investigating Officer should be disbelieved on the point that he effected the recoveries in pursuance of the information furnished by the accused-appellants. In State, Govt. of NCT of Delhi Vs. Sunil and Ors. (Criminal Appeal. Nos. 1119-1120 of 1998), decided on 29.11.2000, Hon’ble the Supreme Court has propounded as under : “22. … At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. ...” 51. A comprehensive scrutiny and an all-inclusive evaluation from every possible angle, which includes the consistency in between the two dying declarations, statements of eye-witnesses, applicability of doctrine of res gestae, the evidence of medical officer as regards to recording of statement, number and nature of injuries as well as cause of death and statement of PW-8 Devi Singh, coupled with the recovery of weapons from the accused, reveals that it is proved beyond every shadow of reasonable doubt that the appellants made an assault over the deceased Dana and Ganesha, and as a consequence thereof, they received several grievous and simple injuries, resulting in the death of the duo of Dana and Ganesha. There is no doubt, much less reasonable doubt, to disbelieve the story of the prosecution. There is no doubt, much less reasonable doubt, to disbelieve the story of the prosecution. The evidence of dying declaration as brought on record is unimpeachable in view of the facts narrated rather it is clinching, watertight and unassailable, therefore, the submissions of the counsel for the appellants are untenable and unsustainable in facts as well as in law. 52. Moving to the conviction under Section 149, it is elucidating from the record that all the 10 persons were having common intention and in furtherance thereof, they formed an unlawful assembly and were guilty of assaulting and causing death of the two deceased persons. As far as the participation of three surviving appellants is concerned, their active participation was narrated by the deceased person Ganesha (Exhibits P-1 and P-12) and the same has been corroborated in court by PW-1 Dr. Madharam as well as PW-8 Sub-Inspector Devi Singh. The active role played by them in beating the deceased duo along with the other accused persons was brought on record by producing untainted and unimpeachable testimonies of PW-2 Ira and PW-3 Bhopa also. Thus, all the three present appellants are individually and vicariously liable for the alleged act of beating the deceased and their resultant death. Looking to the nature and number of injuries, it can safely be inferred that all the accused persons named in the two dying declarations as well as in the testimonies of the above-mentioned four witnesses had actively participated in the commission of crime. 53. As far as conviction under Section 148 of IPC is concerned, liability can be fixed on the three present appellants as they were possessing lathis, which if used as weapon of offence, are likely to cause death and the same occurred in the present matter. They brutally hit the deceased with the lathis so as to cause their death. Both the dying declarations and the testimonies of the two eyewitnesses, along with the statements of the Sub-Inspector (PW-8) and the Medical Officer (PW-1), corroborate the fact that the accused persons were indeed carrying lathis in their hands. 54. The old Latin maxim ‘actio personalis moritur cum persona’ which means that a personal right of action dies with the person, holds good in the facts of the case at hand. 54. The old Latin maxim ‘actio personalis moritur cum persona’ which means that a personal right of action dies with the person, holds good in the facts of the case at hand. Since the seven appellants, namely Khetiya S/o Shri Chamna, Badra S/o Shri Sawa, Tagga S/o Shri Sawa, Bhoora S/o Shri Nathu, Aja S/o Mota, Bagji S/o Shri Dhukji and Geega S/o Shri Akbar, have passed away during the process of hearing of trial and appeal, the right of action has died as against them. 55. The names of the three surviving appellants are figured out in the parcha bayan, the two dying declarations as well as the testimonies of Ira and Bhopa, which are getting further corroboration from the testimonies of the medical officer as well as the Sub-Inspector. There is consistency between ocular and medical evidence. Thus, it has been made abundantly clear from the evidence discussed above that the appellants, being members of an unlawful assembly, were guilty of committing offence of murder and rioting, armed with deadly weapon, in furtherance of their common object. 56. The submissions made by the learned counsel for appellant are devoid of any force, sans any merit and are not sustainable in the eyes of law. We find no error in finding of guilt arrived at by the learned trial judge since we are of this firm view that sufficient evidence is there to bring home the guilt of accused. We find no reason to intervene in the judgment of conviction, therefore, the same is affirmed. 57. Heard on sentence as well. Learned trial judge had already taken a lenient view by imposing life imprisonment instead of death sentence. Thus, on this count too, the judgment deserves to be affirmed. 58. Consequently, the impugned judgment and order on sentence are upheld and the present appeal is dismissed as being devoid of merit. Record be sent back to the trial court with the direction to do the needful for issuance of warrant of commitment to jail of the surviving appellants.