JUDGMENT Amar Saran, J.
1. This criminal appeal arises out of a judgement and order passed by learned Sessions Judge, Budaun, dated 11.8.1981, whereby the learned judge has convicted the appellant Bhurey @ Kishan Pal to imprisonment for life under Section 302 IPC and the appellants, Virendra Singh and Satyavir Singh to imprisonment for life under Section 302 read with Section 34 IPC. As one other accused Jeet Singh died during the trial, he was not tried.
2. The prosecution allegations as mentioned in the FIR were that on 23.7.1980 at about 5 pm the informant Mahendra Pal Singh, PW.1 was returning to his tillage after cremating Rajeshwar Singh's new born son accompanied by his elder brothers, the deceased Ram Singh and Dharam Pal Singh, PW 4, and younger brother Brijendra Pal Singh and co-villager Chandra Pal. Deceased Ram Singh, was 15-20 paces ahead of the witnesses. When the prosecution party reached near a government tube-well in the west of the village, Jeet Singh, the appellants Bhurey @ Kishan Pal and Virendra Singh, who were carrying country made pistols and Satyavir Singh, who was armed with a licensed gun. fired from behind the corner of the 'gool' after giving a cry to the deceased Ram Singh. It was the fire from Bhurey's country made pistol which struck the deceased, Ram Singh, on his back. He fell down as a result of the injuries. On the cries raised by the witnesses the accused proceeded in the direction of Dhaka jungle issuing threats. Ram Singh was taken in an injured condition on a cot to police station Ujhani and a report of the incident was lodged on 23.7.1980 at 7.40 pm by Mahendra Pal Singh (PW 1) under Section 307 IPC.
3. The report was taken down in the presence of SI Sukhpal Singh, PW 5, who is the first investigating officer of this case. At about 8 pm PW 5 Sukhpal Singh claims to have recorded the statements under Section 161 Cr.P.C. of Ram Singh at the Ujhani Hospital. After that he recorded the statement of Mahendra Pal Singh, the informant of this case. Ram Singh died in Ujhani hospital at 9.10 pm in the presence of PW 5, SI Sukhpal Singh. Because it was dark and the body had to be taken care of, the inquest was prepared the next morning at 6 am. The inquest (Ext. Ka 6), photo lash (Ext. Ka 7), challan lash (Ext. Ka 8) letter to the CMO (Ext. Ka 9), the sample seal (Ext. Ka 10) were prepared by the I.O., PW 5, SI Sukhpal Singh. After that at 7.30 am the body was dispatched for post mortem to the mortuary through constable Tulsi Ram and HC Kalloo. At 10 am, PW 5, Sukhpal Singh, reached Sankari jungle where he recorded the statement under Section 161 Cr.P.C. of Dharam Pal. He examined the spot and found blood lying there. He took the plain and blood-stained earth in his possession and kept them in separate containers ( vide Ext. Ka 11), prepared the site plan (Ext. Ka 12). Thereafter the investigation of this case was concluded by PW 7, SI R.D. Sharma.
4. PW 2, Dr. V.P. Kulshrestha conducted the postmortem on the body of the deceased, Ram Singh, on 24.7.1980 at 2.30 pm. The body was of average built, rigor mortis was present all over-the body. The eyes were closed and the whole body was pale. He found the following ante-mortem injuries:
'Multiple gunshot wounds of entries in an area of 9 cm x 7 cm on left side back middle 4 cm lateral to mid line. Each wound measuring 1 cm x 1 cm x cavity deep with inverted lacerated margins, all wounds are. separately counted except at one place where two wounds joined together (total number of wounds are eight 8). There is no blackening and tattooing around the wound bleeding present.
Note - The wounds are dressed and medicated. Direction - postroanteriorly.'
5. On internal examination, he found fracture of 8th posterior wall of the left side chest. Left side was lacerated at various places with pint II blood present. Two big pellets were recovered from anterior chest wound on 8th rib and 9th rib. The right lung was lacerated and one pellet was recovered therefrom. Left lung was also lacerated and 4 big pellets were recovered from there. Pericardium was lacerated. Peritoneum was ruptured at various places. The cavity was full of pint II blood. The stomach was empty. The small intestines were punctured at two places and one big pellet was recovered. Fluid was present. The large intestines were punctured at one place lateral and faecal matter was present. The liver was congested. The spleen was lacerated and weighed 4 ounces. The left kidney was lacerated. The bladder was empty. The time of death was about 3/4th day. The cause of death was shock and haemorrhage.
6. SI R.D. Sharma (P.W. 7) started investigation of this case on 25.7.1980. He recorded the statements of the accused on 12.8.1980 in jail. On 15.8.1980 he submitted the charge-sheet against the accused (Ext. Ka 16).
7. The prosecution has examined two eye-witnesses, Mahendra Pal Singh (PW 1) and Dharam Pal Singh (PW 4). Six other formal witnesses were examined.
8. PW 2, Dr. V.P. Kulshrestha, who conducted the postmortem on the body of the deceased Ram Singh on 24.7.1980 at Budaun Hospital at 2.30 pm. The ante-mortem injuries on the deceased have been described above. He states in cross-examination that the firing must have been done from a distance of 6 to 15ft.
9. PW 3, Dr. ML. Verma, medical officer, PHC, Ujhani, saw the deceased on 23.7.1980 at 8 pm when the police brought him to the PHC for medical examination. However, as the condition of the injured was very serious, and he was almost collapsing, he did not deem it fit to conduct medical examination of the deceased, who was alive at that stage. He immediately referred the case of the injured by noting on the 'mazrubi chitthi' that as the condition of the injured was very serious he was being referred for examination and treatment to the Sadar Hospital at Budaun. This was marked Ext. Ka 3. The prescription that he wrote out for the injured after preliminary first aid was marked Ext. Ka 4. He could not say whether the injured was conscious or not, or whether he could speak or not. However he admits in his cross-examination that when the injured was brought before him he had lost an enormous amount of blood, and his blood pressure was very low. He was not in a position to give a dying declaration and he was afraid that the injured might die at the time of his medical examination, when more blood could be lost.
10. PW 5, SI Sukhpal Singh was the first investigating officer in this case. Initial steps taken for investigation have been described above. He admits in his cross-examination that he did not record the statement of Ram Singh or Mahendra Singh on 23.7.1980 at the police station but he recorded the statement of Ram Singh, the injured, in the hospital (Ujhani PHC) in 15 minutes. At that time no doctor was present. The doctor arrived from his quarters at 8.30 pm. As the deceased Ram Singh was in a fit condition and conscious, hence he did not feel it necessary to obtain any certificate from the doctor before recording the statement of Ram Singh. He did not call arty witness or affix the thumb-impression of Ram Singh whilst recording his statement. At 8.45 pm he was told by the doctor that the condition of the patient was serious and he should be rushed to Budaun. However when preparation was being made to take the patient, Ram Singh, to Budaun, he died. He did not meet Dharam Pal or Virjendra during the whole night that he spent in the hospital. He denies fabricating the statement of the deceased, Ram Singh, and he also denied that the deceased was unfit to give his statement.
11. PW 6, HM Shamshad Ahmad Khan, prepared the chik report on the basis of the written report (Ext Ka I) submitted by Mahendra Pal, the informant. He made an entry in the GD no 37 on the basis of the report (Ext. Ka 14). He noted the injuries of the injured. At 9.15 pm the constables returned from the hospital and informed him that Ram Singh had died. Thereafter, he converted to case from 307 IPC to one under Section 302 IPC and made an entry in GD No. 39 to that effect (vide Ext. Ka 15).
12. PW 7, SI R.D. Sharma, submitted the charge-sheet on 15.8.1980 against the accused as mentioned above. He did not conduct any other investigation apart from recording the statements of the accused and he was not cross-examined by the defence.
13. PW 1, Mahendra Pal Singh, the informant of this case, was the brother of the deceased Ram Singh. PW 4 Dharam Pal had a son by the name of Rajeshwar. In the date of incident, Rajeshwar's child had died shortly after his birth. After cremating the child the deceased Ram Singh, Dharam Pal, Virjendra, their servant Chandra Pal and the informant Mahendra Pal Singh were returning to their village Sakri Jungle. At about 4.45 pm when they reached the government tube-well no. 149 Ram Singh was 15-20 paces ahead of them. At that time the appellants Bhurey, Virendra and Satyavir and Jeet Singh emerged and they told Ram Singh to come in his senses and that they would not spare him on this occasion. Thereafter, Satyavir fired from his lather's licensed gun. The other three accused were carrying country made pistols. When Satyavir fired at Ram Singh, he did not fall down, hence Mahendra Pal could not be sure whether the pellets from his gun had struck Ram Singh. Perhaps one or two pellets struck him. Immediately thereafter the second fire was made by Bhurey with his country made pistol and the pellets struck Ram Singh and he fell down. On the cry of the witnesses the accused ran away in the north-eastern direction. Ram Singh was conscious and speaking End he was carried on a cot to the police station Ujhani, which was about 2 Vz to 3 miles away. He got the report (Ext. Ka 1) scribed by Biglesh at his house and took it to the police station at 6.30 or 7.00 pm. There the investigating officer recorded the statements of Mahendra Pal and Ram Singh. After that they took Ram Singh to Ujhani Hospital where the doctor described the condition of Ram Singh to be serious and directed that he be taken to Budaun. But whilst the arrangements were being made for his transportation etc. Ram Singh died. Jeet Singh was murdered four or five months prior to Mahendra Pal, PW l's examination in court. In that case PW 1 was an accused. As he had not secured bail, he had come from jail to give his evidence. The motive for the present crime was the enmity of the accused persons who were related inter se and the prosecution party. On the side of the accused Bhurey @ Kishan Pal and Virendra were the sons of Jeet Singh arid Satyavir was the nephew of Jeet Singh. About 27 years earlier an incident had taken place of firing on the deceased Ram Singh. In that case Jeet Singh and 9 others were convicted by the Assistant Sessions Judge, but they were acquitted by the Sessions Judge. About 4 years earlier a case had been lodged against the deceased Ram Singh and his sons Kalloo and Bhagwan Singh for assaulting Naththu, the brother of Jeet Singh. They had been convicted to 4 years' imprisonment by the learned sessions judge but the appeal was pending in the High Court and they were on bail. In his cross-examination this witness admits that he had wrongly stated in his examination-in-chief that the investigating officer had examined Ram Singh and PW 1 at the police station at Ujhani, but, as a matter of fact, Ram Singh and PW 1 Mahendra Pal were examined by the investigating officer at the hospital.
14. PW 4, Dharam Pal Singh has deposed that Rain Singh was his elder brother. -On the fateful day, his son Rajeshwar's new born son who had died had been taken for cremation. After cremating the child Dharam Pal, deceased Ram Singh, his brothers Birjendra, and Mahendra and one Chander Pal ware returning to their village. At about 4.45 pm when they reached the government tube-well and Ram Singh was 15 to 20 paces ahead of them, the appellants Virendra, Satyavir and Bhurey @ Kishan Pal and Jeet Singh emerged from behind a 'gool'. Satyavir was carrying a gun and the other three accused had country made pistols. They cried out at Ram Singh that he would not escape on that day. It that time Satyavir fired from his gun and Bhurey fired from his countrymade pistol which struck Ram Singh on his back. Thereupon Ram Singh fell down. On the cries of the witnesses, the appellants pointed their gun and countrymade pistols at them and ran in the direction of the jungle of 'Dhakapir'. After that they carried Ram Singh on a cot first to their home. Mahendra dictated the report to Biglesh. From there they proceeded to police station Ujhani where Mahendra lodged the report at about 8 or 7,45 pm. The statement of Ram Singh was recorded by the investigating officer at the police station. At that time the witnesses were asked to leave the room. After that they took Ram Singh to Ujhani Hospital where after applying some bandages and administering minor first aid to Ram Singh, they were directed by the doctor to take the patient to Budaun. However, by the time they could made arrangements for his transport, Ram Singh had expired.
15. The defence of the accused was of denial and false implication due to enmity. They have not led any evidence in defence.
16. We have heard Sri P.N. Misra, Senior Advocate, for the appellants and the learned AO A for the State.
17. It was argued by the learned Counsel for the appellants that a dying declaration has been introduced in this case, in the form of a 161 Cr.P.C statement to the police which is clearly fabricated. This casts a doubt on the impartiality of the investigation, and it also impairs the value of the testimony of the eye witnesses, inasmuch as they rubber stamp this concocted dying declaration. The two eye witnesses are also not independent persons. There are reasons to suspect that the FIR was ante-timed in collusion with the police. The medical evidence docs not corroborate the eye witness account, and for one injury on the deceased four persons have been implicated in this case on account of admitted enmity between the parties, and there was inadequate basis for concluding that the fire from the country made pistol of Bhurey struck the deceased on his back.
18. It has been pointed out by the learned counsel' that only two eye-witnesses have been produced to support the prosecution case, namely, PW 1, Mahendra Pal Singh and PW 4 Dharam Pal Singh. Both these witnesses are partisan, being brothers of the deceased Ram Singh. Their evidence is also not of such quality that implicit reliance could be placed on the same for the purpose of recording the conviction of the accused. The most serious attack on the testimony of the witnesses and also on the conduct of the investigation in this case has been the introduction of a fabricated dying declaration by showing a false 161 Cr.P.C. statement of the deceased recorded by the 1.0. PW 5, SI Sukhpal Singh which clearly appears to be manufactured for the purpose of the case.
19. In this connection PW 3, Dr. M.L. Verma, has specifically stated that when Ram Singh, the injured, was produced by the police before him in P.H.C. Ujhani on 23.7.1980 at 8 pm, his condition was very serious and he was almost collapsing, hence he did not deem it .fit to medically examine him. On the 'chiththi mazrubi' itself, Dr. M.L. Verma noted that as the injuries of the injured were very serious, hence he was referring him to Budaun Sadar Hospital for examination and treatment. This emergent referral to district hospital was resorted to as the injured had lost a lot of blood and his blood pressure was low and the injured was not in a position to make a dying declaration before him. In fact, he apprehended that the position of the injured was so bad that he could die in the course of examination as he risked the danger of losing more blood during this period. The first investigating officer, PW 5, SI Sukhpal Singh, however, claims to have recorded the statement under Section 161 Cr.P.C. of Ram Singh when he reached Ujhani hospital at 8 pm. He further stated that as the injured was all alone at that time and fully conscious and fit, he did not even think it necessary to take the opinion of. the doctor before recording statement of the injured. He also did not consider it necessary to affix the thumb-impression of the injured on the statement. The investigating officer however himself admits that when the doctor arrived at about 8.30 pm he described the condition of the injured as serious and suggested that Ram Singh be taken to Budaun but even when preparations were being made for taking Ram Singh to Budaun, the injured died at about 9.10 pm. Another reason to doubt the genuineness of the so-called dying declaration which was in the form of a 161 Cr.P.C. statement of Ram Singh to the police is its very detailed nature. The statement mentions the details of the enmity of Ram Singh with Jeet Singh for the past 30 years. It describes the 307 IPC case in which Ram Singh had been convicted and in which an appeal had been filed. He thereafter gives the details and circumstances of this incident and the place of incident and the fact that they were returning after cremating the son of Rajeshwar. The distance of firing from the back and the point of firing. Such details could not be given by a gasping and dying man. If Ram Singh had received the fire on his back, how could he know that it was Bhurey who had fired on him from the corner of a gool. AW these circumstances clearly--indicate the fabricated nature of the statement. Even the learned sessions judge has disbelieved the alleged dying declaration by observing that whereas PW 5, SI Sukhpal Singh, stated that the statement of Ram Singh was recorded at the PHC, Ujhani, immediately after he reached there at 8 pm on 23.7.1980, but PW 1, Mahendra Pal Singh, had averred that the investigating officer had recorded the statement of Ram Singh at the police station. Later Mahendra Pall contradicted himself and stated that the police sub-inspector recorded the statement of Ram Singh at the PHC. The other witness Dharam Pal Singh!, PW 4, also stated that the sub-inspector recorded the statement of Ram Singh at the police station. The learned judge has also observed that the statement of PW 3, Dr. M.L. Verma belies the claim of PW 5, Sukhpal Singh, that Ram Singh was in a fit condition to make the statement and he was almost collapsing when he was examined. On these grounds, the learned judge has doubted the genuineness of the so-called statement of Ram Singh under Section 161 Cr.P.C. We have little reason to differ from this conclusion of the learned judge. It may be mentioned that if this dying declaration was genuine it would have provided the sheet-anchor for the prosecution case, but when the authenticity of the dying declaration itself is doubted then it would be hazardous to rely on the fairness and the impartiality of the investigating officer, who has gone to the length of concocting a false dying I in the form of a 161 Cr.P.C statement to him. The value of the testimony of the two eyewitnesses, PW 1, Mahendra Pal and PW 4, Dharam Pal Singh, also gets impaired for the same reason, as they have also supported the alleged dying declaration of Ram Singh to the investigating officer, and there is even variance about the place Where the statement under Section 161 Cr.P.C. was given by Ram Singh to the investigating officer. '
20. We also find that for a single injury on the back of the deceased four accused persons were implicated. Also, it was mentioned that it was the prosecution case that the firing had taken place from behind a 'gool'. If the accused were concealing themselves when they fired the shot, there was little reason for them to emerge and first cry out to the deceased that he would be taught a lesson only to make themselves identifiable to the witnesses and, thereafter, to have fired the shots at the deceased. There is also some variation about the distance from which the firing was resorted to. According to the siteplan the deceased Ram Singh was fired at from a distance of 20 paces. From that distance the shot from a countrymade pistol, i.e. the weapon assigned to Bhurey who fired the fatal shot would not in all likelihood have caused an injury which was only 9 cm x 7 cm. in dimensions. Also there are some variations from this position in the testimony of the witnesses. In this connection it has been stated by PW 1, Mahendra Pal Singh, that when firing was resorted on Ram Singh, he was about 2 Vi to 3 paces from him. In that event, the injury on Ram Singh would have revealed some signs of blackening, which is conspicuous by its absence. PW 4, Dharam Pal Singh, states, on the other hand, that when Ram Singh was fired upon, Satyavir and Bhurey were 7-8 paces from him. In this view of the matter, it becomes highly unsafe to rely on the testimonies of these admittedly partisan and inimical witnesses who seem to be furnishing varying accounts of how the firing took place at different places in their testimony.
21. Moreover, on the evidence on record, in our view, it is not explicable when four persons are armed with a gun and countrymade pistols, how could it be possible to specify that the lire from the weapon of a particular person struck the target. It was contended by the learned AGA here that as the deceased and witnesses were returning after cremating the dead body of the child of Rajeshwar, several persons were likely to have been present at the time of the incident. It appears here that as the child had died soon after his birth, it was not necessary for many persons to proceed for cremating him as much attachment might not have developed with the child by then. Significantly we find that even Rajeshwar, the father of the child, was not present at the time of cremation of his child. Moreover, only two witnesses, who are brothers of the deceased, namely, Mahendra Pal and Dharam Pal, have been examined as eyewitnesses in support of the prosecution case and, as mentioned above, their testimonies suffer from the grave flaw of introducing the false dying declaration which was in the form of a 161 Cr.P.C statement to the police.
22. The investigation of the case has been described as tainted and also assailed by the learned counsel for the appellants on the ground that although initially after the report under Section 307 IPC at case Crime No. 406 of 1980, the case was entitled as State v. Jeet Singh and Ors., but in the site plan the title of the case is mentioned as State v. Bhurey Singh, which according to the learned counsel, could not have been the position if the FIR and the GD were available with the investigating officer when he prepared the site plan. Also, although in his evidence in court PW 1, Mahendra Pal Singh, had deposed that he got the report scribed by Biglesh at his home in his village at 6 pm, but the language of the FIR is that the injured Ram Singh has been brought in an injured condition on a cot to the police station. According to the learned counsel, the phrase used suggests that the informant had already reached the police station and he got the report scribed there. Ordinarily if the eyewitness account is reliable and the court has little reason to doubt its veracity, too much importance need not be given to such small discrepancies or faults in the investigation of the case. But in a case, as the present, where the only two eyewitnesses produced are partisan, being brothers of the deceased, where there is admitted hostility between the parties, the ocular testimony also does not adequately square with the medical evidence and where a serious charge of an attempt to introduce a false dying declaration in the form of a false statement of the injured under Section 161 Cr.P.C. to the police has been levelled, which also provides a reason to suspect the conduct and impartiality of the investigating officer, such discrepancies in the investigating papers assume importance. In this connection it has been observed by the apex Court in Sevi and Anr. v. State of Tamilnadu and Anr. : 1981 (Supp) SCC 43 that:
"Where the entire evidence is of a partisan character impartial investigation can lend assurance to the court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the court to sift the evidence becomes very difficult indeed. "
23. We are, therefore, of the opinion that in the circumstances hereinabove it is not safe to affirm the conviction of the appellants as neither is the eyewitness account sufficiently reliable nor is the investigation of such an impartial and untainted character that it could have lent assurance to the court to accept the partisan evidence that has been produced.
24. In view of the circumstances enumerated hereinabove this appeal succeeds and is allowed. The conviction and sentence of the appellants, as aforesaid, is set aside. The appellants are acquitted. The appellants are on bail. They need not surrender to their bail bonds. The sureties are discharged.