S. I. JAFRI- J. ( 1 ) THIS appeal has been filed by the State of U. P. against the judgment and order dated 7. 4. 1977 Sri Chadra Prakash, District and Sessions Judge, Pilibhit acquitting the respondents Yaqub and Kallu of the charge under section 302 I. P. C. simplicitor or with the aid of Section 34 I. P. C. ( 2 ) THE prosecution case in brief is that in the intervening night of 5/6. 8. 1975 at about 10 clock the deceased Mohd. Sayeed was attacked by the respondents with the result that the deceased had received injuries and on his cries, P. W. 2 Fahmeed Shah and P. W. 3 Mohd. Yasin along with Aslam who were sleeping in the adjacent Tal, scaled the boundary wall of the deceased which was 3 feet high and reached the room of the deceased where he was being assaulted by respondent Yakub and these persons apprehended both the respondents on the -spot. In the light of the lantern, appellant Yakub was allegedly seen to have possessed a knife by which he had caused injuries. The respondents were over-powered and caught hold of by the aforesaid persons and others on the spot. P. W. 2 Fahmid Shah went to the house of P. W. 1 Sayeed Husain, an employee of the deceased and shortly he returned to the house of deceased along with him and there Sayeed Husain P. W. 1 found the deceased lying in a, pool of blood with a number of injuries on his person. It is alllied that at that time the deceased Mond Sayed was in his senses and he pointed out at the apprehended both the accllsed as his assailants and said that he was knifed by the respondents. P. W. 1 Sayeed Hussain took the deceased to the District Hospital, Pilibhit in a Rickshaw and after getting him admitted in the hospital, he returned to the place of occurrence and the respondents were taken to the Police Station and there they were given in the custody of the Police. P. W. 1 Sayeed Husain submitted a written report at the Kotwali Police Station at 3. 30 a. m. which is Ex. Ka. 1. where upon P. W. 10 Imdad Ali Khan, Head Constable, prepared chik report on the basis of the aforesaid written Report. The said chik report is Ex. Ka. 8. P. W. 1 Sayeed Husain submitted a written report at the Kotwali Police Station at 3. 30 a. m. which is Ex. Ka. 1. where upon P. W. 10 Imdad Ali Khan, Head Constable, prepared chik report on the basis of the aforesaid written Report. The said chik report is Ex. Ka. 8. He also registered a case under section 307 I. P. C. in the General Diary and the General Diary entry is Ex. Ka. 12. He also got knife Ex. Ka. 1 from P. W. 1 Sayeed Husain which was snatched from Yaqub and prepared Ex. Ka. 2. ( 3 ) THE deceased Mohd. Sayeed was examined by Doctor J. M. L. Arora at 1. 40 a. m. on 4. 8. 75 in the District Hospital and the following injuries were found on his person. 1. Incised wound. 6 cm X 0. 1 cm X muscle deep on the right side chest, vertical with the tailing at the lower end 5 cm medial to the aeronio-clavicular joint with fresh blood. 2. Incised wound 3 cm x 0s cm x muscle deep on the back of left side forearm, transversely placed, with fresh bleeding, 5 cm above the styloid process of radius with tailing on medial side. 3. Incised wound 5 cm X 0 5 cm x muscle deep on the back or right forearm, 5 cm below the elbow, transversely placed, fresh bleeding with tailing on the inner side. ( 4 ) STAB wound with clean cut margins 2 cm X 1 cm x abdominal cavity on the left side abdomen at inguinal region outer side 1/3 with fresh bleeding, obliquely placed directing inward and medially upward. The injuries were found to be fresh in duration and caused by sharp edged weapon like knife. The aforesaid report is Ex. Ka, 4. 4. In the following morning at about 7 0 clock the deceased was found physically and mentally fit and was capable of making statement and the dying declaration of the deceased was recorded by P. W. 4 Doctor J. M. L. Arora at 7 a. m. Tile said dying declaration is Ex. Ka. 7. The aforesaid dying declaration is quoted below. . . (Vernacular Matter Ommited ). . The deceased was then transferred to Bareilly Hospital and he succumbed to his injuries on 1. 8. 1975 at 10. Ka. 7. The aforesaid dying declaration is quoted below. . . (Vernacular Matter Ommited ). . The deceased was then transferred to Bareilly Hospital and he succumbed to his injuries on 1. 8. 1975 at 10. 15 p. m. ( 5 ) BEFORE the transfer of deceased to Bareiby Hospital, his statement was also recorded at 6 a. m. on 6. 8. 75 by P. W. 12. Raghunath Singh Tyagi, Investigating officer under Section 161 Cr. P. C, and the said statement which was placed on the record of this case, is EX. Ka. 16. The said statement is quoted below. . . (Vernacular Matter Ommited ). . ( 6 ) AUTOPSY on the dead body of the deceased was conducted by P. W. II Doctor S. P. Uppal on 8. 8. 1975 at 12 noon and he found the following anti mortem injuries on his person. 1. Stitched wound 6 cm long vertically placed on the front of tight shoulder medial to the acromium-five stitched applied muscle deep. 2. Stitched wound 2. 5 cm long on the back of right shoulder vertical-2 stitches applied muscle deep. 3. Stitched wound 2 cm long on the back of left forearm. transversely placed 3 stitches applied5 cm above the wrist joint Muscle deep. 4. Stitched wound 6 cm long on the back of right forearm upper 3rd, 5 cm below elbow joint transversely placed-S stitches applied muscle deep. 5. Stitched wound obliquely placed-from outer side to inward upwards and medially in left iliac fossa. 3 cm long 3. stitches applied, And, cavity deep. The wound is placed just below and 2 cm-inner to the Ant. Sup. Iliac Fossa. The underlying pelvic colar large gut has been cut across the peritoneum. The femoral vein left has been cut in 1/3 of its width at its upper end . . (Vernacular Matter Ommited ). . junction with iliac vein. The and. Cavity has got about a little of blood. 6. Abrasion 2 cm X 1 cm on the back of left wrist. According to the opinion of the Doctor, the cause of death was due to shock and haemorrh-age as a result of injuries. . (Vernacular Matter Ommited ). . junction with iliac vein. The and. Cavity has got about a little of blood. 6. Abrasion 2 cm X 1 cm on the back of left wrist. According to the opinion of the Doctor, the cause of death was due to shock and haemorrh-age as a result of injuries. ( 7 ) ON receiving information about the death of the deceased at Bareilly hospital, P. W. 10 Imdad Ali Khan, Head Constable of police station Kotwali, Pilibhit converted the case under section 307 to 302 I. P. C, on 19. 8. 1975, in the General Diary of Police Station and the said entry is Ex. Ka. 14. ( 8 ) IN this case, P. W. 12 Raghunath Singh Tyagi, Station Officer, started investigation just after the registration of the case and recorded the statement of P. Ws. Sayeed Husain, Mohd. Yasin and others at the police station and then he proceeded to Pilibhit and recorded the statement of deceased in the hospital which is Ex, Ka. 16. He also went to the place of occurrence, inspected the locality and prepared site plan which is Ex. Ka. 17. The room which was the scene of tragedy was a small one hardly 7 or 8 paces in length and a cot was also found there with bedding and bed- sheets were found to be stained in blood. A lantern was also found suspended to the hook fastened to the door frame. ( 9 ) AFTER completion of the investigation P. W. 12 Raghunath Singh Tyagi submitted charge sheet on 5. 9. 1975 against the respondents. ( 10 ) THE respondents pleaded not guilty to the charge and they stated that they were falsely implicated in this case on account of enmity. ( 11 ) WE have heard the learned counsel for the State and also learned counsel for the respondents at a great length and we are of the view that prosecution has failed to establish the charge framed against the respondents and they must be acquitted. ( 12 ) THE prosecution examined P. W. I Syecd Hussain Khan, P. W. 2 Fahameed San, P. W. 3 Mohd. Yaseen, P. W. 4dr. ( 12 ) THE prosecution examined P. W. I Syecd Hussain Khan, P. W. 2 Fahameed San, P. W. 3 Mohd. Yaseen, P. W. 4dr. J. M. L. Arora P. W. 6 Vishram Singh, P. W. 6 Lallo Datt, P. W. 7 Naresh Bahadur Singh, P. W. 8 G. D. Rastogi, P. W. 9 Santosh Prakash, P. W. 10 Imdad Ali Khan, P. W. 11 Dr. S. P. Uppal, and P. W. 12 Raghunath Singh Tyagi in support of its case. Out of these witnesses P. W. 2 and P. W. 3 art the eye witnesses of the occurrence. ( 13 ) THE 4efence examined D. W. 1 Abdul Latif who stated that he lived in the neighborhood of the deceased and. he also heard the screams and reached the house of the deceased where there was no light and the deceased had told him and others who were standing nearby that he could not identify the assailants. The witness also stated that the respondents were arrested by the police from his house at about 9-10 0 clock. ( 14 ) P. W. I Syeed Husain Khan is the first informant in this case. He stated that he was informed by P. W. 2 Fahameed Shah about the assault on the deceased. The witness further stated that the deceased Mohd. Sayeed was resident of Kanpur and he used to live at Pilibnit in Mohalla Bhore Khan in connection with his business. He also stated that he was an employee of the deceased and the deceased lived in the neighbourhood of his house at a short distance. He also stated that on the night of occurrence at mid-night, while he was at-his house, he was informed by P. W. 2 Fahmeed Shah about the assault on the deceased, whereupon he immediately went to the house of the deceased and found him in injured condition. He also found respondents Yakub and Kallu in the house of deceased who were over-powered and appreh ended at the time of occurrence by P. W. 3 Mohd. Yasin and Fahmeed Shah P. W. 2 and others and on enquiry the deceased while pointing at the respondents, told him that he was assaulted by them. He also found respondents Yakub and Kallu in the house of deceased who were over-powered and appreh ended at the time of occurrence by P. W. 3 Mohd. Yasin and Fahmeed Shah P. W. 2 and others and on enquiry the deceased while pointing at the respondents, told him that he was assaulted by them. He further stated that shortly after, he took the deceased to the hospital in the injured condition where the deceased was examined by Doctor J. M. L. Arora and the patient was admitted in the hospital as indoor patient. He further stated that after the admission of the deceased in the hospital, he went to the Police Station where he lodged written report Ex. Ka. 1 at 3. 30 a. m. the same day. He further stated that the deceased had told him that he was knifed by appellant Yakub and deceased also pointed towards Kallu respondent but in cross-examination this witness admitted that the deceased neither told him as to weapon employed-by the accused nor he told about the source of light. He further stated that the deceased Arco did not tell him about the arrival of any witness at the time of occurrence of the deceased told to P. W. 1 Sayeed Husain Khan, cannot be believed as there is no such entioil in the dying declaration recorded by Dr. J. M. L. Arora and the Magistrate which are Ex. Ka.-5, Ka-6 and Ka-lo respectively. It may be further noted that the statement of Syeed Husain P. W. 1 that he found accused Yakub and Kallu inside the house of the deceased apprehended by P. Ws. 2 and 3 is belied by the dying declaration of the deceased recorded by Doctor J. M,l. Arora at 7 a. m. on 6. 8. 1975 to the effect that the assailants after causing injuries to the deceased had run away from the place of occurrence. ( 15 ) P. W. 2 Fahmeed Sah stated that respondent Yakub alone had used knife against the deceased and stated that accused Kallu had overpowered the deceased but in his statement under section 161 Cr. P. C. , he stated that both the respondents had assaulted the deceased with knives. Moreover, he stated in his evidence, that the deceased had pointed at respondents Yakub and Kallu that they had assaulted him but in. P. C. , he stated that both the respondents had assaulted the deceased with knives. Moreover, he stated in his evidence, that the deceased had pointed at respondents Yakub and Kallu that they had assaulted him but in. the second breath, he stated that the deceased had only pointed towards the cots. He also stated that both the accused were over Powered and arrested by him, P. W. 3 Mohd. Yaseenand Aslam and others inside the house while they were assaulting the deceased but this part of his evidence does not find place and is contradicted by the alleged dying declaration of the deceased recorded by P. W. 4 Doctor J. M. L. Arora which is EX. Ka. 6 and, therefore, his evidence is not of any help to the prosecution, and it appears that he had not seen the occurrence at all. ( 16 ) LIKEWISE P. W. 3 Mohd. Yaseen stated that he also went to the house of the deceased on hearing his cries and he caught hold of the respondents with the help of others but story of arrest is belied by the alleged dying declaration Ex. Ka-6 wherein the deceased had stated that after the occurrence the assailants made good their escape. Moreover, Mohd. Yasin P. W. 3 stated that the deceased had told him that Yakub and his associate Kallu respondents had knifed him but he stated in his statement under section 161 Cr. P. C. that when he reached the house of the deceased, he found him in an unconscious state vide Ex. Kha-8 and, therefore, his statement in court that the deceased had told him that he was knifed by Yakub and his associate (Kallu) is belied by his own statement recorded by the Investigating Officer under Section 161 Cr. P. C. and, therefore, he is contradicted and as such P. W. 3 Mohd. Yaseen also is not a reliable witness. ( 17 ) AFTER holding that the eye witnesses P. W. 2 Fahmeed Sah and P. W. 3 Mohd. Yaseen are not reliable witnesses and also the evidence of P. W. 1 Syed Hussain Khan is not reliable, we are now left with the four Dying Declarations of the deceased. The first dying declaration is the oral which is alleged to have been made by the deceased to P. W. 1 Syed Hussain Khan. Yaseen are not reliable witnesses and also the evidence of P. W. 1 Syed Hussain Khan is not reliable, we are now left with the four Dying Declarations of the deceased. The first dying declaration is the oral which is alleged to have been made by the deceased to P. W. 1 Syed Hussain Khan. P. W. 1 Syed Hussain Khan stated that shortly after the occurrence on receiving the information from P. W. 2 Fahmeed Shah that the deceased had been assaulted by the respondents, he went to the house of the deceased where he found the deceased in an injured condition and on making enquiries from the deceased, the deceased had pointed towards the arrested accused Yakub and Kallu and said that they were the persons who had caused injuries to him. ( 18 ) WE have already held that this oral dying declaration to P. W. 1 Syed Hussain Khan is not at all worthy of belief as the deceased himself did not state in any of his Dying Declarations that he ported towards the respondents saying that they were the persons who bad caused injuries to him. ( 19 ) THE second dying declaration Ex. Ka. 16 is the statement of the deceased recorded by P. W. 12 Raghunath Singh, Investigating officer in the district Hospital. It is a very brief statement wherein the deceased had simply stated that he was assaulted by Yakub and his associate (Kallu) resident of Bilaspur. It may be noted that the Investigating Officer did not take any witness with him to record the statement of the deceased. He did not even take the permission of the Doctor for recording the statement of the injured who was admitted as indoor patient in the hospital. ( 20 ) ACCORDING to the statement of P. W. 112 Raghunath Singh the statement of deceased was recorded by him in the hospital at about 6 a. m. on 6. 8. 1975. He stated that there was nobody in the Ward when he recorded the statement. The statement is so much brief that it is very difficult to fix the identity of the accused persons. Moreover, there is no mention of any light which had helped the deceased to recognize the assailants. Therefore, the second dying declaration Ex. Ka, 16 recorded by the Investigating Officer is of no avail to the prosecution. The statement is so much brief that it is very difficult to fix the identity of the accused persons. Moreover, there is no mention of any light which had helped the deceased to recognize the assailants. Therefore, the second dying declaration Ex. Ka, 16 recorded by the Investigating Officer is of no avail to the prosecution. ( 21 ) NOW we take up the 3rd dying declaration Ex. Ka. 7 recorded by P. W. 4 Doctor ]. M. L. Arora at 7 a. m. on 6. 8. 1975 in the hospital. It is note worthy that there is also no mention of any light. There is also no mention of any witnesss presence at the time of occurrence. It is also mentioned in the dying declaration that the respondent Yakub and the other had come to him day-before-yesterday, viz: on Monday in the evening and they had asked for money from him for going to see Movies but in the other dying declaration which is Ex. Ka. 10 recorded by the Magistrate on 6. 8. I 975, the deceased li. ad stated that Yakub had demanded money for going to see Movies on the night of occurrence. Therefore, it is doubtful that respondent Yakub had demanded money from the deceased in order to see the cinema. ( 22 ) MOREOVER, the deceased had stated in his dying declaration Ex. Ka. 10 that he did not see the object by which he was assaulted. ( 23 ) THEREFORE, the defence version that the deceased had no opportunity to identify the assailants as he could not give out the name of the object by which he was assaulted, is believable. ( 24 ) NOW coming to the dying declaration of the deceased Ex. Ka. j 0 recorded by the Magistrate on 6. 8. 1975 at 10. 25 p. m. at Bareilly Hospital, it is stated that there is also no mention of light which helped the deceased to recognize the assailants. Moreover, the deceased stated that he was assaulted by Lathi and some sharp edged implements but he could not see them. Therefore, it is abundantly clear that the deceased had no opportunity to mark the faces of the assailants when he could not correctly give out the name of the weapons with which the deceased received injuries. Moreover, the deceased stated that he was assaulted by Lathi and some sharp edged implements but he could not see them. Therefore, it is abundantly clear that the deceased had no opportunity to mark the faces of the assailants when he could not correctly give out the name of the weapons with which the deceased received injuries. It may be noted that no blunt weapon injury was found on the person of the deceased either in the medical examination report Ex. Ka-4 prepared by Doctor J. M. L. Arora or in the post mortem report prepared by Doctor S. P. Uppal P. W. 11. Therefore, it is highly doubtful that the deceased had any opportunity to recognise his assailants when he was assaulted at midnight and so from both the dying declarations i. e. Ex. Ka. 7 and Ka. 10, it is abundantly clear that the deceased failed to give the source of light which enabled him to recognise the assailants. Moreover, he could not gived the names of the weapons with which he was assaulted. He has also stated that he could not see the weapons. Therefore, in the absence of any source of light which enabled the deceased to recognise the assailants, it will not be safe to place any reliance on his statement recorded by P. W. 4 Dr. J. M. L. Arora or P. W. 8 G. D. Rastogi Magistrate. Admittedly, the deceased was assaulted at midnight while he was asleep and it is very doubtful that there was any light when the occurrence took place. If the deceased could have seen the assailants and if the source of light was there. there could not be any reason as to why the weapons of the assailants could not be seen by the deceased. Moreover, the deceased had stated that he was attacked with Lathi and with some sharp edged implement but in the same breath he stated in the dying declaration Ex. Ka. 10 that he could not see the weapon with which he was assaulted. Moreover, the deceased had stated that he was attacked with Lathi and with some sharp edged implement but in the same breath he stated in the dying declaration Ex. Ka. 10 that he could not see the weapon with which he was assaulted. We have already observed above that no lathi injury was found on the person of the deceased either by Doctor Arora who had examined the injuries of deceased or Doctor K. P. Uppal who conducted post- mortem examination of the deceased, ( 25 ) FROM-WHAT we have discussed above regarding the dying declarations of the deceased, we come to the irresistible conclusion that the deceased had no opportunity to recognise the assailants Yakub and Kallu at the time of occurrence. It is possible that the deceased had named the assailants out of some suspicion arising out from the circumstance that the respondents had demanded money from him for seeing movies in the evening. In the dying declaration recorded by the Magistrate Ex. Ka. 10 the deceased stated that the assailants had come to his house at about 8 or 9 p. m. on the date of occurrence. and had retired outside the room where the deceased had slept. The occurrence is alleged to have taken place at midnight when the deceased while sleeping, found himself under aggression at the hands of assailants. Although he did not see the aggressor due to inadequacy of light, he played on his imagination and on mere suspicion, he may have come to believe that the respondents were the perpetrator of the violence. This false impression in the mind of the deceased may have come as the respondents had demanded money from him and he had refused but as we have earlier held that non mention of light in the dying declaration of the deceased and his inability to see the weapons had made the dying declarations unreliable and therefore it will not at all be safe to base conviction on the aforesaid dying declarations. It is a settled law that dying declaration, if found to be reliable, can very well be relied for convicting the accused persons without any corroboration by any other evidence but where the dying declarations show that the maker of the statement was not in a position to recognise the assailants and their weapons on account of absence of light then, the aforesaid dying declaration cannot be relied upon for the conviction of accused persons. It may further be noted that according to the site plan one of the inner wall of the courtyard adjacent to the wooden Tal was about 3 feet high and, therefore, any person could have entered the house of the deceased and after committing the crime, make good his escape. It may further be noted that the cash box kept in the room of the deceased where he was assaulted contained Rs. 1000/- which was recorded by the Investigating Officer and, therefore, the story of demand of money by the respondent from the deceased for going to see picture had also become doubtful. Therefore, it is abundantly clear that the eye witnesses prosecuted in this case are not reliable, the presence of light inside the room where the occurrence took place, is not established, the dying declarations are not at all reliable on account of absence of light and the incapacity of the deceased to decipher the weapons of the assailants with which he received injuries. Moreover, the house of the deceased was bound at least on one side by a small wall which can easily be scaled by person and without the least difficulty the assailants could have run away after committing the crime. The respondents were also not arrested on the spot. ( 26 ) IN the result, the appeal preferred by the State against the respondents is dismissed and the order and judgment of acquittal passed by the Sessions Judge is upheld. The respondents are on bail. They need not surrender. Their bail bonds are discharged. Appeal dismissed. .