Harbans Lal, J.@mdashThis appeal by appellant Ranjeet Singh is directed against the judgment and order dated 23.8.2001 passed by the learned Additional District and Sessions Judge (Fast Track) No. 1, Kota in Sessions Case No. 76/2001 whereby, the appellant has been convicted for offences u/s 302 and 302/34 IPC and sentenced to Life Imprisonment with a fine of Rs. 5000/-; in default of payment of fine, to undergo simple imprisonment for three months.
2. Succinctly stated, the relevant facts are that a tragic and unfortunate incident leading to the death of three persons namely; Lallu, Ramjani and Mst. Iisha took place at 11.00 p.m. on 9.4.1987 in Kachchi Basti Talwandi, Kota. The case of the prosecution as unfolded in the Parcha Bayan of deceased Mst. Iisha is that Mst. Hasina D/o Ramjani was enticed away by one Mst. Devi on the pretext of accompanying her to attend the call of nature some 15 days prior to the present incident. Mst. Hasina is alleged to have been handed over to Daulat who along with others forcibly took her away in an auto-rickshaw and committed rape with her throughout the night. It is further alleged that in the next morning Mst. Hasina was found lying in an unconscious condition near Aerodrome Circle where from she was brought home. She informed as to what had happened with her. A report was lodged with the police about the incident whereupon; Daulat was arrested and lodged in jail. Infuriated by this, as per the prosecution version, when Mst. Iisha and Ramjani along with their children were sleeping in their Tapri and their son Lallu alias Jan Mohd. was sleeping on a cot outside the Tapri, accused persons came there duly armed with knives at about 11.00 p.m. on the fateful night intervening 9.4.1987 and 10.4.1987. After waking up Lallu, the brother of Daulat who was having a beard, inflicted injuries to him with knife. On hearing his cries Mst. Iisha came out of the Tapri and objected to this. At this, he inflicted a knife blow to her as well. In the meanwhile, Ramjani also came out and accused Ramesh, Tarzan and Ranjeet inflicted injuries to him by knives. On hearing the noise of the cries, Mst. Hasina and others also reached there. Lallu in an effort to save himself rushed to the Uniya Basti after holding his abdomen from where he was bleeding but he fell down there and ultimately died. Ramjani also died on the spot. Police reached there on receiving telephonic information about this incident. Mst. Iisha was taken to the hospital. She was admitted at Bed No. 13 in Female Surgical ward. Her statement (Parcha Bayan) Exh.P.22 was recorded at 3.45 a.m. on 10.4.1987. On the basis of this Parcha Bayan, a formal FIR Exh.P.23 was registered. The Special report Exh.P.23 reached the concerned Magistrate at 6.15 p.m. on 10.4.1987. Mst. Iisha also succumbed to her injuries, The police prepared the memos of dead bodies (Panchayatnama Laash) of all the three deceased and got conducted the post mortem of their bodies. The police also made other necessary investigation.
3. On completion of necessary investigation, a charge-sheet was filed as against 8 persons namely; Ranjeet, Badri, Laxmi Narain, Ramlal, Ramesh Dadhich, Mahaveer, Sanjay Singh and Tarzen alias Pratap Singh. Accused Badri was shown as absconding. Accused Ramesh, Sanjay Singh, Mahaveer, Tarzen alias Pratap Singh died during the trial. So, the proceedings were dropped as against them.
4. After committal and transfer of the case to the court below, the learned Trial Court framed charges against the appellant and others who pleaded not guilty and claimed to be tried. The prosecution examined in all 23 witnesses and got exhibited 21 documents in support of its case. Thereafter, when the accused persons were examined u/s 313 Cr.P.C. they denied the incriminating materials put to them. They however led no evidence in their defence.
5. The Trial Court after hearing both the sides and on the basis of the evidence on record acquitted Laxmi Narain and Ramlal vide its judgment dated 23.8.2001 and convicted and sentenced appellant Ranjeet Singh as mentioned above. Hence, this appeal by the appellant. The State has however, not challenged the acquittal of accused Laxmi Narain and Ramlal.
6. We have heard at length learned Senior counsel representing the appellant, learned Public Prosecutor for the State and have also perused the entire record as well as the impugned judgment.
7. Karan Singh PW1, the auto-rickshaw driver, was examined to prove that accused Laxmi Narain, Mahaveer and Ramlal travelled in his auto Rickshaw No. RNO-9589 on 9.4.1987 at about 11.00 p.m. from Gordhanpura Chauraha to Talwandi. On Prakash PW7, the owner of auto Rickshaw No. RNO-9589 was examined to prove that Karan Singh used to take on hire his auto rickshaw. Amarnath PW2 was the witness of Panchayatnama Laash of Lallu Exh.P.2 and Ramjani Exh.P.3 and seizure memos of Exh.P.4 and Exh.P.5 vide which blood was lifted from the places where the dead bodies of deceased Lallu and Ramjani were found. Hari Mohan PW-5 and Mata Prasad PW- 6 were the witnesses of recovery of knife at the instance of Laxmi Narain vide Exh.P.7. Sheru PW-8 was the witness who reached the spot on hearing the noise from the house of deceased Ramjani and who had informed the police telephonically about the incident and who had accompanied injured Mst. Iisha to the hospital. He was also a witness of memos Exh.P.10, Exh.P.11, Exh.P.12 and Exh.P.13. Phoolchand PW-10 and Mohd. Hanif PW-11 were the witnesses of recovery of knife from Ramesh Dadhich vide Exh.P.15. Lal Singh PW-12, Ramesh PW-13 and Suleman PW-14 were the witnesses of recovery of knife from accused Badri Lal vide Exh.P.16. But all these witnesses have turned hostile and have not supported the facts to prove for which they were examined by the prosecution.
8. Surendra Kumar PW-15, the then SHO P.S. Dadabari has deposed that he has filed charge-sheet against accused persons. He has also exhibited the report of the F.S.L. Exh.P.21. Devlal PW-16, Constable No. 1012 accompanied Rajendra Kumar Ojha PW-23 to the hospital. He carried the Parcha Bayan Exh.P.22 Mst. Iisha from MBS Hospital Kota to the police station. He brought back the formal FIR No. 44/87 after registration of the case and handed it over to Rajendra Kumar Ojha PW-23. Shiraj Ahmed PW-17, the Head Moharir and Incharge Malkhana has deposed that he had registered the formal FIR Exh.P.23 on the basis of Parcha Bayan Exh.P.22 which was brought to him by Devlal PW-16 and after registration of the case he sent back the formal FIR Exh.P.23 to Rajendra Kumar Ojha PW-23. He has further stated that as incharge Malkhana he was handed over 12 sealed packets pertaining to this case about which he made entries Exh.P.24 to Exh.P.29 in the Malkhana register at Sr. Nos. 174, 176, 182, 183, 184, 187, 188 and 204. He has also deposed that 6 sealed packets were handed over by him to Bhanwar Singh, Constable No. 1047 on 27.5.1987 for being deposited with FSL Jaipur. Bhanwar Singh after depositing the sealed packets with the FSL on 28.5.1987, came back on 29.5.1987 and handed over to him the receipt of the deposit of the sealed packets Exh.P.30.
9. Suresh Chand, PW-18 who was posted ad Head Constable No. 117 in the office of the Superintendent of Police Kota, has deposed that he handed over the relevant papers to Constable Bhanwar Singh for taking sealed packets to the FSL, Jaipur.
10. Bhanwar Singh PW-19 has deposed that Shiraj Ahmed, Head Moharir and in-charge Malkhana PW-17 had given him 6 sealed packets for being deposited with FSL, Jaipur. He obtained forwarding letter etc. from the office of the SP Kota and deposited those sealed packets with the FSL on 28.5.1987 vide receipt Exh.P.30 which he handed over to Shiraj Ahmed PW-17.
11. Jitendra Kumar Soni PW-20 was the Additional SP Kota City. He has deposed that he had arrested Sanjay Singh vide Exh.P.31, Tarzen alias Pratap Singh vide Exh.P.32 and appellant Ranjeet Singh vide Exh.P.33.
12. Prem Singh PW-21 who was the then Circle Officer-I Kota (East), deposed that he himself took over the investigation of this case after his return from training on 17.04.1987. During the course of investigation, he recorded the statements of Karan Singh vide Exh.P.1, Amarnath vide Exh.P.6, Omprakash vide Exh.P.8 and arrested Ramlal vide Exh.P.34, Badrilal vide Exh.P.35 and recorded the discovery statement of Laxmi Narain vide Exh.P.36, Tarzen vide Exh.P.37, Ranjeet Singh.vide Exh.P.38, Ramlal Vide Exh.P.39, Ramesh Dadhich vide Exh.P.40 and Badrilal vide Exh.P.41 and recovered knife from Laxmi Narain vide Exh.P.7 and another knife from appellant vide Exh.P.14.
13. Budhiprakash Dikshit PW-9 is also a witness of recovery of knife at the instance of appellant Ranjeet vide Exh.P.14. He has turned hostile in court and except admitting his signatures on memo of recovery of knife Exh.P.14, he has not supported the prosecution version with regard to recovery of knife at the instance of appellant.
14. Dr. C.S. Srivastava PW-22 has deposed that on 10.4.1987 he was posted as Medical Jurist in MBS Hospital Kota. On that day, he had conducted the post-mortem examination of the dead bodies of Lallu alias Jan Mohd., Ramjani and Mst. lisha between 9.00 a.m. to 11.00 a.m. and prepared the post mortem reports Exh.P.42, Exh.P.43 and Exh.P.44, respectively which bears his signatures. The external injuries found on their bodies were as under:
External injury of Lallu:
stab wound 1/2" above left nipple transversely placed, 1" x 1/2 deep to chest cavity.
External injuries of Ramjani:
(1) stab wound left mid. chest posteriorly oblique 1" x 1/2" deep to cavity chest,
(2) stab wound left side of chest transverse (torn) size 1"x 1/2" x deep to cavity chest,
(3) stab wound Right mid. of chest posteriorly 1" x 1/2" x deep transverse (torn),
(4) stab wound left middle of chest (torn) and
(5) stab wound 1" away (torn).
External injuries of Mst. Iisha:
(1) stab wound left middle of chest mid axillary line 1"x 1/2" deep to cavity Transverse and
(2) stab wound Rt.mid clavicular region oblique 1 1/2" x 1/4" x deep to cavity.
15. According to the doctor, Lallu died due to injury on his heart, Ramjani died due to shock resulting from ante-mortem injuries by sharp edged weapon and Mst. Iisha died due to excessive bleeding from her both lungs. He has admitted in his cross examination that Lallu, Ramjani and Mst. Iisha could have survived, if they had received immediate medical aid.
16. From the above medical evidence, it is amply proved that the death of Lallu @ Jan Mohd., Ramjani and Mst. Iisha was the result of the injuries inflicted to them and thus, their death was homicidal and not natural.
17. Rajendra Kumar Ojha PW-23 has deposed that he was working as SHO PS Dadabari on 10.4.1987. He received an information at about 11.30 p.m. that there was a quarrel in Talwandi. He reached there along with police force. They found Ramjani and his son Lallu lying dead. Mst. Iisha was seriously injured. She was immediately taken to MBS Hospital Kota. She was got admitted there. Her statement Exh.P.22 was recorded in the presence of the Doctor and the same was sent to the police station with Devlal Constable No. 1012. On the basis of her statement, a case was registered and thereafter formal first information report was sent back with Devlal. He, prepared Panchayatnama Laash Ex.P-2 and Ex.P-3 of dead bodies of Lallu and Ramjani respectively which bear his signatures. He lifted the blood stained earth from the places where dead bodies of Lallu and Ramjani were found lying vide Exh.P.4 and Exh.P.5, respectively. He also prepared site plan Exh.P.10. Blood stained clothes of Ramjani were seized vide Exh.P.45. Statement of Mst. Iisha was written by the Munshi who had accompanied him. Dr. Yogendra Kumar had certified that she was in a fit condition to depose. Her statement was recorded at 3.45 a.m. in the night intervening 9.4.1987 and 10.4.1987 and it took about 20-25 minutes in recording her statement. He has further stated that Mst. Iisha was unconscious in the beginning but later on she regained her consciousness. Initially, the doctor had certified that she was not in a fit condition to give her statement but thereafter, he certified that she was fit to give statement. According to him, it is true that Pandit Amarnath and Ramesh had not seen the dispute.
18. Mst. Hasina PW-3 and Raju @ Rajjak PW-4 have been examined as eye-witnesses. Mst. Hasina PW3 is daughter of deceased Ramjani and deceased Mst. Iisha. She has stated that when she came out of tapri on hearing the noise of his brother, she saw that his father was being beaten and her brother had already been killed and her mother had fallen on her father to save him. According to her, Ramesh who lives in front of their house was one of the persons who were beating them. Laxmi Narain who had come in the day and Badri who used to come to the house of Ramesh and Ramu, Mahaveer and Sanjay were there. She had seen knives in the hands of one or two of the accused persons. She has further stated that he had not seen accused Ramlal there. She has, however, identified Ranjeet Singh but has not stated that he gave any blow to any of the deceased. In her cross-examination she has further made it clear that when she had come out of the house, her father and injuries on his chest and other parts of the body and her mother had also sustained injuries and was bleeding profusely. Her brother Raju had already fled away from there before she came out of ''tapri''. She has also admitted in her cross examination that she had not mentioned the name of appellant Ranjeet singh almost those who had given beating and she has also denied categorically that any rape was committed with her. She has also stated that she had seen accused Laxmi Narain giving beating to her father on his chest with a knife.
19. Raju PW-4 has stated that Mahaveer and Ramesh had given beating to his brother and thereafter Ramesh caught-hold of his father and accused Sanjay gave him a blow on the back with a knife. When his mother tried to rescue him, Ramesh, Mahaveer and Sanjay gave her knife blows. His father was beaten by Mahaveer, Ramesh and one another person who had a beard. There were in all seven persons amongst those who were giving beating. There was darkness and all others ran away from there. He has identified Ramesh, Tarzen, Ranjeet, Laxmi-Narain, Mahaveer and Sanjay and has stated that they had knives in their hands and they were the persons who had given beating to his brother, father and mother who had died. He has also stated that before this incident accused Ranjeet Singh, Ramesh and Tarzen had committed rape with her sister Hasina. In his cross examination, he has stated that when he was awakened, his mother and father and Hasina had already gone out of ''tapri'' and they were not in the ''tapri''. He alone was in the ''tapri'' at that time. When he came out, he saw his mother and father lying on the ground. When he came out, accused had fled away from there and he had seen them from a distance of 50-60 ft. He has also admitted that there was darkness where the occurrence had taken place. He had seen two persons pulling his father and all others were standing in the dark. Therefore, he could not identify them. He could see the faces of two persons only. The two persons whose faces he had seen were Ramesh and Tarzen. He has further admitted that it is correct to say that he had not seen any other person giving beating except those whom were named above. He has also admitted that after three days of the occurrence, the police had shown him appellant Ranjeet Singh at the police station and after showing him, the police had told him that they had found out that appellant Ranjeet Singh was also amongst the persons who participated in the occurrence and, therefore, he had named him. But he had not told the police the names of Mahaveer and Ranjeet because he had not seen them due to darkness.
20. Mr. S.R. Bajwa, learned Senior Counsel appearing on behalf of the appellant has vehemently contended that the Trial Court has not given any cogent and valid reason for convicting appellant Ranjeet Singh and acquitting Laxmi Narain. Accused Laxmi Narain appears to have been acquitted on the ground of his identity being doubtful. Similar is the evidence with regard to appellant Ranjeet singh and yet the Trial Court has convicted him without giving any ostensible reason for the same. Mst. Hasina PW-3 and Raju @ Rajjak PW-4 have not assigned any overt act to appellant Ranjeet Singh. The statements of these two witnesses with regard to complicity of appellant Ranjeet Singh are also mutually contradictory and their statements are not only full of glaring contradictions, discrepancies and improbabilities, but are also against their earlier versions given to the police in their statements recorded u/s 161 Cr.P.C. Their statements, it is urged, cannot be relied upon. It has also been argued that from their statements, it is apparent that they had not seen the occurrence at all. Hasina PW-3 has rather belied the very genesis of the occurrence by saying on oath that no rape was committed with her by Daulat and others. As per the prosecution version, the present occurrence is the sequel and fall out of the alleged incident of rape with her but in the face of categorical denial of the occurrence of rape with her, the very genesis of the present occurrence vanishes and whole of the prosecution story falls to the ground like a pack of cards. She has further stated that she returned to her house in the night itself whereas as per the prosecution version, she was found lying in an unconscious condition near the Aerodrome Circle in the next morning from where she was brought home.
21. Learned Public Prosecutor also could not controvert the aforesaid contention of the learned Senior counsel.
22. Indeed, a bare perusal of the statements of these two eye witnesses demonstrates that it is not safe to rely upon the evidence of these two eye witnesses. This apart, even if it be assumed for the sake of argument that they are truthful witnesses, they have not stated anything against appellant Ranjeet Singh. They have not ascribed any overt-act to appellant Ranjeet Singh. They have also not stated that appellant Ranjeet Singh gave any blow to any of the three deceased persons.
23. Thus, we are left with the dying declaration of Mst. Iisha Ex.P-22 only. The prosecution has examined Rajendra Kumar Ojha PW-23 to prove this dying declaration Ex.P-22. He has no doubt deposed that he had got recorded the statement of Mst. Iisha Ex.P-22 in the presence of the doctor by Munshi who accompanied him. Strangely enough, neither the name of Munshi has been disclosed nor he has been examined as a witness in this case and Dr. Yogendra Kumar who is said to be present at the time of recording of the statement has also not been examined in this case. Thus, the certificate that Mst. Iisha was not in a fit condition to give statement and the subsequent certificate that she was fit to give statement have not been duly proved.
24. Severely criticising the manner in which the dying declaration has been recorded, learned Sr. Counsel has contended that there was ample time to call the Magistrate to record the statement of Mst. Iisha but that having not been done the dying declaration Exh.P.22 looses its authenticity and veracity. He has relied upon the case of
25. The prosecution in the instant case has not explained any reason for not disclosing the name of the scribe and not producing him for examination/cross-examination. There is, therefore, sufficient force and substance in the contention of the learned senior counsel that scribe having not been produced, the dying declaration cannot be said to be duly proved and is unreliable.
26. Learned Senior counsel has then contended that assuming that the statement of Mst. Iisha has been duly proved, the same can at best be treated to be a dying declaration with regard to the cause of death or circumstances of the transaction leading to the death of Mst. Iisha only. This cannot be read as a dying declaration with regard to the cause of death or circumstances of the transaction leading to the death of Lallu alias Jan Mohd. and Ramjani. In this regard, he has placed reliance in the cases of
27. In the instant case, the dying declaration of Mst. Iisha does not state that appellant Ranjeet gave any blow to her. What she has stated is that Ramesh, Tarzen and Ranjeet gave knife blows to her husband Ramjani which part cannot be used as dying declaration against the appellant and others. So, the dying declaration Exh.P.22 even if it is assumed to be duly proved and is taken to be genuine and reliable, it does not help the prosecution case at all inasmuch as it does not implicate appellant Ranjeet.
28. Thus, it is apparent that the statement of Mst. Iisha Exh.P.22 in so far it relates to her own death is relevant and admissible into evidence but it cannot certainly be read as dying declaration as regards the cause of death or circumstances leading to the death of Lallu alias Jan Mohd. and Ramjani. According to Exh.P.22 the brother of Daulat who had a beard (Laxmi Narain), gave Mst. Iisha a knife blow in the left side of her ribs and there is no allegation against the appellant that he gave any injury to her. So, Exh.P.22 has no significance so far as the death of Mst. Iisha is concerned and it is inadmissible so far as it relates to the cause of death of Lallu and Ramjani. PW3 Mst. Hasina has also not stated in her statement in court that any injury was inflicted by appellant Ranjeet Singh to Lallu, Ramjani or Mst. Iisha.
29. Raju alias Rajjak PW-4 has also not stated that appellant Ranjeet Singh gave any blow to Lallu, Ramjani and Mst. Iisha. When co-accused Laxmi Narain and Ramlal have been acquitted of the charge on the same evidence, the very same evidence cannot be made the basis for holding the appellant guilty of the offence of murder particularly when no overt act has been ascribed to him and there is also no other evidence to prove that he had common intention with other co-accused persons.
30. Learned Senior counsel has raised yet another objection with regard to the use of this dying declaration against the appellant. He has submitted that this dying declaration has not been specifically put to the appellant in his statement recorded u/s 313 Cr.P.C. and, therefore, the same cannot be used against him. It is, Indeed, well settled proposition of law that no Incriminating material which has not been put to the accused can be used against him. In this view of the matter, therefore, this contention of the learned Senior Counsel is also well founded and deserves to be accepted. Accordingly, the dying declaration of Mst. Iisha Exh.P.22 cannot be used against the appellant for this reason as well.
31. Learned Senior counsel has also argued that the dying declaration has been recorded in chaste Hindi and not in the language of Mst. Iisha i.e., Oriya. It is also not recorded in the question and answer form. Since the dying declaration has not been recorded in the language of the maker, the same looses its authenticity. There is sufficient force in this contention of the learned Senior counsel as well.
32. According to the learned senior counsel, the treating doctor having not been examined and the bed head ticket having been withheld without giving any explanation for the same, the court has been deprived of the benefit of ascertaining as to whether Mst. Iisha was or could be in a fit state of mind to make the statement Exh.P.22. The appellant has also been deprived of his valuable right of cross-examination of the doctor with regard to the condition of the deceased Mst. Iisha with regard to her fit state of mind and body to make the statement. He has, therefore, urged that such a dying declaration is worthless which should not be given any credence whatsoever. Although, as mentioned above, intrinsically dying declaration Exh.P.22 does not furnish any useful proof against the appellant yet, this contention of the learned senior counsel further renders it unsafe to place any reliance on such a dying declaration.
33. In view of the foregoing discussions therefore, the prosecution has failed to bring home the offences under Sections 302 and 302/34 IPC against appellant Ranjeet Singh. He is given benefit of doubt and acquitted of the charges framed against him. The appeal is thus, allowed. The impugned judgment of conviction and sentence dated 23.08.2001 passed by the Additional Sessions Judge (Fast Track), No. 1, Kota is set-aside. The appellant be set at liberty, if not, required in any other case.
