JUDGMENT 1. - This is an appeal against the conviction and sentence passed by the learned Sessions Judge Jaipur District, Jaipur, convicting the accused-appellant under Section 304-1, IPC and sentencing to ten years' rigorous imprisonment and a fine of Rs. 500/-, and in default of payment of fine to further undergo two months' rigorous imprisonment. 2. The prosecution case, briefly sated, is that on 24-8-1981, Gangapuri lodged a report in the Police Station Renwal at about 12.30 a.m stating that on 23-8-81 his brother Bhagwan Sahai had gone to Doongari Khurd but he did not return. Banshi informed Gangapuri at about 2 p. m. that Maogu Regar of Doongari Khurd has killed Bhagwan Sahai. Thereupon he went to Doongari Khurd saw Bhagwan Sahai lying on the road near the house of Nayak and he was bleeding. He was told that Mangoo has killed Bhagwan Sahai by rapi and the wife of Mangoo and the wife of his brother were also with him. The watch in the hand of Bhagwan Sahai was not available. He took Bhagwan Sahai in the cot to bus-stand and thereafter by Jhonga jeep to Kaladera Hospital. Hanuman and Ghecsa accompanied him to the hospital. Since the Doctor was not available at Kaladera they took him to Chomu hospital where he died. Gheesa and Bhagwan Sahai went to the Police Station, Govindgarh and they were told that they should make a report in the Police Station, Kenwal. Thereupon they came to Renwal Police Station and filed a report. The police registered a case under Sections 307 and 379, IPC and after investigation filed a challan. The accused was committed to Sessions. 3. The prosecution examined as many as 20 witnesses. The accused denied the allegations of the prosecution witnesses, but did not examine any defence witness. After the conclusion of the trial, the learned Sessions Judge, Jaipur District, Jaipur by his judgment dated 21st July, 1982 convicted the accused-appellants under Section 304-1, IPC and sentenced him as aforesaid. Hence, this appeal. 4. The appeal was admitted and the record of the case was called for. The lenience of the accused-appellant was not suspended and the appeal was heard on merits.PW 1 Buda Ram has deposed that he went to the house of Mangoo at about 1 p.m. to get some milk. Hence, this appeal. 4. The appeal was admitted and the record of the case was called for. The lenience of the accused-appellant was not suspended and the appeal was heard on merits.PW 1 Buda Ram has deposed that he went to the house of Mangoo at about 1 p.m. to get some milk. At that time Gheesa brought milk to bis house and told , this relatives that he is quarrelling with Bhagwana. Mangoo again left the house and sent towards the house of Meena s. He was followed by his wife, Shanti, Bhabhi Asali and the witness. The witness told Mangoo not to quarrel and return to his louse ; but Mangoo told that he will finish Bhagwana. Then Mangoo asked Sayari is to which side Bhagwana has gone, who told him that he has gone towards the left lide. Mangoo then caught hold of Bhagwana. He again told Mangoo to leave him. Ladies also wanted to separate him, but Mangoo caught hold of Bhagwana by his baniyan and threw away bis wrist watch. Mangoo's younger brother's wife wanted to snatch rapi from Mangoo, but he pushed her aside. Thereafter the accused threw him on the ground and inflicted a blow by rapi on bis neck, whereupon Bhagwana started bleeding. Thereafter the witness Buda Ram returned home and the ladies also returned. On the way, he met Kanbaiyalal Nayak and Suba Khatik, Jiwan, Jana Ram and Chotu Khatik. Mangoo also returned to his house. His bush-shirt and baniyan were smeared with blood. Sometime thereafter the brother of Bhagwana came with the cart and took him from there. He does not know the motive or the reason of the dispute. la his cross-examination, he has admitted that the incident is of Janmastami and, therefore, he had gone to Mangoo to take milk. He has further deposed that Mangoo does not deal in selling of milk, nor he had brought milk from Mangoo's place earlier. The accused has she-goat. He has further deposed that first day is Janmastami and the second day is Ganga-navami. His statement was recorded by the Magistrate under Section 164, Cr. P. C. wherein he had not disclosed the names of the persons whom he had met on the way, as the police had told him that he should not disclose the names before the Magistrate.PW 2 is Gangapuri, brother of the deceased Bhagwan Sahai. His statement was recorded by the Magistrate under Section 164, Cr. P. C. wherein he had not disclosed the names of the persons whom he had met on the way, as the police had told him that he should not disclose the names before the Magistrate.PW 2 is Gangapuri, brother of the deceased Bhagwan Sahai. He has deposed that on Ganganavami he had sent his brother Bhagwan Sahai to Doongari at 10-11 a. m. for making some purchases, but he did not return till 2.30 p.m. Then Banshi Brahmin came to his house and told him that Mangoo accused has inflicted rapi blow to Bhagwan Sahai. Thereupon he took the cart. He was bleeding near the neck. When he asked Bhagwan Sahai as to who had beaten him, he replied that Mangoo Regar had beaten him with rapi. He met the wife of Buda Dhobi, who also told that Mangoo Regar had beaten him. The name of Buda Dhobi was either Narangi or Anwsar. He took Bhagwan Sahai to the bus stand and from there in a Jonga to Kaladera hospital. Since the Doctor was not there, he took him to the Chornu hospital, but he died on the way. Hanuman and Gheesa also accompanied him in the jeep. They also asked Bhagwana. Thereupon Bhagwana replied that he was beaten by Mangoo by rapi. Gheesa and Hanuman went to Govindgarh to lodge a report, but he was told that they should file a report in Renwal. Then they filed a report in the Renwal Police Station, which is marked as Ex. P 1. The report was got written by one person in the way. In the cross-examination, he has admitted that Banshi had come to his house to tell him and he had not put any bandage to Bhagwana. He does not know the name of the driver of the Jonga. Bhagwana had also said that Mangoo had inflicted injury. He did not disclose the reason as to why he inflicted the injury. This was told in the cart also. He was unable to disclose as to at what time they engaged a jeep. But they reached Chomu before the sun-set, and they reached Renwal at about 7 or 7.30 p.m.. He did not find anybody near Bhagwana. He had told the names of Banshi, Gheesa, Laxman, Hanuman and wife of Buda Ram as witnesses. He was unable to disclose as to at what time they engaged a jeep. But they reached Chomu before the sun-set, and they reached Renwal at about 7 or 7.30 p.m.. He did not find anybody near Bhagwana. He had told the names of Banshi, Gheesa, Laxman, Hanuman and wife of Buda Ram as witnesses. The Thanedar bad told him to file a written report. Therefore, he went to the police station and brought someone to write the report.PW 3 is Shanti Devi wife of Mangoo accused. She has been declared hostile and has not supported the prosecution case. Similarly PW 4 Asli, who is wife of younger brother of accused Mangoo, had been declared hostile and has not supported the prosecution case. PW 5 Panchu is a formal witness.PW 6 Laxman has disclosed that it was Janmastami and he was told by Mahavir of Doongari who had gone to Doongari for making some purchases at 1 or 1.30 p.m. that Bhagwan Sahai is lying injured near the house of Nayak. Thereupon he came to the spot and found that Bhagwan Sahai was bleeding. He asked Bhagwan Sahai who told that Mangoo Kegar had cut him. He had told that he was given beating by Rapi, and several persons had collected there. He went to the house of his brother Gangapuri and told him. Banshi had met him in the way. In the cross examination he has confirmed that the incident took place on Janmastami and not on the next day and be found Gangapuri sleeping at his house and it was only when he told him that he got up and left. Banshi had not gone with him to the house of Gangapuri.PW/7 Hanuman has deposed that it was Janmastami day and he was standing on the bus-stand along with Gheesa where Gangapuri brought his brother in the cart and told that Mangoo has beaten him. The wife of Bhagwrnn Sahai was also with him. Then they accompanied Bhagwan Sahai in Jonga jeep to Kaladera hospital. The bus-stand and he and Gheesa Patel asked Bhagwan Sahai, where upon he replied that Mangoo had inflicted injury by Rapi. As the Doctor was not available at Kaladera, therefore, they went to Chomu. Bhagwan Sahai died in the way. Then he ;ent to Govindgarh. Then they accompanied Bhagwan Sahai in Jonga jeep to Kaladera hospital. The bus-stand and he and Gheesa Patel asked Bhagwan Sahai, where upon he replied that Mangoo had inflicted injury by Rapi. As the Doctor was not available at Kaladera, therefore, they went to Chomu. Bhagwan Sahai died in the way. Then he ;ent to Govindgarh. But he was told to go to Renwal, so they came to Chomu and by a taxi they went to Renwal and got a report written by somebody and Gangapuri filed the same in the Police station. He was not told as to why Mangoo had beaten him, nor he asked as to why Mangoo had beaten him. They did not talk to Bhagwan Sahai on the way. In cross examination, he has further asserted that he had talked to Bhagwan Sahai in the bullock-cart and not in the Jeep. Bhagwan Sahai did not speak anything in the Jeep. They did not know either the number of the jeep, or the name of the Driver. The report was written out side the police station. He has further admitted that Gangapuri was present in the Court on the day when he was examined.PW/8 Banshi Dhar also says that it was Janmastami and he had gone to Doongari for making some purchases and he was told that Bhagwan Sahai is about to die and that he is lying near Bhura Nai. He went there and found that he was bleedirg from the neck. On his askine Bhagwan Sahai told him that Mangoo had inflicted the blow by Rapi. When he went to the village he met Laxman. Then he went to Sarpanch who was not at home He then went to the Ward Panch. But he did not come to the site. Then he met Mangoo at his house, His bushshirt and Dhoti, were smeared with blood. When he asked him then he replied that he will beat him. Then he returned to the place where Bhagwan Sahai was lying. Before returning he along with Laxman had gone to Gangapuri and told him about the incident and so Gangapuri also came where Bhagwan Sahai was lying and took him in the cart In cross-examination, he admits that he is matric-fail and they had not given any written report either to Sarpanch or to Ward Member. Before returning he along with Laxman had gone to Gangapuri and told him about the incident and so Gangapuri also came where Bhagwan Sahai was lying and took him in the cart In cross-examination, he admits that he is matric-fail and they had not given any written report either to Sarpanch or to Ward Member. The house of Chomu Pokhar is also near by and in the side there are houses of Balai. While reaching the house of Gangapuri, Laxman was not with him, but one was following the other, and he was unable to save as to who reached and met Gangapuri first He further 9avs that when he reached the house of Gangapuri he was sitting out sir his statement was recorded by the police after 5-7 days. Laxman, Gheesa and He further also gone with him to the spot. But he was unable to say as to whether their statement was also recorded on the same day. He has further admitted that Bhagwan Sahai was his uncle.PW 9 and 10, Ramu Regar and Chunna Ram. have not supported the prosecution as they have deposed that they had seen nothing. They have been declared hostile.PW 11 Narangi Devi wife of Rudmal has deposed that it was Janmastami duy. There w as some noise in the house of Sayari and when she came out of her house she saw that Mangoo's wife and her sister-in-law were trying to save some body and Mangoo was quarrelling wilb Bhagwan Sahai and was telling that he will kill Bhagwan Sahai. Then Mangoo gave a blow by rapi to Bhagwan Sahai on his neck and Bhagwan Sahai fell down. Ladies ran away. Mangoo also ran away with the rapi. Sayari had come there after Mangoo had left. Bhagwan Sahai got up and went towards the house of Bhura Nai and fell down near the `doli'. At 4 0` clock his wife and brother Gangapuri came. But she had of talks with them Rapi is used for tanning the skin of ar imals. Bhagwan Sahai was taken in the it by his brother and wife. In the cross-examination, she has admitted that she had teen Mangoo only on that day tor the first time and knew his name also on that only. She and seen him at about 1 p.m. Mangoo was wearing Dhoti and shirt, Sayari Darogan came after Mangoo had run away. In the cross-examination, she has admitted that she had teen Mangoo only on that day tor the first time and knew his name also on that only. She and seen him at about 1 p.m. Mangoo was wearing Dhoti and shirt, Sayari Darogan came after Mangoo had run away. Bhagwan Sahai was lying there for five minutes and thereafter he got up and went. She was confronted with her statement Ex. D/3 recorded by the Police under Section 161, Cr P. C whit in she had stated that Sayari Darogan came and she had also witnessed the incident, and she stated that the portion recorded in Ex. D/3 was wrong Her statement was also recorded by the Magistrate under Section 164, Cr. P. C. and when she was asked about the omission in that statement that Bhagwan Sahai had go up a d went from there, she had replied that she did tell to the Magistrate, but he may not have recorded.PW 12 Mahavir Prasad has deposed that when he was going to attend the ' meeting of Gramin Vikash Samiti. of which he was president, he was told been Panchu and Baida that Mangoo had given beating to Bhagwan Sahai. So he went the house of Bhura Nai where he was lying His eyes which said and when he asked him, he told to leave him at his house, and on further asking Bhagwan Sahai told him that Mangoo had inflicted injury by rapi on his neck. Then he came lo the bazar and searched for a cart but it was not available Therefore, he met Laxman and told him either to get a cart, or to inform at his house so that they may take him to the hospital and then he went to his house. In the evening he came to know that Bhagwan Sahai had died.PW 13 Gheesa has deposed that it was Ganganavami when he was going on the road along with Hanuman. Gangapuri and his write took Bhagwai a m the cart. Bhagwana was bleeding in the neck. When he asked Bhagwana, he did not speak. When he gave some water, then Bhagwana told that Mangoo had cut him with rapi. Then a motor came and he had taken Bhagwana to Kaladera along with Hanuman and Gangapuri. Since the Doctor was not there they went to Chomu where he died. Bhagwana was bleeding in the neck. When he asked Bhagwana, he did not speak. When he gave some water, then Bhagwana told that Mangoo had cut him with rapi. Then a motor came and he had taken Bhagwana to Kaladera along with Hanuman and Gangapuri. Since the Doctor was not there they went to Chomu where he died. Then he along with Hanuman went to Govindgarh In Govindgarh police station it was told that they must go to Renwal to make a report. Then them came to Chomu, and in a taxi they came to Renwal Police Siation and Gangapuri lodged a written report, which was thumb marked by Gheesa as well. In cross-examination, he has admitted that they had talked to Bhagwana at the bus-stand only and they did not ask Bhagwana in the jeep. He has further admitted that the report was written in the police station only. It was dictated by Ganga Ram Ganga Ram was sitting and Thanedar was writing. Police recorded their statement on the next day after the medical report.PW 14, 15, 16 and 17 are only formal witnesses.PW 18 Dr. Santosh Kumar Verma was posted at Renwal hospital. He ' conducted the post mortem on 24-8-1981 at about 11 a.m. and found only one external injury one incised wound on right side of neck, 11/2" x 1" x 2" on lower l/3rd region oblique in shape. Margins regular and clear. Wound was bleeding. Injury was ante-mortem. 5. In his opinion, the above injury was in the ordinary course of nature sufficient to cause death, if proper treatment is not given in time. On cross-examination, he has submitted that the death of the deceased occurred between 24 to 36 hours, it may be some what less or more. He has further submitted that a person can live from two to four hours after receiving such injury, and he will become unconscious between ⅓ and 3/4 hours of the inflicting of the injury. He has further opined that the injury can be caused if a person falls on a sharp edged article, of the stone.PW 19 Jeewan Ram is also a formal witness,PW 20 is Anil Kumar, Investigating Officer, Sub-Inspector, Renwal. He has deposed that Gangapuri filed a written report before him, which is Ex. P 1, on which the FIR was recorded under his instructions, which has been marked as Ex. P 2. He has deposed that Gangapuri filed a written report before him, which is Ex. P 1, on which the FIR was recorded under his instructions, which has been marked as Ex. P 2. Along with Gangapuri, Hanuman, Gheesa and Narain were also with him, and the proceedings taken by the police on Ex. P 2 has been signed or thumb-marked by Gangapuri, Hanuman, Gheesa and also Narain. In cross-examination, he has admitted that Gangapuri had come in the night at about 12 or 12.30 and he had brought the written report along with him. 6. The accused has denied the prosecution case. In his statement recorded under Section 313, Cr. P.C. the accused has stated that he was sleeping at his house, The police came to his house and asked him that they want to make inquirers from him. He has denied that he has murdered Bhagwana, or even he knows him. No defence witness was examined by the accused. 7. The learned counsel for the accused-appellant has argued that the FIR had been lodged after a great delay and that the original FIR has been suppressed. The witnesses were also examined under Section 164, Cr. P. C. to bound them down. The prosecution witnesses are all interested witnesses. They are only chance witnesses. The prosecution has failed to examine any independent witness who were admittedly present there. The earlier dying declaration cannot be relied upon as the evidence is very contradictory and the witnesses are not sure as to on what date the incident has happened, whether it was Kamnavami, or Janmastami. He has further submitted that the deceased was not in a position to give a dying declaration as according to the Doctor he should have become unconscious within half an hour to 3/4 hour of the injury and at the time at which the witnesses have deposed about the dying declaration is also not contrary to the medical evidence as according to the Doctor the deceased must have died between 24 to 36 hours of the post-mortem examination held on 24th August at 11 a.m. Therefore, his submission is that the prosecution is absolutely false and concocted. There is no motive, or enmity and that the recovery of rapi is of no avail as there is no evidence that it had human blood. The names of the so-called eye-witnesses are not mentioned in the FIR. There is no motive, or enmity and that the recovery of rapi is of no avail as there is no evidence that it had human blood. The names of the so-called eye-witnesses are not mentioned in the FIR. Therefore, their evidence should not be relied upon. 8. The learned Public Prosecutor, on the other hand, has supported the judgment of the trial Court and submitted that the prosecution has been able to prove the case beyond doubt. 9. I have considered the arguments of both the counsel for the parties and have given my thoughtful consideration and perused the record of the case The incident is alleged to have taken place on 23rd August, 81 at about 1 p.m. and the FIR was lodged in the Police Station, Renwal on 24th August, 1981 at about 2.30 a. m. End there is dalay of nearly 13.15 hours. The prosecution witnesses have given satisfactory explanation for this delays. Gangapuri who had lodged the FIR has deposed in his statement that he came to know about the injury having been inflicted to bis brother Bhagwan Sahai after 2.3 p. m. and thereafter he went to the spot and took a cart and from there he took Bhagawan Sahai deceased to the bus-stand and arranged for a conga jeep to take him to the hospital of Kaladera. But since the Doctor was not there they went to Chomu hospital where Bhagwan Sahai was found to be dead. Then Hanuman and Gheesa who were with him went to the police station, Govindgarh, but they were told that they should make the report in the police station, Renwal. There upon they again engaged a taxi and came to the Police Station, Renwal along with the deceased and then lodged the FIR. This statement of Gangapuri finds full support from Hanuman (PW/7) and Gheena (PW/13). According to Gangapuri, before they reached Renwal Police Station he got Ex. P/1 written by some one and presented to the SHO. But In cross examination he has denied his version and hall deposed that the Tbanedar had asked him to get the report written and, therefore, he went to the station and brbbght stone body for writing the report and then he dictated the report to him and the paper on hie Ex, P/1 was also taken from the police station. But In cross examination he has denied his version and hall deposed that the Tbanedar had asked him to get the report written and, therefore, he went to the station and brbbght stone body for writing the report and then he dictated the report to him and the paper on hie Ex, P/1 was also taken from the police station. Whereas P/W7 dobs hot support him in this respect that Gangapuri had first requested the and to write the Flat. But when he refused, He went to the station and brought somebody to write the report. Where as PW/13 Gheesa has contradicted Gangapuri PW/2 when in cross examination he has emphatically Stated that the report was written in the Thana. Gangapuri got it written. Gangapuri was speaking and the under was writing. Investigating Officer, Anil Kumar (PW/3D) has stated that Gangapuri filed the written report before him. He has not supported Gangapuri that it was at his instance that he has to go to the station for calling somebody and got a report written. He has also contradicted. PW/13 Gheesa who has deposed that SHO had written a report himself at the dictation of Gangapuri since there are signatures of Gangapuri and Hanuman on Ex P/1 and Ex. P/2 both and there are thumb impression of Gheesa and Narain there presence at the time of filing the report is admitted. In view of these contradictory statements by the prosecution witnesses some suspicion is, of course, created. The scribe of Ex. P/1, written report, has not been examined, nor any effort was made by the investigating officer to trace him out. Ex. P/1 is admittedly not in the hand writing of the investigating officer as deposed by P.W/13 Gheesa. Thus, it shows that PW/13 is not a very reliable witness. 10. The prosecution has examined PW 1 and PW 11 as eye-witnesses. The statement of (PW 1) Rude Ram does not inspire confidence. He seems to be a chance witness. He has started that he had gone to the Mangoo s house at 11 p. m. to get the milk. Whereas in cross-examination he admits that Mangoo does not deal in milk, and it was for the first time that he had gone on that day to get milk. He seems to be a chance witness. He has started that he had gone to the Mangoo s house at 11 p. m. to get the milk. Whereas in cross-examination he admits that Mangoo does not deal in milk, and it was for the first time that he had gone on that day to get milk. The incident, according to him, happened on Janmastami and on Janmastami one would not like to have milk of she-goat, rather he will prefer to have milk of cow. He has admitted in his cross-examination that Mangoo accused got a she-goat and he went to his house because he thought that accused's brother must be on fast and, therefore, milk should be available at his house, Moreover, 1 O'clock in the day is no time to get the milk for Janmastami Poojan in the evening, or late in the night and the witness could have waited till evening to get fresh milk of cow. Moreover his statement was also recorded under Section 164, Cr.P.C. also and that also shows that the prosecution was not sure that he will support the prosecution and, therefore, it was necessary for the investigating officer to get the statement recorded under Section 164, Cr. P. C. His statement under Section 16i, Cr.PC. was also recorded on 26-8-1681 though FIR was lodged on 24 8-1981, and it was necessary for the prosecution to get his statement recorded under Section 164, Cr.P.C. on 1-9-1981 and the investigating officer has also not given any explanation whatsoever for the delay. Moreover, he has admitted in the cross-examination that he had not disclosed the names of the prosecution he had met in the way to the Magistrate, because, the police people had told him not to do so. That also shows that he was under the influence of the police while making the statement under Section 164, Cr.PC. and no reliance can be placed on such a witness. 11. Coming to the statement of another eye-witness (PW 11) Narangi Devi: She was also examined by the police under Section 161 Cr.PC. on 25 8.1981. Her name does not find place in the FIR Then she has also been got examined under section 164, Cr.PC. before the Magistrate on 1.9. 1981 simply to bind her down (PW 1) has, of course, admitted that she was present, but Narangi Devi does not depose so. on 25 8.1981. Her name does not find place in the FIR Then she has also been got examined under section 164, Cr.PC. before the Magistrate on 1.9. 1981 simply to bind her down (PW 1) has, of course, admitted that she was present, but Narangi Devi does not depose so. She has admitted that she had seen (PW 1) on the spot. In cross-examination she has very frankly admitted that she had seen the accused on that day for the first time and came to know his name also on that very day, but still no identification parade was arranged. She has further admitted in the cross-examination that when her statement was recorded in the trial court Gangapuri (PW 2) brother of the deceased, was present in the Court and she talked to him. She was examined by the court on 27. 2. 1982, which also shows that her statement is not absolutely independent, but she was making the statement under the influence of the complainant party. She did not offer even water to the deceased which is quite unnatural, more for a lady who is expected to be courteous and sympathetic especially when a person is lying seriously injured, and wanted water to drink. The learned counsel for the appellant has relied on and has argued that since her name was not mentioned in the FIR as an eye-witness, no reliance can be placed on such a witness. The learned counsel for the accused appellant has also relied on State v. V. K. Shukla (AIR 1980 SC 1982 ) and has argued that the identification of a person by a witness for the first time in the Court without being tested by a prior test indent. infliction Parade is valueless. A witness who can go to the extent of making intentionally false statement cannot be relied upon. In view of this, I am unable to place any reliance on the statement of (PW II) Narangi Devi also. 12. Now, let us come to the other set of evidence of the alleged oral doing declaration. The prosecution has examined PW 2 Gangapuai, PW 7 Hanuman and PW 15 Gheesa to prove the oral dying declaration given by the deceased at the bus-stand. PW 2 and PW 13 have deposed that it was Ganganavatni, whereas PW 7 Hanuman says that it was Janmastami. Janmastmi followed by Ganganavami. The prosecution has examined PW 2 Gangapuai, PW 7 Hanuman and PW 15 Gheesa to prove the oral dying declaration given by the deceased at the bus-stand. PW 2 and PW 13 have deposed that it was Ganganavatni, whereas PW 7 Hanuman says that it was Janmastami. Janmastmi followed by Ganganavami. Therefore, these three witnesses are not sure even about the date of the incident. Janmastami is a very auspicious festival of Hindus, and it is Dot possible that witnesses will confuse between Janmastami and GanganavamPW/2 has stated that he had asked Bhagwan Sahai at the place where be was lying injured even before he was put on the cart. When he reached the bus-stand he met Hanuman and Gheesa and when both of them asked Bhagwana, he again hold that he was given beating by the accused-appellant. PW/7 Hanuman in his examination-in chief has, of course, stated that when he and Gheesa asked Bhagwan Sahai he replied that Mangoo had inflicted rapi blow. But in cross-examination hesa\sthat Bhagwan Sahai had told so when he was lying in the cart, and not in the jeep. Bhagwan Sahai did not speak in the jeep. Similarly PW/13 also says that when he asked Bhagwana he did not speak. Then he was offered water and thereafter he told that Mangoo had cut him with rapi. Whereas PW/7 and PW/2 are silent about giving water to Bhagwana, or that initially Bhagwana did not speak and it was only after giving him water that he told that Mangoo bad cut him with rapi. PW/13 also does not say that any one had asked Bhagwana in the jeep. In cross-examination, he has admitted that they had talked Bhagwana at the bus-stand only. Moreover, I have already expressed that the statement of PW 13 Gheesa relating to the writing of written report Ex. P. 1 by the investigating officer himself at the dictation of Gangapuri seems to be false and, therefore, he does not seem to be truthful witness. In view of this, I am not persuaded to rely on the evidence of these three witnesses regarding the oral dying declaration made by Bhagwan Sahai at the bus stand. The another reason for my coming to this conclusion is the medical evidence which I will deal later on. 13. In view of this, I am not persuaded to rely on the evidence of these three witnesses regarding the oral dying declaration made by Bhagwan Sahai at the bus stand. The another reason for my coming to this conclusion is the medical evidence which I will deal later on. 13. Another set of witnesses produced by the prosecution to prove the oral dying declaration by Bhagwana is PW 6 Laxmi Narain, PW 1, Bansi Dhar and PW 12 Mahavir Prasad, PW 6 Laxmi Narain and PW 8 Banshi Dhar have, of course, told that it was a Janmastami day, but PW 12 Mahavir Prasad is silent on this point.PW 18 Dr. Santosh Kumar, who had conducted the postmortem on 24.8.1981, at 11 a.m. has in his cross-examination, very emphatically spired that the death of the deceased had occurred between 24 to 28 hours, meaning thereby that the deceased must have died before 11 a.m. on 23rd August, and between 10 pm. and 22nd August, 1981. The Doctor has further said that there may be some variation. He may take for 2 to 3 hours at the most. Thereafter, he must have died in any case before 1 p.m, or at the most 2 p.m. on 23rd August,1981. Therefore, there was no occasion for any of these witnesses to have asked Bhagwana and Bhagwana having replied that Mangoo had inflicted the blow. The Doctor, in his cross-examination, has further positively said that the accused could have lived at the most between 2 to 4 hours of the inflicting of the injuries and should have become unconscious within half or 3 4 hour of the inflicting of the injury. There is no reason to disbelieve this part of the statement of the Doctor that the deceased after having received the serious injury could not have remained unconscious and in a position to speak or talk in any case after one hour of the incident and in that case deceased could not have told to any of these prosecution witnesses that Mangoo had inflicted rapi blow to him. As the evidence of these witnesses regarding oral dying declaration is contrary to the medical evidence their evidence cannot be believed. As the evidence of these witnesses regarding oral dying declaration is contrary to the medical evidence their evidence cannot be believed. Moreover, an oral dying declaration is a very weak piece of evidence, and in view of present circumstances, contradictions and omissions in the evidence of these witnesses it is not possible to hold the accused-appellant guilty of an offence under Section 302 IPC on the mere alleged oral dying declaration given by the deceased Bhagwana in their presence. The prosecution has not been able to lead any evidence about the motive as to why the appellant will murder the deceased. Nor there is any evidence of enmity between the deceased and the accused appellant. The prosecution his not produced the person who is the author of the report Ex. P. 1 FIR which has become doubtful in view of the statement of the prosecution witnesses, other independent witnesses Siyari aid others who were admittedly present at the site Narain Singh, who was admittedly with the deceased alone with Gheesa, and Hanuman, have also not been produced by the prosecution. The mere fact that the rapi, the instrument by which the accused-appellant is alleged to have inflicted the fatal blow and recovered at the instance and on the information of the accused-appellant is of no consequence, because the prosecution has miserably failed to prove that there was human-blood' present. Merely because there was blood is not sufficient. The prosecution has suppressed the expert evidence to prove that it was human blood, though it was sent for his opinion. An adverse inference have to be drawn against the prosecution Looking to the facts and circumstances of the case, I have come to the conclusion that the prosecution has failed to bring home the guilt to the accused and to prove the prosecution case against the accused-appellant beyond any shadow of doubt, Therefore, I am inclined to give benefit of doubt to the accused-appellant. 14. In the result, this appeal is allowed. The conviction and sentence passed against accused the appellant are set aside. The accused-appellant is in jail. He may be released forthwith if not required in any other case. *******