IMPORTANT POINT
When there is a reasonable doubt as to the identity of the persons and the accused have not been linked clearly with the offence, the benefit of doubt has to be given to them.

JUDGMENT :

DEEPAK GUPTA, J.

1. An FIR (Ext.P17) was allegedly lodged by the victim Shyam with the Police Station Ujjain to the effect that he was working in the Malaria Department and on 17.10.1997 he was standing near his shanty behind Ashok Talkies. He was attacked by Rupa, Hari the Tempowala and the son of Nathu. These three people surrounded him and started beating him. They alleged that he had taken some money from them which he did not return, which he denied. Then Hari the Tempowala and the son of Nathu took out knives and both of them attacked him with knives on the left side near the spine on the back and below the ribs. The son of Nathu gave knife blows on the waist and two other places. In the meantime, Ramchander Dholi (PW-12) reached the spot. According to the informant, the occurrence was witnessed by his son and daughter, Kallu and Kallo.

2. On the basis of this oral complaint, initially a case was registered under Sections 341, 294, 323, 506, 307 read with 34 IPC but in the original FIR it appears that there is overwriting in respect of Section 307. The informant was taken to hospital where he was admitted. The bed head ticket (Ext.D1) shows that the informant was admitted in hospital on 18.10.1997 at about 12.30 a.m. The bed head ticket also shows that at about 1 am the condition of the Shyam was not good and he had presumably ingested some alcohol; he had multiple stabs on his back; his general condition was poor; his pulse was 60 beats per minute and his blood pressure was not recordable. His condition kept deteriorating and at 3.30 a.m. it is recorded that his general condition was poor and blood be arranged for transfusion and he died soon thereafter.

3. After his death, the FIR was converted to one of murder and Section 302 IPC was added. During the course of investigation, the weapons of offence were allegedly recovered from the accused and thereafter report under Section 173 Cr.P.C. was filed and the accused were put to trial. The accused pleaded not guilty and claimed trial. During the course of trial, all the material witnesses turned hostile. The son was not examined and from the record it is not forthcoming what is the reason for not examining him. The daughter who was examined was only a child witness, aged about 10 years and she did not support the prosecution at all. She has been cross-examined with her statement, recorded under Section 161 Cr.P.C. by the police, but in our view a 10 years old child cannot understand what is the effect of such contradiction and will never be able to explain them.

4. That leads us with the statement of the injured eye-witness Ramchander (PW-12). As far as the incident is concerned, he does not deny the incident. He does state that occurrence took place. He also states that in this occurrence he was attacked with a sword and that sword caused injuries to him running from the cheeks to eye. However, his statement is that immediately after the occurrence he and Shyam were taken to the hospital. Further, according to this witness, it was dark and he could not identify who had attacked him. He denied having given the names of the accused in the statement under Section 161 Cr.P.C.

5. The accused have been convicted by the Trial Court which conviction has been upheld by the High Court basically on two dying declarations. The first dying declaration being in the nature of the FIR and the second dying declaration being the statement of the deceased Shyam recorded under Section 161 Cr.P.C. by the Investigating Officer (PW-14).

6. We shall deal with the second dying declaration first and see what reliance can be placed in that. This so called dying declaration is Ext.P20 and it is a statement recorded by PW-14 under Section 161 Cr.P.C. It is stated to have been recorded on 18.10.1997 but the time of recording the same is not mentioned anywhere in the statement. This statement gives details of how the deceased allegedly told the investigating officer that he was attacked by the thre