JUDGMENT Malik Sharief-ud-Din, J.
(1) The appellant herein was convicted under Sections 30/34 Indian Penal Code and was sentenced to undergo imprisonment for life. He was also convicted under Section 25 of the Indian Arms Act and was also sentenced to 2 years rigorous imprisonment on this count. The orders of conviction and sentence are dated 11th of November 1986. The appellant has made a grievance against this order of conviction and sentence.
(2) At trial on Bharat and Lalit, alleged to be two more accomplices of the appellant, were also charged under Sections 302/34 Indian Penal Code but have been acquitted by the learned Additional Sessions Judge, though the case against., them also rested on the same set of facts and evidence. It was held in respect, of these two persons that the prosecution has failed to establish their involvement beyond reasonable doubt. Pursuant to an order of this court dated 8th of December 1936 the sentence of the appellant suspended and be is on bail ever since then.
(3) Stating briefly the facts are that on 28th of October 1982 at about 430 P.M. while the deceased Gulshan Kumar was returning on a rickshaw from Navin Shahdara, be was faced by the appellant and his two alleged accomplices who were coming his front on a motor cycle. They are said to have parked the motor cycle in front of the cycle rickshaw. The deceased Gulshan Kumar was frightened and in his attempt to get down from the rickshaw his part got entangled and.he fell down. It is alleged that at this, stage the appellant caught bold of the deceased from behind while Bharat fired a shot from a pistol but missed the target. The second shot fired by Bharat passed-by the ear of the appellant. It wai at this stage the appellant is Mated to have inflicted knife injuries on the deceased. The other two accused are also stated to have given knife injuries to the deceased. It is also alleged that the appellant thereafter took the pistol from Bharat and asked them to escape.
(4) Jagdish Lal, father of the deceased, who is a retired police officer wai informed about the injuries sustained by the deceased pursuant to which he came to the sence of the incident and, removed the deceased to Jpn Hospital. On the way, it is alleged, the deceased disclosed to his father that the appellant and his accomplices Bharat and Lalit had stabbed him and this was done because of the enmity the appellant had with him The deceased was admitted to the hospital at 5.30 P.M. where he died at 6.50 P.M. on the same day.
(5) The information of the incident was first transmitted to the police at 430 P.M. by some unknown person on telephone. It was in the nature of a quarrel going on at X/28, Navin Shahdara. Pursuant to this information S.I. Ram Sarup went to the scene where he came to know that the deceased had been removed ito the hospital by his father. On his way to hospital, he found appellant coming on motor cycle with one Darshan Lal on pillion seat. The appellant allegedly produced the pistol in which there Were 5 rounds out of which 2 had been fired. The appellant is said to have informed Ram Sarup S.I. that two shots had been fired at by Gulshan Kumar and on shot hit his car and that he after snatching the weapon from Gulshan Kumar was proceeding to police station to report the matter. The statement of the appellant was recorded and he was referred to the police hospital wherefrom he was referred to the Jpn hospital and had been provided police protection in the hospital for his safety. "We may notice that he was discharged from the hospital on 8th of November 1982 and was taken into custody on the 9th of November 1982.
(6) At 5.30 P.M. on 28th Oct. 1982, the duty constable at Jpn hospital is also stated to have given telephonic information to police station Shabdara that one Ashok Kumar has been admitted in injured condition by his father Jagdish Lal. This information, we may notice was in respect of Gulshan Kumar deceased. But it seems to us that his name was first given at Ashok Kumar which was subsequently corrected and substituted by Guishan Kumar. This, we say on the strength of the entries in the Mlc of Gulshan.Kumar deceased. On this information which is marked Ex.PW 4A an entry was made in the daily and a copy sent to S.I. Ram Sarup. S 1. Ram Sarup made an, endorsement marked Ex Public Witness . 19,/A where by he asked for,tbe registration of the case under Section 307 Indian Penal Code and also said that since the injured had been removed to operation theatre and no eye-witness was come across by him, the case maybe registered. This endorsement was dispatched at 6.5 P.M. on the same day. The statement of the appellant made before S.I. Ram Sarup was made the basis of another FI.R. 92/82 which has since been closed. It would appear from the record that no proper investigation was done in that case. On the arrest of the appellant he is stated to have made a disclosure statement pursuant to which the alleged weapon of offence, namely, knife was recovered. Bharat and Lalit, co-accused were arrested on 5th December 1982 and 21st January 1983 'respectively.
(7) Adverting to the merits of the case, 'we may at once point out that the injuries sustained by the deceased have been extensively noticed in the order under appeal and since these are not in dispute arid there is no controversy about the cause of the death, there is no .need for us to repeat the same. Suffice is to say that the deceased died consequent to 'these injuries. There is also no dispute about the appellant having sustained an injury. The only doubt is in respect of the fact whether the injury was sustained by the appellant due to a gun shot otherwise. The stand of the appellant is that he has been falsely implicated due to enmity and Jagdish Lal's testimony the only evidence in the case is false.
(8) At trial the prosecution had examined Public Witness 15 Ravinder Kumar, P.W. 16 Narinder Singh and Public Witness 17 Rajbir Singh as eye witnesses to support the prosecution case bus none of these have obliged the prosecution According to Ravinder Kumar (P.W. 15) when on 31st October 1982 he went to the police station, Rajbir, Narinder and Jagdish Lal Public Witnesses. also went to the police station in the evening and police told Rajbir, Narinder and Jagdish Lal lo write separately under their dictation and that his statement Ex Public Witness 15/A was also written by him in his own hand at the dictation of the public. Along with. all these three so-called eye witnesses were declared hostile, we believe, they arc not lying while slating that they did not witness the incident. This belief. of ours is strengthened by the judicial record. It may be noticed thai on 29th of October 1982 an application for bail was produced by the appellant before the court which was decided on 30th of October 1982. If is stated in the order of the court that the applicant is admitted to hospital and so far there is no evidence with the police. It was on this basis that' the anticipatory bail application for apprehended arrest was admitted.
(9) This clearly goes to show that the police did not know the facts nor 'was any eye witness available at least till 30th of October 1982 when this statement was made before the court. The mere ipse dixit of the investigating officer that court was informed of the statement of Jagdish Lal is of no consequence in view of this vital circumstance which is sanctified by the judicial record. This circumstance clearly lends support to the assertion of Public Witnesse, 15 Ravinder Kumar that it was only on 31st October 1982 that all these three eye witnesses were brought to the police station by Jagdish Lal and they were asked to write down dictated statements in their own hand. We are therefore, of the firm belief that their testimony is not in any way tainted.
(10) Having dearth wish the testimony of the alleged three eye Witnesses, we find that the entire case of the prosecution rests on the solitary testimony of Jagdish Lal, father of the deceased. According to him, on his way 10 hospital the deceased told him that the injuries were inflicted on him by the appellant and his accomplices Bharat and Lalit. We have therefore, to find out as to how tar this evidence tendered by Jagdish Lal is reliable and trustworthy. The evidence is in the native of dying declaration alleged to have been made by the deceased before hia father as to the circumstances in which he received the injuries resulting in his death. The question as to whether a conviction can be based on the uncorroborated testimony of Jagdish Lal will only arise thereafter. On the facts and circumstances of this case, we are, however, unable to place any reliance on the testimony of Jagdish Lal Public Witness 14 for the following reasons.
(11) It will be .recalled that the telephonic 'message by the duty constable (P W. 18) Constable Shailender Jha (No 551) from the hospital has gone at 5.30 P.M. to the police station. In the Mlc it is recorded that Jagdish Lal, father of the deceased, had brought him to hospital. In the first instance Mlc reveals that the name of the injured was written.as AshoK Kumar which was subsequently cut down and substituted by Gulshan Kumar. If Jagdish Lal were in know of the facts 'there was no reason for him not to disclose the same to the duty constable (P.W. 18) Shailender Jha. Jagdish Lal (P.W. 14) is an experienced retired, police officer and was very well aware of the significance of .this fact. But even then no details are given to the duty .constable nor does he tell him as to who were the offenders. That apart, Sub-Inspector Ram Sarup sends theendorsementEx. Public Witness 19/A from the hospital itself. There is not even an indication therein that P;W. 14 Jagdish Lal met him or disclosed any details about the incident. If Jagdish Lal had known the details he would have disclosed it to S I- Ram Sarup in the hospital itself at that very time. In that event, FIR. would be based on the statement of Jagdish Lal. Even on 29ih of October 1982 when Jagdish Lal makes a statement at the time of the inquest he does not disclose anything about the deceased having made any such dying declaration before him. It is in that , situation that the brief facts appended to the inquest papers are also .devoid of any details about the genesis and sequence of the events. This is so in spite of the fact that Jagdish Lal is a retired police officer and was sufficiently equipped with the knowledge and experience as to the significance of this lapse. .If the statement Ex. Public Witness 14/A of Jagdish Lal were really in existence on the day of the incident it would have, in that event, been made the basis of F.I.R. and the police would have informed the Court about its existence on 30th October 1982 when the bail application was dismissed by the Court. It would be seen that this statement Ex Public Witness 14/A was not on the court file. It was produced from the police file at the time of the trial in, the year 1984.' This statement is purported to have been written by Public Witness 24 S.I. Ram Sarup but it docs not bear his endorsement. The explanation given by Public Witness 24 Ram Sarup S.I. is that it is a copy. This explanation is not truthful as the statement bears the signatures of Jagdish Lal. Moreover, if it were a copy of the statement it could not have found its place back on the police file. Even P.W. 22 Inspector Badan Singh has categorically stated that Jagdish Lal (P.W. 14) did not disclose to him the names of the assailants and refused to do so even up to 29th of October 1982. Public Witness 24. S.I. Ram Sarup emphatically say that this statement of Jagdish Lal was produced only on 6th of December 1984. If this statement was in existence why, if we may so ask, did it not surface till then? The assertion of S.I. Ram Sarup (Public Witness . 24) that it was recorded on 28th of October 1982 is belted by the circumstances of this case. Even when Public Witness 25 Datta Ram Si took over the investigation he was not told by Jagdish Lal about, the deceased having made a dying declaration before him. This fact is.admitted by Public Witness 25 S.I. Datta Ram. Ah these facts in their totality furnish ample evidence for the belief that the dying declaration by the deceased alleged to " have' been made to Public Witness S 4 Jagdish Lal was not in existence? at all We may notice that in this case 'it was Jagdish Lal (P W 14), father of the deceased, who made an abortive attempt to create eye witnesses by bringing to the police station Public Witness s. 15, 16 and 17 on 30th of October 1982 72 and by making them to write down statements dictated by the police. These persons admittedly are friendly to Jagdish Lal in view of the admission of Jagdish Lal that he even stood surety for them at times.
(12) Mr. D.R. Sethi, learned counsel for the appellant, has expressed. his grave doubts about the fact of the deceased being taken to the hospital by Jagdish Lal (Public Witness . 15). This doubt is being expressed on the ground that as father of the 'deceased ' he would not have in the first instance named the deceased as Ashok Kumar who, in fact, is his another son. Another reason urged by ' Mr. Sethi is that Jagdish Lal would not have destroyed his blood stained clothes but would have produced the same before the investigating officer. Jagdish Lal admits that he destroyed his blood stained clothes. The reasons given for his belief by Mr. Sethi, in our view, cannot be lightly brushed aside even though Mlc mentions that .the deceased was brought by Jagdiah Lal. But since we find the testimony of Jagdish Lal (P.W. 14) not truthful and since there is no other legal evidence on record to connect the appellant with the commission of the crime we do not propose to go into the merits of these submissions. We may reiterate that two of the,co-accused Bharat and Lalk have been acquitted on this very evidence.
(13) The result is that we allow the appeal, set aside the conviction and sentence and acquit the appellant. His bail bonds shall stand discharged.