S. I. JAFRI, J. ( 1 ) RAGHUBIR and Mohinder appellants were convicted under section 302/34 and 302 Indian Penal Code respectively and each of them were sentenced to serve out life imprisonment in Sessions Trial No. 690 of 1976 by Shri R. K. Gupta, Sessions Judge, Etah, on 30. 9. 1977. Against the aforesaid conviction and sentences, Raghubir preferred appeal No. 2251 of 1977 and Mohinder preferred appeal No. 2337 of 1977 in this Court. Both the appeals were connected and heard together. ( 2 ) THE appellants were charged for committing the murder of Babu Ram between the night of27/28. 8. 1976 at about mid-night at his tube well in village Nagla Kher, a hamlet of village Lodhamai, Police Station Marhara, district Etah. ( 3 ) THE prosecution version is that appellant Mohinder belonged to village Nagaria and he was the son of the Sarhu (sister-in-laws husband) of Babu Ram deceased, resident of village Nagla Kher. The deceased had brought Mohinder to his house in order to look-after his cultivation. Mohinder appellant while living in the house of Babu Ram deceased had developed illicit relation with Smt. Riwa, wife of Babu Ram deceased. On learning about the aforesaid illicit intimacy between Mohinder and Smt. Riwa, Babu Ram deceased had turned Mohinder out of his house about a year before the occurrence. It was also alleged that even after Mohinder had been turned out from the house of Babu Ram, he continued to meet Smt. Riwa secretly and as such, Babu Ram deceased had reprimanded his wife on several occasions. About 5 months before the present occurrence, Mohinder appellant had pointed pistol at Babu Ram, but luckily Babu Ram escaped unscathed in his field where he was watering his crop and since then Babu Ram was very much scared of Mohinder appellant. ( 4 ) THE field of other appellant Raghubir adjoined the field of Babu Ram and it was alleged that Raghubir appellant had demoli shed the Mend of the field of Babu Ram as a result of which Babu Ram and Raghubir had altercation with each other and in this way, the prosecution alleged that both Mohinder and Raghubir were at variance with the deceased Babu Ram leading to his murder. The accused were also said to be fast friends The case of the prosecution is that on the fateful night at about mid-night, Babu Ram deceased was sleeping in front of his tube well and two bulbs of 100 watts were lighted on the said tubewell, The deceased was sleeping on a cot and beside him on the same cot Seth Singh (P. W. 3) and Gajadhar were also sleeping when the appellant Raghubir armed with a licensed gun, came there from the northern side of the tubewell and Mohinder appellant while leaning upon Babu Ram deceased, fired a shot which hit on the right side of the chest of Babu Ram. After the firing, Babu Ram on receiving the gun shot injury. Seth Singh, Gajadhar were aroused from their sleep and they had seen the appellants standing near the cot with firearms. Ram Prasad and Tej Sing and others also reached there with torches and Lathies for their help whereupon Raghubir appellant declared that if anyone would dare advance towards them, he would meet the death of a dog and he had fired his gun in the air. In the meantime, Mohinder appellant had also loaded his pistol and thereafter the appellants made good their escape from the place of occurrence towards the north. After the departure of the appellants from the scene of occurrence, Ram Prasad, Tej Singh, Kishori Lal and others came near Babu Ram and theyfound him injured. They tied the wound of Babu Ram deceased with a piece of cloth and Babu Ram deceased told Ram Prasad and others that be had seen the appellants running away from the scene of occurrence after firing at him. Thereafter, Ram Prasad alongwith Kishori Lal and others took Babu Ram injured to village Mirchahi on a cot and from there, they took him on a Tonga to District Hospital, Etah, where Babu Ram was medically examined at 6. 10 a. m. on 28. 8. 1976 by Dr. Daya Shanker (P. W. 8 ). The Doctor found the following injuries on his person. 1. Gunshot wound of entry (right) side abdomen adjacent to 8th inter-costal space 4 cm. away from mid-line measuring 3 cm. x 2 cm, margins everted. Blackening scorching present. Blood is coming out (Adv-X-ray ). 2. Contusion (right) lower lateral side of abdomen at aliac chest level 5 cm. x 3 cm. colour pinkish blue. 1. Gunshot wound of entry (right) side abdomen adjacent to 8th inter-costal space 4 cm. away from mid-line measuring 3 cm. x 2 cm, margins everted. Blackening scorching present. Blood is coming out (Adv-X-ray ). 2. Contusion (right) lower lateral side of abdomen at aliac chest level 5 cm. x 3 cm. colour pinkish blue. Some Hard object is felt underneath this (probably shot) Adv. X-ray. Direction of gun-shot wound obliquely downward and outward injuries are kept under observation and caused by fire arm and about 6 hours old. ( 5 ) THE dying declaration of the deceased Babu Ram was recorded at 7. 45 a. m. in the District Hospital on 28. 8. 1976 by Shri Pritam Singh (P. W. 10), Magistrate 1st Class, Btah and in the aforesaid dying declaration, Babu Ram deceased had named both the appellants as his assailants. ( 6 ) AFTER recording of the aforesaid dying declaration of Babu Ram, Ram Prasad alongwith Kishori Lal went to police station Kotwali, Btah for lodging the First Information Report, but he was directed to go to Police Station Mahrera by the Head Constable of Police Station Kotwali for making his report as the occurrence had taken place within the jurisdiction of Police Station Mahrera, Consequently, Babu Ram left for Police Station Mahrera alongwith Kishori Lal (P. W. 5) and on reaching village Mirchahi, Kishorilal wrote out report of the occurrence on the dictation of Ram Prasad and Ram Prasad on reaching the Police Station Mahrera, handed over the report to the Head Constable Beni Singh (P. W. 7 ). The Head Constable prepared the chik report at 12. 40 p. m. on the basis of the aforesaid report and registered a case under section 307 Indian Penal Code against the appellants in the General Diary of the Police Station. The aforesaid case was registered at the Police Station in the presence of Shiv Kumar Tyagi (P. W. 11) Station Officer of Police Station Mahrera. He took up the investigation of the case and recorded the statements of Ram Prasad and Kishorilal at the Police Station and thereafter, Ram Prasad left for District Hospital Etah. Shiv Kumar Tyagi started for village Nagja Kher and on the way to the place of occurrence at Mirchahi, he got information that Babu Ram had breathed his last in the District Hospital, Etah. On reaching the village, he interrogated Tej Singh. Shiv Kumar Tyagi started for village Nagja Kher and on the way to the place of occurrence at Mirchahi, he got information that Babu Ram had breathed his last in the District Hospital, Etah. On reaching the village, he interrogated Tej Singh. Seth Singh and others. He inspected the place of occurrence and prepared the site-plan Ex. Ka. 16. He also found an empty cartridge Ex. 2 at the place of occurrence and took the same in his possession and prepared the recovery memo Ex. Ka-17. He also found a cot in front of the tubewell of Babu Ram. He also inspected the torches of Tej Singh and Ram Prasad and found the same in order. He had found two bulbs of 100 watts each fitted on the building of the tubewell of Babu Ram. Shiv Kumar Tyagi, thereafter, returned to the Police Station and got the case converted from section 307 Indian Penal Code to section 302 Indian Penal Code. ( 7 ) BABU Ram succumbed to his injuries at 12. 10 p. m. on 28. 8. 1976 in the District Hospital, Etah. Dr. Daya Shanker P. W. 8 sent the information regarding his death to the Police Station Kotwali Etah and Kalbe Ali P. W. 6 Sub-Inspector of P. S. Kotwali conducted the inquest on the dead body of the deceased. He sent the dead body of Babu Ram to the mortuary in the sealed cover through constables Om Prakash and Samar Singh for post mortem examination. ( 8 ) AUTOPSY on the dead body of the deceased Babu Ram was conducted by Dr. S. Prasad P. W. 4, Superintendent District Hospital Etah on 29. 8. 1976 at 11. 10 a. m. ihe Doctor found the following ante-mortem injuries on the person of the deceased. 1. Gun-shot wound of entry 3 cm. x 2 cm. x abdominal cavity deep on the right side of abdomen just below the costal margin 2 cm. outer to the midline. The wound was directed to the right outwards and downwards scorching and blackening was present around the wound. 2. Contused swelling 5 cm. x 3 cm. on the right hip ounter aspect at the iliac crest. Some hard object was feit below this contused swelling. On internal examination, membranes of the Abdomen were found perforated under injury No. 1 and two metalic shots were extracted. 2. Contused swelling 5 cm. x 3 cm. on the right hip ounter aspect at the iliac crest. Some hard object was feit below this contused swelling. On internal examination, membranes of the Abdomen were found perforated under injury No. 1 and two metalic shots were extracted. The abdominal cavity contained one pound of blood and iliac cresh was found broken into several pieces and three metallic shots and three pieces of wads were recovered. Large intestines were perforated. Liver was also torn in an area of 3. 5 cm. x 2 cm. According to the opinion of the Doctor the death was due to shock and haemorrhage as a result of gunshot injury. ( 9 ) AFTER completing the investigation. Shiv Kumar Tyagi P. W. 11, submitted chargesheet Ex. Ka 20 against the appellants. ( 10 ) ON consideration of the entire evidence produced in the case, the learned Sessions Judge came to the conclusion that the prosecution had succeeded in proving the guilt of the accused and had convicted and sentenced them as mentioned above. ( 11 ) THE appellants pleaded not guilty to the charge and attributed their false implication in the case due to enmity. They did not examine any witness but filed documents Ex. Kha 1 to Kha 9 in their defence. ( 12 ) THE prosecution examined 11 witnesses in all in support of its case and out of them, Ram Prasad P. W. 1, Tej Singh P. W. 2 and Seth Singh P. W. 3 were examined as eye witnesses of the occurrence. Kishori Lal P. W. 5 was also examined to depose about the oral dying declaration given by the deceased after the occurrence on the spot. ( 13 ) RAM Prasad (P. W. 1) is the uncle of the deceased Babu Ram. He stated that his field lies to the north of the field of Babu Ram which is to the north of the tubewell of Babu Ram, He deposed that he and Tej Singh P. W. 2 had returned after watching their Maize crop of their fields at about 12 or 12. He stated that his field lies to the north of the field of Babu Ram which is to the north of the tubewell of Babu Ram, He deposed that he and Tej Singh P. W. 2 had returned after watching their Maize crop of their fields at about 12 or 12. 30 A. M. at the tubewell of Pyarelal which lies towards south of the tubewell of Babu Ram and while sitting on a cot, they were talking to each other, Raghubir armed with a gun and Mohinder armed with a pistol, came from the northern side of the tubewell of Babu Ram deceased near the cot of Babu Ram and Mohinder fired from a close range at Babu Ram who was slept on the cot near his tube-well with the result that Babu Ram sustained gunshot injury in his chest. The witness further deposed that Seth Singh P. W. 3 and Gajadhar Singh who were also sleeping with Babu Ram on the same cot, and Babu Ram were aroused from their sleep immediately after the shot had been fired and as he with Tej Singh and others rushed towards the tube-well of Babu Ram withlathies and torches, Raghubir appellant threatened them and declared that if anyone would advance towards them, he would be shot dead like a dog and, then, Raghubir fired his gun in the air. Mohinder appellant also loaded his pistol in the meantime and both the appellants escaped towards north from the place of occurrence. He further stated that he and others had witnessed the occurrence and had recognized the appellants in the light of the two bulbs, which were lighted on the tube-well of Babu Ram. He also stated that the torch was not flashed as there was enough electric light at the place of occurrence. He further stated that after the appellants had escaped, he alongwith others went near Babu Ram and tied the wound in his chest by means of an Agonchha. He also deposed that Babu Ram disclosed to them that he was assaulted by the appellants. The witnesses further stated that, thereafter, he along-with Kishorilal P. W. 5 and Babu Ram left for District Hospital Etah and on reaching there in the morning, the injuries of Babu Ram were medically examined by the Doctor and the dying declaration of Babu Ram was also recorded by the Magistrate in the Hospital. The witnesses further stated that, thereafter, he along-with Kishorilal P. W. 5 and Babu Ram left for District Hospital Etah and on reaching there in the morning, the injuries of Babu Ram were medically examined by the Doctor and the dying declaration of Babu Ram was also recorded by the Magistrate in the Hospital. He further stated that, thereafter, he went to Police Station Kotwali, Etah for lodging the First Information Report but the police of Police Station Kotwali directed him to lodge the First Information Report at Police Station Mahrera as the occurrence had taken place within the jurisdiction of P. S. Mahrera, He left for Police Station Mahrera and on reaching Mirchahi, he dictated the report of the occurrence to Kishorilal P. W. 5 at village Mirchahi and on reaching police station Mahrera at 12 noon, he handed over the written report Ex. Ka 1 to the Head Constable and the investigating officer recorded his statement at the police station. In cross-examination, he admitted that he did not mention in the report that the deceased Babu Ram had disclosed to him the names of his assailants at the place of occurrence. He also admitted that he did not state before the Investigating Officer that the deceased Babu Ram had told him the names of his assailants after the occurrence in the village. Under the circumstance, it is too difficult to hold that the deceased Babu Ram had disclosed the names of his assailants to Ram Prasad P. W. 1 and others after the occurrence in the village. Ram Prasad had mentioned in his report that at about 12 in the night, he and Tej Singh had returned after watching the maize crop of their fields at the tubewell of Pyarelal and while they were sitting there on a cot, they had witnessed the assault on the deceased. Ram Prasad though stated in his examination-in-chief that shortly before the occurrence, he had returned after watching his maize field to the east of Pyareylals tube-well and he and Tej Singh had just sat on the cot when he had, witnessed the assault on the deceased, but in cross examination, he admitted that he had no field of his own and he had taken the said field from Babu Ram on Batai. However, he admitted that he did not state before the Investigating Officer that he and Tej Singh had returned after watching their own maize fields but Shiv Kumar Tyagi P. W. 11, the Investigating Officer, admitted in his evidence that Ram Prasad had stated before him that he and Tej Singh had returned after watching their own maize fields. Under the circumstance, as discussed above, the assertion of Ram Prasad that he had come back after watching his maize field to the tube-well of pyarelal along with Tej Singh and had seen the assault on the deceased by the appellants, cannot be believed at its face value. It is, therefore, difficult to hold that Ram Prasad was present near the place of occurrence at the tubewell of Pyarey Lal when he had witnessed the assault on Babu Ram deceased by the appellants. Furthermore, from the documents filed by the defence, it is quite clear that there existed deep-seated enmity between Ram Prasad, Babu Ram deceased and Tej Singh on one hand and Lala Ram, father of Raghubir appellant on the other hand. Ex. Kha 4 which is a certified copy of the application dated 18. 10. 72 shows that Vila Ram, father of Raghubir appellant had moved an application against Ram Prasad, Tej Singh and others to the Superintendent of Police Etah for taking action against them for their high-handedness. Raghubir appellant has also filed certified copies of the judgments of Sessions Trials Nos. 23 of 1975 and 24 of 1975 decided by the Sessions Judge on 29. 7. 74, which appear to be cross-cases. In one of the cases Badri, who was the real brother of Sarhu (sister-in-laws husband) of Babu Ram deceased, had filed a complaint against Raghubir appellant, his father Lala Ram and two others under section 325 I. P. C. and in the other case, Badri, Ranvir and Mohinder appellant were prosecuted on the complaint filed by Nakse under section 392/394 I. P. C, for having plundered the maize crop (Bhutta) of Nakse and in this case Lala Ram, the father of Raghubir appellant had appeared as a witness against Mohinder appellant, Badri and Ranvir. From the above two cases, it is quite apparent that Mohinder and Raghubir appellants had enmity inter-se from before the occurrence of the present case and their joining hands in the murder of Babu Ram does not appear to be probable. From the above two cases, it is quite apparent that Mohinder and Raghubir appellants had enmity inter-se from before the occurrence of the present case and their joining hands in the murder of Babu Ram does not appear to be probable. Under the circumstance, as shown above, it will be highly unsafe to place reliance on the testimony of Ram Prasad who is not only the uncle of Babu Ram deceased but also a chance witness whose presence at the time of occurrence is highly doubtful. Tej Singh P. W. 2 has corroborated the statement of Ram Prasad. As shown above, he is also not an independent witness as Lala Ram, the father of Raghubir appellant had given an application to the Superintendent Police Etah for taking action against him, Ram Prasad and others prior to the occurrence. Tej Singh deposed that at about 12 or 12. 30 A. M. he had returned after watching maize crop standing in his field along-with Ram Prasad at the tube-well of pyarelal and had made himself easy on a cot for rest at the tube well along-with Ram Prasad and while they were talking, the appellants Mohinder and Raghubir came near the cot of Babu Ram deceased who was sleeping on a cot along-with Seth Singh and Gajadhar near his tube well. Mohinder appellant fired from his pistol at Babu Ram deceased from a close range and Babu Ram, Seth Singh and Gajadhar woke up from their sleep after the firing. He and Ram Prasad and others rushed towards Babu Ram to save him but Raghubir appellant fired his gun in the air and warned them not to advance further otherwise they would be shot dead like dogs and in the mean-time, Mohinder appellant had reloaded his pistol and both the appellants had run away towards the north. He further deposed that he, Ram Prasad, Kishori, Chhokhey and others reached near Babu Ram who had received gun shot wound in his chest. Tej Singh further deposed that Babu Ram had told them that he was fired at by the appellants. The witness further stated that at that time, he and others had possessed Lathies and torches and Roshan brought a small cot from his house on which Babu Ram was laid and taken to village Mirchahi on way to District Hospital, Etah. Tej Singh further deposed that Babu Ram had told them that he was fired at by the appellants. The witness further stated that at that time, he and others had possessed Lathies and torches and Roshan brought a small cot from his house on which Babu Ram was laid and taken to village Mirchahi on way to District Hospital, Etah. The witness has admitted in his cross-examination that he did not tell the Investigating Officer that Babu Ram deceased had told him and others in the village after the occurrence that he was fired at by Mohinder and Raghubir appellants. Under the circumstances it cannot be believed that Babu Ram deceased had told the names of the appellants to Tej Singh and others as his assailants after the occurrence in the village. ( 14 ) WE have already held the evidence of Ram Prasad P. W. 1 as incredible and, therefore, the statement of Tej Singh that he had seen the assault on the deceased when he and Ram Prasad had returned at the tubewell of Pyarelal after watching their maize crop in their fields, cannot be believed at all. In view of the circumstances as mentioned above, the presence of Tej Singh at the tubewell of Pyarelal at the time of occurrence is highly doubtful. Tej Singh is inimical to the accused and he is also a chance witness. His evidence, therefore, cannot be held reliable. ( 15 ) SETH Singh P. W. 3 is the son of the servant of Babu Ram deceased. He deposed that his father used to look after the tube-well of Babu Ram deceased and quite often, he also used to stay at the tubewell during the night in the absence of his father. He stated that about one year before the occurrence, he had slept near the tube-well of Babu Ram on a cot as his father had become ill. Babu Ram deceased, Jagadhar alias Gajadhar and he were sleeping on the same cot near the tubewell and at about 12 or 12. 30 A. M. in the night he woke up on hearing the sound of firing. He saw Babu Ram injured in the light of the tube-well who was crying that Mohinder had fired at him. Babu Ram deceased, Jagadhar alias Gajadhar and he were sleeping on the same cot near the tubewell and at about 12 or 12. 30 A. M. in the night he woke up on hearing the sound of firing. He saw Babu Ram injured in the light of the tube-well who was crying that Mohinder had fired at him. He also noticed Mohinder and Raghubir appellants standing near the north of the cot of Babu Ram and Mohinder had a pistol in his hand while Raghubir was armed with a gun. Raghubir fired his gun in the air and at that time, Ram Prasad, Tej Singh and Kishori Lal came rushing from the southern side of the tube-well of Babu Ram but Raghubir warned them and said that whoever would advance forward, he shall meet the death of a dog and, then, Raghubir re-loaded his gun and both the appellants had run away from the place of occurrence towards the north. Thereafter, Ram Prasad, Chokhe and Kishori and others tied the wound in the chest of Babu Ram by means of an Angocha and Babu Ram deceased had then told them that he was fired at by Mohinder and Raghubir appellants. Seth Singh, however, admitted in cross-examination that he did not tell the Investigating Officer that Babu Ram had told him the names of his assailants at the place of occurrence. Admittedly. Seth Singh was sleeping when the firing took place and he was awakened thereafter. It is difficult to believe that the assailants whose ever may be would remain standing after firing at the deceased from a close range particularly when two persons were sleeping with the deceased on the same cot. We are, therefore, of the view that the assailants of the deceased would not have remained standing on the spot after the firing at the deceased from a close range to afford opportunity to Seth Singh and others for their recognition by them. Besides, Seth Singh is the son of the servant of the deceased and it is very likely that he was persuaded by Ram Prasad P. W. 1 to depose against the appellants and, therefore, it would not he safe to place reliance on his evidence for the conviction of the appellants. Besides, Seth Singh is the son of the servant of the deceased and it is very likely that he was persuaded by Ram Prasad P. W. 1 to depose against the appellants and, therefore, it would not he safe to place reliance on his evidence for the conviction of the appellants. ( 16 ) KISHORILAL P. W. 5 deposed that he was sleeping at his tube-well and he woke up on hearing the firing and went to the tube-well of Babu Ram deceased along-with Ram Prasad and Tej Singh. He found Babu Ram deceased in an injured condition. He stated that Babu Ram had disclosed to them that the appellants had fired at him. During his cross-examination, the witness admitted that he did not stale before the Investigating Officer that Babu Ram had told the names of the appellants before him after the occurrence in the village. Under the circumstance, the statement of Kishorilal before the trial court that the deceased had told him the names of the appellants as his assailants in the village after the occurrence, cannot be believed. His evidence also does not inspire confidence. ( 17 ) AFTER considering the entire evidence produced by the prosecution, we come to the irresistible conclusion that the deceased Babu Ram did not state after the occurrence before P. Ws. Ram Prasad. Tej Singh, Kishorilal and Seth Singh that he was fired by the appellants. Further we are also of the view that the evidence of Ram Prasad, Tej Singh, and Seth Singh that they bad seen the assailants at the time of occurrence is not worthy of reliance. ( 18 ) HAVING disbelieved the evidence of the eye-witnesses examined in this case, we are now left to deal with the dying declaration of the deceased Ex. Ka 11 recorded by Shri Pritam Singh P. W. 10, Magistrate 1st Class, at 7. 55 a. m. on 28 8. 1976 in the District Hospital Etah. Dr. Daya Shanker (P. W. 8) who had examined the injuries on the person of Babu Ram, bad also certified on the said dying declaration that the deceased was in a fit mental condition to make the statement. The said dying declaration recorded by the Magistrate is reproduced below:. . (Vernacular Matter Ommited ). . Dr. Daya Shanker (P. W. 8) who had examined the injuries on the person of Babu Ram, bad also certified on the said dying declaration that the deceased was in a fit mental condition to make the statement. The said dying declaration recorded by the Magistrate is reproduced below:. . (Vernacular Matter Ommited ). . Babu Ram deceased had stated in his dying declaration before the Magistrate that at the time of occurrence he was sleeping at his tube-well and on receiving the gunshot, he woke up and had seen the appellants running away from the place of occurrence. It is no doubt the settled law that implicit reliance can be placed on dying declaration for the conviction of the accused even without any corroboration, but at the same time, the dying declaration must stand the test on the touchstone of reliability. It is also no doubt true that a dying declaration recorded by a Magistrate, carries much weight, regarding its authenticity, as it stands on a much higher footing than a dying declaration dependent upon oral testimony, which is fallible to all the infirmities of human memory, but it has to be established beyond any reasonable doubt that the maker of the statement had the opportunity to identify the assailants. If on close scrutiny of the dying declaration, there emerges any element of doubt about the opportunity of the maker to identify the assailants, it will not at all be safe to place implicit reliance on the dying declaration for the conviction of the accused. It has also to be ascertained that the dying declaration is made at the earliest opportunity and it was not the result of tutoring by interested parties. The courts must also bear in their mind that a dying declaration is recorded at the back of the accused and the accused had no opportunity to test its veracity by way of cross-examination. ( 19 ) IN the instant case, there is inherent defect in the dying declaration itself. It is conspicuously stated in the dying declaration that the deceased was sleeping and he woke up from his sleep after sustaining the gun-shot and had recognized the appellants while they were running. It is, therefore, difficult to believe - that the deceased on receiving the gun-shot injury which resulted in the breakage of his illiac-bone into pieces, would have identified his assailants by seeing their back. It is, therefore, difficult to believe - that the deceased on receiving the gun-shot injury which resulted in the breakage of his illiac-bone into pieces, would have identified his assailants by seeing their back. Admittedly, the deceased had received a single gun-shot wound with blackening and scorching in his chest and as such, it clearly appears like a case of hit-and-run. It is not believable that the assailants after firing at the deceased from a close range while two persons were also sleeping with the deceased on the same cot, would have remained standing at the scene of occurrence to offer themselves for recognition by the deceased and his two companions. We, therefore, hold that the dying declaration of the deceased recorded by the Magistrate does not appear to us to be voluntary as the deceased had no opportunity to identify his assaillants. The possibility that the deceased had named the appellants as his assailants in his dying declaration before the Magistrate on account of tutoring done by interested persons like Ram Prasad (P. W. 1) cannot be ruled out. From a close scrutiny of the dying declaration as shown above, we, therefore, hold that the dying declaration itself suffers from infirmity and it also lacks corroboration. We have already held above that the deceased did not disclose the names of the appellants as his assailants before the villagers at the earliest opportunity in the village after the occurrence. Under the circumstance, it would be highly unsafe to place implicit reliance on the dying declaration of the deceased Babu Ram though recorded by a Magistrate for the conviction of the appellants in this case. ( 20 ) IT was also contended by the learned counsel for the appellants that the investigation in this case was not above-board. The learned counsel has drawn our attention to Ex. Ka 17 (recovery memo) prepared by the Sub-Inspector regarding taking into possession of the empty cartridge from the place of occurrence; Ex. Ka 18 (recovery memo) regarding recovery of cot at the place of occurrence and Ex. Ka 19 (recovery memo) regarding taking into possession of the torches after his arrival at the place of the occurrence. In these recovery memos only the offence under section 302 Indian Penal Code is mentioned, but there is no mention of section 307 Indian Penal Code. Ka 19 (recovery memo) regarding taking into possession of the torches after his arrival at the place of the occurrence. In these recovery memos only the offence under section 302 Indian Penal Code is mentioned, but there is no mention of section 307 Indian Penal Code. The learned counsel for the appellants submitted that up to the time of preparation of the aforesaid recovery memos, the case was registered only under section 307 Indian Penal Code at the police station on the report of Ram Prasad and according to the Investigating Officer, it wag only after his return at the Police Station from the place of occurrence in the evening on 28-8-1977 that the aforesaid case under section 307 Indian Penal Code wag converted to section 302 Indian Penal Code. The learned counsel rightly contended that in view of the mention of section 302 Indian Penal Code in the aforesaid recovery memos Ex. Ka 17, 18 and 19, it is quite clear that the Investigating Officer had prepared these recovery memos not at the place of occurrence but subsequent to the conversion of the case from section 307 to section 302 Indian Penal Code after his return from the place of occurrence at Police Station. There appears to be substance in the submissions of the learned counsel for the appellants and we, therefore, hold that the investigation in this case was not above board and it did not inspire confidence. It is quite apparent that S. K. Tyagi, the Investigating Officer, had prepared the recovery memos Exts. Ka 17, 18 and 19 after his return at the Police Station from the place of the occurrence though he had stated to have prepared them at the place of occurrence. This conduct of the Investigating Officer is highly reprehensible and deserves condemnation. ( 21 ) HAVING considered all the facts and circumstances of the case, we come to the irresistible conclusion that the prosecution has failed to bring home the guilt to the appellants beyond any reasonable doubt. ( 22 ) IN the result, the appeal is allowed. The conviction and sentences recorded by the trial court against the appellants are set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed.