Anil And Another vs State Of Chhattisgarh
2022 Latest Caselaw 6700 Chatt

                                                              CRA-426-2012 & CRA-643-2015

                                           Page 1 of 15

                                                                                              NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                              Criminal Appeal No. 426 of 2012

1.      Anil, S/o Ramu Basor, aged about 20 years,
2.      Brijesh Kumar, S/o Kallu @ Sitaram Basor, aged about 25 years,
[Both R/o Dakaipara, Police Station Patna, District Koria (Chhattisgarh)]
                                                                                  ---- Appellants
                                              Versus
State     of    Chhattisgarh,         through      District     Magistrate,       District     Koria
(Chhattisgarh)
                                                                                ---- Respondent
------------------------------------------------------------------------------------------------------

For Appellants                   :       Mr. R.R. Naik, Advocate
For Respondent-State :                   Mr. Ishan Verma, Panel Lawyer

------------------------------------------------------------------------------------------------------

WITH Criminal Appeal No. 643 of 2015

Lallu Basore @ Amarshakti, Son of Ramu Basore, aged about 28 years, Resident of Dakaipara, Police Station Patna, District Koriya (Chhattisgarh)

---- Appellant Versus State of Chhattisgarh, through Police Station Patna, District Koriya, (Chhattisgarh)

---- Respondent

------------------------------------------------------------------------------------------------------

For Appellants                   :       Mr. R.R. Naik, Advocate
For Respondent-State :                   Mr. Ishan Verma, Panel Lawyer

------------------------------------------------------------------------------------------------------

DB: Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey

Judgment on Board (10.11.2022) Sanjay K. Agrawal, J

(1) Regard being had to the similitude of the questions of fact and law

involved; both these appeals are clubbed together being arising out of two CRA-426-2012 & CRA-643-2015

different judgments dated 16.03.2012 & 13.04.2015, but passed in common

Sessions Trial No.61 of 2011 (State of Chhattisgarh vs. Anil and 02 others),

by the Court of learned Additional Sessions Judge, Baikunthpur, District

Koria (C.G.) and on the joint request of learned counsel for the parties, same

are analogously heard and are decided by this common judgment.

(2) Criminal Appeal No. 426/2012 has been filed by the accused-

appellants, namely, Anil (A-1) and Brijesh Kumar (A-2) under Section 374(2)

of Cr.P.C. questioning their impugned judgment of conviction and order of

sentence dated 16.03.2012 passed by the learned trial Court in S.T.

No.61/2011, whereby they have been convicted and sentenced to undergo

as under:

      Conviction                                  Sentence
U/s. 302/34 of IPC           R.I. for life, with fine of Rs.5,000/- each and, in
                             default of fine, additional S.I. for 06 months
                             each.

(3) Criminal Appeal No.643 of 2015 has been filed by the accused-

appellant, namely, Lallu Basore @ Amarshakti (A-3) under Section 374(2) of

Cr.P.C. questioning his impugned judgment of conviction and order of

sentence dated 13.04.2015 passed by the learned trial Court in same S.T.

No.61/2011, as he was absconding and has been proceeded under Section

299 of CrPC, whereby he has been convicted and sentenced to undergo as

under:

      Conviction                                  Sentence
U/s. 302 of IPC              R.I. for life, with fine of Rs.5,000/- and, in default
                             of fine, additional S.I. for 06 months.

(4) The case of the prosecution, in brief, is that on 19.03.2011, at about

19:00 hours (07:00 PM), at Village Dakaipara in the house of Bimla Bai CRA-426-2012 & CRA-643-2015

(deceased) the accused persons, namely, Anil (A-1), Brijesh Kumar (A-2)

and Lallu (A-3), in furtherance of their common object/intention, poured

Kerosene oil on Bimla Bai and set her ablaze, due to which she suffered 62%

burn injuries and died during the course of treatment and, thereby, committed

offence under Section 302/34 of IPC.

(5) The further case of the prosecution, in nutshell, is that: three accused-

appellant, namely, Anil (A-1), Brijesh Kumar (A-2) and Lallu (A-3) were

neighbour to deceased- Bimla Bai and between them a long standing enmity

exists; on the date of incident, accused-appellants were throwing stones on

the house of the deceased- Bimla Bai, to which, deceased- Bimla Bai

objected and, in turn, accused- Lallu (A-3) poured kerosene oil on her from

the lamp kept with him and accused- Anil (A-1) set her ablaze by means of a

matchbox, due to which she suffered deep burn injuries; thereafter, upon

hearing shouting noise of deceased- Bimla Bai, her son- Rahul (PW-11) and

sister- Manisha (PW-12) came over spot and extinguish fire by means of

water; in the said incident, Gaytri Bai (PW-01) also came to the spot and tried

to intervene between the dispute, but Brijesh (A-2) assaulted her by means

of a wooden stick and, thereafter, on the same day i.e. on 19.03.2011, Bimla

Bai was taken to Police Station Patna, where at 21:15 hours (08:15 PM) she

lodged 'Dehati Nalishi' (Ex.P/18) by stating that accused- Lallu (A-3) poured

kerosene oil on her and Anil (A-1) set her ablaze by means of a matchbox

and Brijesh (A-2) assaulted her sister- Gaytri Bai (PW-01); on the basis of

said 'Dehati Nalishi' (Ex.P/18), FIR (Ex.P/19) was also registered by the

police of Police Station Patna at the instance of deceased- Bimla Bai against

all the accused-appellants for offence under Section 307/34 of IPC;

thereafter, on the same day i.e. on 19.03.2011, Bimla Bai was sent for CRA-426-2012 & CRA-643-2015

treatment to Ambikapur Mission Hospital, where at about 09:20/09:40 PM,

after having being certified to be in able condition to give dying declaration,

she gave dying declaration (Ex.P/11) to the Executive Magistrate/Tehsildar,

namely, Ashish Kumar Saxena (PW-10), in which names of all three

accused-appellants have been implicated; thereafter, on 30.03.2011 during

the course of treatment Bimla Bai died, pursuant to which, police registered

marg intimation (Ex.P/15) on 31.03.2011 at 14:30 hours (02:30 PM);

thereafter, the dead-body of deceased- Bimla Bai was sent for postmortem

examination, which was conducted by Dr. Shailendra Gupta (PW-13) who

gave its report (Ex.P/07) and opined that cause of death of deceased- Bimla

Bai is septicemic shock due to excessive burn injuries; further, from the place

of occurrence/spot matchbox, pieces of burned clothes and lamb (which was

used by the accused- Lallu to pour kerosene oil on deceased) were seized

vide Ex.P/02; accused-appellant Brijesh Kumar (A-2) was arrested vide Ex.P/

03 and from his possession a wooden stick is said to have been seized vide

Ex.P/03; however all these seized articles were not sent for FSL examination,

for the reasons best known to the prosecution; thereafter, statement of

witnesses were recorded and after due investigation, the police filed charge-

sheet in the Court of Chief Judicial Magistrate, Baikunthpur (CG) and,

thereafter, the case was committed to the Court of Sessions for hearing and

disposal in accordance with law. The accused persons abjured their guilt and

entered into defence.

(6) The prosecution in order to prove its case examined as many as 16

witnesses and exhibited 23 documents whereas, on the other hand, accused

persons not examined any witnesses, but exhibited 03 documents (Ex.D/01

to Ex.D/03) in support of their defence.

CRA-426-2012 & CRA-643-2015

(7) The learned trial Court after appreciating the oral and documentary

evidence available on record proceeded to convict accused persons, namely,

Anil (A-1) and Brijesh (A-2) for offence under Section 302/34 of IPC and

sentenced them as mentioned hereinabove vide judgment dated 16.03.2012

and accused person, namely, Lallu Basore @ Amarshakti (A-3) has been

convicted for offence under Section 302 of IPC and sentenced him as

mentioned hereinabove by a separate judgment dated 13.04.2015, as he

was absconding and has been proceeded under Section 299 of CrPC,

against which these 02 criminal appeals have been preferred questioning the

aforesaid impugned judgments of conviction and orders of sentence dated

16.03.2012 & 13.04.2015.

(8) Mr. R.R. Naik, learned counsel appearing for the accused-appellants

submits that the learned trial Court is absolutely unjustified in convicting the

appellants for the offence under Section 302 of IPC, as the prosecution has

failed to prove the offence beyond reasonable doubt. The learned trial Court

has committed grave legal error in accepting the dying declaration (Ex.P/11)

given by deceased-Bimla Bai, as the same has not been proved in

accordance with law, it inspires no confidence and it seems that deceased-

Bimal Bai was tutored to give said dying declaration by her son- Rahul (PW-

11). He further submits that in 'Dehati Nalishi' (Ex.P/18) and FIR (Ex.P/19),

which have been lodged by deceased- Bimla Bai herself, names of accused-

Anil (A-1) and Lallu (A-3) have only been implicated as authors of the crime,

whereas role of accused- Brijesh (A-2) is only that of assaulting her sister,

namely, Gaytri Bai (PW-01), but in the dying declaration (Ex.P/11), which was

recorded consequently, deceased- Bimal Bai implicated all the accused

persons, including Brijesh (A-2) as author of crime unnecessary, which goes CRA-426-2012 & CRA-643-2015

down to indicate that the dying declaration (Ex.P/11) suffers from

manipulation and smells of concoction. Hence, both the appeals filed by

accused persons herein deserve to be allowed and the accused-appellants

are liable to be acquitted.

(10) Per-contra, Mr. Ishan Verma, learned State counsel supported the

impugned judgments of conviction and orders of sentence and submits that

the prosecution has proved the offence beyond reasonable doubt by leading

evidence of clinching nature. The learned trial Court has rightly convicted the

appellants for aforementioned offence, as the dying declaration (Ex.P/11)

given by deceased- Bimal Bai inspires confidence and has been duly proved

and, as such, both the appeals filed by the accused-appellants deserve to be

dismissed.

(11) We have heard learned counsel for the parties, considered their rival

submissions made herein-above and went through the records with utmost

circumspection.

(12) In the instant case, it is the case of the prosecution that: accused-

appellants and deceased- Bimla Bai were neighbours and between them a

long standing enmity exists; on the date of incident, the accused-appellants

were throwing stones on the house of the deceased- Bimal Bai, which was

objected by her, pursuant to which accused-appellants trespassed her house

and ensued a dispute, whereby accused- Lallu (A-3) took out kerosene oil

from a lamp which was kept nearby and poured on the body of the

deceased- Bimla Bai and accused- Anil (A-1) set her ablaze by means of

matchbox, due to which deceased- Bimla Bai suffered deep burn injuries;

thereafter, on hearing shouting noise of deceased, her son- Rahul (PW-11),

sisters- Manisha (PW-12) and Gaytri (PW-01) came over the spot and when CRA-426-2012 & CRA-643-2015

Gaytri Bai (PW-01) tried to stop the dispute, Brijesh (A-2) assaulted her by

means of wooden stick; thereafter, Bimla Bai was taken to Police Station

Patna, where at 21:15 hours (08:15 PM) she lodged 'Dehati Nalishi'

(Ex.P/18) by stating that accused- Lallu (A-3) poured kerosene oil on her, Anil

(A-1) set her ablaze by means of a matchbox and Brijesh (A-2) assaulted her

sister-Gaytri Bai (PW-01), which 'Dehati Nalishi' (Ex.P/18) has been duly

proved by O.P. Kujur (PW-14); thereafter, in same terms/words and at the

instance of deceased- Bimla Bai, FIR (Ex.P/19) was also registered against

all the three accused-appellants herein for offence under Section 307/34 of

IPC, which is also duly proved by O.P. Kujur (PW-14). Thereafter, deceased-

Bimla Bai was taken to hospital for treatment, where after having being

certified to be in able condition to give dying declaration, she gave dying

declaration (Ex.P/11) on the same day at about 9:20/9:40 PM to the

Tehsildar, namely, Ashish Kumar Saxena (PW-10), in which she stated that

all the accused-appellants trespassed her house, poured kerosene oil and

set her ablaze vis-a-vis the names of all three accused-appellant have been

implicated. As such, Dehati Nalishi (Ex.P/18) and FIR (Ex.P/19), which have

been lodged at the instance of the deceased- Bimla Bai, both have to be

treated as dying declaration in view of Section 32 (1) of the Indian Evidence

Act, 1872. The only difference in both the dying declarations is that: in first

dying declaration [i.e. Dehati Nalishi (Ex.P/18) and FIR (Ex.P/19)] deceased-

Bimla Bai implicated the names of only Anil (A-1) and Lallu (A-3) as author of

the crime and the only role played by accused- Brijesh (A-2) is that he

assaulted Gaytri Bai (PW-01) by means of wooden stick, but in the

subsequent dying declaration (Ex.P/11), deceased- Bimla Bai implicated the

names of all the three accused-appellants as authors of the crime by stating CRA-426-2012 & CRA-643-2015

that all the accused-appellants trespassed her house, poured kerosene oil

and set her ablaze.

(13) At this stage, it is appropriate to notice Section 32(1) of the Indian

Evidence Act, 1872, which reads thus:

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--

(1) when it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

xxx xxx xxx"

(14) The general ground of admissibility of the evidence mentioned in

Section 32(1) is that in the matter in question, no better evidence is to

be had. The provisions in Section 32(1) constitute further exceptions to

the rule which exclude hearsay. As a general rule, oral evidence must

be direct (Section 60). The eight clauses of Section 32 may be

regarded as exceptions to it, which are mainly based on two

conditions: a necessity for the evidence and a circumstantial guarantee

of trustworthiness. Hearsay is excluded because it is considered not

sufficiently trustworthy. It is rejected because it lacks the sanction of

the tests applied to admissible evidence, namely, the oath and cross-

examination. But where there are special circumstances which gives a CRA-426-2012 & CRA-643-2015

guarantee of trustworthiness to the testimony, it is admitted even

though it comes from a second-hand source. The Supreme Court

emphasized on the principle enumerated in the famous legal maxim of

the Law of Evidence, i.e., nemo moriturus praesumitur mentire which

means a man will not meet his Maker with a lie in his mouth. Our

Indian Law also recognizes this fact that "a dying man seldom lies" or

in other words "truth sits upon the lips of a dying man". The relevance

or this very fact, is an exception to the rule of hearsay evidence.

(15) Section 32(1) of the Evidence Act is famously referred to as the

"dying declaration" section, although the said phrase itself does not

find mention under the Evidence Act. Their Lordships of the Supreme

Court have considered the scope and ambit of Section 32 of the

Evidence Act, particularly, Section 32(1) on various occasions

including in the matter of Sharad Birdhichand Sarda v. State of

Maharashtra1 in which their Lordships have summarised the principles

enumerated in Section 32(1) of the Evidence Act, including relating to

"circumstances of the transaction":

"21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:-

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed 1 (1984) 4 SCC 116 CRA-426-2012 & CRA-643-2015

and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."

(16) In the matter of Purshottam Chopra and another v. State CRA-426-2012 & CRA-643-2015

(Government of NCT of Delhi)2, principles relating to recording of

dying declaration and its admissibility and reliability were summed up

in paragraph 21 as under: -

"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the

2 (2020) 11 SCC 489 CRA-426-2012 & CRA-643-2015

credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

(17) Where several dying declarations are made the test is whether the

version of the deceased is proved to be false in respect of the integral part of

the case. A dying declaration should satisfy all the necessary tests and one

such important test is that if there are more than one dying declarations they

should be consistent particularly in material particulars [See: Kamla vs.

State of Punjab3].

(18) In the matter of Mohanlal Gangaram Gehani vs. State of

Maharashtra4 their Lordships of Supreme Court held that where are more

than one statement in the nature of dying declaration made by the accused,

one first in time must be preferred.

(19) In a recent judgment rendered by their Lordships of Supreme Court in

the case of Makhan Singh vs. State of Haryana 5 while considering the

issue of multiple dying declaration has held as under:

"9. It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case 3 (1993) 1 SCC 1 4 AIR 1982 SC 839 5 AIR 2022 SC 3793 : 2022 SCC Online SC 1019 CRA-426-2012 & CRA-643-2015

there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance..

*** *** *** ***

20. We therefore find that in the facts and circumstances of the present case, the first dying declaration (Ex. DO/C) will have to be considered to be more reliable and trustworthy as against the second one (Ex. PE). In any case, the benefit of doubt which has been given to the other accused by the trial court, ought to have been equally given to the present appellant when the evidence was totally identical against all the three accused."

(20) Reverting to the facts of the present case in light of principle of law laid

down in aforementioned cases, it is quite vivid that the first dying declaration

which was made by the deceased- Bimla Bai is 'Dehati Nalishi' (Ex.P/18) on

19.03.2011 at 21:15 hours (08:15 PM) by stating that accused- Lallu (A-3)

poured kerosene oil on her and Anil (A-1) set her ablaze by means of a

matchbox, due to which she suffered deep burn injuries and Brijesh (A-2)

assaulted her sister-Gaytri Bai (PW-01), which incident has also been

mentioned in the FIR (Ex.P/19), lodged at the instance of deceased- Bimla

Bai, duly proved by O.P. Kujur (PW-14). O.P. Kujur (PW-14) was also

subjected to cross-examination, but nothing has been brought out with

regard to the credibility of said dying declaration [i.e. Dehati Nalishi (Ex.P/18)

and FIR (Ex.P/19)] as the same are not voluntary and suspicious document.

Further, Gaytri Bai (PW-01) has also corroborated the fact that Brijesh (A-2)

has assaulted her by means of 'danda'. Moreover, from the possession of

Brijesh (A-2) a wooden stick (danda) has also been recovered vide Ex.P/03,

which is duly proved by Ashish Kumar (PW-04) and, as such, the first dying

declaration ([i.e. Dehati Nalishi (Ex.P/18) and FIR (Ex.P/19)] made by the

deceased, which is under Section 32(1) of the Indian Evidence Act, 1872, CRA-426-2012 & CRA-643-2015

deceased- Bimla Bai has not named accused-appellant Brijesh (A-2) as

author of the crime, because his intention was only to assault Gaytri Bai

(PW-01) and was not sharing common intention to cause death of deceased-

Bimla Bai with other accused persons. The said fact that Brijesh (A-2)

assaulted Gyatri Bai (PW-01) has not only been proved by the first dying

declaration, but has also been proved by the statement of Gyatri Bai (PW-

01). Further, Rahul (PW-11) who is son of deceased- Bimla Bai, in Para-04 of

his statement before the Court has clearly stated that accused-appellant

Brijesh (A-2) was standing outside the house and has only assaulted Gaytri

Bai (PW-01). Thus, the presence and intention of accused- Brijesh (A-2) to

cause death of deceased- Bimla Bai with other two accused persons,

namely, Anil (A-1) and Lallu (A-3) is not established. Therefore, the

involvement of accused- Brijesh (A-2) with the aid of Section 34 of IPC is not

proved beyond reasonable doubt in the instant case. However, in subsequent

dying declaration (Ex.P/11), deceased- Bimla Bai, on the same day at about

9:20/9:40 PM, in presence of Dr. R.R. Gajabhaiye (PW-16) and after having

being certified to be in able condition to give dying declaration, stated before

the Tehsildar (PW-10) that all the accused-appellants trespassed her house,

poured kerosene oil and set her ablaze vis-a-vis the names of all three

accused-appellant have been implicated. Dr. R.R. Gajabhaiye (PW-16) was

subjected to cross-examination, but nothing has been elicited to hold that the

said second dying declaration (Ex.P/11) is not trustworthy.

(21) Out of two dying declarations, in one which is in shape of Dehati

Nalishi (Ex.P/18) and FIR (Ex.P/19), the name of accused-appellant Brijesh

(A-2) has not been implicated by the deceased, but in both the dying

declarations [i.e. one in the shape of Dehati Nalishi (Ex.P/18) and FIR (Ex.P/ CRA-426-2012 & CRA-643-2015

19) and another recorded vide Ex.P/13] the role played by the remaining two

accused-appellants i.e. Anil (A-1) and Lallu (A-3) have been clearly and

consistently stated by the deceased, which dying declarations have duly

been proved by examination of prosecution witnesses, therefore, they seem

to be reliable and trustworthy and inspire confidence as regards role played

by two accused-appellants i.e. Anil (A-1) and Lallu (A-3).

(22) In that view of the matter, in our considered opinion the learned trial

Court is absolutely unjustified in convicting the accused-appellant Brijesh (A-

2) for offence under Section 302/34 of IPC and justified in convicting

accused-appellants Anil (A-1) and Lallu (A-3) for offence under Section

302/34 of IPC. Accordingly, the appeal filed by accused-appellants Anil (A-1)

and Lallu (A-3) are hereby dismissed. Their conviction and sentence

awarded by the learned trial Court are hereby affirmed. Similarly, The

conviction and sentence of accused-appellant Brijesh (A-2) under Section

302/34 of IPC, passed by the learned trial Court is hereby set aside. Criminal

Appeal No.426 of 2012 so far as it relates of accused- Brijesh (A-2) stands

allowed. Accused-appellant Brijesh (A-2) be released from jail forthwith if his

detention is not required in any other matter/case.

(23) Accordingly, both the criminal appeals stand disposed of to the extent

indicated herein above.

                   Sd/-                                              Sd/-
            (Sanjay K. Agrawal)                              (Rakesh Mohan Pandey)
                  Judge                                            Judge
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