JUDGMENT AND ORDER :

Mohammad Rafiq, J.

This appeal seeks to challenge the judgment of the Court of Sessions, Kota dated 30.06.1988, whereby the accused-appellant Rafiq was convicted for offence u/s.302 IPC and sentenced to life imprisonment.

2. Facts of the case, shron off unnecessary details, are that a parcha bayan of Mohammad Rafiq @ Haddi (Ex.P17) was recorded by Ram Gopal (PW11), the Assistant Sub-Inspector of Police in Government Hospital, Kota at 9.30 pm on 16.04.1986, wherein he alleged that at 8.15 pm on that day, while he was reading a novel under the light of street pole at dusherra maidan, suddenly Rafiq S/o Abdul Mazid and his brothers Dabli and Altaf came there in an auto rickshaw. Rafiq was holding a jug full of acid. He came from the side of Rang Manch. After parking the auto rickshaw at some distance, Rafiq came from behind and poured the jug full of acid over him and then all three of them ran away. He while crying for help, ran towards Kishorpura wherefrom he was taken in an auto rickshaw to the hospital. The acid was poured over his head and whole of body. At that time, Buddha @ Bashir and Mittu @ Abdul Karim resident of Kishorpura, Kota were also present there, who had seen the incident. Since the acid had fallen in both his eyes, he could not mark signatures. The Assistant Sub-Inspector of Police, therefore, obtained his thumb impression.

3. On the basis of aforesaid parcha bayan, a regular first information report was chalked out for offence u/s.307 and 326 IPC and investigation commenced. Since condition of the injured was quite serious, his dying declaration (Ex.P12) was also recorded on the same day by the Executive Magistrate Shri Rameshwar Dayal Meena (PW8) at 10.45 pm. In the meantime, his statement under Section 161 Cr.P.C. (Ex.P20) was recorded by the Investigating Officer also on the same day. The injured Mohammad Rafiq succumbed to his injuries in the morning of 24.04.1986. Police then added the offence of Section 302 IPC to the FIR. Charge sheet against the accused was filed u/s.302 IPC and against co-accused Mohammad Rashid @ Dabli and Altaf Mohammad for offence u/s.302/34 IPC. The accused-appellant denied the charges and claimed to be tried. The prosecution produced 15 witnesses and exhibited 29 documents. However, the defence did not produce any witness, but exhibited four documents. The accused-appellant in his examination u/s.313 Cr.P.C. alleged false implication. The learned Court of Sessions on conclusion of the trial, acquitted co-accused Mohammad Rashid @ Dabli and Altaf Mohammad for the aforesaid charges, however, convicted the accused-appellant in the manner as indicated above. Hence this appeal.

4. Shri Ravi Kasliwal, learned counsel for the accused-appellant has argued that according to Abdul Karim (PW2), he gave telephonic information to Gumanpura Police Station immediately after the incident and the police reached the place of occurrence half an hour thereafter. Ram Gopal (PW11) , who recorded the parcha bayan (Ex.P17) on the basis of which FIR (Ex.P23) was registered, had also earlier recorded information in the rojnamcha at police chowky, Kishorpura, copy of which (rojnamcha) has not been produced on record and has been deliberately withheld. It was this information, which ought to be treated as first information report, rather than recording of the FIR on the basis of parcha bayan. Shiv Dutt Sharma (PW15) also admitted that he too on receiving such information reached the place of occurrence. No entry thereabout appears to have been made by him in the rojnamcha. It is thus evident that all these information’s were deliberately withheld so as to prevent the genesis of the incident coming on record. Therefore, an adverse inference should be drawn against the prosecution that had the rojnamcha been brought on record, it would have gone against it.

5. Shri Ravi Kasliwal argued that there are, in fact, three dying declarations in the present case. The first being the parcha bayan (Ex.P

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