R.B. Dixit, J.
1. It is alleged by prosecution that on 1st February, 1987 when deceased Ramlakhan was sleeping in a hut at his fields outside the village, the accused persons including the appellant came in a jeep and appellant fired upon him from his gun which hit his left leg. After the appellant along with other accused persons left the place, father of the deceased Kalyan (P.W. 2) was informed about the incident by Hariram. On reaching the place of incident, the deceased informed his father that he was assaulted by the appellant by firing a gun shot and thereupon father of the deceased lodged the First Information Report at the police station, Billoua.
2. The deceased succumbed to the injury. Post-mortem was performed by Dr. V.K. Diwan (P.W. 1) who found gun shot wound of entry on left knee and another gun shot wound of exit over the left thigh.
3. The learned First Additional Judge to the Sessions Judge, Gwalior after examining the evidence of the parties acquitted all other accused persons except the appellant by the impugned order and judgment dated 31-1-1994 passed in Sessions Trial No. 190/ 87 and convicted the appellant of offence under Section 302, I.P.C. and sentenced to imprisonment of life and a fine of Rs. 1000/-, against which present appeal has been filed.
4. The learned counsel of the appellant has contended before us that initial case of the prosecution was that the gun shot was fired upon by unknown person, however, the appellant along with others have been mentioned lateron, therefore, when the other accused persons are acquitted on the basis of the evidence, the same cannot be applied for convicting the appellant alone. The learned Government Advocate, on the other hand, has however supported the findings of the learned trial Court.
5. We have anxiously considered the rival submissions of the learned counsel of the parties and have carefully perused the record.
6. Kalyan (P.W. 2) father of the deceased has stated that the deceased had gone to sleep at the fields at about 7.00 or 8.00 in the evening and at 11.00 p.m. Hariram came to him and informed that the deceased was hit by a bullet shot. The name of the appellant was not informed to him at that time. He reached the spot along with his nephew Veeru and Bhagwansingh where the deceased told him that Nattha had fired upon him. It was also informed that Nattha was saying that he had taken the revenge of taking away his goats. Leaving the deceased wounded on the spot he ran to the police station and lodged the First Information Report (Ex. P/3). According to this witness he was locked at the police station by the Officer-in-Charge and was only released in the night after completing the formalities, although the Investigating Officer has denied this fact.
7. Kalyan (P.W. 2) in his cross-examination has admitted that when he was interrogating the deceased only Sukha was present with him while other villagers were sitting at a distance near the fire. He did not divulge the name of the assailants to those other villagers who were sitting around the fire and the reason for not divulging the names of the assailants was that he never imagined that the deceased would die, however, this reason does not appeal to mind. This witness has also contradicted his police case diary statement regarding the manner in which the assailants ran away in a jeep. He has also admitted that the deceased along with his son Bhagwanlal were arrested in theft of goats prior to this incident. A report of theft was lodged by the sons of Janved i.e. accused persons. It has been argued on the basis of this admission that the appellant and other accused persons were falsely implicated on account of suspicion, otherwise if the deceased was arrested on the report of accused persons, nothing was left to revenge upon.
8. Virendra alias Veeru (P.W. 3) was informed about the incident by his Mousi. He, therefore, reached the spot along with his maternal uncle Kalyan. It is surprising that nothing was divulged regarding the incident by the deceased before this witness.
9. Sukha (P.W. 4) who is an alleged eyewitness has stated that on hearing the gun shot sound, he stood up and saw the appellant along with other accused persons running away. Appellant was armed with a gun. He identified them in moon light. In his police case diary statement (Ex. D/2) the distance between him and the accused persons was about fifty paces, however, the place where he was sitting is about two fields away from the spot. He did not see the assailants coming in a jeep. Although according to him his field is situated near the road, but in the spot map he has not been spotted nearby the spot. He has also contradicted his police case diary statement in respect of the weapon with which each of the accused were armed. According to him he had heard the appellant uttering that he has taken revenge of goats. It is very surprising that the fact of revenge would be shouted in such a loud voice by the assailants while running from the place of incident that it may be heard by a person who was sitting at a distance of about 200 yards from the spot. According to him he had told Hariram that appellant had fired gun shot, however, name of the appellant was not divulged by Hariram when he first informed about the incident to his father Kalyan. He did not care to inform about the name of appellant to other villagers who had assembled on the spot soon after the occurrence. In the circumstances, it would not be safe to base the conviction of the appellant on the testimony of this witness.
10. Bhagwansingh (P.W. 5) has not supported the prosecution case and turned hostile. According to him the place where Sukha was lying is about 150 to 200 yards from the spot. Ratti (P.W. 6) was also informed about the incident by Hariram. However, Hariram being such an important witness was not produced in evidence. According to him, the deceased has divulged the names of the assailants to him. He is cousin of Kalyan and Kalyan has not mentioned anything about presence of this witness at the time he interrogated the deceased. He could not say whether there was moon light, and therefore, his statement also does not inspire confidence.
11. The presence of defence witness Mohansingh has also been admitted by the prosecution witnesses. However, according to this witness the deceased did not divulge the name of any of the assailants. Pandit Shivratan (D.W. 3) has also deposed that according to Panchang on 1-2-1987 the moon rose at about 5.54 p.m. and set at 6.28 p.m. after about 34 minutes and 12 seconds. Thus, according to this witness there was a dark night on that day. Nothing has come from the police case diary statements of the witnesses that the assailants were identified in the moon light. Admittedly, there was no source of light on the spot.
12. It has been held by Hon'ble the Supreme Court in case of Jagdish Prasad v. State of M.P., reported in AIR 1994 SC 1251 : (1994 Cri LJ 1106) that where the testimony of witness is clouded with grave suspicion and discrepancy in material particulars, recording of conviction on such testimony is not safe. Similarly, in Division Bench of this Court in case of State of M.P. v. Narayan Singh, reported in 1991 (1) MPWN 249 it was observed that the eye-witness giving false statement regarding distance of causing fire arm injuries cannot be relied upon. In another case of State of U.P. v. Bhagwan Singh, reported in AIR 1997 SC 3292 it was pointed out that where the commencement of the occurrence at the spot as alleged by the prosecution becomes doubtful the evidence of eye-witness as to accused persons who fired at the deceased for first time the presence of the witness becomes doubtful.
13. The prosecution story in the present case revolves round the information received from Hariram. However, Hariram has not been examined in the present case. In this respect, it has been observed by Hon'ble the Supreme Court in case of Sarwan Singh v. State of Punjab, reported in AIR 1976 SC 2304 : (1976 Cri LJ 1757) that the law is well settled that prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words, before adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the Court that the witnesses who had been withheld were eye-witnesses who had actually seen the occurrence and were, therefore, material to prove the case. It is the quality rather than the quantity of evidence that matters. In such a situation, non-production of the material witness Hariram assumes importance in facts and circumstances of the present case.
14. Inso far as oral dying declaration of the deceased is concerned, it has been made clear by the Apex Court in case of Darshana Devi v. State of Punjab, reported in 1996 SCC (Cri) 38, that even though an oral dying declaration can form basis of conviction in a given case, but such dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral declaration in such cases is very important. The difference in the exact Words of the declaration in the present case detract materially from the value of the oral dying declaration.
15. Regarding identification of the appellant at night, it appears from the evidence produced on behalf of the defence that it was a dark night. In case of Thanedar Singh v. State of M.P. ((2002) 1 SCC 487 : (2002 Cri LJ 254), where P.W. 6 was sleeping on a cot at a little distance from the spot where the victim was sleeping. P.W. 6 stated that as many as five persons including the appellant surrounded his son and two of the accused were standing in front of his cot, in this situation assuming that there was faint light emanating from the open sky, would it be possible for P.W. 6 to observe the appellant firing shot from his rifle, it was held that the possibility seems to be remote. In the present case, the defence has proved rising time of the moon on the day of occurrence. Even if a almanac was not produced, the evidence of Pandit testifying the time of setting of moon was not challenged in the cross-examination. In the circumstances, the evidence of some of the prosecution witnesses that there was moon-light is falsified.
16. Taking into consideration the totality of the facts and circumstances and the evidence as brought on record, we are of the opinion that there was no occasion for the deceased to identify the assailants including the appellant and the names of the assailants were subsequently cooked up on the suspicion of enmity that existed between the parties. The evidence of the alleged eye-witness is also highly improbable and cannot be believed. Similarly, oral dying declaration of the deceased to his father is highly suspicious and, therefore, unsafe to be relied upon. In such a situation, we are of the opinion that the appellant is entitled to benefit of doubt.
17. For the reasons stated hereinabove, this appeal is allowed and conviction and sentence of the appellant is set aside.