Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.98 of 1990 =========================================================== Ramjeet Turha, son of Banai Sah, resident of village-Medhuka, P.S.-Baniapur, District-Saran. Versus .... .... Appellants. .... .... Respondent. The State of Bihar =========================================================== Appearance: : Mr. Mahesh Narayan Parbat, Advocate. For the Appellants For the State : Mr. Dilip Kumar Sinha, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA And HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 23-5-2013 1. Appellant Ramjit Turha along with one Girija Turha held guilty for an offence punishable under Section 302/34 of the Indian Penal Code and directed to undergo RI for life vide judgment dated 24-02-1990 passed by 5th Additional Sessions Judge, Saran at Chapra in Sessions Trial 142 of 1988, had preferred instant appeal, but during the pendency of this appeal Girija Turha had died as a result of which instant appeal now remains confined to the extent of interest of Ramjeet Turha alone. 2. The prosecution case in brief is that on 7.00 a.m. on 11.12.1986, Jamuna Sah (PW-7) had lodged First Information Report (Ext.-1) before Officer-in-charge of Baniapur P.S. alleging inter alia that in preceding evening on 10.12.1986 at about 07:00 P.M. while he was cooking fish and his wife Mahajani Turhin (PW.W.-9) was baking bread, in their house, the wife of one Sheo Pujan Pasi came and disclosed to him that his co-villager Ramjit Turha, son of Banait Sah and Girija Turha, son of Bhuwan Turha had caused injuries on the person of his son Motilal Turha and whereas Ramjit Turha had Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 2 caught hold of his son it was Girija Turha who had given blow to him by Chhura. The informant claimed that after receiving the aforesaid information regarding injury on his son he had immediately rushed to Darwaja of Sheo Pujan Pasi and found his son groaning in an injured condition in the field of Krishna Singh by the side of village road. According to the informant by that time some villagers had also assembled and seeing them appellant Ramjit Turha and Girija Turha (since dead) towards western direction. The informant had also claimed that his wife Mahajani Turha along with Pravesh Turha, Ramasharay Sah, Phulena Sah had reached over those and had seen his son Motilal Sah in injured condition. According to the informant his son Motilal had disclosed to them that it was appellant Ramjit Turha who had thrown his son on ground and Giija Sah to have Chhura blow. The informant had also stated that at about 11:00 P.M. his son had succumbed to his injuries and such occurrence had taken place at the Darwaja of Sheo Pujan Pasi. As per informant the old enmity was
Legal Reasoning
the cause of occurrence who had also stated in the FIR when his son Motilal had gone to the shop of Sheo Pujan Pasi to take toddy while returning from market such occurrence had taken place. He had further disclosed by seeking along with bucket and dead body is lying at the place of occurrence. 3. On the basis of the aforesaid First Information Report of PW- 7 Baniapur P.S. Case No. 159 of 1986 was registered and the police took up its investigation and after completing the same had submitted charge sheet and on the basis thereof trial had commenced and was concluded in a manner by the impugned judgment which happens to be the subject matter of this appeal. 4. The plea is defence of both the accused persons put on trial as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is one of their innocence as well as Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 3 complete denial of the occurrence. The defence however did not lead any evidence either by examining any defence witness or exhibiting any document on their behalf.
Legal Reasoning
5. Mr. Mahesh Narayan Parbat, learned counsel for the appellant while assailing impugned judgment has submitted the same is based upon conjecture and surmises primarily due to mechanical approach adopted by the trial court and the appreciation of evidence. On record is also bad both on fact and in law. 6. In this regard it has further been argued that there happens to be consistent evidence that informant along with his wife was informed by Pataso Devi the wife of Sheo Pujan Pasi but when Pataso Devi was examined as PW-11 she had turned hostile and had controverted the assertion of informant and his wife that she had ever gone to their place and / or had informed them with regard to assault made over person of deceased Motilal Sah by Girija Turha while appellant Ramjit Turha had caught hold of deceased Motilal Sah. In this background it has been submitted that the presence of informant with his wife at the spot and also their claim to be eye witness to the extent of dragging the deceased to the field of Krishna Singh does not appear to be probable and feasible. 7. In the same manner, learned Counsel for the appellant with regard to subsequent aspect of the prosecution case whereunder prosecution has developed theme of oral dying declaration has submitted that the same also is wholly unacceptable because there is complete inconsistency in the evidence of the PWs on that very score. It has further been submitted that whoever had been examined as prosecution witness were infact family member of the informant and their subsequent conduct gives a clear picture that they were not at all Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 4 present till the time deceased was alive. To support such plea, it has been submitted by Mr. Parbat that even when prosecution witnesses had disclosed their presence at the place of occurrence near about 07:00 P.M. they did not take any precautionary measure to shift the deceased to nearest clinic of the doctor which was situated only a mile away or to any Government Hospital and their sitting idle at the place of occurrence to till 11:00 P.M. till the deceased took his last breath is itself indicative of the fact that the prosecution witnesses had actually arrived at the place of occurrence after the death of deceased and then the name of both the accused persons including the sole appellant was dragged by inventing theory of oral dying declaration. 8. Mr. Parbat, learned counsel for the appellant having referred to the evident from the evidence of Chowkidar PW-8 Rameshwar Rai, who was allegedly informed by P.W.-9 Mahajani Turhin regarding murder of deceased had submitted that surprisingly no disclosure was made to him with regard to either oral dying declaration having made by Motilal Sah the deceased or appellant along with Girija Turha (since dead) to be author of the crime. He has further submitted that there is also inconsistency on this crucial aspect in the evidence of PW-10 Ramjee Singh, Dafadar when the same is read with evidence of PW-8 Rameshwar Rai, Chowkidar and thus the cumulative effect on analyzing the evidence of all the PWs would be that the claim of prosecution witness of the witness appellant along with Girija Turha dragging the deceased to the field of Krishana Singh as also the factum of oral dying declaration by the decease would not inspire confidence. 9. It has been also submitted by the Parbat that the I.O. PW-14 while inspecting the place of occurrence had not found marks of tumbling or dragging over there which would be sufficient to indicate the version of the Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 5 prosecution witnesses with regard to manner and/or place is itself shrouded in mystery. He has also referred to the nature of ante mortem injury found over the person of deceased by Dr. Sidheshwar Prasad, PW-5 which would give a clear cut impression that the person having sustained such kind of grievous injury on his person would not be able to speak and in turn would also rule out theory of his oral dying declaration. 10. Per contra, it has been submitted by the learned Additional Public Prosecutor that PW-11 turning hostile would not adversely affect the case of the prosecution because there happens to be consistent evidence of the other prosecution witnesses who had reached at the place of occurrence and had found Girija Turha (since dead) and the appellant Ramji Turha dragging Motilal Sah the deceased to the field of Krishana Singh who infact having seen them had fled away from there. The second limb of argument of learned A.P.P. happens to be with regard to genuineness of oral dying declaration and on that very score again it has been argued that the witnesses are consistent in disclosing the fact that on query, Motilal Sah the deceased had disclosed that he was caught hold by Ramjit Turha while Girija Turha had inflicted Chhura blow on his person. He has also explained that when the doctor was not cross examined on the mental condition of the deceased for showing that he having sustained such kind of injury was not able to speak the possibility of oral dying declaration of the deceased as consistently stated by almost all the witnesses can not be altogether ruled out. 11. Learned APP has also submitted that seizure of bicycle, bucket belonging to deceased from the place of PW-11 is itself suggestive of presence of deceased in the house of PW-11 who happens to be a toddy shopkeeper and coupled with the same the presence of blood at different places adjacent to each Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 6 other would also strengthen the prosecution version that deceased was lastly dumped in the field of Krishna Singh. Thus according to him the impugned judgment is based on facts and circumstances of the case and would not require our interference. 12. Before we would analyze the case of the prosecution in background of the aforesaid rival contention along with the evidence on the record it would be necessary to take stock of the evidence led by the prosecution which had examined 14 witnesses in all PW-1 Raj Narayan Singh is a formal witness. Similarly P.W.-2 Ishwari Paswan is also formal witness P.W.-3 happens to be Krishna Singh a witness of inquest as well as seizure but on material aspect he was declared hostile, P.W.-4 Ram Ayodhya Singh is again witness of inquest, P.W.-5 happens to be Dr. Sidheshwar Prasad who had conducted postmortem. P.W.-6 Ram Ashray Sah is the material witness, P.W.-7 Jamuna Sah is the informant, P.W.8 Rameshwar Rai is the village chowkidar, P.W.-9 Mahajani Turhin is the mother of deceased and wife of informant P.W.7, P.W.10 Ramjee Singh, Dafadar is a hearsay witness, PW-11 Pataso Devi has been declared hostile, P.W.12 Suresh Chandra Kaushal also in formal witness, PW-13 Phulena Sah is material witness and PW-14 Nagendra Prasad Singh is the Investigating Officer (I.O.). 13. The prosecution had also exhibited documents such as Exhibit-1, FIR, Exhibit-2 Series, seizure list, Exhibit-3 Series Signature of witnesses over inquest report, seizure list, Exhibit-4 postmortem report, Exhibit- 5 inquest report. The prosecution had also produced certain materials as material exhibit-1 cycle, II-Tokri, III-Taraju, IV to IV/2, Batkhara. 14. Though the defence had not examined any defence witness it had proved certified copy of chargesheet of Trial no. 265/1987 as Exhibit-'A'. Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 7 15. Having regard to the most crucial aspect of an oral dying declaration of the deceased this Court would at the outset examine the injuries on the person of the deceased. PW-5 had conducted postmortem over the dead body of deceased Motilal Sah on 11.12.1986 at 03:30 PM and found following ante mortem injury. “Sharp penetrating wound 4”x2” x abdominal cavity deep, on the front of the abdomen left side with protrusion of a loope of small intestine and omentum through the would with penetrating would on the small intestine at three places, each having of varying sizes varying from ¾” x ¼” x intestinal cavity deep to ½” x ¼” x intestinal cavity deep with collection of about one point of dark found blood in the abdominal cavity. The above injury was caused by sharp pointed weapon and is of grievous in nature. Death in my opinion is due to shock and haemorrageage on account of the injury described above. The time elapsed since death to the holding of p.m. examination is within 24 hours." 16. In the cross examination the doctor had said that the aforesaid injury. Time elapsed since death happens to be within 24 hours. During course examination the doctor had suggested that the aforesaid injury was caused by sharp pointed weapon and Bhala in a sharp pointed weapon. He had further said that Chura and knife ordinarily happens to be sharp cutting weapon and have one sharp side. Doctor had further opined that deceased might have died in the night of 10th / 11th December 1986. 17. In view of the medical evidence the time of occurrence is found to be itself probabilized by the defence itself but the use of weapon becomes doubtful inasmuch as it is the consistent case of the prosecution that injury over the deceased was caused by Chhura a sharp cutting weapon where as the doctor was specific that such injury was caused by sharp pointed weapon. 18. We however for the time being would not like to be swayed by this inconsistency in the use of weapon alone and would therefore proceed to Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 8 examine occular evidence. Both the informant Jamuna Sah P.W.7 as well as his wife PW-9 have categorically stated that on being informed by the wife of Sheo Pujan Pasi, namely, Pataso Devi (PW-11) with regard to assault by Girija Turha and Ramjit Turha over person of their son Motilal Sah (deceased) at her toddy shop they had rushed to the spot. PW-11 however during course of her examination-in-chief became hostile to prosecution and her attention was drawn in her cross examination to her previous statement made under Section 161 of the Cr.P.C. before P.W.14 Investigating Officer during course of investigation. However, the aforesaid theme was not at all placed before the Investigating Officer and in the aforesaid background her evidence in cross examination became worthless for want of follow up the proper procedure. The Apex Court had explained this very aspect relating to bringing of contradiction on record in the case Muthu Naicker and others Vs. State of Tamil Nadu reported in 1978 Cr.L.J. 1713 at para-52 wherein it was held as follows: “52. This is the most objectionable manner of using the police statement and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that from amongst those accused mentioned in examination-in-chief there were some whose names were not mentioned in the police statement and if the witness affirms this no further proof is necessary and if the witness denies or says that she does not remember, the investigation officer should have been questioned about it”. 19. Thus when the Investigating Officer in the present case was not even questioned about the previous statement of P.W.11 Bataso Devi, and she had categorically denied to have either gone to house of P.W.7 on informed him or his wife regarding the occurrence, the prosecution cannot look for any support from P.W.11 the hostile witness. 20. That would bring us to another significant aspect namely Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 9 source of identification inasmuch as the occurrence is of the month of December and the time of occurrence has been shown as 07:00 P.M. on 10-12-1986. PW-7 at the earliest occasion that means to say at the time of recording of FIR even at 7.00 am on 11.12.1986 had not disclosed about any source of identification. None of the other PWs have also disclosed the source of identification save and except PW-7 the informant himself in the court had disclosed that he had rushed with a torch and after reaching at the spot, he had flashed his torch and had seen the two accused Girija Turha and Ramjit Turha dragging deceased Motilal Sah to the field of Krishna Singh and they had left Motilal Sah on seeing the arrival of P.W.7 and others over there had fled away. During cross-examination in para-14 the attention of P.W.7 was drawn on this aspect and he had disclosed that he had narrated the same to the Darogaji (P.W.14) but it might be possible he would not have recorded the same but when attention of PW-14 I.O. was drawn towards the same in para-11 of his cross-examination he had categorically denied and had said that:- ^^xokg tEgw us esjs lkeus ,slk c;ku ugha fn;k fd mlds gkFk esa VkpZ FkkA mlus ,slk Hkh ugha dgk fd eksrhyky dks fxjhtk vkSj jkethr f?kfl;kdj ys tk jgk FkkA** 21. Not only this during course of investigation aforesaid torch was never produced before the Investigating Officer nor was it seized by the I.O. during course of investigation. In the aforesaid background as well as taking into account the exaggeration in the evidence on that very score amongst the evidence of PWs which has been confirmed by the PW-14 para-10 relating to witness Mahajani Turhin (PW-9), para-12 relating to witness Ramasharay Sah (PW-6), para-13 relating to Phulena Sah (PW-13) there appears to be of vital ommission so far it relates to identification of both the accused persons. 22. That would leave us to examine the theme of oral dying Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 10 declaration of the deceased. True it is that the factum of such oral dying declaration is found to be properly narrated by P.W.7 in the First Information Report which has been subsequently reiterated by the other prosecution witnesses namely PW-6, PW-9 and PW-13. The question therefore would be how far reliance could be placed over their testimony relating to the oral dying declaration? 23. PW-5 happens to be Dr. Sidheshwar Prasad who had conducted postmortem over the dead body of Motilal Sah. In his examination- in-chief, the prosecution, due to reason best known to it did not draw attention to the fact that whether after sustaining of such kind of serious injury in the abdomen of the deceased was he in a fit mental condition for at least half an hour which could have probabilized making of a dying declaration by him. In this regard it would be useful for us to refer to the judgment of Apex Court in the case of Waikhom Yaima Singh Vs. State of Manipur reported in 2011 Cr.L.J. 2673 wherein it was held as follows:- “15. There can be no dispute that dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary, and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a week kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW-12) was also not cross- examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement”. 24. True it is, that the presence of oral dying declaration is found to be visible from the FIR itself wherein the informant PW-7 had disclosed that Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 11 the deceased had named Ramjit Turha to be a person who threw him on ground and Girija Turha to have inflicted Chhura blow. The aforesaid theme is also supported with by other PWs. P.W.-6 had said that after being informed by wife of Sheo Pujan Pasi regarding his son Motilal Sah apprehended by Ramjit Turha and Chhura blow inflicted by Girija Turha, he along with informant and Phulena Sah had rushed to the spot where on query Motilal Sah had disclosed that Ramjit Turha had caught hold of him while Girija Turha had inflicted Chhura blow. In his cross-examination at para-11 he had disclosed that when he had near Motilal Sah no one except them (P.W.7, P.W.9 and P.W.13) and only later on the villagers had assembled but due to darkness he could not identify anyone of them. he had also said to have seen the Motilal Sah in the field of Krishna Singh after being dragged by the accused persons but he could not withstand after seeing the dead body of Motilal Sah and had returned back to his house. He had remained there only for ten minutes. This assertion of PW-6 is found to be contrary to the First Information Report as well as evidence of PW-7, the informant along with his wife and PW-13 on this score which in turn makes the oral dying declaration of the deceased doubtful because of his remaining at the spot only for ten minutes and further having seen the Motilal Sah already dead whereas all others had said that Motila had succumbed to his injuries some three to four hours of their reaching at the spot. 25. PW-7 had reiterated the same narration and had further disclosed that on query his son had disclosed that Ramjit Turha had caught hold him while Girija Turha had inflicted Chhura blow and at that very time Pravesh Turha (not examined), Phulena Sah (P.W.13), Ramashray Sah (P.W.6) and his wife P.W.9 came followed by others in para-4 he had further narrated that he began to search the Chowkidar, Dafadar and doctor and after two hours his son Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 12 had died. The same however as noted above happens to be inconsistent with the version of PW-6. In his cross-examination in para-13 he had clearly stated that he had himself inquired from Motilal Sah regarding his assault and at that point of time Ramashray Sah (P.W.6), Phulena Sah (P.W.13) and Pravesh Turha (Not examined) were present along with Sheo Pujan Pasi (not examined) who had arrived over thereafter 2 to 5 minutes of his arrival at the spot. He had also disclosed that Ramashray Sah (P.W.6), Phulena Sah (P.W.13) and Pravesh Turha (not examined) had inquired from his injured son some 10 to 15 minutes thereafter. This would seriously contradict the version of P.W.7 with regard to giving dying declaration of his son to the different persons at different point of time. 26. In this regard a fatal blow is given by P.W.8 is the Chowkidar who had disclosed that on the alleged date he was informed by P.W.9 the mother of deceased with regard to assault on his son and he came near house of Sheo Pujan Pasi where he had found Motilal Sah dead. He remained there while Dafadar had gone to P.S. At para-5 had disclosed that Motilal Sah had died before his arrival at the place of occurrence. Surprisingly P.W.8 though a village Chaukidar was not even informed by P.W.9 as with regard the name of accused persons or his so called dying declaration. 27. PW-9 is the mother of deceased and wife of PW-7 who had disclosed that on the alleged date and time of occurrence wife of Sheo Pujan Pasi came to her house and informed her husband that Ramjit Turha had caught hold of his son while Girija Turha stabbed him and hearing this she along with her husband Ramashray Sah, Phulena Sah and Pravesh Turha had gone to the house of Sheo Pujan Pasi and She had inquired from her son who disclosed to her that Ramjit Turha had caught hold him while Girija Turha had stabbed. Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 13 Thereafter, she had rushed to call Chowkidar and Chowkidar had come and thereafter Dafadar had come but after two hours her son died. In para-11 she had also disclosed that she had gone to call Chowkidar and returned back and after half an hour of arrival of Chaukidar her son had died. Then at para-12 there happens to be contradiction on that very score. Thus P.W.9 also cannot be relied on the story of dying declaration specially when not only the Chaukidar has denied to have seen the deceased alive when he had reached on the information given by P.W.9 but had also failed to give name of any assailant which was already known to P.W.9. 28. PW-10 happens to be the Dafadar who had disclosed that on the following morning the informant had come to him and requested him to accompany him to P.S. and had further disclosed to him that his son was murdered and during said course Ramjit Turha had caught hold and Girija Turha had assaulted. Thereafter he had deputed the Chowkidar to visit dead body while he had rushed to P.S. along with informant. The aforesaid theme happens to be the development as is evident from para-5 of his cross- examination and in any event he does not support the story of dying declaration. 29. PW-13 had deposed that on the alleged date and time of occurrence Pataso Devi wife of Sheo Pujan Pasi came to informant and disclosed that his son has been assaulted over which informant and his wife along with himself Ramashray Sah, Pravesh Turha had gone to the place of occurrence and had seen that Motilal Sah was in injured condition and was conscious. On query he had disclosed to P.W.13 that Ramjit Turha had caught hold him while Girija Turha had stabbed. In para-11 he had disclosed that when he reached at the place of occurrence he found Motilal Sah in pool of blood and he had stayed there for guarding the dead body and while he had kept vigil for Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 14 the whole night none except Chowkidar and Dafadar came over there. According to him Chowkidar had come only on following morning at about 08:00 AM. In para-12 there happens to be contradiction. This of P.W.13 is to be believed there happens to be a separate dying declaration given to him which does not fit in with the version of P.W.7 who had said P.W.13 with P.W.6 had arrived at the spot after him and all of them were told the name of assailants by his son after 15 minutes of their arrival. In that view of the matter P.W.13 by himself also cannot be relied in isolation. 30. P.W.14 happens to be the Investigating Officer. From his evidence para-10, para-11, para-12, para-14 the contradiction of different PWs is visible and there is hardly any support to the story of dying declaration of the deceased. 31. One thing is however very significant that all the aforesaid witnesses namely P.W.6, P.W.7, P.W.9 and P.W.13 have shown PW-11, Pataso Devi the source of their information on which they had rushed to the place of occurrence and further to have known names of assailant from his mouth, which however stood controverted by PW-11 and in the aforesaid background when the evidence of above referred witnesses are taken into consideration, the same also appears to be not above board on account of following reasons, namely:- a) PW-8 the Chowkidr had not deposed that he was ever informed by PW- 9, mother of deceased with regard to names of accused as well as manner of occurrence and so it happens to be a suspicious circumstance because of the fact that had the mother of deceased known to the names of assailants from the dying declaration of his son, it was expected of her to divulge the name to Chaukidar whom she had give to call and had also brought at the spot. Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 15 b) PW-9 had disclosed that deceased died after arrival of Chowkidar which PW-8 the Chaukidar had controverted. c) Presence of Chowkidar and Dafadar at one stroke of time has been shown by PW-13 but he has hastened to add that Chowkidar had arrived at following day at about 08:00 A.M. d) According to PW-6 he stayed only for ten minutes at the place of occurrence and had returned back to his house seeing the dead body of deceased Motilal Sah while PW-7 and PW-13 had controverted the same. e) P.W.10 the Dafadar had disclosed that informant had come to his place on the morning of following day and disclosed the names of assailant and then he came to place of occurrence deputed the Chowkidar but again said that Chowkidar was present since before and further this aspect is controverted by not only PW-8, rather by PW-13 as well. 32. On account of visibility the aforesaid improbability and inconsistency persisting amongst the evidence of the PWs and further having absence of medical evidence which could at least probabilised the deceased to be alive during such intervening period in a fit mental condition, would itself put a mark of interrogation over genuineness as well as authenticity of oral dying declaration. Specially when no one had disclosed the actual utterance of the deceased given to them separately in his different dying declaration. Subsequent conduct of the prosecution in not taking the deceased at least to Sahajidpur Bazar where there happens to be presence of doctor for treatment with a view to save his life and sitting idle at the place of so-called place of occurrence permitting the deceased to die, also appears to be of great importance and actually suggest that the death of deceased had already taken Patna High Court CR. APP (DB) No.98 of 1990 dt.07-01-2013 16 place before arrival of the witnesses or he had been unconscious before arrival of the witness and slipped away to death in the same condition. 33. Thus, after analyzing and scrutinizing the evidence available on the record, it looks unsafe to rely upon oral dying declaration as suggested by the prosecution. So far the other part of the prosecution case is concerned the same also cannot be believed both on account of exaggeration as also due to absence of any means of identification as disclosed by the prosecution witnesses themselves which in turn makes the situation abundantly clear creating serious doubt in the prosecution version. In the aforesaid background, the sole appellant is found to be entitled for at least the privilege of benefit of doubt. 34. Thus in the light of aforesaid discussion we have no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubt against the sole surviving appellant. The appeal is accordingly allowed and the impugned judgment of conviction and sentence recorded by the learned lower court is set aside. The Appellant is on bail, and he is accordingly now directed to be discharged from its liability. (Mihir Kumar Jha, J.) (Aditya Kumar Trivedi, J.) Dated 23rd day of May 2013 Patna High Court Prakash Narayan /A.F.R.