Deepak Kumar Garg vs State of U.P.

U.K. Verma, J.—This is an appeal against the judgment of Sri N.B. Asthana, 1st Additional Sessions Judge, Meerut dated July 31, 1984 convicting the Appellant Deepak Kumar u/s 302 read with Section 34 of the Indian Penal Code and sentencing him to undergo imprisonment for life.

The uncontroverted facts are that at about 6.20 P.M. on 22-6-1981 Praveen Kumar alias Pappi and Rajiv saw Kishore Kumar lying injured in front of Praveen�s house. Both Praveen and Rajiv went to the clinic of Dr. Narendra Nath Sharma situate in Gandhi Nagar to bring him for his treatment. Dr. Narendra Nath Sharma responded to their request. He found Kishore Kumar to be in need of a surgeon�s attention immediately. Ajai Kumar who had also arrived there by his car, took Kishore Kumar to the Emergency Ward of the Medical College, Meerut along with Dr. Narendra Nath Sharma and Praveen Kumar. The Surgeon on call duty at that time was Dr. Sudhir Kumar Bhargava and so Dr. Narendra Nath Sharma rushed by Ajai�s car to his house to bring him Dr. Sudhir Kumar Bhargava could not be contacted as he was not at his house then. Dr. Narendra Nath Sharma returned to the Emergency Ward of the Medical College and after finding out the location of the house of Kishore Kumar went to inform his relatives about him. He met Anil Kumar Pokharyal, the elder brother of the injured and told him about his serious condition. Dr. Narendra Nath Sharma brought Anil Kumar Pokharyal in the car up to the gate of the Medical College. He dropped him there and proceeded to the house of Dr. Bhargava. The wife of Dr. Bhargava told Dr. Sharma that he could be at the Nursing Home of Dr. Raj pal or at his own clinic. Dr. Narendra Nath Sharma from the house of Dr. Bhargava came to the Emergency Ward of the Medical College. He took Anil Kumar Pokharyal along with him to the clinic of Dr. Bhargava. On being informed of the condition of Kishore Kumar, Dr. Bhargava went to the Emergency Ward of the Medical College on his scooter. Anil Kumar Pokharyal dropped Dr. Narendra Nath Sharma at his clinic by the car and himself went to the Medical College.

Dr. D.D. Agarwal PW 12 before the arrival of Dr. Sudhir Kumar Bhargava, had examined Kishore Kumar at 7.10 P.M. and found the following injury on his person :

Incised punctured wound 3.5 cm. x 2.5 cm. x abdomen 3 cm. above umb-licus bleeding, oementum coming out.

The doctor in his report Ex. Ka-1 made a note that the death could not be probed. The injury had been caused by sharp object. Its duration was fresh and the case was being referred to the Surgeon.

The general condition of Kishore Kumar and also the treatment given to him from the time of his admission till his death at 1.05 A.M. on 23-6-1981 are contained in the Patient Chart, extracts of which are Ex. Ka-6 and Ex. Kha-2. Dr. Bhargava PW 3 pointed that he had dictated the details of the operation Ex. Ka-6 to Dr. K.K. Singh, Registrar immediately after the operation. It follows therefrom that two litres of clotted blood had been removed from haemopeutoneum. He found two perforations in the anterior and the posterior walls of his stomach, one perforation in the anterior wall of the duodenum, one perforation in the gall bladder with bile flowing out of it, laceration in the lever anterior border bleeding, laceration in the lever under surface. Dr. Bhargava sucked out the clotted blood, closed the lacerations and perforations and did the peritoneal toilet and also the dressing of all the wounds.

The post-mortem examinations had been done by Dr. Vijai Singh at 4.00 P.M. on 23-6-81 and the relevant portions of the post-mortem report of Dr. Vijai Singh PW 5 are as hereunder :

(1) Stitched wound 18 cm. long over the abdomen containing 14 stitches. Besides this stitched wound, he found 2 other stitched wounds measuring 4 cm and 3 cm in length respectively.

(2) 2 Cut open wounds stitched-one on the left wrist and the other on the lower part of the left foot.

Upon internal examinations peritoneum was found stitched at a number of places, one ounce faecal matter and blood was found in the peritoneal cavity. Small intestine was stitched at two places and the large intestine at four places. Two stitches were also found in the lever. According to the doctor, death was caused as a result of shock and haemorrhage which was the result of the injuries upon the dead body.

The prosecution case is that at about 6.00 P.M. on 20-6-81 Kishore Kumar and the Appellant had quarrelled by the side of the road in front of the Nandan Cinema Hall. Kishore Kumar slapped Deepak Kumar. The prosecution witnesses Rajneesh PW 2 and Jagdish Prasad PW 3 pacified them. Deepak however, threatened Kishore Kumar that within four days, he would be done to death. Kishore Kumar with the injury dealt with above in Ex Ka-6 on his person, was taken to the Emergency Ward of the Lala Lajpat Rai Medical College, Meerut. In the FIR Ex. Ka-3 u/s 307 IPC shown to have been lodged by Anil Kumar Pokharyal PW 6 at 8.58 P.M. on 22-6-81 however, the above incident leading to the crime is not mentioned. It is only pointed therein that on being informed by Dr. Narendra Nath Sharma that he and Ajai had taken Kishore Kumar in car from Gandhi Nagar to the Medical College with serious knife injury, he and his brother reached the Medical College at 6.50 P.M. Kishore Kumar was crying in agony �Save me. Deepak alias Dabbu of Hanumanpuri Meerut assaulted me with knife in front of the house of Pappi. At the time of assault, he was accompanied with two or three persons After inflicting the wound, he fled away�. This incident took place at 6.20 P.M. Many persons of the locality witnessed it. Dr. Bhargava had been informed about the condition of Kishore Kumar. He was undergoing treatment in the Medical College, Meerut with his brother Sunil Kumar attending him at the time of the report.

The check report Ex. Ka-3 and the G.D. entry by which the case was registered against the Appellant u/s 307 IPC marked Ex. Ka-4 were proved by the Constable Clerk Gajendra Singh PW 8, the maker thereof. He also stated that the G.D. entry No. 25 of 24-6-1981 marked Ex. Ka-65 by which this case was converted into one u/s 302 IPC had been made by Jugdeo Singh S.I.

The investigation of the case was conducted by Jai Deo Singh Sub-Inspector. He deposed that this case was registered in his presence. He took up the investigation. On reaching the Medical College he found that the injured was not in a position to speak and his condition was not good. He recorded the statements of Anil Kumar Pokaharyal PW 6 and Su nil Kumar (not examined). He thereafter came to the scene of occurrence in Mohalla Gandhi Nagar. On not finding any one nearby, he instructed the constable on patrol duty to guard the place of the incident. On 23-6-1981, he recorded the statement of Praveen Kumar alias Pappi and with his help prepared the site plan Ex. Ka-12. He took the plain and blood stained earth and prepared the recovery memo Ex. Ka-13. He thereafter recorded the statements of Subhash, Narendra Pal and Surendra Kumar who had arrived there. He searched for Deepak Kumar Appellant, but he did not find him. On 25-6-1981 he recorded the statement of Ajai Kumar and without any success again tried to find out the Appellant. On 28-6-81, he handed over the investigation to the Inspector S.P. Govil. On 15-7-1981, he again took up the investigation when Govil was transferred and recorded the statement of S.I. Naresh Chaudhary PW 10. On 17-7-1981, he examined the Appellant who had earlier surrendered in the court on 8-7-1981. On 22-7-1981, he recorded the statements of the witnesses of motive named Rajneesh PW 2 and Jagdish PW 3 and the Head Constable Kripal Singh and Ratan Kumar. On 25-7-1981, he examined Dr. Narendra Nath Sharma. On 3-8-1981, he received the inquest and the autopsy reports and examined Anil Kumar son of Sita Ram PW 7 and further examined S. I, Naresh Chaudhari and submitted the charge-sheet Ex. Ka-14.

The prosecution examined Rajneesh PW 2 and Jagdish Prasad PW 3 to prove the motive, but they denied that they were witnesses to any quarrel which had earlier taken place between the deceased and the Appellant on 20-6-1981. They also did not affirm that the Appellant had given any threat to take the life of Kishore Kumar. The witness Rajneesh stated that the father of Kishore Kumar was his tenant.

Praveen Kumar alias Pappi PW. 4 narrated that when he saw Kishore Kumar lying injured in front of his house between 6 and 6.30 PM he went to call Dr. Narendra Nath Sharma after informing his neighbour Ajai Kumar about it. He returned along with Dr. Narendra Nath Sharma. Ajai Kumar before their arrival had already put Kishore Kumar inside the car in a lying posture. They took Kishore Kumar in the Emergency Ward of the Medical College and got him admitted there. He denied that Kishore Kumar had made statement that he was assaulted by Deepak alias Dabbu of Hanumanpuri who also owned a dairy in Mohanpuri and that he and his associates managed to make good their escape. In the cross-examination for the accused he pointed that the witness Anil son of Sitaram PW 7 and the brother of Kishore Kumar named Sunil or any Sub-Inspector had not reached the hospital in his presence. He only stated Anil Kumar Pokharyal PW 6 to have arrived in the Emergency Ward while he was there.

Dr. Narendrh Nath Sharma PW 1 who had accompanied Kishore Kumar from the place of incident to the Medical College in the Car of Ajai Kumar DW 1 along with Praveen Kumar alias Pappi PW 4, narrated as to how he had gone to examine an injured when Pappi and Rajiv told him that he was not in such a condition that he could be brough to his clinic and after reaching the Emergency Ward of the Medical College, proceeded in search of Dr. Sudhir Kumar Bhargava in the car of Ajai at a time when Ajai and Pappi were getting Kishore Kumar admitted in the hospital, how on not meeting Dr. Bhargava in the first attempt, he reached the house of the injured whose address had been given by Pappi and informed Anil Kumar Pokharyal PW 6 about the serious condition of his brother and brought him in <\\jai�s car upto the gate of the Medical College and went to the house of Dr. Bhargava who could not be contacted in the second attempt also, how he again came to the Emergency Ward, picked up Anil Kumar Pokharyal PW 6 and went along with him to Dr. Bhargava�s clinic to inform him about the urgency of the matter. Dr. Narendra Nath Sharma did not state that Anil Kumar Pokharyal had made any enquiry from Kishore Kumar about his assailant or that Kishore Kumar himself without being asked had been accusing any one for the injury which ultimately resulted in his death. Dr. Narendra Nath Sharma, however, as follows from his statement, had been present in the Emergency ward when Anil Kumar Pokharyal was also there by the side of Kishore Kumar except for the brief period when he had gone alone to Dr. Bhargava�s residence and returned back with the information that by then he would have reached Rajpal Nursing Home or his clinic. This witness had not been cross-examined by the Appellant Only this information was elicited from him that the house of Dr. Bhargava was on the campus of the Medical College itself.

It could not be investigated as to who witnessed the assault on Kishore Kumar. The prosecution relies on the testimony of Anil Kumar Pokharyal PW. 6, Sunil Kumar son of Sita Ram PW 7 and S.I. Naresh Chaudhari PW 10 who have deposed about the dying declaration of Kishore Kumar coupled with the circumstance that the informant had no motive to falsely accuse the Appellant in the FIR lodged promptly to substantiate the guilt of the Appellant.

Anil Kumar Pokharyal PW 6 stated that on learning from Dr. Narendra Nath Sharma that his brother Kishore Kumar was admitted in the Emergency Ward of the Medical College in a wounded state, he accompanied Dr. Narendra Nath Sharma to the Medical College and told his brother Sunil Kumar that they might also come. Sunil Kumar and his friend Anil Kumar son of Sita Ram PW 7 reached the Emergency Ward of the Medical College after him Kishore Kumar who was lying on a stretcher there, was crying in agony that he be saved. When he enquired as to who had assaulted him with knife, Kishore Kumar told him that Deepak Kumar alias Dabbu of Hanumanpuri had inflicted the knife injury in front of Praveen Kumar�s house in Gandhi Nagar at about 6.15 P.M. Anil Kumar Pokharyal at first stated that at the time when the above statement was made by Kishore Kumar, no doctor was present. He, however, in the next breath stated that no Surgeon was present then and only Junior Doctors were in attendance. The others present were described by him to be some friends of Kishore Kumar and a Sub-Inspector of police. Yet lateron he stated that his brother Sunil Kumar and his friend Anil Kumar son of Sita Ram were also present. He went to call Dr. Bharagava. He was contacted at his clinic near the Odeon Cinema House. He started for the Medical College on his scooter. When he returned, Kishore Kumar had already been shifted to the operation theater. Dr. Bhargava too reached later. After arranging for blood and medicines, he went to the police station Civil Lines where he handed over the written report. In the cross-examination he stated that the place of incident was four Kilometres from the Medical College and his house therefrom was only three and a half Kilometres away. He denied to have enquired from Dr. Narendra Nath Sharma as to who had assaulted Kishore Kumar. He explained that he did not make any inquiry in this regard as he had got nervous. He stated that he did not consider it necessary to make a mention in the FIR that his friend Anil Kumar son of Sita Ram PW 7 had also reached the Medical College. He was confronted with his statement u/s 161 Code of Criminal Procedure which too does not contain any averment that Anil Kumar s/o Sita Ram had also been present at the time when Kishore Kumar made the dying declaration in the Emergency Ward. In the last paragraph of his statement, he is found to have denied that Kishore Kumar in agony was himself crying that Deepak Kumar had assaulted him. The witness was asked to explain as to why in the FIR he had not mentioned that on his inquiry Deepak Kumar had told him the name of his assailant. He gave out that he forgot to do so. When his attention was invited to the same position in respect of his statement u/s 161 Code of Criminal Procedure he gave out that he had told the Investigating Officer about it, but he did not know as to why the Investigating Officer did not record it. The witness expressed his inability to tell the names of the Junior Doctors who were present at the time of the dying declaration. In the resumed cross-examination on 22-2-1984 Anil Kumar Pokharyal gave out that he and Dr. Narendra Nath Sharma together had been present in the Emergency Ward for five minutes when the Junior Doctors were bandaging the wound of Kishore Kumar where after they both went by car to bring Dr. Bhargava. In respect of the presence of the police Sub-Inspector, he stated that he was present in the Emergency Ward when he arrived there but he was not there when he left the place to call Dr. Bhargava. He could not explain as to why he had not alleged about the presence of the Sub-Inspector also in the FIR. The Sub-Inspector, he further gave out, was also not present when he brought Dr. Bhargava in between 7.15 and 7.30 P M. He denied to have asked his brother about the number of persons accompanying the Appellant at the time of the assault and also the names of the persons who had seen the incident. He, at the end of the his cross-examination, deposed that when his brother had told him that Deepak had assaulted him, he could not make out as to who that Deepak could be. He, however, in respect of this suggestion of the counsel for the accused in the trial court that there were many Deepaks in Hanumanpuri volunteered that his brother had told him that Deepak alias Dabbu had assaulted him.

Anil Kumar son of Sitaram PW. 7 stated that he and Sunil Kumar had come on the Vicky Motorcycle to the Medical College after Anil Kumar had reached there with Dr. Narendra Nath Sharma. Kishore Kumar, as given out by him, had only told that Deepak of Hanumanpuri had assaulted, but had not mentioned the weapon with which he had done so. In the cross-examination he stated that when he reached the Emergency Ward, no doctor was attending on Kishore Kumar. He could not tell how long Anil Kumar Pokharyal remained with Kishore Kumar as he had gone to call Dr. Nagar and to bring the medicines prescribed. He gave out the duration of his stay in the Emergency Ward to be two minutes only for the doctor had not delayed in writing the prescription with regard to the medicines to be given to Kishore Kumar. He pointed to have reached the Emergency Ward at the time when Anil Kumar Pokharyal was making inquiry from Kishore Kumar about his assailant. In the last para of his statement he has given out that he, Sunil and Anil Kumar Pokharyal and the Sub-Inspector and one other person whom he did not know, were present at the time when Kishore Kumar told the name of his assailant. He controverted the statement of Anil Kumar Pokharyal and gave out that he was neither the friend of Anil Kumar nor Sunil but was a teacher colleague of their sister.

S.I. Naresh Chaudhari PW 10 deposed that he had gone to the Medical College campus in connection with the investigation of a case relating to the theft of a Motor-cycle and after recording the statement of Dr. Rama Kant Sharma had remained there He had seen Kishore Kumar lying on a bed. There were one or two persons by his side. He enquired of Kishore Kumar as to who had assaulted him. He had told him that Deepak along with two and three associates of his had inflicted the knife injury in his stomach. After examining the General Diary entry No. 26 of the Medical College police out-post he pointed that he had left Kishore Kumar at 8.45 P.M. while he was in the Emergency Ward. He could not say as to when the doctor had arrived to examine Kishore Kumar and volunteered that he could have come before his arrival. He explained that he had not registered the case in his police station as it related to the police station Civil Lines. He however, conceded that he had not taken care to inform the police station Civil Lines about the matter. He pointed to have prepared the inquest report next day marked Ex. Ka-7 and the other papers Ex. Ka-8 to Ex. Ka-10 for getting the autopsy done.

The Appellant denied to have assaulted Kishore Kumar. The police was alleged to have falsely implicated him in this case as they bore ill-will towards his uncle Hari Krishan Garg. He admitted that at the time of the incident he resided in Hanumanpuri, .but denied that his nick name was Dabbu or that he had any milk dairy in Mohanpuri.

The Appellant bad examined Ajai Kumar DW 1 in the trial court. He deposed that he had taken Kishore Kumar to the Emergency Ward of the Medical College aloug with Pappi and Dr. Narendra Nath Sharma. Kishore Kumar was got admitted by him. Kishore Kumar had been given injection and medicines. He remained there till Kishore Kumar was moved to the operation theater. Kishore Kumar did not tell the name of his assailant. He was not in such a state wherein anyone was in a position to talk to him or to enquire from him. He stated that he was an income tax assessee and had donated his blood on being told that it would be needed. In the cross-examination he pointed that he did not know Deepak Appellant. Kishore, according to him, was moved for the operation at about 8.30 P.M. He expressed his inability to give the names of the doctors who had attended on Kishore Kumar. He explained that he remained in the hospital till 9.00 P.M. so that he was able to provide relief to the patient if needed. He had volunteered that he had also got medicines for Kishore Kumar.

The learned 1st Additional Sessions Judge in his judgment has referred to the case of Vithal Somnath Kore Vs. State of Maharashtra, dealing with the value to be attached to a dying declaration as a piece of evidence. It has been held therein that the dying declaration does not require to be corroborated to form the sole basis of conviction, if its truthfulness is accepted. He has also made a mention of the case of Bhayani Luhana Radha Bai v. State of Gujarat 1977 SCC 762 in support of this proposition that the dying declaration stands on the same footing as any other piece of evidence and had to be judged in the light of the surrounding circumstances and with reference to the principle as to how evidence is to be weighed and it is no longer good law to treat it as a weaker kind of evidence in comparison to others. He has based his order convicting the Appellant on the ground that the dying declaration of Kishore Kumar as narrated by Anil Kumar Pokharyal and Sunil seemed to be trustworthy particularly because they had no motive to falsely implicate the Appellant. The 1st Addl. Sessions Judge in his judgment has, however, not held S I. Naresh Chaudhari PW 10 to be trustworthy for many reasons, chief of which being his inability to state as to when the doctors had attended on Kishore Kumar and his statement against the record of the Medical College and also the other witnesses that Kishore Kumar remained in the Emergency Ward of the Medical College till 8.45 P.M. when he himself went away. Kishore Kumar, according to the S.I. Naresh Chaudhar PW 10, had given his dying declaration afrer 7.30 PM when he put this question to him as to who had assaulted him. He did not state that Anil Kumar Pokharyal had made the above enquiry. He could not explain satisfactorily as to what had detained him there beyond 100 P.M. when he had recorded the statement of Dr. Rama Kant Sharma in crime case No. 107. He further could not tell the names of the persons who were present at the time when Kishore Kumar had made the dying declaration. He did not remember his alleged statement u/s 161 Code of Criminal Procedure that the deceased had told him that the person who had inflicted the knife injury owned a dairy in Mohanpuri. In case his statement would have been accepted, the 1st Additional Sessions Judge would have found difficulty in reconciling it with the statements of Anil Kumar Pokharyal PW 6 and Sunil Kumar PW 7. The S.I. Naresh Chaudhari appears to us also to be a got up witness and his statement about the above dying declaration of Kishore Kumar having been made in his presence, was liable to be discarded summarily.

We shall next proceed to examine whether the oral dying declaration narrated by Anil Komar Pokharyal PW 6 and Anil Kumar son of Sita Ram PW 7 both of whom also stated about the presence of S.I. Naresh Chaudhari at that time could be relied upon or the dying declaration as argued by the counsel for the Appellant was cooked to fasten the guilt on the Appellant as no evidence was forthcoming against him. We have already while dealing with the statements of Rajneesh and Jagdish Prasad, pointed that none of them corroborate the prosecution case regarding motive. Rajneesh PW 2 is the landlord of the accommodation wherein the father of the deceased resides as a tenant. It has not been shown as to how the Appellant was in a position to win Rajneesh who denied that two days earlier there had been a quarrel between the Appellant and the deceased in his presence. The witness Jagdish Prasad too could not be said to have reasons to side with the Appellant. The prosecution it is thus clear, has not substantiated the circumstances which, according to it, led to the murder of Kishore Kumar.

It is next to be seen that in the First Information Report there is an averment that many persons of the locality had seen the incident. The prosecution did not disclose during the trial as to who were these persons, who had seen the Appellant assaulting Kishore Kumar, but were not coming forward to depose against him. The Learned Counsel for the Appellant argued that from the above averment it only follows that the prosecution had made provision for improving upon the narration in the FIR in which design of their�s, they did not ultimately succeed.

We then find that it is the common case of the parties that Praveen Kumar alias Pappi was the first amongst the witnesses examined to notice Kishore Kumar lying injured and it was he who had collected Ajai Kumar DW 1 and Dr. Narendra Nath Sharma for providing him medical attention. Praveen Kumar knew Kishore Kumar as both had been playing cricket together. There is nothing in the cross-examination of Praveen Kumar to show that he had also been a friend of the Appellant or he was subsequently won over by him. Ajay Kumar DW 1. it is not disputed, had carried Kishore Kumar to the Medical College and had provided, as given out by him, his blood and medicines in connection wih the treatment of Kishore Kumar. He had also made available his Car to Dr. Narendra Nath Sharma to get Dr. Bhargava as early as possible and further to inform Anil Kumar Pokharyal, brother of the deceased to come and do his best in connection with the treatment of Kishore Kumar. He had got Kishore Kumar admitted in the Medical College and remained there as long as he could to provide such relief which he was capable of. This witness who is an income tax assessee and who had done so much for Kishore Kumar only as a good citizen, could not be expected to come easily under the influence of the Appellant so as to deny the truth. Praveen Kumar PW 4 and Ajai Kumar DW 1 both stated that Kishore Kumar had not made any dying declaration. Ajai Kumar also deposed that Kishore Kumar was not in such a position that one could talk to him or he could give a statement. The statements of these witnesses receive support from the statement of the I.O. and the Bed Head Ticket of Kishore Kumar wherein it is noted that at the time of his admission his general condition was very poor and he was confused and in medical terminology was suffering from cerebral anoxia. The doctors had also noted the rigid shifting dullness on his body. His oementum was lying outside. It was not unjustifiably argued by the Learned Counsel for the Appellant that Kishore Kumar was not in a position to give full details of his assailant. The prosecution, it also cannot be lost sight of, had not put to any of the doctors namely Narendra Nath Sharma PW 1, D. D. Agarwal PW 12 and S.K.. Bhargava PW 9 as to whether Kishore Kumar was in a position to make statement. No doubt the type of evidence insisted upon in the case of Sat Narain v. State 1977 CLJ 1626 is not a requirement now for in Mohd. Azizuddin v. State of Andhra Pradtsh 1985 CLJ 306, it has been held that mental fitness could be presumed by evidence other than medical certificate, but it will be wrong to infer that it is not necessary to ascertain that the person making the dying declaration is in a fit state of mind. We find that in A. M. A. Rahman v. State of Gujarat, reported in AIR 1976 SCC 1782 the importance of doctor has been emphasized in another way and a duty has been cast on him to record the dying declaration, if a Magistrate cannot be called in time. It was as such in all fairness necessary for the prosecution to enquire from Dr. N.N. Sharma and Dr. D D. Agarwal whether Kishore Kumar was in a fit state of mind to understand and to reply as they had occasion to examine Kishore Kumar before the arrival of Anil Kumar Pokharyal PW 6, Anil Kumar son of Sita Ram PW 7 and S.I. Naresh Chaudhari PW 10 and also because Dr. D.D. Agarwal bad recorded in the Patient Chart as indicated above that he had found Kishore Kumar to be confused. Dr. Narendra Nath Sharma and Dr. D.D. Agarwal were certainly the best persons to state about the ability of Kishore Kumar to understand and to give intelligible statement if the prosecution relied upon the oral dying declaration The prosecution, where it is in a position to elicit facts, does not do so although the I.O. himself says that when he met the injured, he was not in a position to speak, cannot be permitted to say that the doubt should have been got cleared by the Appellant inspite of the evidence on record generating the feeling that he might not be in a position to speak due to the injury sustained.

We shall now proceed to examine as to how Anil Kumar Pokharyal PW 6 and Anil Kumar PW 7 fair on the touch stone of consistency which also is one of the methods for judging the credibility of a witness and whether or not there are such infirmities in their statements and also generally which give a caution about acceptance of the prosecution case. Anil Kumar Pokharyal in the first information report, has mentioned that Kishore Kumar was crying in pain that Deepak alias Dabbu of Hanumanpuri had assaulted him with knife. He had two or three associates of his at that time and they fled away soon after. In the FIR Anil Kumar Pokharyal had not alleged, as given out by him in the trial court, that when he enquired from Kishore Kumar, he told him about his assailant.

The First Information Report is also silent on the point that Anil Kumar PW 7 had been present in the Emergenay Ward of the Medical College at the time of the above dying declaration of Kishore Kumar. In the trial court Anil Kumar Pokharyal PW 6 denied that while crying with pain Kishore Kumar was accusing the Appellant. Kishore Kumar was pointed to have disclosed the name of Deepak only after he had been specifically asked about it. There can be no denyiny the fact that Anil Kumar Pokharyal, if his brother Kishore Kumar was in senses, must have put this question to him as to who had caused him the injury. If however, he was not in his senses, because of his very critical condition, the above question could not be put to him by a normal person. The counsel for the Appellant justifiably argued that if Kishore Kumar had been naming his assailant while crying because of pain as is the case set up in the FIR or if he had made the statement in reply to questions put in the presence of Junior Doctors, the investigating agency would certainly have ascertained as to who those Junior Doctors were, even if Anil Kumar Pokharyal had not been able to disclose their names. Anil Kumar Pokharyal deposed that he could not make out as to who was Deepak alias Dabbu of Hanumanpuri who had assaulted Kishore Kumar even after listening to Kishore Kumar. It does sound some what strange that though there had been a quarrel between Kishore Kumar and Deepak on 20-6-81 wherein the Appellant had given the threat to take the life of Kishore Kumar and which quarrel could only be pacified through the intervention of their landlord, Anil Kumar Pokharyal, his brother, would have been ignorant about the same. Anil Kumar Pokharyal pointed that he and Dr. Narendra Nath Sharma were together in the Emergency Ward of the Medical College for five minutes, while Kishore Kumar was admitted there and it was only when Dr. Narendra Nath Sharma after leaving Anil Kumar Pokharyal at the gate of the Medical College, had gone to the house of Dr. Bhargava a second time that the two were not together. Dr. Narendra Nath Sharma on not meeting Dr. Bhargava again at his house, was expected to have returned without wasting any time as he had been trying to procure the services of a good surgeon for Kishore Kumar in the shortest possible time. It looks improbable that only during the short period when Dr. Narendra Nath Sharma was away, Kishore Kumar gave the details of his assailant which is also not the prosecution case as set forth in the case diary. If Dr. Narendra Nath Sharma was not examined about the alleged dying declaration of Kishore Kumar, although his statement u/s 161 Code of Criminal Procedure shows that the dying declaration in question was made in his presence, it would follow that Dr. Narendra Nath Sharma was not likely to have corroborated Anil Kumar Pokharyal PW 6. We have been inclined to draw such an inference because in the instant case it could not be presumed at all that sufficient independent evidence had been led to prove beyond doubt that the dying declaration had been made. The statement of Anil Kumar Pokharyal about the dying declaration having been made in the presence of junior doctors had been contradicted by Anil Kumar son of Sita Ram PW 7 and S.I. Naresh Chaudhari. Anil Kumar son of Sita Ram PW 7 in his examination-in-chief stated that at the time of the dying declaration only Anil Kumar PW 6 and Sunil Kumar (the brother of the deceased) and a Sub-Inspector had been present. In the cross-examination he gave out that Dr. Narendra Nath Sharma was not present and apart from the above persons, there was another person. It had been suggested by the prosecution to Praveen Kumar alias Pappi PW 4 that the dying declaration had been made in his presence, but he was denying it. The suggestion made to him appears to us to be without good basis as discussed above. He has not corroborated Anil Kumar Pokharyal PW 6 and Anil Kumar son of Sita Ram PW 7 because they were not speaking the truth according to him. Relating to Anil Kumar son of Sita Ram PW 7, there is this infirmity also as pointed out above that Anil Kumar Pokharyal did not allege in the FIR regarding his presence at the time of the dying declaration. Besides it cannot also be lost sight of that his statement u/s 161 Code of Criminal Procedure was recorded as a witness of the inquest report on 3-8-81 i.e. six weeks after the incident. The delay in recording the statement of this important witness of the dying declaration u/s 161 Code of Criminal Procedure has not been satisfactorily explained. It is not ruled out in the circumstances of the case that Anil Kumar PW 7 who was described to be a friend by Anil Kumar Pokharyal PW 6 but who himself refuted this fact to show his independence and described himself merely as a colleague of the sister of the deceased, was introduced in the case as an after thought to provide the padding in the prosecution case as Praveen Kumar PW 4, Ajai Kumar DW 1, Dr. Narendra Nath Sharma PW 1, Dr. D.D. Agarwal PW 12 and other doctors declined to affirm on oath that the dying declaration relied upon by the prosecution, had been made by Kishore Kumar. Anil Kumar PW 7 in his cross-examination could not tell as to how long Anil Kumar Pokharyal remained with Kishore Kumar. This is not ignorance about an insignificant matter. We have discussed above that Anil Kumar PW 6 could hardly have been in the Emergency Ward with Kishore Kumar for a little over five minutes when according to him the dying declaration was made, as he had gone with Dr. Narendra Nath Sharma to Dr. Bhargava�s clinic. He also did not clearly state whether Anil Kumar had gone to call any doctor or not. Anil Kumar Pokharyal, according to Anil Kumar, had been putting the question to Kishore Kumar as to who had assaulted him just at the time when he arrived there. He was confronted with his earlier statement allegedly made to the Investigating Officer u/s 161 Code of Criminal Procedure that Anil Kumar Pokharyal had made inquiry from Kishore Kumar about his assailant, while going to call the doctor. S.I Jaideo Singh affirmed on oath that he did make the above statement attributed to him. The statement of Anil Kumar PW 7 denying the presence of the doctors in the Emergency Ward is in conflict with the statements of Anil Kumar Pokharyal PW 6, Praveen Kumar PW 4, Ajai Kumar DW 1 and Dr. Narendra Nath Sharma PW 1 and indicates that he had given an imaginary account. We, thus are of the view that Anil Kumar PW 6 and Anil Kumar PW 7 could not be relied upon for upholding the dying declaration set up by the prosecution.

The investigation because of the induction of the got up witnesses Anil Kumar PW 7 and S.I. Naresh Chaudhary PW 10 not named in the FIR could not be said to be fair and it also becomes doubtful whether the FIR had really been lodged promptly.

The prosecution, in our opinion, has not established the charge against the Appellant u/s 302 read with Section 34 of the Indian Penal Code.

The appeal is allowed. The judgment of the 1st Additional Sessions Judge convicting the Appellant u/s 302 read with Section 34 of the Indian Penal Code and sentencing him to undergo imprisonment for life is set aside. The Appellant is on bail. He need not surrender to his bail bonds which are discharged.