CHANDRAMAULI KR. PRASAD, J.
(1.) The two appellants being aggrieved by the Judgment dated 4th of July, 2001, passed by the Ist Additional Sessions Judge, Samastipur in Sessions Trial No. 216/212 of 1993/1999 holding them guilty of offence under Section 302/34 of the Indian Penal Code and inflicting punishment of imprisonment for life, besides the fine of Rs. 5,000/-, have preferred this appeal.
(2.) Prosecution started on the basis of an oral statement (fardbeyan Ext. 2) given by P.W. 11 Shanti Devi before the Assistant Sub Inspector of Police in the Darbhanga Medical College Hospital on 19-6-1992 at 1-45 p.m. According to the First Information Report, on 15-6-1992 at about 8-9 p.m. her son Balo Sah had gone to Gudari Bazar to demand the dues of onion and the potato, which annoyed appellant Dina Nath Patwa who picked up knife from his egg-shop and assaulted him on the left side of the abdominal region. According to the informant, sustaining the injury her son fell down and became unconscious, from where he was brought to the Rosera Hospital, where she was advised to take him to the Darbhanga Medical College Hospital. According to the informant the injured was taken to the Darbhanga Medical College Hospital, where he died on 19-5-1992 during the course of treatment. In the First Information Report, she had stated that the Magistrate had also taken statement of her son in relation to the incident.
(3.) On the basis of the aforesaid information Rosera P. S. Case No. 131 of 1992 was registered under Section 302 of the Indian Penal Code against the appellant Dina Nath Patwa only.
(4.) However, during the course of investigation complicity of another accused, namely, Ram Nath Patwa appellant herein and the brother of aforesaid Dina Nath Patwa also surfaced and police after investigation submitted charge-sheet against both the appellants. They were ultimately committed to the Court of Session, where they were charged for stabbing Balo Sah and thereby intentionally and knowingly causing his death punishable under Section 302 of the Indian Penal Code. They refuted the charge and claimed to be tried.
(5.) During the trial, prosecution examined altogether 12 witnesses. P.W. 1 Md. Soeb and P.W. 4 Ram Dayal Roy are Advocate's clerk and have proved the First Information Report and the fardbeyan respectively. P.W. 2 Bino Sah, P.W. 5 Muhabir Sahai, P.W. 6 Kailash Mahto, P.W. 7 Dilip Sah, P.W. 8 Bhagwan Prasad Sah, P.W. 9 Nand Kishore Mahto and P.W. 10 Vakil Kumar Sahni have been declared hostile by the prosecution. P.W. 3 Mukhla Devi has been tendered for cross-examination and in cross-examination she had stated that she had not seen the occurrence. P.W. 8 Bhagwan Prasad Sah claims to be an eyewitness to the occurrence whereas P.W. 11 Shanti Devi is the mother of the deceased and the informant of the case. P.W. 12 Mr. Brajendra Kumar Pandey is a Judicial Magistrate, who has recorded the dying declaration of the deceased in the Darbhanga Medical College Hospital.
(6.) The defence of the appellants is denial simpliciter. No defence witness has been examined.
(7.) The learned Judge finding the dying declaration to have been corroborated by the evidence of P.W.8 Bhagwan Prasad Sah and placing reliance on the evidence of P.W. 11 Shanti Devi and P.W. 12 Brajendra Kumar Pandey, concluded that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly held the appellants guilty of offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced them as above.
(8.) Thus the documentary evidence and the oral evidence material for adjudication of guilt are the evidence of P.W. 8 Bhagwan Prasad Sah, P.W. 11 Shanti Devi, P.W. 12 Brajendra Kumar Pandey and the dying declaration (Exhibit 3). It is relevant here to state that neither the Investigating Officer of the case nor the doctors, who had first attended to the deceased at Rosera Hospital and thereafter at Darbhanga Medical College Hospital and conducted the post mortem examination have been examined.
(9.) P.W. 8 Bhagwan Prasad Sah claims to be an eye-witness to the pccurrence and according to his evidence while he was purchasing flour from a nearly shop, he saw deceased demanding money from the appellants and exchange of hot words going on between them. According to this witness, on the order of appellant Dinanath Patwa, appellant Ram Nath Patwa assaulted the deceased with kitchen-knife. Sustaining the injuries, he fell down from where he was taken to Rosera Hospital and then to Darbhanga Medical College Hospital after a day. According to this witness the deceased died after 3-4 days of the incident during the course of treatment.
(10.) In paragraph 5 of the cross-examination this witness had stated that 10 to 15 persons had taken the deceased to the hospital where the police came but did not make any Inquiry.
(11.) P.W. 11 Shanti Devi is the mother of the deceased and the informant of the case. In her deposition she had stated that her son Balo Sah, the deceased had gone to the shop of the appellant Dina Nath Patwa to demand the dues of onion and potato but appellant Dina Nath Patwa did not pay the dues and assaulted her son by dagger. She had further stated that the statement of the deceased was recorded by a Magistrate and he died later on.
(12.) Informant Shanti Devi does not claim to be an eye-witness to the occurrence and had clearly stated that when she arrived at the place of occurrence, she saw her son in injured condition, from where he was taken to Rosera Hospital and thereafter to Darbhanga Medical College Hospital. In her cross-examination she had admitted that the deceased remained in the Rosera Hospital, the whole night where a Sub-Inspector of Police came, to whom the deceased had narrated the entire occurrence. She and further stated that the Sub-Inspector of Police had recorded her statement as also of the deceased and obtained their thumb impression. She had further stated that when the condition of her son started deteriorating at Rosera hospital, the doctor attending referred him to Darbhanga Medical College Hospital.
(13.) P.W. 12, Mr. Brajendra Kumar Pandey, at the relevant time, was a Judicial Magistrate posted at Darbhanga and had stated in his evidence that on 16-6-1992 at 9.20 p.m., he recorded the dying declaration of the deceased Balo Sah in the Hospital bed at Darbhanga Medical College Hospital. He had further stated that the deceased was identified by Dr. Krishna Kumar Singh, who had certified that the deceased was in a fit state to give the statement. This witness had further stated that he was also personalty satisfied that the deceased was in a fit state of mind to give the statement. He has proved dying declaration (Exhibit 3) recorded by him.
(14.) In the dying declaration (Ext. 3) the deceased had stated that on 15-6-1990 at 8 p.m. appellant Ram Nath Patwa assaulted him by dagger twice in front of his shop, where he had gone to demand money, which caused injuries on his left eye and abdominal region.
(15.) In the examination under Section 313 of the Code of Criminal Procedure, the allegation made against the appellant Dina Nath Patwa was that he had caused the death of the deceased Balo Sah by dagger and said Balo Sah in dying declaration had named him as the assailant. As regards appellant Ram Nath Patwa it is alleged that he had caused the death of Balo Sah along with appellant Dina Nath Patwa in pursuance of their common intention. Appellants termed those allegations to be false.
(16.) Mr. Suraj Narain Prasad Sinha, Senior Advocate, appearing on behalf of the appellants submits that from the evidence of the prosecution, three versions of the occurrence come into surface and, as such, it shall be unsafe to sustain the conviction of the appellants.
(17.) Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, however appearing on behalf of the State submits that the evidence of P.W. 8 Bhagwan Prasad Sah and P.W. 11 Shanti Devi inspire confidence and the dying declaration having been recorded truthfully, the judgment of conviction is fit to be sustained.
(18.) Having appreciated the rival submission, I find substance in the submission of Mr. Sinha. It is well settled that dying declaration is in the nature of exception to the general rule forbidding hear-say witness. It is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of crime. It is on this account that a dying declaration is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. A dying declaration may form the sole basis for conviction without the need for independent corroboration. A dying declaration is a piece of evidence and can be acted upon without corroboratiori if it is found to be otherwise true and reliable.
(19.) Bearing in mind the aforesaid principle when I examine the state of evidence, I find it absolutely unsafe to sustain the conviction of the appellants. From the evidence on record three versions of the occurrence crop up. According to the First Information Report given by none other than the mother of the deceased Shanti Devi, it was appellant Dina Nath Patwa who gave the knife blow. She had reiterated the same thing in her examination-in-chief and further stated that during the course of treatment deceased had stated that it was appellant Ram Nath Patwa who gave knife blows to him. P.W.8 Bhagwan Prasad Sah comes out with another story and according to him, it was on the order of appellant Dina Nath Patwa appellant Ram Nath Patwa gave knife blows. There is no whisper at all in the dying declaration (Exhibit 3) the role played by appellant Dina Nath Patwa whereas in the First Information Report no role is attributed to Ram Nath Patwa P.W. 11. Shanti Devi is the mother of the deceased and it shall be absurd to think that when she was all along with the deceased for about four days, he would not had disclosed the name of the assailants to her. In fact in her deposition she had admitted that during the course of treatment deceased had stated that it was appellant Ram Nath Patwa who gave him the chhura blow. The First Information Report has been recorded after the death of the deceased and had the deceased disclosed to the informant that it was appellant Ram Nath Patwa who had assaulted the deceased, same ought to have been found place in the First Information report. Thus there is a vital contradiction in regard to the presence and role played by each of the appellants in the First Information Report, evidence of P.W. 11 Shanti Devi, P.W. 8 Bhagwan Prasad Sah and dying declaration. In such a state of affairs I feel unsafe to place implicit reliance on the dying declaration and to sustain the conviction of the appellants.
(20.) Mr. Sinha, further submits that the occurrence has not taken place in the manner suggested by the prosecution and in fact the prosecution in order to conceal the truth had deliberately withheld the earliest version of the occurrence. In this connection Mr. Sinha has drawn our attention to the statement of P.W. 11 Shanti Devi, wherein she had stated that her statement and that of the deceased were recorded by the Sub Inspector of Police and their thumb impressions obtained. He has also drawn our attention to the statement of P.W. 8 Bhagwan Prasad Sah, in paragraph 5 of his cross-examination, where he had stated that they had narrated about the incident to the police. From the evidence aforesaid, it is evident that while the deceased was admitted in the Rosera Hospital, his statement and that of his mother P.W. 11 Shanti Devi were recorded by the Sub Inspector of Police but those statements have not been brought on record by the prosecution. This omission on part of the prosecution gives credence to the submission made by Mr. Sinha that in order to conceal the real truth, the prosecution has not brought the aforesaid statements.
(21.) Another infirmity pointed out by Mr. Sinha is that appellant Ram Nath Patwa, on the date of incide
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nt was a juvenile and thus should have been tried as such. In this connection he has drawn our attention to the statement of said appellant under Section 313 of the Code of Criminal Procedure, recorded on 15th of January, 2001 when he disclosed his age to be 22 years and the learned Judge also assessed his age to be so. He points out that according to the assessment of the learned Judge itself the age of this appellant shall be below 14 years on the date of occurrence i.e. 15-6-1992 and, as such, he ought to have been tried as a juvenile. This according to Mr. Sinha vitiates his conviction. Ordinarily, in such a state of affairs I would have directed for an inquiry in regard to the age of this appellant on the date of occurrence but finding that the prosecution has not been able to prove its case beyond all reasonable doubt, I am not inclined to charter this course. (22.) The cumulative effect of the infirmities aforesaid lead me to conclude that the prosecution has not been able to bring home the charge beyond all reasonable doubt. (23.) In the result, the appeal is allowed. Impugned judgment of conviction and sentence is set aside. Appellant Dina Nath Patwa is on bail, he shall be discharged of his bail bonds. Appellant Ram Nath Patwa is in. custody, he be set at liberty forthwith, if not required in any other case. Appeal allowed.