JUDGMENT Surajbhan, J.- 1. This is an appeal by Ishwarprashad, son of Lalluprashad of village Acholi, district Durg, who has been convicted by the learned Additional Sessions Judge, Durg, under section 302 of the Penal Code, for the murder of one Tantu, in the mid-night between 15-3-1965 and 16-3-65, at village Acholi, and sentenced to imprisonment for life. The other co-accused Mahabir, who was also prosecuted for the offence under section 302 read with section 34 of the Penal Code, has been acquitted, while the remaining co-accused Sitaram and others have been absconding. 2. Briefly stated, the facts of the prosecution case were, that relations between Jhumak anus Jhumaklal and his son Meghashyam (P. W. 1), both of village Acholi, were strained with Sitaram as also his son Surendra, both absconding accused, for sometime past; Ishwarprashad accused, was serving with Sitaram and Tantu accused with Jhumaklal, at the relevant time, and it is alleged that accused Ishwarprashad, accompanied by Mahabirprashad accused (since acquitted) and four others who are absconding, had gone to village Acholi with a view to kill Jhumaklal, but there, they found Tantu deceased sleeping in his house, which was under construction at that time. Tantu got awakened as the dog barked and the accused having known that Tantu had recognized them, inflicted a number of injuries on him in order to eliminate the chance of his divulging the fact to Jhumaklal. Tantu was so severely injured that he succumbed to his injuries soon. A report of the incident was made to the police by Meghashyam (P. W. 1), vide Ex. P-l, about an hour after the incident, and the police, after the usual inquest and necessary investigation in the case, prosecuted the accused appellant and Mahabir for the offence under section 302 read with section 34 of the Penal Code, but the accused was convicted under section 302 of the Penal Code while Mahabir was acquitted. 3. At the trial, the accused appellant had pleaded not guilty to the charge against him, and his defence was that he had been falsely implicated. 4. The fact of homicidal death of Tantu is amply proved by the evidence of Meghashyam (P. W. 1), Navinchand (P. W. 4) and others and Dr. Jain (P. W. 6), who had performed the post-mortem on the dead-body of the deceased. 4. The fact of homicidal death of Tantu is amply proved by the evidence of Meghashyam (P. W. 1), Navinchand (P. W. 4) and others and Dr. Jain (P. W. 6), who had performed the post-mortem on the dead-body of the deceased. On the post-mortem, the doctor found on the dead-body as many as 11 ante-mortem injuries of various dimensions as detailed in his postmortem report Ex. P-4, and in his opinion, injuries 2, 3, 4 and 11 were grievous, while the rest of the injuries were simple. On internal examination he also found that the 11th rib was fractured corresponding to injury No.4; there were tears in the liver at 3 places corresponding to injuries 2, 3, and 4, and in his opinion, all these injuries were sufficient to cause death, and the said injuries could be caused by a sharp cutting weapon like a knife or a sword, and the death was due to shock and haemorrhage on account of the multiple injuries received by the deceased. 5. The prosecution case rests mainly on the oral dying declaration alleged to have been made by the deceased, and the learned judge, relying on the testimony of Meghashyam (P. W. 1), Nawinchand (P. W. 4) and Ramdayal (P. W. 8), convicted the accused for murder as aforesaid. 6. Shri Khaskalam, the learned counsel for the appellant, has taken us through the evidence of those prosecution witnessess, mentioned above, who have deposed as regards the dying declaration said to have been made by the deceased and contended that it is not clear from their statements as to what were the exact words spoken by the deceased, and further, that the record of their statements has not been made intelligently and consequently their statements do not inspire confidence, and the conviction of the accused-appellant should not have been based on such a dying declaration alone. 7. Shri Tamaskar, the learned Government advocate, on behalf of the State, on the other hand, urged that though the statements of these witnesses recorded by the learned Judge are not in third person, but so far as the name of the accused-appellant is concerned, he was named as the assailant by the deceased after the occurrence, and as his name was clearly mentioned by the deceased, a conviction can be based on a dying declaration of this nature. In support of his contention, he has cited the rulings in Khusnal Rao Vs. State of Bombay, AIR 1958 SC 22 and Thurukanni Pampiah and another Vs. State of Mysore AIR 1965 SC 939 . 8. Having heard the learned counsel on both sides and after giving our careful consideration to the contentions raised before us, we are of the view that it would not be safe to convict the appellant merely on the basis of the oral dying declaration as recorded in this case when viewed in the light of other circumstances. 9. Section 32 of the Evidence Act has been enacted as an Exception to 'hearsay rule', and according to this section, any statement, whether written or verbal, 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, is relevant and material in the case in which the cause of that person's death comes into question. The Supreme Court, in Ram Nath Madhoprasad and others Vs. State of '''ad1va Pradesh [3], has observed that in a case of dying declaration what is of importance is the exact words that may have been spoken by the deceased. If from the evidence of the witnessess it cannot be clearly established as to what the words spoken by the deceased actually were, the evidence as to the dying declaration must be excluded from consideration. It was also held that in the absence of any independent corroboration, conviction for murder cannot be sustained when it rests purely upon the dying declaration of the deceased. In Khushal Rao Vs. It was also held that in the absence of any independent corroboration, conviction for murder cannot be sustained when it rests purely upon the dying declaration of the deceased. In Khushal Rao Vs. State of Bomhay (supra), in paragraphs 16 and 17, at pp 28 and 29, of the judgment, the Supreme Court, after reviewing all the relevant provisions of the Evidence Act, has observed as under:- "On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sale basis of conviction unless It is corroborated; (2) that each case must be determined 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 than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in 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 the infirmities of human memory and human character, and (6) that in 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 the facts stated, had not 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 a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case." Again in Thurukanni Pompiah and another Vs. Slate of Mysore AIR 1965 SC 939 , it has been observed as follows:- "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 through it is not corroborated. But the Court must be satisfied that the declaration is truthful. Slate of Mysore AIR 1965 SC 939 , it has been observed as follows:- "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 through 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 acccl5ed on the basis of the declaration alone without further corroboration," 10. Now we proceed to consider in the light of the law laid down by the Supreme Court, whether what Meghashyam (P. W. 1), Nawinchand (P. W. 4) and Ramdayal (P. W. 8) have deposed regarding the alleged dying declaration of the deceased is reliable and truthful and the other wise. 11. It is in the evidence that relations between Sitaram, who was a Malguzar of village Acholi (an absconding accused) and Jhumaklal of the same village, were strained. Meghashyam (P. W. 1) is the son of Jhumaklal. Jhumaklal is said to have been present at the time when the deceased is said to have made the dying declaration, but he has not been examined as a prosecution witness. Meghashyam (P. W. 1) is the son of Jhumaklal. Jhumaklal is said to have been present at the time when the deceased is said to have made the dying declaration, but he has not been examined as a prosecution witness. His son, Meghashyam (P. W. 1) has deposed as under:- ^^rkarw us ;g crk;k fd xqUMk rqEgkjs ?kj esa rqe yksxksa dks ekjus vk;s FksA dqRrs ds HkkSadus ls tks yksx rkarw ds ?kj dh rjQ HkkxsA brus esa rkarw tx x;k vkSj mls mu pkjksa xqaMksa us ?ksj fy;kA dqRrs dh vkokt twrs dh vkokt lqudj [kM+k gks x;kA mlus crk;k fd eSusa tks pkj O;fDr ?ksjs Fks muesa ls cM+s bZ’oj dks igpku fy;kA rkarw us crk;k fd mlus cM+s bZ’oj ls iwNk fd dgka vk;s gks egjkt] rks bZ’oj us dgk fd blus eq>s igpku fy;kA lqcg >qedh mQZ lqylqd xkSfV;k dks crk;sxkA blds igys bls dkV nsA brus esa bZo’j us ,slk gddj pDdw ls ,d okj fd;kA rkarw us bZo’j ds iSj idM+ fy;s vkSj dgk er ekj esa fdlh dks ugha crkÅaxkA In para 9 of his deposition he has further stated that Tantu did not tell of his own accord as to who had assaulted him, and whatever he uttered, he said in answer to a question put to him. He has also deposed that the deceased had named Ishwarprasnad as his assailant, but when he was further questioned as to which 'Ishwari', he stated in reply "Bada lshwari" who is the son of Lallu. In paragraph 12 of his statement, the learned Judge has not made an intelligent record, and it is really not understandable what he meant by it, and the relevant portion is as under:- ^^rkarw us dgk Fkk fd cM+s bZ’oj us rkarw dks dgk Fkk fd >qeqd xksfV;k ls ugha crk;sxk rks py bZ’oj mls dkVsxkA Nawinchand (P. W. 4), a Supervisor in the Co-operative Bank was a guest of Jhumaklal on the relevant night, and he too is alleged to have been present when the alleged dying declaration is said to have been made by the deceased. In paragraph 3 of his deposition, this witness has said that he asked the deceased two questions. In paragraph 3 of his deposition, this witness has said that he asked the deceased two questions. "Who had assaulted him?" and "Why was he assaulted?" But what he has stated in paragraph 1 of his deposition is as given below:- ^^eSaus mlls iwNk fd dkSu ekjk gS] rks mlus crk;k fd bZ’oj us ekjkA eSaus iwNk fd dkSu bZ’oj] rks mlus crk;k fd cM+k bZo’jA ogka ij ml le; >qeqdnkÅ] mudk yM+dk vkSj 1-4-5 O;fDr vkSj FksA rkarw us crk;k Fkk fd mldks Nqjs ls ekjk x;k gSA D;ksa ekjk x;k iwNus ij mlus crk;k Fkk 4 O;fDr dqRrs ds HkkSadus ls ogka igq¡p x;s tgka rkarw lks;k FkkA rkarw gYys ls tkx x;k vkSj iwNk fd dkSu gSA mu O;fDr;ksa us le>k fd ;s crk;k nsxkA ,slk le>dj mu yksxksa usrkarw dks ekjkFkkA rkarw us mu yksxksa ls iSj idM+dj dgk Fkk fd eSa fdlh dks ugha crkÅaxk] er ekjksA blds ckotwn Hkh cM+k bZ’oj us rkarw dh ihB] dej] isV vkSj xqnk eas Nqjs ls okj fd;sA esjs jgrs jgrs cLrh ds yksx Hkh vk x;s FksA cLrh ds yksx Hkh vkdj iwNrs Fks] rks rkarw mudks Hkh ,slk gh crkrk FkkA yxHkx 10 vkneh ogka tek gks x;s Fks A** It is pertinent to note that he was a guest of Jhumaklal and he did not know whether there were two persons with name of Ishwar in the village Acholi, and in that situation, his very question. 'which Ishwari?' suggests that the answers were taken from the deceased by some sort of prompting. On a reading of paragraph 1 of his statement, it becomes clear that whatever he had stated as regards the reasons for killing the deceased by the accused and his companions, is 0nly on an inference drawn by him. It is also noteworthy that when the accused and his companions had in fact gone to kill Jhumaklal, why it was necessary for them to tell the deceased the purpose of their visit. It is further relevant to see that the accused was also from the same village Acholi. and it was not the case of a person coming from a different village to kill Jhumaklal, and they having not found him there for some reason or the other, instead, they attacked and killed the deceased with whom no animus is shown to have existed in the least. and it was not the case of a person coming from a different village to kill Jhumaklal, and they having not found him there for some reason or the other, instead, they attacked and killed the deceased with whom no animus is shown to have existed in the least. It is further material to see that whatever is recorded in paragraph 1 of his statement, is not recorded in the exact words of Tantu deceased. Now coming to Ramdayal (P. W. 8), father of the deceased, he has deposed that he reached the spot after Nawinchand (P. W. 4) had already competed his enquiries from the deceased regarding the cause of his death, including as to who were his assailants. According to Ramdayal he also on an enquiry from his son, was told that the accused had assaulted him. In paragraph 5, he has deposed that before asking the deceased about his assailants, he was already told by one Doma that the accused had stabbed his son with a dagger. As regards the statement of Dukalu (P. W. 23), the learned Judge has rightly not relied all his version. He too was a guest of Jhumaklal all the fateful night, and looking to the sequence regarding the enquiries made from the deceased as to the cause of his death, his evidence also does not inspire confidence. 12. Now considering the entire evidence on record in the light of the observations made by the Supreme Court in the aforesaid decisions, it cannot be said with any certainty that the deceased had really named the accused appellant as his assaillant. The learned Judge, in our view, has not made an intelligent record of what the witnesses have deposed about the dying declaration, and the witnesses have also not clearly stated as to what questions were asked by them, and in what exact words the deceased had made his statements. This being an oral dying declaration, unless one is certain about tile words uttered by the deceased, it would not be safe to place any reliance on the testimony of such witnesses, and consequently this oral dying declaration alleged to have been made by the deceased cannot be acted upon without sufficient corroboration, as observed by the Supreme Court in Ram Nalh Madhoprasad and others Vs. Sale of Madhya Pradesh, AIR 1953 SC 420 . Sale of Madhya Pradesh, AIR 1953 SC 420 . We are, therefore, of the view that the accused-appellant is entitled to the benefit of doubt in this case, and. consequently he deserves to be acquitted. 13. In the result, therefore, this appeal is allowed; the conviction and sentence of the accused-appellant are hereby set aside, and he is acquitted of the charge against him, and shall be set at liberty forthwith unless otherwise required.