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2024 DIGILAW 1767 (ALL)

Musafir Yadav v. State of U. P.

2024-07-30

RAM MANOHAR NARAYAN MISHRA, SIDDHARTHA VARMA

body2024
JUDGMENT : Instant Criminal Appeal has been preferred by the appellant against the judgment and order dated 26.2.1983 passed by Shri Khem Karan Vth Additional Sessions Judge, Deoria in Sessions Trial No. 410 of 1981, convicting and sentencing the appellant for life imprisonment under Section 302 of IPC. 2. The alleged incident occurred on 05th July, 1981 at around 12:00 noon. The First Information Report with regard to the incident was got lodged at 03:30 p.m. at Police Station Rudrapur Deoria. The first informant who was 13 years old real brother of the deceased by the name of Vinod Kumar Yadav had narrated in the First Information Report that Ramakant the deceased and one Balwant were rectifying the boundaries of the field of Ramakant at around 10:00 a.m. in the morning, and at that point of time Suryabali their grand-father had asked them not to do so. Thereupon Ramakant went inside the house. Around two hours later, when the first informant Vinod Kumar Yadav was sitting on the thresh-hold of the house, Musafir son of Jamuna Yadav came on a motorcycle and called for Ramakant, who opened the door and went out to meet him. Upon seeing Ramakant the assailant who was a first cousin of the deceased Ramakant and the first informant Vinod Kumar Yadav fired from his rifle. The bullet entered the stomach of the injured Ramakant. He has stated in the First Information Report that at the moment apart from first informant himself Balwant, Ram Prasad and Janki were also present and had witnessed the incident. 3. Upon being injured Ramakant was taken to the Sadar Hospital, Deoria. The First Information Report was lodged at 3:30 p.m. and thereafter the investigation followed. The case of the prosecution was that the injured Ramakant was carried to Civil Hospital (Sadar) Deoria and from there he was taken to the BRD Medical College. At the BRD Medical College on 5.7.1981 itself a dying declaration was recorded of Ramakant in the presence of the Civil Surgeon. The Civil Surgeon in the dying declaration had given a certificate that Ramakant who was aged about 22 years was fully conscious and was able to give his dying declaration while he was admitted in casualty Ward Bed No. 12. The dying declaration was exhibited as Ex. Ka-3. 4. The Civil Surgeon in the dying declaration had given a certificate that Ramakant who was aged about 22 years was fully conscious and was able to give his dying declaration while he was admitted in casualty Ward Bed No. 12. The dying declaration was exhibited as Ex. Ka-3. 4. Thereafter the case of the prosecution was that the injured died on 10.7.1981 at 09:30 p.m. at the BRD Medical College, Gorakhpur itself. Further case of the prosecution was that the doctor at the Civil Hospital, Deoria had transcribed the medical report on 5.7.1981 at 02:30 p.m. and in it he had given out that the patient was brought by Balwant Viskwakarma. Also in the injury report it was indicated that there was a punctured wound 1cm x 1cm in the abdominal cavity and it was 3 cm above the umbilicus. There was no burning or charring present. The radiology report was of a day after the injury report was given i.e. of the 6th of July, 1981. The report indicated that there was some radio opaque small round shadow present in the back of the patient at Level L-3 of the vertebra. When the injured Ramakant had died on 10.7.1981 at around 09:30 p.m., the post-mortem was conducted and the reason given for the death was ante-mortem injuries. 5. Before the post-mortem was conducted, a panchayatnama was also prepared on the same day i.e. on the 10th of July, 1981. After the investigation was over the police had submitted its report to the Court, and the Court of the Chief Judicial Magistrate had thereafter committed the case for sessions trial. The sessions Court thereafter framed charges under Section 302 IPC against the appellant Musafir who when had denied the charges, the trial had commenced. 6. From the side of the prosecution as many as thirteen prosecution witnesses were produced. 7. Balwant Vishwakarma was PW1, who was named in the first informantion report lodged by the first informant Vinod Kumar Yadav. Balwant Vishkarma in his examination in chief had stated that he had not seen the incident, and he had only seen the injured in an injured state and he had carried the injured on a cycle to the Hospital at Deoria. Balwant Vishkarma in his examination in chief had stated that he had not seen the incident, and he had only seen the injured in an injured state and he had carried the injured on a cycle to the Hospital at Deoria. Prosecution questioned its own witness thereafter and while questions were being put to him by the prosecution, he denied that Musafir had infact fired on the injured at 12:00 noon and thereafter had fled away. He has stated that the police had not recorded any statement of his, and he had denied the statement as was recorded by the police under Section 161 Cr.P.C. Upon being questioned by the defence, the PW1 had very categorically stated that he had gone alongwith the injured to Bhirashwapur and that a counsel by the name of Brij Pal Singh had accompanied him. He had very categorically stated that with regard to the incident he alongwith others had talked to Ramakant deceased and that they had themselves informed the injured/deceased about the fact that Musafir had shot at him. The First Information Report which had been got lodged was also read out to the injured. 8. The name of Janki, the PW2 was also mentioned by the first informant in the First Information Report and it was stated that he had also witnessed the incident. The PW2 in his statement in chief had very categorically stated that he had not seen the incident. When however, he was questioned by prosecution he had denied that he was sitting under the Banyan tree, or was sitting on the thresh-hold of the house of the deceased Ramakant. He had also denied that he had seen that Musafir had come on a motorcycle and had fired on Ramakant. He has also denied the statement as was recorded by the police under Section 161 Cr.P.C. 9. PW3 is Ram Prasad. His name was also mentioned by the first informant in the First Information Report as an eye-witness, and he had also denied having seen the incident. Upon being questioned by the prosecution with regard to the statements he had got recorded under Section 161 Cr.P.C., he had denied with regard to the fact that the statements as had been recorded by the police were given by him. 10. PW-4 is first informant, Vinod Kumar Yadav. Upon being questioned by the prosecution with regard to the statements he had got recorded under Section 161 Cr.P.C., he had denied with regard to the fact that the statements as had been recorded by the police were given by him. 10. PW-4 is first informant, Vinod Kumar Yadav. He was 13 years of age on the date when he had come to give his statement on 19.6.1982 to the Court; certain questions were asked from him to ascertain if the witness was in a position to give evidence. He had stated that he passed out from 8th standard and his father was in Thailand in connection with some business. He had stated that he was aware of the fact that he should be speaking the truth. In the statement in chief he had stated that Ramakant was murdered around a year back and he had not seen the injured being fired upon. He had stated that Ramakant was shot at but he was not aware that who had shot him. Upon being further examined by the prosecution under Section 154 of the Evidence Act, this witness who was a small boy of 13 years changed his stand from what he had taken in the statement in chief and had thereafter stated that Musafir had come on his motorcycle and upon his calling, Ramakant had gone out of his house and that he was also standing on the door. He had stated that Musafir was carrying a Rifle and from that he had fired upon Ramakant. He had once again stated that the incident was witnessed by Balvant, Ram Prasad and Janki. Ramakant thereafter had fallen on the ground after he was fired upon. Thereafter, Balvant had carried the injured Ramakant to the hospital. He had proved the contents of the FIR and had stated that he was the author of the written report, which was marked as Ex-Ka-1. He had stated that the fact, which, he had mentioned in his examination in chief that he had not seen the incident, was wrong and that erroneously he had given the statement. He had stated that he had carried the report Ex.Ka-1 to Thana Rudarpur. He had also stated that injured was taken from Deoria to Gorakhpur medical hospital where he died after 3-4 days. He had stated that he had carried the report Ex.Ka-1 to Thana Rudarpur. He had also stated that injured was taken from Deoria to Gorakhpur medical hospital where he died after 3-4 days. Then again when the defence cross-examined the witness PW-4, he once again stated something different, which was not inconformity with what he had stated in his statement in chief. He states that he had heard a fire being shot. He had gone out of the house but he had not seen anyone. After the shot was fired and incident had occurred, Musafir after sometime had gone on motorcycle carrying rifle. This fact he states that he had not seen but he had mentioned in the First Information Report. He again states that with regard to certain partition of property, there was a dispute between the brothers. To the defence, again, he states that he had gone alongwith the injured to the hospital and in the hospital at Deoria, a relative, who was an advocate, had also reached. At the hospital, there was a consensus reached after some conference between the persons present that a report ought to be lodged and thereafter when all present there were of the same view that the name of Musafir be written in the First Information Reports, the name of Musafir was mentioned in the First Information Report. He had stated that all these conversations, which were happening between the persons present in the hospital, were being heard by the injured Ramakant. Thereafter, he states that after the decision was taken by the people present there, he had himself written the First Information Report. He further states that after the report was written it was also read out to the injured Ramakant and thereafter the report was taken to Thana Rudarpur and was lodged. He had thereafter stated that he alongwith the lawyer and his brother had gone to the hospital at Gorakhpur. He had still, thereafter, stated that the name of advocate, who was present, was Brijpal Singh. He again had stated that on the earlier occasion, he had given his statement, as per what his advocate had suggested him. He thereafter very categorically states that he had not seen the incident but had given his statement, as per what, he was told by the elders, who were present. 11. PW-5 is the mother of deceased and first informant. He thereafter very categorically states that he had not seen the incident but had given his statement, as per what, he was told by the elders, who were present. 11. PW-5 is the mother of deceased and first informant. She had stated that she was not at her house when the incident had occurred. She had stated that she was not even in the village when the incident had occurred. She had denied the statement recorded under Section 161 Cr.P.C.; she had stated that she was at her residence and had reached at the threshold of the house when firing was heard by her. She had factually denied all the statements which were recorded of her's under Section 161 Cr.P.C. 12. PW-6 is the Doctor, who had certified that Ramakant, the injured was in a fit mental state to get his statement recorded. He had stated that he had given the certificate before the dying declaration was got recorded by the Magistrate. He had also acknowledged his signature on the dying declaration. 13. PW-7 is the Sub Inspector, who was posted during the time the incident at the police station Rudarpur, Deoria was reported. He had stated that Chik of the FIR was prepared by Head Muharrir Kundan Kumar while he was posted alongwith him at the police station. He stated that the recording of the statements under Section 161 Cr.P.C. was done in his presence. 14. PW-8 is Kailash Nath Srivastava, the second investigating officer and he has stated that he had taken over the investigation from 14.7.1981 and further had stated that after the injured had died, the case was converted into one under Section 302 IPC. He had stated that one Bhagirathi had given an affidavit before the Chief Judicial Magistrate that the rifle, which was used in the incident, was kept at the New Gun House, Golghar, Gorakhpur. He had stated that thereafter he had gone to the shop and had taken the rifle in his possession; he had also taken the license in his possession, which was connected to the gun and had exhibited the rifle as material Ext-1; Recovery memo of it, was also prepared and was marked as Ext. Ka-7. The number of license was 2494 and was in the name of Musafir. Ka-7. The number of license was 2494 and was in the name of Musafir. He had also stated that the bullet, which was recovered from the stomach of the deceased at the time of post-mortem, was also taken by him and was sent to the forensic expert. After taking permission from Superintendent of police, S.I. Raghuvans Singh on 24.7.1981 he had taken the rifle to the Forensic Science Laboratory. In the cross-examination, he had stated that he had not recovered the rifle from Musafir. He had acknowledged that the cloth in which the rifle was sealed, had mentioned that the rifle was taken into possession from Musafir and the date given was 28.7.1981. He further states that this statement of fact written on the cloth covering the rifle that the rifle was recovered from Musafir from 28.7.1981, was not in his hand writing. He states that he did not remember as to whether someone else had also accompanied him while he had gone to recover the rifle. He had stated that he had not known about the death of Ramakant and that he came to know about it only on 14.7.1981. He had stated that there were no witnesses of the recovery of the rifle. This fact was also not mentioned on the recovery memo. 15. PW-9 is Dr. S.C. Tripathi, radiologist and he had stated that on 10.7.1981 he was posted as medical officer (radiologist) post-mortem department. He had proved the post-mortem report. 16. PW-10 was Dr. R.P. Jeena. He had stated that when the deceased was admitted in the medical college, Gorakhpur from 5.7.1981 to 10.7.1981 then he alongwith Dr. V.P. Singh. Dr. Chandel and Dr. Nigendra were also there in the hospital. He had given his opinion as to how injury could have occurred. 17. He had stated that in the night of 5.7.1981 and 6.7.1981, the surgery took place. It had commenced at 11:00 p.m. in the night and had concluded at 1:00 a.m. and that he had done the operation. Before the surgery had commenced, there was a doubt as to whether there was any metallic substance inside the stomach. At the time of the surgery, effort was not made to search out the metallic piece. It had commenced at 11:00 p.m. in the night and had concluded at 1:00 a.m. and that he had done the operation. Before the surgery had commenced, there was a doubt as to whether there was any metallic substance inside the stomach. At the time of the surgery, effort was not made to search out the metallic piece. He had stated that if such a metallic piece is seated in some harmless area, then no effort was required to be made to take it out and he had stated that there was a possibility that the metallic piece lay in some harmless area. Thereafter, he had stated that the injured was in such a state that he could also have survived. 18. PW-11 is one Sri Utra Kumar Mishra, the Settlement Officer Consolidation and has stated that he was posted as an Executive Magistrate on 5.7.1981, at Gorakhpur and that he was directed at 6:15 p.m. to go to the hospital to record the dying declaration of one Ramakant Yadav and has stated that only after he got the certificate from the Doctor that the patient was in a fit state to give the statement, was the statement recorded. He had proved the dying declaration. He had stated that Ramakant was giving his statement while lying down. He had further stated at that time he had also put questions but the questions were not mentioned in the dying declaration. He had stated that Brijpal Singh, Advocate of Deoria had brought him to the hospital. 19. PW-12 is one Dr. Rajendra Singh and he is the doctor who had seen the x-ray etc. and had stated that the radiopaque shadow, which was found in the x-ray could not with certainty be said that the substance which formed the shadow was situated at any dangerous place. 20. PW-13 Dr. C.B. Singh of Deoria was examined and has stated that he had prepared the medical report at 2:30 p.m. of 5.7.1981. He states that he had examined the injuries when the injured was brought. 21. Thereafter, the statement of the accused Musafir was recorded under Section 313 Cr.P.C. 22. Upon going through all the evidence on record and after hearing the parties, the Additional Sessions Judge-Vth, Deoria on 26.2.1983 found the appellant guilty. Against the order dated 26.2.1983, the instant appeal has been filed by the appellant. 23. 21. Thereafter, the statement of the accused Musafir was recorded under Section 313 Cr.P.C. 22. Upon going through all the evidence on record and after hearing the parties, the Additional Sessions Judge-Vth, Deoria on 26.2.1983 found the appellant guilty. Against the order dated 26.2.1983, the instant appeal has been filed by the appellant. 23. Heard Sri V.P. Srivastava, learned Senior Counsel assisted by M/s. Neeja Srivastava and Sri Virendra Singh. Learned counsel for the appellant made the following submissions : I. Learned counsel for the appellant states that the statements of the witnesses of fact i.e. PW-1, PW-2, PW-3, PW-4 and PW-5 if are seen, it becomes abundantly clear that they had not supported the case of prosecution. Balwant Vishwakarma, PW-1, who was mentioned as an eye-witness in the FIR had stated to have carried the injured to the hospital at Deoria. He had stated that he had not seen the murder taking place. He has denied all the statements which were recorded by the police under Section 161 Cr.P.C. PW-2, is another person who was mentioned in the FIR as an eye-witness and he had also denied being there on the spot. Similarly Ram Prashad had also denied being there on the spot. Learned counsel for the appellant states that Vinod Kumar Yadav, who was 13 years of age at the time when the statement was recorded, must have been only 12 years of age when the incident had occurred. He was a small boy with all the love and affection for his real brother Ramakant, who had been shot at. Learned counsel for the appellant states that the incident if had occurred at 12:00 Noon on the 5th of July, 1981 and also in the presence of Balwant, Janki and Ram Prashad, then it was a natural response that one of the elderly persons ought to have taken the injured to the hospital and that one of them ought to have gone to the police station to get the First Information Report lodged. In the instant case, learned counsel for the appellant states that even though Balwant had carried the injured to the hospital, no one had cared to go to the police station. In the instant case, learned counsel for the appellant states that even though Balwant had carried the injured to the hospital, no one had cared to go to the police station. Learned counsel for the appellant states that though in the statements of the witnesses of fact it had been stated that even a counsel by the name of Brijpal Singh was throughout present but he had also had not cared to go to the police station. Learned counsel for the appellant, thereafter states that if the statement of PW-4 is perused it becomes abundantly clear that he was a witness who was aged only 13 years and was full of love for his deceased brother and he, when the others were not taking action had decided to implicate one or the other person whom he thought might have murdered his brother. Learned counsel states that after the family had decided on implicating Musafir then also the family member were not ready to implicate him- probably as they were not sure of his role. The young boy of 13 years had therefore taken upon himself the burden of implicating the accused on his shoulders. And, he also, because of the fact that he was not sure, had faltered while giving his statement in chief. He had also been extremely inconsistent while being cross-examined. In the Examination-in-Chief, he states that he had not seen the incident. However, when the prosecution put certain questions only to support the case, which he had taken in the FIR, he had tried to co-relate his statements with the averments made in the First Information Report. In the statement which he ultimately gives when the defence questioned him, learned counsel for the appellant states, the most revealing statements were made which did not go against the accused. Learned counsel for the appellant states that this was a very normal thing to do happen. The younger brother had accompanied the elder brother to the hospital and there PW-4 states that the advocate Brijpal Singh was also present. Learned counsel for the appellant referring to the statement made by PW-4 states that the child had very categorically stated that at the hospital, there was a conference held between the elderly persons present and they had come to a consensus that someone who was inimical, was to be named in the First Information Report. Learned counsel for the appellant referring to the statement made by PW-4 states that the child had very categorically stated that at the hospital, there was a conference held between the elderly persons present and they had come to a consensus that someone who was inimical, was to be named in the First Information Report. Thereafter, they had decided that the cousin Musafir, who was not having very good relations with the family members of the deceased with regard to some partition of the land was to be named in the First Information Report. Learned counsel for the appellant further states that the injured had not known as to who had actually fired on him and only after he was told that Musafir was to be named in the First Information Report, he came to know that Musafir in fact was being named in the First Information Report. Learned counsel for the appellant, therefore, states that the statement of PW-4 becomes absolutely unreliable. He further states that whenever the young child PW-4 was giving the statement independently, he was speaking the truth and was saying that he had not seen the incident but when he was being examined by the prosecution, he changed his version and stated that he had actually seen the incident. When the defence had cross-examined him, he had stated that in fact he had not seen the incident and that after a full fledged conference was held amongst all the elderly persons, it was decided that they would mention the name of Musafir in the First Information Report. Learned counsel for the appellant, therefore, states that such a witness becomes absolutely unreliable and should not be relied upon for the purposes of conviction. He also sates that the mother, who had lost her child also deposed against the prosecution. II. Learned counsel for the appellant further states that the dying declaration which was recorded on 5.7.1981 appears to be an absolutely tutored dying declaration. He submits that the deceased if was fired upon at 12:00 noon on 5.7.1981, then the statement if was recorded after the injury report was prepared and after the First Information Report was lodged, then the injured deceased had come to know as to what exactly was being got reported in the FIR. He submits that the deceased if was fired upon at 12:00 noon on 5.7.1981, then the statement if was recorded after the injury report was prepared and after the First Information Report was lodged, then the injured deceased had come to know as to what exactly was being got reported in the FIR. Learned counsel for the appellant states that on 5.7.1981, when the injured was in an absolutely alert state of mind and he was not in a very critical state had listened to all the conversation, which was being made by all the elderly persons present at the hospital and he was also made aware of the general consensus which was arrived at. He was, definitely, therefore aware as to who exactly was being made the accused in the case. Learned counsel for the appellant, further, states that if the dying declaration which is Ext.Ka-3 is seen, it becomes evident that the dying declaration was a slightly longish declaration which contained all the details, which were probably not required. The dying declaration mentioned about the events which preceded the incident; it mentioned about the fact as to how Balwant had carried him to the hospital at Deoria and thereafter how he had been transferred to the hospital at Gorakhpur. He, in fact, also mentions about the eye-witnesses, whose names found place in the First Information Report i.e. Janki Chauhan and Ram Prashad. Learned counsel for the appellant, therefore, relying upon the decision of the Supreme Court in K. Ramachandra Reddy and another v. The Public Prosecutor, 1976 SCC 473, has stated that the Court has always to be on the guard against the dying statement of a deceased which might be a result of tutoring, prompting or a product of his imagination. To fortify his arguments, learned counsel for the appellant relied upon paragraph No. 6 of the judgment and therefore, the same is being re-produced herein under : ''6. The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of has imagination. The Court must be satisfied that the deceased was in a fit slate of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated 37-833 Sup CI/76 by this Court in Khushal Rao v. State of Bombay, (1958) SCR 552, where the Court observed as follows: On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, and agreement with the opinion of the Full Bench of the Madras IB High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (2) that each case must be determined on its own facts keeping in view tile circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence, (S) that a dying declaration which has been recorded by Q competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night. whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control. whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control. that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination.'' The above observations made by this Court were fully endorsed by a Bench of five Judges of this Court 'in Harbans Singh and another v. State of Punjab, (1962) Supp. (1) SCR 104. In a recent decision of this Court in Tapinder Singh v. State of Punjab, (1971) 1 SCR 599 , relying upon the earlier decision referred to above. this Court observed as follows: It is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the Court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances.'' In Lallubhai Devchand Shah and others v. State of Gujarat, this Court laid special stress on the fact that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind and observed as follows: ''The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a ''fit state of mind'' to make the statement. The ''fit state of mind'' referred to is in relation to the statement that the dying man was making. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a ''fit state of mind'' to make the statement. The ''fit state of mind'' referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding.'' Learned counsel for the appellant thereafter also referred to Mohan Lal and others v. State of Haryana, 2007 (9) SCC 151 and stated that just as was the case in the earlier decision, in this case also the Supreme Court had held that if the dying declaration was a result of tutoring and was not a free and voluntary one, then the Court could always ignore the same. Learned counsel for the appellant relied upon paragraph Nos. 8 and 11 of this judgment and, therefore, the same are being re-produced herein under : ''8. A bare reading of the so called dying declaration Ex.PD/4 shows that according to the deceased, the appellants were enraged because she did not show the place of the boil to her father in law (appellant No. 1). As rightly submitted, the doctor (PW1) who conducted the post-mortem clearly stated that there was no boil or pustule in the armpit of the deceased. There is no dispute to this factual position by learned counsel for the respondent-State. 11. In the instant case, it is to be noted that the evidence of PW-3 and doctor clearly show that before the dying declaration was recorded the relatives of the deceased including PWs 7 and 8 were present with her and were subsequently asked to leave the room where the dying declaration was recorded. Though much was made of the dowry demand by the Courts below there is only a vague reference to it in the dying declaration. The statement of PWs 7 and 8 that they had told the Investigating Officer about the dowry demand is not correct. They had not said so before the Investigating Officer. It is also significant that prior to the death, neither the deceased nor her parents had complained to the police or told anyone else about any alleged dowry demand. The statement of PWs 7 and 8 that they had told the Investigating Officer about the dowry demand is not correct. They had not said so before the Investigating Officer. It is also significant that prior to the death, neither the deceased nor her parents had complained to the police or told anyone else about any alleged dowry demand. In the circumstances, the dying declaration itself was clearly the result of tutoring and was not a free and voluntary one. The Courts below were therefore not justified in placing reliance on the same. Additionally, there was only a vague reference of dowry demand to the police which in any event has not been established and also was not told during investigation. Once the dying declaration is excluded, there is nothing to implicate the accused-appellants with the death.'' Learned counsel for the appellant relied on certain other judgments as well. They were as follows. Bhajju @ Karan Singh v. State of Madhya Pradesh, 2012 (4) SCC 327 and Naresh Kuamr v. Kalawati and others, 2021 (16) SCC 158 . The judgment in Irfan @ Naka v. State of Uttar Pradesh, AIR 2023 SC 4129 , however requires to be dealt with in some detail while coming to a decision in the instant case. The instant judgment dated 23rd August, 2023 has in paragraph No. 62 summed up as to in what cases a dying declaration ought to be relied upon and in what cases a dying declaration should not be accepted. It has stated there is no hard and fast rule for determining when a dying declaration should be accepted and has averred that it was the duty of the Court to decide this question in the given facts and the surrounding circumstances. It has, however, narrated certain factors which ought to be considered while coming to a decision and, therefore, the paragraph No. 62 of the judgment dated 23.8.2023 is being reproduced herein under : ''62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility : (i) Whether the person making the statement was in expectation of death? (ii) Whether the dying declaration was made at the earliest opportunity? ''Rule of First Opportunity'' (iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? (iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? (v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident? (vii) Whether, the dying declaration has been consistent throughout? (viii) Whether, the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired? (ix) Whether, the dying declaration was itself voluntary? (x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? (xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration? Learned counsel for the appellant, therefore, submits that in the instant case when definitely the Doctor in his statement states that before the surgery the injured was not in such a dangerous state that he would die, then it could not with any certainty be said that the injured was giving a statement which ought to be totally relied upon. Learned counsel for the appellant states that the statement of the first informant (PW-4) also when is seen, it becomes clear that the elders of the family and other persons who were present at the time when the injury report was prepared and before the First Information Report was being lodged had deliberated upon as to who exactly had to be named in the first information and all this was being done within the hearing of the injured. Learned counsel for the appellant, therefore, states that the injured was definitely aware of what was being planned and as to who was being ultimately implicated in the case. Learned counsel for the appellant states that after the decision was arrived at by all the persons present, that Musafir was to be implicated, the First Information Report was lodged and on the very same day, when the injured was shifted to the DRD Hospital, he had given the dying declaration on the basis of what he had heard at the time when it was being discussed as to who was to be implicated in the case. Learned counsel for the appellant further states that even the dying declaration if was perused becomes an unreliable dying declaration which had not just mentioned as to who had killed the deceased but had given verbatim as to what was also stated in the First Information Report. III. Learned counsel for the appellant further states that even if the statement of PW-4 as was given to the prosecution is accepted, it cannot be relied upon as it mentions about the facts in such a manner which was just a reiteration of the facts mentioned in the First Information Report with all the contradictions in his statement in chief and in the cross-examination. IV. Learned counsel for the appellant further states that even the recovery of the rifle was made in the most mysterious manner. Bhagirathi had given an affidavit before the Chief Judicial Magistrate. Learned counsel for the appellant states that the credentials of Bhagirathi have not been disclosed and he had also not been produced in the witness box by the prosecution. Still further, it has been submitted by the learned counsel for the appellant that the recovery of the rifle from the New Gun House was not done in the presence of any eye-witness and he also submits that there appeared a contradiction in the manner in which the recovery was done as the cloth which had sealed the rifle and was produced in the Court had mentioned that the rifle was recovered from the possession of Musafir and it was mentioned that it was recovered on 28.7.1981. Learned counsel for the appellant states that this description on the cloth which sealed the rifle was in an absolute contradiction with the story which was being put forth by the P.W. 8 that the rifle was taken into possession from the New Gun House upon the information of Bhagirathi. Learned counsel for the appellant, therefore, states that even the recovery of the gun was absolutely doubtful. Learned counsel further states that how, when and in what manner, the sub inspector Kailash Nath Srivastava, P.W. -8, got in his possession the licence of Musafir was also not clear. V. Further, the witnesses of fact namely the lawyer Sri Brij Pal Singh and Bhagirathi, the person who had informed the police about the whereabouts of the wife were not produced in the witness box. 24. Learned AGA Sri Amit Sinha assisted by Ms. Mayuri Mehrotra, however, has argued that though much stress had been laid on the fact that all the eye-witnesses had turned hostile the statements ought to be seen in conformity with the culture in which the witnesses were bred. They were all either family members or servants of the family and at the time when the incident had occurred the family was a joint family and was under the control of the Grand Father, Suryabali. 25. Learned Additional Government Advocate argued that it was just possible that due to pressure of the elders, the family members had changed their statements and it could not be said that the, incident as had been reported in the FIR had not occurred simply because of the volte face in the statements of the prosecution witnesses. Learned counsel for the State further argued that the dying declaration was such a piece of evidence which had to be believed. Learned AGA relied upon a judgment of the Supreme Court in Pradeep Bisoi @ Ranjit Bisoi v. State of Odisha, 2019 (11) SCC 500 and submitted that a statement which was made by a person and was being used as an evidence under Section 32(1) of the Evidence Act could not be thrown out simply because the person who was getting the dying declaration recorded was not under the expectation of death and, therefore, learned AGA Sri Amit Sinha states that when the dying declaration was there then it ought to be believed and could not be thrown out. 26. 26. Learned AGA submitted that a child witness normally speaks the truth and in the instant case when he had lodged the First Information Report, he had given the exact picture as had happened before the child witness. Therefore, the statement of the child witness also could not be in any manner discarded. 27. Having heard the learned counsel for the appellant Sri V.P. Srivastava, Senior Counsel, who was assisted by Ms. Neerja Srivatava and Sri Virendra Singh and the learned AGA Sri Amit Sinha who was assisted by Ms. Mayuri Mehrotra, brief holder, for the State, the Court is of the view that definitely the statements of the witnesses of fact become unreliable. Howsoever much the pressure of the grand father, Suryabali might have been there, it does not stand to reason as to how a mother would just abandon the case where her own son had been murdered. Further, we are of the view after going through the statement of P.W. 4 that the first informant and also the persons who were mentioned in the First Information Report as eye-witnesses had not seen the incident. After the injured was taken to the hospital on 5.7.1981 at around 2:30 p.m., the entire family and all the persons who were named in the First Information Report had assembled alongwith a lawyer by the name Brijpal Singh and they had decided amongst themselves that they would implicate Musafir. This portion of the statement of P.W. 4 is a very natural statement and cannot be discarded easily. P.W. 4 had, in a very innocent manner, stated that after there was a conference amongst the family members and the other persons named in the first information it was decided that they would implicate Musafir. Only thereafter Musafir was named in the FIR. Also, we are of the view that all these conferences had taken place within the hearing of the injured Ramakant and he while was giving his dying declaration had declared things exactly in the pattern in which the First Information Report had mentioned. 28. We are of the view that the child witness was very attached to his brother as he was the only person who had gone to lodge the First Information Report despite the fact that so many of the elderly persons were present. 28. We are of the view that the child witness was very attached to his brother as he was the only person who had gone to lodge the First Information Report despite the fact that so many of the elderly persons were present. This, we find it strange that when so many of the elders were present including a lawyer the child of 12 years had gone to lodged the FIR. 29. A bare reading of the First Information Report and the dying declaration definitely shows that they were verbatim the same. Further, we are of the view that at the time when the dying declaration was being got recorded even though Ramkant was injured, he was to undergo a surgery, which according to the Doctor was a surgery for removing a certain substance which was forming an opaque image in the X-ray but he had said that the substance was not dangerous inside the body of the injured and, therefore, we are also of the view that definitely the injured Ramakant at the time of the recording of the dying declaration was not under an immediate apprehension of death and as per the judgment in Irfan @ Naka v. State of U.P., 2023 SCC Online SC 1060, definitely when a person who was giving a statement was not in an expectation of death, then his dying declaration ought not to be believed. 30. We are also of the view that the recovery which was done of the rifle by the P.W. 8, Kailash Nath Srivastava was not in accordance with law. Even the person who had given the information with regard to the fact that the gun was kept in the New Gun House was not produced in the witness box. Bhagirathi, it had been stated, had only given an affidavit before the Chief Judicial Magistrate but thereafter he absolutely disappeared. Also, we are of the view that the recovery memo was of no avail to the prosecution as it did not contain any signature of any witness before whom the recovery might have taken place. We are also of the view that even though the prosecution had managed to get the licence of the accused Musafir but it had not been able to connect the rifle with the licence. Also the prosecution had not been able to connect the incident which had occurred with the rifle. We are also of the view that even though the prosecution had managed to get the licence of the accused Musafir but it had not been able to connect the rifle with the licence. Also the prosecution had not been able to connect the incident which had occurred with the rifle. Even the forensic laboratory report, which is there on record, does not indicate that the empty cartridges were shot from the rifle which was recovered. 31. From what has been stated above, the Court is thus of the view that on the basis of such shaky evidence i.e. the evidence of the witnesses of fact, the recovery of the gun and the dying declaration, which according to us was a tutored dying declaration and was definitely not inspiring confidence, the appellant cannot be convicted. The appeal, therefore, is allowed. The judgment and order dated 26.2.1983 passed by the 5th Additional Sessions Judge, Deoria, is quashed and set aside. The appellant Musafir is declared innocent. He is already on bail. He need not surrender. 32. The appellant is however directed to comply with the provisions of Section 437(1) Cr.P.C. within a period of 10 days from the date when the judgment is uploaded on the website of the High Court.