JUDGMENT I. P. Singh, J. 1. Habib Ullah, convict appellant, has preferred this appeal against the judgment and order of Sri D. N. Shukla, Additional Sessions Judge, Banda, dated 11-8-1977, convicting the appellant under sections 302 and 307, IPC and sentencing him to imprisonment for life and seven years (the Sessions Judge, by mistake omitted to mention whether this sentence of seven years would be simple or rigorous). Both the sentences were ordered to run concurrently. 2. The prosecution case is that Mohammad Razi alias Dadua complainant, the deceased, was a notorious person against whom the police had started a case under section 110, CrPC on the basis of police report dated 1-3-1973. He was said to be forcibly realizing money from the local shop-keepers. Mohammad Razi alias Dadua was one of the local shop keepers running a vegetable shop just as Habib Ullah appellant was also running a vegetable shop. The prosecution further case is that in the right between 23rd and 24th June, 1973, the deceased and his wife Smt. Mahjabin PW 1 were sleeping on separate cots in front of their shop on Badosa Road. At about 1.30 a. m. the appellant accompanied by four other axused (out of whom Shakir had died before the trial while the remaining three were acquitted by the learned Sessions Judge) came there and threw sulphurie and on both the deceased and his wife. According to the prosecution, an electric bulb fitted to the electric pole situate close to the shop of the deceased was on, and, when both the victims were awakened as a result of the sulphuric acid thrown on them, they were able to see the five miscreants running away. Since they were known to them, they were recognized by them. 3. The first information report of this incident was lodged by the deceased himself at Police Station Atarra within district Banda two Km. away at 2.00 a. m. Both the injured were medically examined by Dr. P. N. Singh, M. O., District Hospital, Banda, on 24-6-1973 between 4.30 a, m. and 4.45 a. m. According to their injury reports both of them had received extensive burns of second degree on various parts of their bodies. Since the burns of their eyes would be relevant for the purpose of the appeal, we would make special mention about them. Since the burns of their eyes would be relevant for the purpose of the appeal, we would make special mention about them. Mohammad Razi alias Dadua complainant (deceased) had two second degree burns on the entire face so much so that the eye lids were burnt and the eye balls were shrunken. There was photophobia present so much so that the patient did not permit the doctor to have full examination of the eyes. However, the eyes of Smt. Mahjabin had escaped unhurt. It may also be noted that Mohammad Razi alias Dadua had subsequently died of the said injuries and his post-mortem examination report given by Dr. Vinay Maitin, Medical Officer, Moti Lal Nehru Hospital, Allahabad, dated 13-7-1973, confirms that the eyes of the deceased were burnt apart from the various other parts of his body. The cause of death was reported to be shock on account of the said burns. 4. The appellant had denied having committed this crime and alleged that he was falsely implicated in this case on account of enmity. The defence did not even lead any evidence in defence. The prosecution examined, in all four witnesses including Smt. Mahjabin PW 1 and Lassad PW 2 who was reported in the first information report to have reached the spot and witnessed the occurrence. Smt. Mahjabin PW 1 was declared hostile by the prosecution and was subjected to cross-examination by the prosecution. After assessing the evidence on record, the learned Sessions Judge convicted and sentenced the appellant, as above while acquitted the others. All the accused including the appellant standing their trial before the learned Sessions Judge were, however, acquitted of the charge under section 147 IPC. 5. The first information report was lodged by Mohammad Razi alias Dadua (deceased) himself. In it, he made a statement that all the five accused named therein had thrown acid on him and his wife. He claimed that he was awakened by throwing of acid on him and then he saw in the light of the electric pole nearby that the five accused were running away and he recognized them. However, from the medical evidence on record already discussed above, it appears to us that perhaps he was not in a position to open his eyes after the acid had fallen on them. We have our doubts if he was able to see any body running away. However, from the medical evidence on record already discussed above, it appears to us that perhaps he was not in a position to open his eyes after the acid had fallen on them. We have our doubts if he was able to see any body running away. The learned Deputy Government Advocate has, however, relied upon the statement of the deceased which was recorded by the Investigating Officer under section 161, CrPC in which he stated that all the five accused had come to the spot near their cots and it was by the sound (Ahat) of their arrival that they had awakened. He then added that soon after Shakir (since dead) and Habib Ullah accused had thrown acid on them which they were carrying in glasses. He claimed that he and his wife had recognized the five miscreants in the light of the Bulb from the electric pole nearby. It is argued by the learned Deputy Government Advocate that this statement as well as the first information report should be taken to be the dying declaration and since they implicate the appellant, so these statements should be sufficient to confirm his conviction and sentence. The learned counsel for the appellant has pointed out that the said documents, which are desired to be treated as dying declaration, should be of such a nature as to inspire full confidence of the Court in their correctness. In other words, his argument is that there should not be any discrepancy in them which should throw doubt upon the veracity of their contents. It is also argued that such statements also need to be corroborated from other circumstances and the evidence on record. We agree with this argument and try to appreciate the same in that light. We have discussed above that there was perhaps no opportunity for the deceased complain- ant to see or recognize the appellant and his companions inasmuch as it was not possible for him to open his eyes after being poured with acid. Besides in the first information report, be states that the acid was thrown on them when he and his wife were asleep and it was only after throwing acid that they were awakened. Besides in the first information report, be states that the acid was thrown on them when he and his wife were asleep and it was only after throwing acid that they were awakened. However, in his statement under section 161, CrPC he has taken a contrary stand by asserting that both he and his wife were awakened by the sound (Ahat) of the approach of miscreants and it was then that they had recognized them so much so that the acid was carried in glasses by Shakir and Habib Ullah appellant only and it was thrown by them. Since the two versions materially differ, we do not find ourselves in a position to place implicit reliance thereon. Besides the best witness, in the circumstances of the case, would be his wife Smt. Mahjabin PW 1, she, in her statement, stated that there was no light at all and it was pitch dark. This was a very damaging statement to the prosecution case. So she was treated hostile and was permitted by the Court to be cross-examined by the State Counsel. She admitted that although the electric pole was situate only two or three paces away from the shop yet confirmed in the cross-examination directed by the defence that the said pole had no bulb as it had been broken some time back. She, in her cross-examination by the State Counsel, stated that both she and her husband had not recognized any of the miscreants. She added that her husband had become unconscious so much so that the entire face and eyes and other parts of his body were badly burnt by the acid. According to her he was not in a position to speak an was taken to the Thana while unconscious. Nothing substantial could be brought out by the learned State Counsel in her cross-examination and the conclusion drawn by the learned Sessions Judge that she was deposing falsely and concealing the true facts under the influence of the accused persons or her second husband cannot be said to be completely warranted by the circumstances or the evidence given by her. Although the presence of Smt. Mahajabin on the spot cannot be denied inasmuch as she had suffered acid burns on her body, but, from her statement as discussed above, no guilt can be fastened on to the appellant. 6. Although the presence of Smt. Mahajabin on the spot cannot be denied inasmuch as she had suffered acid burns on her body, but, from her statement as discussed above, no guilt can be fastened on to the appellant. 6. Lassad PW 2 is, of course, named in the first information report, but he has stated that he had reached the spot after the incident and did not see any of the miscreants there but only found the deceased and his wife lying there with acid burns. Of course, his statement under section 161, CrPC contained the fact that Dadua (deceased) had told him (soon after the occurrence) that acid was thrown by Shakir, Habib Ullah, Raja Ram, Barati Lal and Maiku but no reliance can be placed on this statement inasmuch as we have discussed above that the deceased was not in a position to see or recognize the miscreants, and in that perspect, he could not have named these persons before LASSAD. As a result of the above discussion, we have no hesitation to conclude that the prosecution had miserably failed to prove the guilt of the appellant. His appeal must succeed. 7. The appeal is allowed. The conviction and sentence awarded by the learned Sessions Judge to him are set aside. He is acquitted of all the charges against him. He is on bail. He need not surrender to his bail bonds which are cancelled. His sureties are discharged. Appeal allowed.