| SooperKanoon Citation | sooperkanoon.com/484124 |
| Subject | Criminal |
| Court | Allahabad High Court |
| Decided On | Aug-08-1996 |
| Case Number | Criminal Appeal No. 2592 of 1979 |
| Judge | G. Malaviya and ;J.C. Mishra, JJ. |
| Reported in | 1997CriLJ1691 |
| Acts | Indian Penal Code (IPC), 1860 - Sections 34, 302 and 307 |
| Appellant | Baijnath and ors. |
| Respondent | State of U.P. |
| Appellant Advocate | Bhagwan Pd. Gupta and ;J.S. Sengar, Advs. |
| Respondent Advocate | Govt. Pleader and ;R.C. Deepak, Adv. |
| Cases Referred | State of Assam v. Mafizuddin Ahmed |
J.C. Mishra, J.
1. The accused Baijnath, Sukh Lal, Phoolchand and Natthu were convicted under Section 302/34, I.P.C. and sentenced to life imprisonment by the 2nd Additional Sessions Judge, Jalaun at Orai in S.T. No. 74 of 1977. The informant, Bansilal (P.W. 1) is brother of the deceased Hiralal. They were sons of Gutai. Sisters of Natthu were married to the deceased Hiralal, accused Sukhlal and accused Baijnath. The accused Phoolchand happens to be sister's son of accused Natthu.
2. The accused Natthu was married to Smt. Premwati alias Lalli (P.W. 5) and they lived together in Mohalla Chamanganj, District Kanpur. The father of accused Natthu was employed in Swedeshi Mill, Kanpur and he was maintaining his son, who had no source of livelihood. He died in the year 1969. After his death accused Natthu, who had no earning to meet day to day expenses was facing financial problems, which were aggravated by his habit of drinking and gambling. He started pressurising his wife Smt. Premwati to take up prostitution and started bringing persons to his house for that purpose. She refused to oblige and declined the suggestion. The accused felt offended, he started beating her. She was often subjected to cruelty, Smt. Premwati found it impossible to live with him. She therefore, filed case No. 13 of 1974 in the Court of Civil Judge, Kanpur for divorce.
3. Then the prosecution case is that Smt. Premwati got entangled with the deceased Hiralal, whose wife had died. On account of relations of his wife with the deceased Hiralal the accused Natthu got annoyed with the deceased. The illwill got aggravated by the institution of the divorce suit. This furnished motive behind the crime.
4. The prosecution case is that on 28-4-1974 the deceased Hiralal, after dining, was going, at about 1 p.m., to the shop of his brother informant Bansilal and when he reached near the shop of Tikaria Bania, the accused Natthu and his sister's son Phoolchand caught and threw him on the ground. The accused Sukhlal, brother-in-law of the accused Natthu took out a knife and gave it to Phoolchand. Natthu was in possession of Knife. Both Natthu and Phoolchand fell upon the deceased and started assaulting the deceased with knives held by them. The deceased raised an alarm thereby attracting Bharat Singh, Ramju Chamar, Rajaram, Mansaram, Fatar Singh etc. They succeeded in overpowering one of the culprits, who on interrogation disclosed his identity as Deepchand alias Kamal Kumar, son of Ganga Prasad, resident of Lakshmi Purwa P.S. Raj Purwa District Kanpur.
5. Ram Prakash Kori, Duli Chand Kanjarh and Maikulal carried the apprehended culprit Deepchand alias Karnal Kumar to the police station, along with knife held by him and handed over to the then head constable clerk Ram Daur Singh (P.W. 8).
6. The informant Bansilal carried his brother to District Hospital, Orai, where he was examined at 1.00 p.m. by Dr Subhash Chandra Saxena (P.W. 4), who found the following injuries on his body :-
1. Incised wound 2.5 cm. x 1.4 cm. x muscle deep on left side of the neck with linear scratch of 3 cm 'extending from upper end of it.
2. Incised wound 3 cm. x % cm. x muscle deep obliqua. Left side of chest 18 cm. inward and down to left nippel.
3. Contusion 3 cm. x 3 cm. front of chest lower part.
4. Incised wound 2 cm. x 1/2 cm. x depth uncertain probing not done wound tranverse on lateral side of left chest.
5. Incised wound 1 1/2 cm. 1/2 cm. x muscle deep on front of penis, oblique.
6. Incised wound 2 cm. x 1/2 cm. x muscle deep on outer aspect of left thigh upper part (oblique).
7. Incised wound 2 cm. x 1/2 cm. muscle deep 5 cm. below injury No. 6.
7. The statement of deceased Hiralal was recorded by Shri G. S. Hasmi (P.W. 7) the then S.D.M. Orai after obtaining a certificate from the Medical Officer and himself satisfying that he was in a fit state of mind to give his statement.
8. The investigation of the case was taken over by S.I. Shambhu Nath Khare.
9. The deceased Hira succumbed to his injuries on 2nd May, 1974. The information about his death was conveyed to the police station. S.I. Arshad Ali Khan (P.W. 2) on receipt of memo about the death of Hiralal went to the District Hospital held inquest and prepared inquest report, photolash, challan lash etc., got the body sealed up and sent the dead body for post-mortem examination through Constable Ram Gopal and Gokul Prasad. The post-mortem of the deceased Hiralal was conducted by Dr. Vijay Singh on 3rd May, 1974 at 11.30 a.m. He found the following antemortem injuries on the dead body :-
1. Healing wound 2.5cm. x 1/4 cm. muscle tissues deep on left side of neck vertical with a tail of linear scratch abrasion 3 cm. long extending from upper and upwards and forwards.
2. Stitched healing wound 3 cm. long (two stitched applied) at the injunction of epiqastrium and left chest 10 cm. from left nipple at 8 O' clock position. On removing the stitches the wound is only muscles deep.
3. Faint greenish blue contusion 3 cm. x 3 cm. left lateral side chest lower part.
4. Stitched wound (two stiches) with tincher benzoin seal on left lateral side of abdomen upper part 2 cm. long. On removing stitches the wound is abdomen cavity deep.
5. Stitched and sealed wound 1 1/2 cm. long on the root of penis. On removing stitches the wound is healing and sub-cutaneous tissues deep.
6. Two stiched and sealed wound. Both 2 cm. long on lateral side of left thigh upper part 5 cm. apart. On removing stitches both are muscle deep.
10. On internal examination the Medical Officer found brain and membrances congested, peritoneoum was found cut and perforated at 4 places. The small intestine was also found perforated at 3 places.
11. The Medical Officer opined that death was due to texaemia and shock as a result of peritonitis, which itself was due to injury No. 4.
12. The investigation was taken over by S.I. Noor Mohd. (P.W. 3) from S.I. Shambhu Nath Khare. He recorded the statement of Smt. Premwati and accused persons.
13. The apprehended accused Deepchand alias Kamal Kumar was put up on lest identification on 24-8-74. None of the witnesses except Bansilal could identify him.
14. On completing the Investigation, the Investigating Officer submitted chargesheet against the accused.
15. To prove its case the prosecution examined Ram Prakash (P. W. 1), who stated that in the incident Dulichand was apprehended. He had a knife. He was handed over to police. He had disclosed his name as Deepchand. In the cross-examination he admitted that he could not identify the accused in the test identification held in the jail. He also stated that he had not seen the incident.
16. Smt. Premwati (P.W. 5) stated that she was married to the accused Nalthu, who did not keep her well and often tortured her. She did not like her husband's attitude in calling outsiders and asking her to satisfy their lust. She stated that she, of her own accord, went to live with deceased Hiralal and developed intimacy with him. She filed a divorce suit against her husband.
17. S.I. Arshad Ali Khan (P.W. 2) had held inquest on the dead body of Hiralal and dispatched it for post-mortem examination. S.I. Noor Mohd. (P.W. 3) had taken over the investigation from S.I. Shambhu Nath Khare on 12-7-1974 and had submitted chargesheet on 26-9-1974, after recording the statements of Smt. Premwati and accused persons. S.I. Ram Daur Singh (P.W. 8) was posted as head constable clerk and he had prepared chick report on 28-4-1974, on the basis of the report filed by the informant Bansi Lal and registered a case vide G. D. Report No. 29 at 2.30 P.M. under Section 307, I.P.C. He had also lodged accused Deepchand in lock up and taken his knife into his custody.
18. The prosecution also examined the medical officers Dr. Subhash Chandra Saxena(P.W. 4) and Dr. Vijay Singh (P.W. 6) who had conducted medical examination of the deceased and autopsy respectively.
19. The prosecution also examined Shri G. S. Hasmi S.D.M. Orai (P.W. 7), who proved the dying declaration Ex.Ka. 10 and doctor's certificate Ex.Ka. 7.
20. The above narration would show that the prosecution could not examine even a single eyewitness to prove the participation of the accused person. It also could not examine the informant. Thus only evidence available against the accused persons is dying declaration, which was recorded by the S.D.M. Orai.
21. The learned Additional Sessions Judge relying on the dying declaration convicted the appellants under Section 302/34, I.P.C. and sentenced them to life imprisonment, while acquitting the accused Deep Chand. Fell aggrieved the convicts accused Baijnath, Sukh Lal, Phoolchand and Natthu preferred this appeal.
22. We have heard Shri J.S. Sengar learned Counsel for the appellants and Shri R.C. Deepak learned Additional Government Advocate.
23. Learned counsel for the appellants contended that the dying declaration suffers from infirmities and the trial judge committed illegality in convicting the appellants solely on the evidence of dying declaration, which is not corroborated by any other evidence rather it is contradicted by first information report
24. In order to appreciate the arguments advanced by the learned Counsel it would be convenient to reproduce the dying declaration along with certificate endorsed on it:-
Certified that Heera Lal S/o Gutai R/o Krishna Nagar, Orai is in fit mental state to give his statement voluntarily.
Sd/-
(Dr. S. Chandra)
Certified that Heera Lal S/o Gutai R/o Krishna Nagar P. S. and Town Orai District Jalaun, aged about 35 years profession grain dealer of Jawahcrganj is in a fit state of mind to give his dying declaration and that the statement is being recorded in seclusion.
Sd/-
(S.D.M., Orai)
28-4-1974
^^iz'u%& rqedks vLirky es dkSu yk;k vkSjrqEgkjs pksVs dSls vk xbZ gS
mRrj %& eSa vkt ls djhc 2] 21@2?kUVs igys vius ?kj ls [kkuk [kkdj nwdku dks vk jgk Fkk fd jkLrs esa fVdfj;kcfu;k dh nwdku ds ikl tks fd vehj dwatMs ds fudV gS cStukFk dksjh us idM+ fy;k]tks fd Fkkus ds lkeus jguk gS vkSj uRFkw vkSj cStukFk ds yM+ds us Hkh eq>sidM+ fy;k vkSj tehu ij iVd fn;k tc eSa fxj x;k rks lq[kyky Hkh tks uRFkw dkcguksbZ gS vkSj dkuiwj dk jgus okyk gS pkdw fudkydj QwypUnz dks fn;k uRFkw dsikl Hkh ,d pkdw Fkk bu nksuksa us eq>s pkdw ekjuk lq: dj fn;s vkSj eS ph[kusyxk rc rd bUgksus esjs 6 pkdw ekj fn;s Fks fd xjnu ij lhus ds yxk vkSj ckbZ cxyij isV esa yxk vkSj tka?k ij yxk vkSj is'kkc dh txg ds ikl Hkh yxk esjs ph[kusfpYkkus ij yksx vk x;s A bl cfu;s dks cgqr ls yksxksa us ns[kk gS Hkkjrflag vkSjdqN vkSj Hkh Fks ifCyd us ,d nks ekjihV djus okyksa dks idM+ Hkh fy;k Fkk ijt[eh gkyr esa vkSj HkhM+ esa mUgs ugha igpku ldk A cStukFk] QwypUnz o uRFkw lsesjh jaft'kk Fkh ,d dsl rykd dk py jgk gS mlh esa ;g yksx dgrs gSa fd rqe yM+dhdks sicekeyk py jgk gS ysdj Hkkx x;s gks ;g dguk mudk xyr gSa eSus ,slk ugha fd;k Fkk A
iz'u%& rqeus tks ;g c;ku fn;k gS blesadksbZ ckr fdlh Mj] Hk; ykyp ;k fdlh ds cgdkus ;k nckvksa ls rks ugh dg jgs gks
mRrj %& ugha&iwjk; c;ku viuh [kq'kh lsns jgk gw tks lgh Fkk ogha dg jgk gw eSa ;g Hkh tkurk gw ds vki eftLVsVgSa A
lqudj rlnhd fd;k A
g- ,l- Mh- ,e-
28&4&1974 1-55 ih- ,e-
Certified that the deponent remained in a fit stale of mind, till the close of his statement and that it has been recorded in seclusion after ascertaining that it is voluntary and unprejudiced.
Sd/-
(S.D.M.)
28-4-1974
25. The first criticism that has been levied against the dying declaration is that the Magistrate had not personally ascertained the mental condition of the deceased. It was duty of the Magistrate to have questioned the deceased regarding his mental state. The learned counsel referred to a decision of Division Bench of this Court in Krishna Chandra v. State, 1996 Cri LJ 1507 decided by Justice D. N. Trivedi and Justice O.P. Pradhan. It was observed that it was the duty of the Magistrate to satisfy himself before recording the dying declaration of Indra Kumari that she was in a fit mental state. Learned Additional Government Advocate referred to a pronouncement of the Supreme Court in State of Rajasthan v. Kishore reported in (1996) 20 All Cri R 442 : (AIR 1996 SC 3035). In the said case dying declaration was attacked on a number of grounds including hat the judicial magistrate had not recorded the mental condition of the deceased; he did not get any confirmation of the mental condition of the deceased before recording the declaration. Their Lordships perused the questions put by the Magistrate and answers given by the deceased and observed 'A perusal of the answers clearly indicates and inspires us to believe that she was conscious and had given cogent, coherent and direct answers to the questions put by the Magistrate, from which it could easily be inferred that she was in a mentally fit condition at that time to give the statement.' In view of the decision of the Supreme Court the dying declaration cannot be thrown on the ground that the Magistrate had not recorded his satisfaction that the deceased was mentally fit to give his statement.
26. A perusal of the dying declaration would show that before recording the statement the deceased was examined by the medical officer who certified that the deceased was in fit mental state to give his statement voluntarily. Thereafter, the S.D.M. recorded his own certificate that the deceased was in a fit state of mind to give his dying declaration and that the statement was being recorded in seclusion. After recording this certificate regarding the mental state the S.D.M. recorded the statement in question and answer form. After recording the statement he again certified that the deceased remained in a fit stale of mind, till the close of his statement and that it has been recorded in seclusion after ascertaining that it was voluntary and unprejudiced.
27. A perusal of the dying declaration would show that the deceased had given cogent, coherent and direct answers to the question put by the Magistrate. He stated that after dining he was coming to the shop, when on the way the accused Baijnath Kori caught hold of him near the shop of Tikarid Bania. Natthu and son of Baijnath also caught him and they threw him on the ground. Then he stated that the accused Sukhlal brother-in-law of Natthu gave knife to Phoolchand and then Phoolchand and Natthu, who had a knife assaulted him. He also disclosed the parts of his body, where he had sustained knife injuries. He also slated that one of the miscreants was apprehended on the spot. He also disclosed the motive behind the crime. To a question put by the Magistrate he stated that he was willingly giving his statement., which was truthful. He also stated that the officer recording his statement was a Magistrate. This statement by itself shows that the deceased was mentally fit.
28. The deceased had sustained bleeding knife injuries and he must have been under expectation of death. Despite this apprehension it may be noted that the injuries were not of such a nature that the deceased would have felt any difficulty in giving his statement. He died due to toxaemia and shock as a result of peritonitis which was due to injury No. 4. The Medical Officer staled that the deceased could be saved by an early surgical operation. We find that the deceased was in a fit mental state to give his statement.
29. The learned Counsel contended that the deceased had not answered the first part of question No. I as to who had brought him to the Hospital. This contention is correct. It may. however, be noticed that the Magistrate had asked two questions and he answered second part of the question as to how he had sustained the injuries. It is possible that he could not have heard the earlier part of the question. His entire statement, however, appears to be coherent and consistent.
30. The learned Counsel for the appellants contended the deceased had described his injuries in the same order in which they were noted in the injury report, which indicates that the dying declaration was prepared with the connivance of the doctor. This contention is not correct. The deceased stated that he had received injuries on his neck, chest, abdomen, thigh and penis. He must have been feeling pain and suffering and would have located the injuries. He could have described the location of the injuries without any outside aid. In the injury report the injuries were described in the following order :-
Neck-Chest-Chest-Chest-Penis-Thigh. Thus there was a difference in the sequence of injuries as given in the dying declaration and injury report. Moreover the injury No. 4, which was described by the Doctor as on the chest was correctly staged by the deceased that it was on the abdomen.
31. Learned counsel for the appellants contended that the dying declaration is contradicted by the first information report. The learned Additional Government Advocate disputed this contention and contended that utmost there were some omission in the F.I.R. A comparison of the first information report and dying declaration would disclose that the averments made in the dying declaration that Baijnath had caught hold of the deceased; Natthu and son of Baijnath had also caught and thrown the deceased on the ground Sukhlal brother-in-law of Natthu gave knife to Phoolchand, were not incorporated in the first information report. This omission appears to have been made in the F.I.R. as the informant was not an eye-witness of the occurrence. He appears to have dictated the report on the information given by the eye-witnesses, who were attracted to the spot on the outcry of the deceased. It is likely that they would not have seen the earlier part of the incident viz. catching hold of the deceased, supply of knife by Sukhlal to Phoolchand and throwing the deceased on the ground. So far as the part assigned to the accused Natthu and Phoolchand is concerned there is no inconsistency between the F.I.R. and dying declaration. Even if it is assumed that the report was written on the information furnished by the deceased it is likely that the informant would not have felt any necessity in incorporating the insignificant appearing role of catching hold of the deceased and supply of knife in the F.I.R. He would have preferred to mention the role of main assailants viz. giving knife blows. In our opinion there is no contradiction between the dying declaration and F.I.R. The omission in the F.I.R. about the role of accused in assisting the main assailant which the informant might have thought insignificant, does not affect the veracity of the dying declaration.
32. The learned Counsel for the appellants then contended that there is no explanation of the contusion found on the lower part of the front of the chest, noticed by the Medical Officers, who had medically examined the deceased at the time of his admission as well as during the post mortem examination. It may, however, be recapitulated that the accused persons had thrown the deceased on the ground, which could have resulted in the injury. Moreover the contusion was not of serious nature and it's non explanation can hardly affect the dying declaration. Learned counsel then contended that the identity of Natthu is not established as neither parentage nor the address was mentioned in the declaration. It may, however, be noticed that as established by Smt. Premwati (PW-5) Sukhlal was brother-in-law of Natthu. It is mentioned in the declaration that Sukhlal resident of Kanpur was brother-in-law of Natthu. This statement establishes the identity of Natthu. This inference is further strengthened by the everments that the deceased had enmity with Baijnath, Phoolchand and Natthu and a divorce case was pending in the Court.
33. The learned counsel contended that the dying declaration has not been corroborated by any eye witnesses and being a weak evidence is insufficient to prove the prosecution case beyond shadow of doubt. The learned Additional Government Advocate contended that the dying declaration, if reliable, is by itself sufficient to prove the prosecution case.
34. It was held in, Khushal Rao v. State of Bombay, 1958 SCR 552 : (AIR 1958 SC 22), that it is not an absolute rule nor even a rule of prudence that has ripened to a rule of law that dying declaration to sustain the order of conviction, must be corroborated by other independent evidence. The rule of corroboration requires that the dying declaration be subjected to close scrutiny since the evidence is untested by cross-examination. The declaration must be accepted, unless such declaration can be shown not having been made in expectation of death or to be otherwise unreliable. Any evidence adduced for this purpose can only detract from its value but does not affect its admissibility. The dying declaration, therefore, may be tested as any other piece of evidence. Once the Court reaches the conclusion that the dying declarations is true no question of corroboration arises. The dying declaration cannot be placed in the same category as evidence of an accomplice or a confession.
35. It was held in State of Rajasthan v. Kishore, (1996) 20 All Cri R 442 : (AIR 1996 SC 3035), that it is settled law by series of judgments of this Court that the dying declaration, if after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, is no legal impediment to form such dying declaration the basis of conviction, even if there is no corroboration vide Tarachand Damu Sutar v. State of Maharashtra, (1962) 2 SCR 775: (AIR 1962 SC 130); Kusa v. State of Orissa, (1980) 2 SCC 207 : (AIR 1980 SC 559); Meesala Ramakrishan v. State of AP, (1994) 4 SCC 182 : (1994 AIR SCW 1978); Goverdhan Raoji Ghayare v. State of Maharashtra, 1993 Supp (4) SCC 316 : (1993 Cri LJ 3414) and Gangotri Singh v. State of U.P. 1993 Supp. (1) SCC 327 :(1992 All LJ 1122).
36. The learned counsel for the appellants referred to an earlier decision of the Supreme Court in, K. Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 and contended that the test laid down in the aforesaid pronouncement for the reliability of dying declaration are not satisfied in this case. It was held in the aforesaid case 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; the statement has been consistent throughout, if he had several opportunities of making a dying declaration apart from the official record of it, and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. AIR 1958 SC 22, Rel. On.
37. The incident had undoubtedly taken place at 1.00 p.m. in broad day light and therefore, the deceased would have felt no difficulty in identifying culprits. The assailants had given repeated blows on the front portion of the body by knives, held by them. No injury was caused in the head region so as to damage the brain. Thus his memory was not impaired at the time of making the dying declaration. We have also noticed that the statement was coherant, consistent and unambiguous.
38. The learned counsel then contended that place of occurrance could not be fixed in view of discrepancy between FIR and dying declaration. It is true that in the FIR it was mentioned that the incident had taken place in front of shop of Jai Purwar, whereas in the dying declaration shops of Tikari Baniya and Amir Kunjda were mentioned. Both the statements are consistent as regards the fact that the incident took place in the market area, while the deceased was going to the shop of the informant. The siteplan prepared by the Investigating Officer shows that there are number of shops on both sides of the road where incident occured and blood was found. The shops of Purwar and Hamid Kunjda are shown on the southern side of the road and two shops intervene between them. It is likely that the accused would have started catching hold of the deceased infront of shop of Purwar and given knife blows infront of shop of Kunjda. The dying declaration fixed the place of occurrance accurately and there is no ambiguity regarding the place of occurrance.
39. Learned counsel for the appellants contended that the deceased had an earlier opportunity in making dying declaration at the place of occurrance and another opportunity on the way, while he was being carried to the Hospital, but the prosecution failed to prove earlier dying declarations. It is true that as held in Prakash v. State of M.P. reported in AIR 1993 SC 65, the deceased would give names of the assailants to his family members at first opportunity. The learned counsel contended that as the informant had not named in the FIR all the accused persons who were named in the dying declaration the inevitable inference that can be drawn is that the deceased had not disclosed their names to the informant and he, for the first time, gave his version regarding the incident to the Magistrate, who recorded his statement in the Hospital. The learned counsel contended that inability of the prosecution to prove the dying declaration made to the family members, seriously affects the authenticity of the dying declaration made to the Magistrate. We do not find any force in this contention. As discussed above it is likely that the informant would have thought proper to mention the names of those accused persons, who had assaulted the deceased with knives and he would have felt no necessity of incorporating the names of other accused, who had accompanied the main assailants and played semmingly insignificant roles. It may be pointed out that in the case before the Supreme Court in, K.R. Reddy v. Public Prosecutor, AIR 1976 SC 1994, the names of the assailants, were not mentioned by the Sub-Inspector, who made the station diary entry Ex. D-4 on the basis of the report made by PW-1 and for the first time the names of the accused persons were disclosed in the dying declaration. In the case before us the names of the assailants, who had given knife blows were noted in the first informal ion report and it cannot be said that the deceased had failed to make dying declaration, before his brother, while he was being carried to the Hospital.
40. It may be mentioned that the dying declaration was recorded by an independent witness who was posted as D.S.D.M. at Orai within 45 minutes after the incident. The dying declaration was concluded at 1.55 p.m. as noted in the dying declaration. The medical examination was conducted at 1.30 p.m. i.e. just 1/2 (half) an hour after the occurrence. The Magistrate must have started recording the dying declaration at 1.45 p.m. The prompt recording of dying declaration excludes the possibilities of tutoring. Moreover the informant, who had no personal grievance against the accused persons would be last person to implicate them falsely in the murder case. The learned counsel for the appellants referred to a decision of Supreme Court in, State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274. In that case the deceased who was alive for about 8 days, after receiving burn injuries, did not disclose earlier to any one, she met in the Hospital that her husband had sprinkled kerosene oil and set her on fire, and it was only when her uncle met her that she made an oral dying declaration to him and later to the Magistrate, who recorded her statement. On this ground as also on some other infirmities the dying declaration was discarded. In the case before us the dying declaration does not suffer from such infirmities. The names of the assailants who had caused knife injuries were disclosed in the first information report, possibly on the information furnished by the deceased as also in the dying declaration which was recorded in less than one hour period after the incident.
41. We are satisfied that the dying declaration is reliable, independent and prompt version of the incident, which took place in the broad day light. Being so it is sufficient by itself to establish the prosecution case beyond any doubt.
42. The accused Natlhu and Phoolchand had given repeated knife blows on the vital parts of the body and there is no doubt that they had intended to commit murder of the deceased. They are undoubtedly guilty of offence punishable under Section 302, I.P.C.
43. The accused Sukhlal and Baijnath were not named in the FIR. However, mere non incorporation of their names is hardly of any consequence, moreso when the dying declaration is a trust-worthy and reliable document. We have to find whether they shared the common intention with the main assailants Natthu and Phoolchand in committing the murder of Hiralal. The only role played by Sukhlal was to give knife to Phoolchand. Baijnath had only caught hold of the victim in front of the shop of the Amir Kunjda. It is likely that they would not have been aware of the intention of the assailants about the commission of murder and they would have accompanied them under the impression that they would only terrorise the deceased so as to compel him to sever his connection with the wife of Natthu. In view of this possibility it would be unsafe to convict Sukhlal and Baijnath, despite the fact that the dying declaration is reliable. In our opinion Sukhlal and Baijnath are entitled to benefit of doubt and consequently to acquittal.
44. The appeal is partly allowed. The conviction and sentence awarded to accused Sukhlal and Baijnath are set aside. They need not surrender to their bonds, which arc cancelled and the sureties are discharged.
45. The conviction of accused Natthu and Phoolchand and sentences awarded to them are maintained. The C.J.M. concerned shall ensure their arrest for serving the sentences awarded.