JUDGMENT S.D. Khare, J. - This is an appeal directed against an order dated 29-9-1964, passed by the learned Additional Sessions Judge, convicting Dhammo (appellant) under Section 302, I.P.C. and sentencing him to imprisonment for life. 2. Dhammo (appellant) is a resident of village Simor, police circle Aliganj, district Etah. The person who lost his life was Mohammad Ali, a resident of village Sarotia, which adjoins village Simor. 3. The prosecution case, briefly stated, was that on.24th March, 1964, at about 9 p.m.Mohammad"Ali (deceased) was going to his field to keep a watch over the wheat crop which was ready. On his way to the field he stayed at the field of Laukush for a short while and smoked tobacco there. He also took with him some leaves of pea crop and tied the same in his chadra so that he might be able to spread his chadra over those leaves while sleeping near his field. As he was proceeding towards his field two persons rushed towards. him. Apparently they mistook him for a thief as they said that he had stolen and was removing the wheat crop. Mohammad Ali (deceased) told them what his name was and that he was going to his field to sleep there for. the night. However, they assaulted him. In the moonlight Mohammad Ali could see the face of the person who was wielding a spear. He was Dhammo (appellant) . He could not identify the other person who was armed with a lathi. Dhammo (appellant) struck the first blow of the spear in the abdomen of Mohammad Ali. After receiving that injury Mohammad Ali turned back and tried to run away towards the abadi of the village. His assailants, however, chased him and one more spear blow was inflicted on his back. He also received one or two lathi blows. After having run for some distance Mohammad Ali fell down on the ground. The alarm raised by him attracted the attention of the villagers and also others who were guarding their fields nearby. The assailants made good their escape immediately after the arrival of three witnesses, namely, Jhannu, Dalsher (P.W. 6) and Laukush. According to the prosecution case, the witnesses named above had been able to reach the place of occurrence in time to see the occurrence. 4. The assailants made good their escape immediately after the arrival of three witnesses, namely, Jhannu, Dalsher (P.W. 6) and Laukush. According to the prosecution case, the witnesses named above had been able to reach the place of occurrence in time to see the occurrence. 4. The first information report of the occurrence was lodged by Hashtnat (P.W. 3) , the father of Mohammad Ali (deceased), the same night at 2.10 p.m. The distance between the place of occurrence and police station Aliganj, where the report was lodged is 32 miles. 5. Apparently there was considerable delay in lodging the first information report. The reason given by the informant himself in that report was that he could not leave his village earlier because Dhammo (appellant) and the non of his party kept on persuading him not to go to the police station to lodge the 'report. 6. There can be no doubt that the reason for delay as given in the first information Report was wholly incorrect. Hashmat (P.W. 3) in his statement before the court deposed that he took the injured first to his house and thereafter to the chaupal of Ram Sarup because one hour after the occurrence he had received information that the Thakurs of village Simor intended to remove the injured so that there may be no evidence of the crime. However, after he had reached the chaupal of Ram Sarup, Mohan Singh, the father of Dhammo (appellant) and other persons arrived and they wanted to strike at a compromise by saying that they were prepared to meet the expenses of the treatment of the injured. However, he did not agree to that suggestion and took the injured to the police station. Diwakar Sharma (P.W. 4) and All Bux (P.W. 9) give a lie to Hashmat. According to Diwakar Sharma (P.W. 4) there was no talk of compromise at the chaupal of Ram Sarup. He further stated that Mohan Singh, the father of the appellant, was not there and that some of the residents of the village Simor who had reached there were saying that when a person had been injured like that, the best thing would have been to remove him from the place of occurrence and the make him disappear. The statement made by Ali Bux (P.W. 9) does not show that the injured was at any time taken to the chaupal of Ram Sarup. The statement made by Ali Bux (P.W. 9) does not show that the injured was at any time taken to the chaupal of Ram Sarup. According to Ali Bux (P.W. 9) the injured was first taken to Nagla Ulfat, and from there to village Sarotia, and as soon as arrangement for a bullock cart could be made he was removed to the police station. 7. The result is that there is no satisfactory explanation for the delay made in lodging the first information report. 8. Sri Mulaim Singh, S.O.P.S. Aliganj, was present at the time the first information report was lodged. He atonce proceeded to the place of occurrence and made the usual investigation. He, however, could not find any blood either at the two places where the spear blows are alleged to have been inflicted or at the place where Mohammad Ali is alleged to have fallen on the g,round. 9. Mohammad Ali was examined by the investigating officer at 2.20 a.m. and his dying declaration was recorded by Sri Shri Ram, Tahsildar-Magistrate, at 4-15 a.m. the same night. In both these statements he nominated Dhammo (appellant) to be the person who had caused two spear injuries to him. 10. Mohammad All died in the hospital at about 12.30 p.m. on 25-3-1964. The postmortem examination on the dead body of Mohammad Ali was performed by Dr. V.D. Tewari, Civil Surgeon, Etah, on the same day at 5 p.m. In the opinion of the doctor the probable age of the deceased was 27 years. He was muscular and stout, and rigour merits was present all over the body. As a result of the external examination he noted the following three ante mortem injuries: 1. A stitched wound 4" leg long midline above the right below umbilicus right side, having eight silkon gun stitches. 2. Abrasion li" x -1?"x on the left side of back 3' above the left posterior superior iliac spine. 3. Punctured wound ' x ?" abdominal cavity deep over the right side of back near mid-line 6" above the right posterior superior iliac spine running forward and upward. Blood was present in the abdominal cavity. The stomach contained four ounces of digested food while both the large and small intestines contained fecal matter. There was a lacerated wound 3" x 1 " x liver substance deep on the posterior superior surface of the liver. Blood was present in the abdominal cavity. The stomach contained four ounces of digested food while both the large and small intestines contained fecal matter. There was a lacerated wound 3" x 1 " x liver substance deep on the posterior superior surface of the liver. In the opinion of the doctor, death was due to shock and hemorrhage as a result of injury to the liver. 11. The prosecution relied on the oral testimony of Dalsher (P.W. 6), who claimed to have witnessed the occurrence, on the dying declaration made by Mohammad Ali (deceased) and also on the extrajudicial confession made by Dhammo (appellant) . 12. The learned Additional Sessions Judge. Etah, did not place any reliance on Dalsher (P.W. 6) and the evidence of the extrajudicial confession. The result was that was only the evidence of the dying declaration - of oral dying declaration made to Hashmat and other prosecution witnesses, and then the statement made to the investigating officer, and finally the regular dying declaration recorded by the Tahsildar-Magistrate. Dhammo (appellant) had pleaded not guilty, and stated that he had been falsely implicated at the instance of Diwakar Sharma (P.W. 4) who was on inimical terms with him. No evidence was led in defer ice. 13. The learned Additional Sessions judge, after having considered the entire evidence on the record, arrived at the conclusion that there was no infirmity in the various dying declarations regarding which evidence was led by the prosecution, and all of them were consistent on the point that it was Dhammo (appellant) who had caused the spear injuries to Mohammad Ali. He, therefore, convicted and sentenced the appellant as mentioned earlier. The main point for consideration in this appeal is whether the dying declaration is such on which implicit reliance can be placed or that in the circumstances of the case it needed some independent corroboration. 14. The law on the point is very clear. Where there is no infirmity in the dying declaration, it alone can form the basis of conviction. 14. The law on the point is very clear. Where there is no infirmity in the dying declaration, it alone can form the basis of conviction. it was observed by the Supreme Court in the case of Khushal Rao v. State of Bombay, A.I.R. 1958 SC 22 : - "Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others even though not retracted. But in our opinion it is not right in principle to do so. Though under Section 133 of the Evidence Act it is not illegal to convict a person on the uncorroborated testimony of an accomplice illustration (b) to Section 114 of the Act, lays down as a rule of rule of prudence based on experience, the , accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot, be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver." 15. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver." 15. It was further observed (1) that it can-not he laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (2) that each case must be deter-mined on its own facts keeping in view the circumstances in which the dying declaration was made, (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence then other pieces of evidence, (4) that dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principle governing the weighing of evidence, (5) that a dying declaration which has been recorded by a competent Magistrate IL the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all infirmities of human memory and human character, and (6) that it order to test the reliability of a dying declaration the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example. whether there was sufficient light if the crime was committed at night. Whether the capacity of the man to remember facts stated, had nor been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making dying declaration apart from the final record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. The Supreme Court again observed' in the case of Thurukanni Pempiah v. State of Mysore, A.I.R. 1965 SC 939 that a truthful and reliable dying declaration may form the sole basis of conviction. The Supreme Court again observed' in the case of Thurukanni Pempiah v. State of Mysore, A.I.R. 1965 SC 939 that a truthful and reliable dying declaration may form the sole basis of conviction. It was observed - "A dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration." It has been contended by the learned counsel for the appellants that in the present case the dying declaration needed independent corroboration and inasmuch as there is no independent corroboration available the prosecution must fail. 16. According to the prosecution case the dying declaration was made by Mohammad Ali (deceased? at three stages - (1) oral dying declaration to Hashmat and others soon after the occurrence, and then at the chaupal of Ram Sarup, (2) the statement made to the investigating officer of 2.20 or 2.25 a.m. and (3) the dying declaration recorded by Sri Shri Ram, Tahsildar-Magistrate, Etah, the same night at 4.15 a.m. We first proceed to examine the dying declaration (Ex. Ka-3) recorded by the Tahsildar-Magistrate at 4.15 a.m. on 25th March, 1964. The relevant portion of the dying declaration reads as follows: - "I had reached up to the field of Kanauji Lai when I saw that in the field adjacent to that belonging to one Hakim of Simor about 15 persons were sitting and out of them four or five rushed towards me. When I had been surrounded by those 4 or 5 persons I told them that I was going to my field to sleep there. Just then one of them struck me with a spear and I received that injury on my stomach. When I had been surrounded by those 4 or 5 persons I told them that I was going to my field to sleep there. Just then one of them struck me with a spear and I received that injury on my stomach. I could recognise only the person who had struck me with a spear. He was Dhanimo and a son of Mohan Singh, resident of Simor. After receiving that spear injury I started running away. He struck me again with the spear while I was running away and I received the second spear injury on my back. One of his companions also caused an injury to me with a lathi. I had raised an alarm as soon as I had received the first spear injury. I fell down after receiving the second spear injury, but I had again started running and had reached the village. Those persons had chased me up to the village. On hearing the alarm the residents of the village arrived there and thereupon all the assailants ran away." Thus it is clear from the above dying declaration that the version set forth by the injured was that four or five persons, out of about 15 persons assembled in the field, had rushed towards him and had surrounded him, that two of them had caused injuries to him and had chased him up to the village and it was only on the arrival of other residents of the village that the assailants made their escape. 17. The dying declaration made to the investigating officer recorded by him at 2.25 a.m. the same night is more detailed. It however, does not mention that 15 persons were sitting in a field and out of them four or five had surrounded, chased and injured Mohammad Ali. All that was mentioned in the statement before the investigating officer was that only two persons out of whom one was Dhammo (appellant) armed with a spear had surrounded Mohammad Ali and the spear injuries was caused by Dhammo. It was further mentioned that before Mohammad All could reach the village and was still near the turn of the road leading towards the village he could not run away further and stopped, and at that moment he noticed that he was no longer being chased by any of his assailants. It was further mentioned that before Mohammad All could reach the village and was still near the turn of the road leading towards the village he could not run away further and stopped, and at that moment he noticed that he was no longer being chased by any of his assailants. If the two dying declaration made by Mohammad Ali, one to the investigating officer and the other before the Tahsildar Magistrate, are compared it will be seen that the only common statement contained in them was that injuries had been caused to him by two persons and that out of them he had been able to recognise one holding the spear to be Dhammo (appellant) . There is clear difference between the two statements with regard to other facts relating to the incident. In the oral dying declaration also it is dear both from the statement made by Hashmat (P.W. 3) and Sri Diwakar Sharma (P.W. 4) that Mohammad Ali had been able to recognise Dhammo (appellant) and had named him while relating the facts of the incident to the two witnesses named above. 18. It is clear from the prosecution evidence that although there was no direct enmity between Mohammad Ali (deceased) on the one hand and Dhammo (appellant) on the other, the prosecution witnesses, namely, Sri Diwakar Sharma and Dalsher (P. Ws. 4 and 6) were on inimical terms with him. It is clear from the statement made by Hashmat (P.W. 3) that things' ' started taking a definite shape only about one hour after the occurrence and after the arrival of Diwakar Sharma. It was then that he learnt that the Thakurs of village Simor were contemplating to remove the injured, and it was for that according to Hashmat (P.W. 3) the injured had to be removed to the chanpat of Ram Sarup. As observed earlier, the prosecution has not been able to give any satisfactory reason why there was delay in lodging the first information report. In the circumstances the probability that after discussion with the prosecution witnesses, particularly Diwakar Sharma and. Dalsher (P. Ws. 4 and 6) , the complainant began to suspect that Dhammo must have been the person who could have caused the spear injuries to Mohammad Ali and the nomination of Dhammo.was merely on the basis of suspicion after consultation with the prosecution witnesses cannot be ruled out. 19. Dalsher (P. Ws. 4 and 6) , the complainant began to suspect that Dhammo must have been the person who could have caused the spear injuries to Mohammad Ali and the nomination of Dhammo.was merely on the basis of suspicion after consultation with the prosecution witnesses cannot be ruled out. 19. Mohammad All (deceased) was in his senses at the time he was taken from the village to the police station. He could have heard the discussion which took place between the witnesses regarding the person who was likely to have launched the attack on him, and, therefore, the nomination of Dhammo (appellant) made by Mohammad All both before the investigating officer and the Tahsildar-Magistrate could be on the basis of that information which he might have believed to be true. 20. In our opinion the facts and circumstances of the present case are such in which independent corroboration of the facts contained in the dying declaration was essential. However such corroboration is not forthcoming. No blood could be recovered from the alleged place of occurrence. Out of the three eye-witnesses named in the first information report only one, namely, Dalsher (P.W. 6) was examined, and he too was disbelieved by the learned Additional Sessions Judge who gave very good reasons for doing so. Again. the learned Additional Sessions Judge, for good reasons, disbelieved the story set up by the prosecution witnesses that there had been an extra-judicial confession. The evidence of oral dying declaration made to the prosecution witnesses is, in the circumstances of the case, not at all reliable. 21. The appellant is, therefore, entitled to the benefit of doubt and acquittal 22. The appeal is allowed. The conviction and sentence of the appellant under Section 302, 1. P. C. are set aside. He is on bail. He need not surrender. His bail bounds ate discharged.