JUDGMENT 1. - The learned Addl. Sessions Judge. Gangapur City, convicted the accused appellant Ratnia u/s 304-1, IPC and sentenced him to undergo 10 years R. I. and to pav a fine of Rs. 500/-. In default of payment of fine, the accused has been ordered to further suffer three months R. I. The case of the prosecution, out of which this appeal arises is as follows , 2. Ranjita (PW 4) is the owner of a herd of camels numbering about 50. Deceased Hanumana was his nephew, and was a boy aged 12 years. The said Hanumana was helping Ranjita (PW 4) in grazing the herd of camels and was going with him in that connection from place to place. The said Ranjita had also engaged the accused appellant Ratnia on Rs. 400/- as remuneration per year and the accused-appellant was also accompanying the herd of camels. In the month of September, 1976, Ranjita (PW 4), deceased Hanumana and the accused-appellant were on the out-skirts of village Manakur, P. S. Mandrail District Sawai Madhopur in the jungle along with the herd of 50 camels and on 28-9-76 the deceased Hanumana and the accused had gone to the jungle to graze the said herd of camels, Both of them returned to their camp at about 7. P. M. and on 29-9-76 being Wednesday, Ranjita (PW 4) noticed that there were injuries on the legs and arms of Hanumana. When he enquired the said Hanumana as to how he received injuries,it is alleged he gave out that on 28-9-76 in the day, when the said Hanumana was grazing the camels in the jungle, the accused gave lathi blows to him and also insetted a lathi in the anus part of the said Hanumana Hanumana also is alleged to have given out to Ranjita (PW 4) that the accused-appellant had told him not to disclose this incident to any body, and in case he disclosed, he will be killed. No report of the incident was lodged anywhere.and the deceased along with Ranjita (PW 4) proceeded to one place Karnabas, to which Ranjita (PW4) belonged. Hanumana was taken to the hospital Pipaiiya from village Karnabas on 4-10-76, and from there a message was sent to the Police Station, Raipur, and Shri Thansingh, S. H. O. (PW 6), P. S Raipur, reached the hospital Pipalia and there a report Ex. Hanumana was taken to the hospital Pipaiiya from village Karnabas on 4-10-76, and from there a message was sent to the Police Station, Raipur, and Shri Thansingh, S. H. O. (PW 6), P. S Raipur, reached the hospital Pipalia and there a report Ex. P. 3 in writing was handed over by Ranjita to Thansingh (PW 6). An F. I. R. without number was recorded in the police station Raipur, as the case related to P. S. Mannraail, District Sawai Madhopur on receipt of the report (Ex. P. 4), a case No. 47/96 was registered vide Ex. P. 5 in P. S. Mandrail and the investigation started. 3. Reverting to as to what happened after Hanumana was admitted in Primary Health Center, Pipaiiya it may be stated that there Dr. S. P. Vyas (PW2 examined the injuries of Hanumana and found the following vide Ex P. 2 : 1. Bruise 2"x2" on left Thigh 1 ft. below left Illiac Crest lateral. 2. Bruise 2" x 1" on 1 ft. Thigh, 1 ft. below left Illiac Crest. 3. Bruise 2" x 1" on right Thigh, 1 ft. below right Illiac crest lateral. 4. Bruise 2" x 1, 1/2" on right Thigh, ft. and 1, 1/2" below right Illiac Crest lateral. 5. Bruise 2" x 1/2" on left shoulder joint. 6. Laceration 1/2" x 1/2" on anus posteriorly. 4. In the opinion of Dr. Vyas, all the injuries were simple and were caused by blunt weapon and the duration of injuries was four days. 5. The said Hanumana died in the hospital the same day at about 1 P. M. and postmortem was conducted on the dead body by Dr. Vijay-Raj and Kankulo in Government Hospital, Raipur. It is not necessary to reproduce the external injuries and on internal examination the said doctor found greater omentum adherent with intestine. The whole of abdominal cavity was full of blood and fecal matter. While examining the intestines, it was noticed by the doctor that though they were normal, but adhered to itself. The large intestines were adhered to posterior wall and abdomen and it was difficult to detach them. There was big perforation of about 2" in the rectum through which fecal matter and blood was coming out. The spleen was also found adhered to small intestines and it was difficult to detach them. The same was the position of the Kidney. The large intestines were adhered to posterior wall and abdomen and it was difficult to detach them. There was big perforation of about 2" in the rectum through which fecal matter and blood was coming out. The spleen was also found adhered to small intestines and it was difficult to detach them. The same was the position of the Kidney. In the opinion of the doctor, the cause of death was perforation of the rectum leading peritonitis and haemorrhage. 6. While the deceased Hanumana was in the Primary Health Centre, Pipalia. he is alleged to have made a dying declaration (Ex. P. 6) to Than singh (PW 6) 7. The accused was apprehended and after investigation a charge sheet was filed, and in the court of Addl. Sessions Judge, Gangapur City, on behalf of the prosecution, as many as 6 witnesses were examined and 11 documents were exhibited. The accused was examined u/s 313. Cr. P. C. to explain the circumstances appearing against him in the evidence of the prosecution. The accused denied that he was an employee of Ranjita (PW 4). He also denied his complicity in the crime and came out with a case that his uncle (Tau) Asuji is instrumental and it was at his instance that Ranjita had concocted a false case against him. The learned Additional Sessions Judged convicted and sentenced the accused-appellant as aforesaid. 8. The main submission of the learned Advocate for the accused is that the only evidence against him is of dying declaration, oral, alleged to have been made to Thansingh (PW 6) in hospital Pipalda. His submission is that there is a delay of about 7 days in lodging the F. I. R, in P. S. Raipur and from the material it is not proved that the injuries, which were found on the person of deceased Hanumana were all of 7 days duration. The dying declaration cannot be relied upon, as the ora dying declaration is alleged to have been made to Ranjita (PW 4), who is not a truthful witness, and the written dying declaration (Ex. P. 6) was not recorded either by the doctor or in accordance with rule 6.22 of the Rajasthan Police Rules, 1965 (thereinafter referred to as the Rules), and in recording the same, there has been a flagrant violation of that rule. 9. P. 6) was not recorded either by the doctor or in accordance with rule 6.22 of the Rajasthan Police Rules, 1965 (thereinafter referred to as the Rules), and in recording the same, there has been a flagrant violation of that rule. 9. It may be stated at the very outset that there is no eye witness to the occurrence, which is alleged to have taken place in the jungle of village Manakpur under P. S. Mandrail. Though the occurrence is alleged to have taken place on 28-9-76, but the report (Ex. P, 3) was only handed over to Thansingh (PW 6j when he reached the Primary Health Centre, Pipalda after receiving the information from the doctor concerned. The delay in lodging the F. I. R. has not been explained in this case. Apart from this, from the statement of Dr. Vijay it can be said that the injuries could not have been received beyond a period of four days. Even the Dr. Vijay Raj (PW D has stated in cross examination that the injuries could have been of the duration of about 3-4 days. Therefore, it can be said that there is no evidence for this Court to hold that the injuries could have been received by the deceased on 28-9-76, as alleged in the dying declaration. Before, deal with the evidence of dying declaration, it is necessary to refer to rule 6.21 of the Rules, under which instructions have been given as to how a dying declaration is to be recorded. Under these rules, a dying declaration shall, whenever possible, be recorded by the Magistrate and the person making the dying declaration shall if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and to the parties concerned in the case. If no such witness can be obtained, as aforesaid, without risk of the injured person dying before his statement can be recorded, then it shall be recorded in the presence of two or more police officers. A dying declaration made to a police officer under Rules 6.22 has to be signed by the person making it. If no such witness can be obtained, as aforesaid, without risk of the injured person dying before his statement can be recorded, then it shall be recorded in the presence of two or more police officers. A dying declaration made to a police officer under Rules 6.22 has to be signed by the person making it. It will, therefore, be clear from a perusal of the rule 6,22 of the Rules that whenever it is possible to obtain the services of a Magistrate, dying declaration must be recorded before him, and the person making the dying declaration must be examined by the doctor to find out as to whether he is in a fit state of mind to make the declaration. Any how, if the services of a Magistrate cannot be available, and if the police officer recording the dying declaration is not a gazetted officer, then the police officer must record the dying declaration in the presence of two independent witnesses. If independent witnesses cannot be obtained without risk of the injured person dying before his statement is recorded, then it should be recorded in the presence of two or mare police officers. Let us now look dying declaration in the light of the above rule. A perusal of Ex. P. 6 will show that it was only recorded by Thansingh Head Constable. There is no material on record that Dr. Vyas (PW 4) examined Hnnu nana to find out as to whether he was in a fit state of mind to make a statement before the dying declaration was actually recorded. Dr. Vyas has only attested Ex. P. 6. There is r.o certificate of Dr. Vyas that on examination he found Hanumana in a fit state, of mind Ex. P. 6 was recorded at 11-30 A.M. and Hanumana died sometime at about 1 or 2 P.M. Dr. Vyas appeared in the witness box as PW 4 and he was not even put a single question as to whether when the dying declaration was recorded by Thansingh, Hanumana was in a fit state of mind to make a statement. Had he stated so, then along with his attestation of Ex. P. 6, there might have been scope for submission by the learned P. P. that it goes to prove that the deceased was in a fit state of mind, but in the absence of any such statement of Dr. Had he stated so, then along with his attestation of Ex. P. 6, there might have been scope for submission by the learned P. P. that it goes to prove that the deceased was in a fit state of mind, but in the absence of any such statement of Dr. Vyas, it cannot be said that mere attestation of Ex. P. 6 by Dr. Vyas is sufficient to come to a conclusion that Hanumana was in a fit state of mind when Ex. P. 6 dying declaration was recorded by Thansingh PW 6. It will, therefore, not be safe to place reliance on the dying declaration Ex. ?. 6 allegedly made by Hanumana. It is not disputed that before Ex. P 6 was recorded by Thansingh (PW 6) a report of the occurrence (Ex P. 3) in writing was handed over by Ranjita (PW 4) to Thansingh (PW 6) in Primary Health Centre, Pipalda. It will be useful to make a reference to the dictum of the Supreme Court with regard to the recording of dying declaration by the police officers. In Munnu Raja v. State of M. P. AIR 1976 SC 2199 it has been observed as follows. "Investigating Officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation are not to be encouraged." 10. In Daleepsingh & others v. State of Punjab. ( AIR 1979 SC 1173 ) the view taken in Munna Raja's case was reiterated, but it was further said, as follows : "We do not mean to suggest that such dying declarations are always untrust-worthy, but what we want to emphasise is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution in adopting any better method." 11. It can, therefore, be said that the practice of the investigating officer himself recording the dying declaration during the investigation of the case is not good and though a dying declaration recorded by such a police officer is admissible u/s 32 of the Evidence Act, a police officer should only record a dying declaration if, under the circumstances of a particular case better and more reliable methods of recording dying declaration cannot be restored to. Even in that case, it is incumbent on the police officer to record the dying declaration in accordance with rule 6.22 of the Rules, unless the witness cannot be available and the rules cannot in no case be complied with. 12. In the instant case, Dr. Vyas was available and he could have recorded the dying declaration of the deceased, and, because Thansingh did not comply with the rules, as discussed above, the dying declaration (Ex. P 6) should not be relied upon in this case. 13. Coming to the oral dying declaration alleged to have been made to Ranjita (PW 6) on 21-9-76 in the morning by deceased Hanumana, suffice it to say that Ranjita did not mention about the alleged dying declaration to any body till 4-10-76, when for the first time he recorded it in his report (Ex P. 3). I have already discussed the evidence of Dr. Vyas and of Dr. Vijayraj (PW1), and have observed that from their statements it cannot be said that the injuries were received by Hanumana on 28.9.75. and, therefore, the oral dying declaration made to Ranjita (PW 4) cannot be relied upon. 14. There is no evidence that the accused was absconding after the alleged offence and moreover the only evidence that an accused is absconding is not sufficient to connect the accused with the crime. 15. In the result, the appeal is accepted. The judgment of ,the learned Addl. Sessions Judge, Gangapur City, convicting and sentencing the accused-appellant u/s 304-1, I.P.C, is set aside, the accused is acquitted of the said charge. He is in Central Jail, Jaipur and shall be released forthwith, if not not wanted in any other case,The office shall issue release order today. *******