JUDGMENT
K.S. Gupta, J.
(1) Criminal Appeal No.159/93 by Vinod Kumar and Criminal Appeal No.173/93 by Mukesh Kumar are directed against the judgment of an Additional Sessions Judge dated September 22, 1993,’ convicting the appellants under Section 302 read with Section 34 Indian Penal Code and the order dated September 29, 1993, sentencing them to undergo imprisonment for life and to pay a fine of Rs.3,000.00 each. In default of payment of fine each of them was to further undergo rigorous imprisonment for two years.
(2) Case of the prosecution, in brief, is that on May 24, 1985, at 10 Pm Azad Singh, duty constable, Hindu Rao Hospital Public Witness Ioa, informed on telephone Police Station Kingsway Camp that Om Parkash s/o Kundan Lal has been got admitted in hospital by one Satpal in injured condition and a police officer may be deputed. This information was recorded in Daily Diary at serial No.21A and a copy thereof was made over to Si K.L.Kalra Public Witness 18.He alongwith Constable Bhim Singh Public Witness 5 reached the hospital and collected medico legal certificate Ex.PW14/A relating to Om Parkash who was declared unfit for making a statement. Ramo Devi Public Witness 1, sister of Om Parkash, met PW18 in the hospital and he recorded her statement Ex.PW1/A to the effect that that day at about 8.15 Pm Narinder Singh Public Witness 10 came to her jhuggi and told her that her brother Om Parkash is lying in Retla Khet and is calling her. Immediately thereafter she reached Retla Khet and found Om Parkash lying prostrate in the field. On inquiry Om Parkash told her that injuries to him were inflicted by Mukesh and Jyoti with chhuris and he be taken to hospital. Blood was coming out of his abdomen and his clothes were smeared with blood. His intestines were protruding out. She removed her saree and tied it around the abdomen of Om Parkash. She called her sister’s husband Mohan Singh Public Witness 15 to take Om Parkash to Hindu Rao Hospital. She took along her maternal brother Sat Pal from Vijay Nagar who got Om Parkash admitted in hospital. Father’s name of Mukesh is Murli and he runs a hotel. Jyoti is a friend of Mukesh and resides in Dtc Colony and she knows both of them from before being neighbours. As Mukesh and Jyoti have badly injured her brother with chhuris, legal action may be initiated against them. After making endorsement Ex.PW5/A, this statement was sent by Public Witness 18 through Public Witness 5 to the Police Station and on the basis thereof Fir (carbon copy Ex.PW13/A) under Section 307/34 Indian Penal Code was registered against both the accused Vinod Kumar and Mukesh Kumar. Public Witness Ioa handed over the parcel containing the blood stained clothes of Om Parkash to Public Witness 18 and that parcel was taken into possession by him vide memo Ex.PW11/A. Blood stained saree Ex.P1 of Public Witness 1 was also seized after converting into a parcel and sealing with the seal ‘K.L.K.’ vide memo Ex.PW1/B by Public Witness 18.
(3) Case of the prosecution further is that Public Witness 18 reached Retla Khet, Sardar Nagar, from hospital where Ramo Devi Public Witness I, Mohan Singh Public Witness 15 and the other witnesses met him. He prepared the rough site-plan Ex.PW18/B on the pointing out of Public Witness I. On May 25, 1985 after Om Parkash was declared fit for making statement vide endorsement Ex.PW16/A by Dr.B.K.Dutta, Public Witness 18 recorded his statement Ex.PW18/C in the presence of his father Kundan Lal PW12. Om Parkash succumbed to injuries on May 31, 1985 in the hospital and his dead body was sent for post-mortem alongwith the application Ex.PW12/A etc. Autopsy on the body of the deceased was conducted by Dr.L.T.Ramani Public Witness 17 on May 31, 1985 and Ex.PW17/A is the post-mortem report in the hand of Public Witness I 7. It is further alleged that accused Mukesh Kumar was arrested on June 4, 1985. Accused Vinod Kumar @ Jyoti surrendered in court on June 6, 1985 and he was arrested by Public Witness 18 on June 7, 1985. Case property deposited in the Mal Khana of Police Station Kingsway Camp was sent to Central Forensic Science Laboratory for opinion and Exs.PW18/J, K and L are the Cfsl reports. Scaled site-plan was prepared by Si Davinder Singh Public Witness 11 on June 12, 1985. On the expiry of Om Parkash the case was converted under Section 302/34 PC. Public Witness 18 recorded the statements of the Public Witness s and on completion of investigation he filed the charge-sheet against the accused.
(4) In their statements under Section 313 Criminal Procedure Code . the plea taken by both the accused is of plain denial.
(5) Case of the prosecution rests on the statements of Public Witness 8 Ved Parkash @ Wadhwa and Public Witness 9 Anoop Kumar @ Kitti who are alleged to be the eye witnesses of the occurrence and the two dying declarations allegedly made by 0m Parkash deceased. The main thrust of the argument advanced by Shri Bipin Behari Lal and Shri Sandeep Sethi. Advocates appearing for both the accused was that neither Public Witness 8 nor Public Witness 9 had witnessed the alleged occurrence and they have been introduced as witnesses falsely by the prosecution. This argument obviously involves the evaluation of the statements of both these PWs.
(6) PW8 has deposed that on May 24, 19S5 at 8 Pm he alongwith his friend PW9 had been to the jhuggi of Kunj Behari for cooking meat there and at about S/S.15 Pm when he and Public Witness 9 were inside the jhuggi they heard the noise of fight whereupon they came out. Fight was taking place at a distance of about 20-22 steps away from the jhuggi. Both of them reached near the place of fight and there he noticed accused Mukesh stabbing with a chhuri in the stomach of Om Parkash. Accused Jyoti too stabbed with a chhuri on the right side of abdomen of Om Parkash. Two/three associates of the accused were standing nearby and on seeing him and Public Witness 9, accused alongwith their associates fled from the spot alongwith the chhuris. He alongwith Public Witness 9 chased both the accused who ran away towards Dtc Colony. By the side of that Colony Sardar Nagar is located and while chasing one rickshaw puller named Babu met them on the way and he told him to inform Ramo Devi, sister of Om Parkash about Om Parkash having been injured. Both the accused were successful in escaping by taking a bus of route No-102 which was on move from a bus stand in front of Gurudwara Nanak Piao. He has further deposed that he knew the accused persons and Om Parkash prior to the occurrence. When he alongwith Public Witness 9 came back to the place of occurrence, police officials including the Sho and Si K.L.Kalra Public Witness 18 had already arrived there. It was about 10 or 10.15 PM. Later on he went to his house. He again came back to the spot at about 12.30 Am alongwith Satpal who came to call him and at that time also police officials were present there. In cross- examination he has expressed his inability in saying if he had stated to the police that when he was standing outside the jhuggi he heard the noise. He was confronted with his statement under Section 161 Criminal Procedure Code . Ex.PWS/D where it was so recorded. He knew Om Parkash deceased for about 7-S months prior to the occurrence and he and Public Witness 9 had friendship with him. He and Public Witness 9 chased the accused for about 5-7 minutes. He has admitted that he did not tell the police that the accused escaped in a bus plying on route No. 102. He has further admitted that he did not tell the police that after chasing the accused he returned to the spot alongwith Public Witness 9. He has denied the suggestion that Satpal did not come to call him at his house at 12.30 AM. However, he has admitted that he did not tell the police in his statement that Satpal came to call him at 12.30 AM. He has deposed that he knew the residential address of Om Parkash deceased and the house of the deceased was at a distance of about 108/109 paces away from the place of occurrence. He has emphatically denied the suggestion that he alongwith Public Witness 9 had not been to the jhuggi of Kunj Behari on the date of incident.
(7) PW9 has deposed that on May 24, 1985 alongwith Public Witness 8 he visited the jhuggi of Kunj Behari to cook meat and at about 8 Pm when it was drizzling both of them came out of the jhuggi to enjoy the weather. In the meantime, there was noise of fight at some distance and they rushed towards that place. On reaching there he saw accused Mukesh stabbing Om Parkash on the front of his stomach. Accused Vinod Kumar @ Jyoti stabbed on the right side of his abdomen. At some distance 2-3 other boys were standing. When he and PW8 tried to catch hold of the accused, they started running with their associates towards Sardar Nagar alongwith the chhuris. They chased the accused but the accused took a bus of route No.l02 from the bus stand of Gurudwara Nanak Paio and escaped. After a shortwhile a private bus came from behind and he and Public Witness 8 boarded that bus with a view to chase the bus in which the accused had escaped. He alongwith Public Witness 8 got down at Azadpur and searched for the accused there but they were not found. Then both of them went to Adarsh Nagar in search of the accused but there also they could not be found. Thereafter both of them came back to the spot. While chasing the accused, on the way Babu Lal, rickshaw puller, met Public Witness 8 and he told him to go to the house of Om Parkash and tell his sister Ramo Devi that Om Parkash was lying at the spot. In cross-examination he has deposed that he told the police that the accused took the bus of route No.l02 from bus stand Gurudwara Nanak Piao and escaped. He was confronted with his statement under Section 161 Criminal Procedure Code . Ex.PW9/DA where it was not so recorded. He also stated to the police that he and Public Witness 8 boarded a private bus and chased the accused. He was confronted with the statement Ex.PW9/DA where it was not so recorded. He has further told the police that they got down from the bus at Azadpur. He was confronted with the statement Ex.PW9/DA where it was not so recorded. It is further in his cross-examination that he told the police that both of them searched for the accused in Azadpur and from there they went to Adarsh Nagar in search of the accused but they were not found there. He was confronted with the statement Ex.PW9/DA where it was not so recorded. He and Public Witness 8 returned to the spot from Adarsh Nagar and the police was not there at that time. Thereafter both of them went to their houses. He had told the police that he and Public Witness 8 had come back to the spot from Adarsh Nagar. He was confronted with the statement Ex.PW9/DA where it was not so recorded. It is also in his cross-examination that he stated to the police the name of Satpal as the person who came to his house to call him at about 12.15 or 12.30 AM. He was confronted with the statement Ex.PW9/DA where it was not so recorded. He has denied the suggestion that he has been introduced as a false witness due to friendship with the deceased.
(8) From the deposition referred to above of Public Witness 8 it may be noticed that he has made improvements therein over his statement recorded under Section 161 Criminal Procedure Code . Ex.PW8/DA on the points of his return alongwith Public Witness 9 again to the spot at about 10/10.15 Pm, escape of the accused in a bus of route No.l02 from bus stand in front of Gurudwara Nanak Piao and visit of Satpal to his house at 12.30 Am to call him. Likewise Public Witness 9 has made improvements in his deposition on oath over his statement recorded under Section 161 Criminal Procedure Code . Ex.PW9/DA particularly on the points of the accused persons escaping by taking a bus of route No.l02 from bus stand in front of Gurudwara Nanak Piao; he and Public Witness 8 boarding a private bus and getting down at Azadpur and searching the accused at Azadpur and Adarsh Nagar, return to the spot from Adarsh Nagar and visit to his house by Satpal at 12.15/12.30 Am for being again taken to the place of occurrence. Apart from these improvements, part of the deposition made by Public Witness 8 that when he alongwith Public Witness 9 returned to the place of occurrence at 10 or 10.15 Pm police officials including Sho and PW18 met them, even docs not find support from the testimony of Public Witness 9 as according to him police was not there at that time. From the other evidence on record also it is manifest that Public Witness 18 was in Hindu Rao Hospital at 10/10.15 Pm and the rukka was sent from the hospital itself at 11.20 Am to the Police Station for registration of the case through Constable Bhim Singh Public Witness 5. It is pertinent to mention here that Public Witness 8 has not spoken about the boarding of a private bus from bus stand in front of Gurudwara Nanak Piao and search of the accused persons at Azadpur and Adarsh Nagar as-deposed to by Public Witness 9.
(9) Further it is in the deposition of Public Witness 8, as discussed above, that deceased was known to him for about 7-8 months prior to the occurrence and he and PW9 had friendship with him. According to him he knew the residential address of the deceased and his house was at a distance of about 108/109 paces away from the place of occurrence. That being so, if Public Witness 8 and Public Witness 9 had actually witnessed the occurrence in ordinary course of human conduct they must have immediately taken the accused to hospital or atleast informed Ramo Devi Public Witness 1 about the incident instead of chasing the accused whose names were known to them from before and who were armed with churris.
(10) Prosecution has not examined Kunj Behari. Major improvements and contradictions coupled with the abnormal conduct referred to above clearly give the impression that neither Public Witness 8 nor Public Witness 9 together visited the jhuggi of Kunj Behari nor did they see the accused persons actually assaulting the de- ceased with the chhuris as is the argument advanced on behalf of the accused. PW8 and Public Witness 9 are wholly unreliable and their evidence has to be discarded.
(11) This brings us to the two dying declarations allegedly made by the deceased. First dying declaration is alleged to have been made to Ramo Devi PW1 on May 24, 1985 at the time she met the deceased around 8.15 Pm while he was lying with face downwards in Retla Khet after the occurrence. Second dying declaration in the shape of statement under Section 161 Criminal Procedure Code . Ex.PW18/C is stated to have been recorded by the Investigating Officer Public Witness 18 in Hindu Rao Hospital on May 25, 1985 in the presence of Public Witness 12 Kundan Lal, father of the deceased. We would first take up the second dying declaration for discussion. The contention advanced on behalf of both the accused was that Public Witness 17 Dr.L.T.Ramani, who conducted the post-mortem on the body of the deceased, had found injuries 2 & 3 caused with sharp-edged weapon(s) to be sufficient in the ordinary course of nature to cause the death of 0m Parkash. Looking at the serious nature of injuries suffered by the deceased, Si K.L.Kalra Public Witness 18 should have got recorded the statement of the deceased which could be used as a dying declaration during seven days period deceased remained alive by a Magistrate and the prosecution has not furnished any explanation whatsoever why that course of action was not adopted. As a part of this submission it was further argued that the alleged dying declaration Ex.PW18/C was later on fabricated by Public Witness 18. Strong reliance was placed on Dalip Singh and Others Vs State of Punjab, Air 1979 Sc 1173, and Mohar Singh and Others Vs State of Punjab, 1981 Cr.L.J. 998: Observations made in the authority of Dalip Singh (supra) which are relevant read thus: “Although a dying declaration recorded by a Police Officer during the course of investigation is admissible under S.32 of the Evidence Act in view of the exception provided in sub-section (2) of Section 162 Criminal Procedure Code ., it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor. The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. This is not to suggest that such dying declarations are always untrustworthy, but, what has to be emphasized is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.”
(12) In the case of Mohar Singh (supra) alleged dying declaration giving detailed account of the occurrence made in a serious condition by the deceased was excluded from consideration on the ground of its not being attested either by the wife of the deceased or the doctor who were alleged to be present in the hospital at the time the same was recorded.
(13) EX.PW18/C was recorded by Public Witness 18 Si K.L.Kalra on May 25, 1985 while 0m Parkash expired on May 31, 1985 due to peritonIT is and shock consequent to the injuries to abdominal area as is evident from the deposition of Dr.L.T.Ramani Public Witness 17. Public Witness 18 could have got the statement of the deceased recorded by a Magistrate either immediately after he was declared fit for making statement on May 25, 1985 or during seven days period he remained alive instead of proceeding to record the statement Ex.PW18/C himself on May 25, 1985. A bare perusal of Ex.PW18/C goes to show that towards the end of that statement words “Aapne Mera Yeh Bayan Mere Pitaji Ke Samne Liya Hai” were recorded not at the time the rest of it was recorded by Public Witness 18. It is in the’ deposition of Public Witness 12 Kundan Lal, father of deceased, in whose presence the said statement Ex.PW18/C is stated to have been recorded by Public Witness 18, that at the time that statement was recorded the Nurses were sitting at one side While the Doctors were sitting in an improvised room having the glasses inside the Ward. However, Ex.PW18/C was not got attested by any of those Nurses or the Doctors present in the Ward, nor has it been even attested by PW12. Further endorsement Ex.PW16/B on the medico legal certificate Ex.W16/A of the deceased reflects that the deceased was declared fit for making statement by Dr.Abdul Saleem, who has not been examined, at 10.20 AM. In his deposition Public Witness 12 has given the time of recording of the statement by PW18 as 11.30 AM. There was, thus, a gap of more than an hour between the two. The prosecution has not led any evidence to show that in between that period of more than an hour the deceased continued to remain in a proper frame of mind so as to make a coherent statement. Evidence to that effect was all the more necessary as according to the admissions made by Dr.Bachan Singh Public Witness 2 deceased continued to be given blood and the glucose for 1-1/2 hours -till 11.30 Am implying thereby that the condition of the deceased was not normal at that time. Taking note of the law laid down in both the said authorities and the said discussion, alleged dying declaration Ex.PW18/C has to be excluded from consideration being unreliable.
(14) Coming to the other dying declaration, the same was alleged to have been made to Ramo Devi Public Witness 1 on her arrival at the place of occurrence immediately after she was informed about the injuries to the deceased by Narinder Singh Public Witness IO. It is in the crogs- examination of Public Witness I that at the time Public Witness 10 came to inform her, her mother and bhabi ( wife of the deceased) were present at the house and neither she told them to accompany her nor did they accompany her to the spot. Unless the relations are strained, a wife is always interested in the welfare other husband. There is no material on record to suggest that the deceased was not having cordial relations with his wife. Thus, it does not appeal to reason that the wife of the deceased on having come to know of the injuries to her husband through Public Witness Io would not rush to the spot alongwith Public Witness 1. Lone visit of Public Witness I to the place of occurrence as deposed to by her was thus not free from doubt. Reliability of the alleged oral dying declaration made to Public Witness 1 has also been challenged on yet another ground on behalf of the accused. The contention advanced by Shri Sandeep Sethi was that the names of the assailants were not known by the time Fir is purported to have been recorded and in support of that submission he invited our attention to the testimony of Asi Lal Chand Public Witness 13. Public Witness 13 was posted as a Duty Officer at Police Station Kingsway Camp from 11.40 Pm to 8 Am on May 24, 1985 and recorded the Fir (carbon copy Ex.PW13/A) on the basis of the statement Ex.PW1/A of Public Witness 1. In cross-examination he has admitted that after the registration of the case, an entry was made in the Daily Diary but there is no mention either of the names of the accused or the witnesses in that entry. In Mohd. Shaft Vs State, , it was held that failure to enter the substance of the offence in the Daily Diary Report is indicative of the fact that when the said entry was made, full facts in regard to occurrence were not known. In yet another case of Rakesh Aggarwal Vs State(Delhi Admn.), 1995 Jcc 420, it was observed by a Division Bench of this Court that if the names of the accused and the eye-witnesses are not mentioned in the Daily Diary it becomes difficult to place reliance on the statements of the prosecution witnesses that in fact they witnessed the occurrence. Obviously non-disclosure of the names of both the accused in the Daily Diary lends support to the above argument advanced by Shri Sethi in this behalf. Looking from both the said angles making of the oral dying declaration by the deceased to Public Witness 1 does not seem to be probable.
(15) From the said discussion it must follow that the prosecution has failed to bring home the guilt of the accused persons under Section 302/34 Indian Penal Code and the impugned judgment and the order, therefore, cannot be legally sustained.
(16) Lengthy arguments were advanced before us on behalf of accused Vinod Kumar that he is not known by the name of Jyoti. In view of the above conclusion arrived at by us this point need not be examined.
(17) Both the appeals are accepted and the impugned judgment and order are set aside. Appellants are acquitted of the charge under Section 302/34 IPC. Mukesh Kumar appellant who is in custody, is ordered to be released forthwith if his detention is not required in any other case.