JUDGMENT 1. - These two appeals arise out of the same judgement and order dated 30.4.84 of learned Sessions Judge, Jaipur City in Sessions case No. 109/82, by which both the accused appellants were convicted under Sections 302/34 and 324 I P.C. and sentenced to imprisonment for life and one year rigorous imprisonment, respectively. Both the sentences were ordered to run concurrently. 2. An F. I. R. was lodged by Ashok Kumar Soni on 24.5. 1982 at 9.15 P.M. at Kotwali, Jaipur, stating therein that there was a shop in Bagru-walon ka rasta Jaipur at second crossing, which bears the name of Ashok cycles. He alongwith his brother Raj Kumar and father used to sit at the shop. On 24.5.82 at about 9.15 P.M., they had closed the shop and were getting ready to go home, at that time Mali Ram Jat Mahendra Singh and one another person came and demanded money from his brother Raj Kumar His brother told them why should he gave any money Thereupon. Mehandra Singh, who was standing near Mali Ram told him, if he was not paying, kill him Mali Ram immediately assaulted his brother with knife on his chest, but he raised his left arm and saved it and there-fore, sustained injury on his arm His father told him what he was doing there-upon he assaulted his father and inflicted injury with knife on left side of his chest. His father was wearing a watch, which fell down on the ground. which was picked up by another person who accompanied both the accused. The watch was automatic with yellow dial and steel belt. He does not know the name of the third person, who accompanied Mali Ram and Mehendra Singh, but he can recognise him by face. This incident was seen by Devi Dutt Panwala and many others On lodging of this report, police registered a case under Sections 307/34 and 379 I.P.C. and started investigation Accused Mali Ram and Mahendra were arrested. Site map was also prepared. The knife was recovered at the instance of accused Mahendra Singh. injured Chothmal was taken to the Hospital, where he was examined by Dr. Vivekanand and he found a incised wound 2 x 1 cm. on left side of the chest 8 cm. below and 2 cm. medial to left nipple. Another incised wound was 1 cm. x ⅛ cm. The knife was recovered at the instance of accused Mahendra Singh. injured Chothmal was taken to the Hospital, where he was examined by Dr. Vivekanand and he found a incised wound 2 x 1 cm. on left side of the chest 8 cm. below and 2 cm. medial to left nipple. Another incised wound was 1 cm. x ⅛ cm. x superficial skin deep placed transversely on mid axillary line (vide Ex. P. 1). Raj Kumar (PW 3) who had received injuries was also examined vide Ex. P. 2 1. Linear Incision 2, 1/2 cm. long x supercial skin deep on right fore-arm placed obliquly in middle ⅓ margins. 2. Incised wound 6 cm x 2 cm. x muscle deep on postero lateral aspect of left fore-arm upper ⅓ margins are clean regular with fresh bleeding tailing laterally. Injured Chothmal died on the next day i.e. 25.5.82. The postmortem of the dead body was performed by Dr. A. K. Bhargava, who opined that the cause of death was shock brought about as a result of injury to the heart as mentioned in the postmortem report. The case was then converted into Section 302/34 I.P.C. After completing investigation, a challan was put up against the appellants as the 3rd person could not be traced, under Sections 302, 307 and 324 I.P.C. before the Judicial Magistrate No. 2, Jaipur City, who committed the accused persons to the court of Sessions for trial. The accused were charged under Sections 302/34 and 379 I. P. C., but they pleaded not guilty and claimed trial. Accused claimed that they had not committed this offence and false allegations have been made against them. The prosecution examined as many as 14 witnesses on its behalf and in defence accused Mahendra Singh produced one witness on his behalf. Accused appellant Mali Ram in his statement under Section 313 Cr. P.C. stated that he was innocent and he had no knowledge of the incident. Appellant Mahendra Singh in his statement under Section 313 Cr. P. C. has denied any involvement in the incident and has stated that his elder brother Birendra was murdered in the year 1980. Suresh is his younger brother, who is an Editor of a weekly paper. The investigation of that case was done by Beni Madhav, S. H. O. Kotwali at the time of incident. P. C. has denied any involvement in the incident and has stated that his elder brother Birendra was murdered in the year 1980. Suresh is his younger brother, who is an Editor of a weekly paper. The investigation of that case was done by Beni Madhav, S. H. O. Kotwali at the time of incident. He did not conduct the investigation properly, therefore, Suresh made complaints against him to the Ministers and higher officials. Therefore, Beni Madhav had threatened him with dire consequences for the whole family. On this complaint he was transferred to Kotwali. His whole family had thus old quarrel with hire. No other case had ever been filed against him. He has been involved in this case out of enmity. After hearing both the sides, learned trial court convicted both the accused persons as stated above. 3. Mr. Pareek, learned counsel for appellant Mali Ram has argued that the F.I.R. is not a genuine F.I.R. It is argued that at the first instance, written information was lodged, but in the record there was oral F.I.R. and written F.I.R has been suppressed by the prosecution. Learned counsel argued that it is proved from the statement of Ashok Kumar PW. 2 who is the author of the F.I.R. He has also stated that PW. 2 Ashok Kumar has stated in his statement that he had given full description of the accused persons in the written F.I.R. lodged by him, whereas in the oral F.I.R. produced in the court, there is no description of any of the accused persons. This also proves that the original F.I.R. has been suppressed. It is further argued that Ashok Kumar PW. 2 has stated in his statement that he did not know the accused persons earlier than the incident therefore, he could not have named the accused persons in the F.I R. itself. He has further argued that since the author of the F.I.R. did not know the accused persons and had given full description of the written F.I.R. lodged by him, therefore, it was necessary to have hold the identification parade to identify the accused persons, but it has not been done and instead another oral F.I.R in which the names of both the appellants have been mentioned. has been placed on record and the original F.I.R. has been suppressed. has been placed on record and the original F.I.R. has been suppressed. It is further argued that apart from PW.2 and P.W. 3 who are the sons of deceased Chothmal, there is one more eye witness PW. 11 Devi Dutt Panwala, who had Pan Shop near the shop of deceased Chothmal, but his statement cannot he read in evidence as he could not be cross examined on behalf of Mali Ram. He was not traceable till the proceedings came to an and. It is further argued that PW. 2 Ashok Kumar has stated in his statement that the other shops were opened in vicinity where the incident took place, but none of the independent witnesses has been produced in support of the prosecution and only two interested witnesses (PW 2 and PW 3) who happen to be sons of deceased Chothmal, have been produced in the court. Since the prosecution has deliberately avoided to produce independent witnesses in spite of the fact that they had witnessed the whole incident. Therefore, reliance should not be placed on the statements of above two eye witnesses. It has also been argued by the learned counsel that the statement of deceased under Section 161 Cr.P.C (Ex. P. 23), which was recorded by the police has been treated as dying declaration. This cannot Le done as the Rules and proper precautions regarding recording dying declaration have not been taken. Therefore, no reliance can be placed on this dying declaration. 4. Learned Public Prosecutor, on the other hand has supported the judgement of the trial court and has vehemently argued that the 2 eye witnesses are quite reliable and there is no reason to disbelieve. He has further argued that the prosecution has fully proved their case and the learned trial court has rightly convicted the two appellants and that the conviction deserves to be upheld on all counts. 5. We have heard rival contentions of both the parties and have carefully gone through the evidence on record. A. W. 3 Ashok Kumar, author of the F. I. R. has stated in his cross-examination that he had got the report written in the Police Station and that written report was lodged by him at the Police Station. 5. We have heard rival contentions of both the parties and have carefully gone through the evidence on record. A. W. 3 Ashok Kumar, author of the F. I. R. has stated in his cross-examination that he had got the report written in the Police Station and that written report was lodged by him at the Police Station. He has further stated in his statement that he did not know Mali Ram and Mahendra Singh earlier than the incident and the accused persons themselves told their names to his brother Raj Kumar. He has further stated that he had told the police that he did not know the names of the accused persons. But this is not written in the F. I. R. (Ex. P. 5). The police did not ask him to identify the accused appellants. He had also told the full description of the appellants to the police, but in Ex. P. 5 none of the above matters is mentioned. He further states that when he lodged the report, he had told all this to the police. He has stated that since the third person who accompanied the appellant was in darkness therefore, he could not describe his description to the police. He has also stated that lot of people had collected at the place of incident. Therefore, the accused appellants were able to run away from there. 6. P. W. 3 Raj Kumar in his cross-examination has stated that at the time when the incident took place most of the shops in the vicinity were opened and people were sitting on their shops. His brother Ashok Kumar (P. W. 1) and his father did not talk to him about the incident and whatever was seen by his brother, was written by him in the F.I.R. He did not know what was written by his brother Ashok Kumar (PW 2) in the F.I.R. He and his father were sitting separately in the Police Station. He has further stated that he did not know the accused appellants before the incident either by name or by face. He has also stated that they had given full description of the accused appellants to the police. He has also stated that he had given full description of the accused persons in his statement given at the police station under Section 161 Cr. P. C. (Ex. He has also stated that they had given full description of the accused appellants to the police. He has also stated that he had given full description of the accused persons in his statement given at the police station under Section 161 Cr. P. C. (Ex. P. 1) but the description about the age and their heights is not mentioned therein. The police did not get the accused identified by him. He has further stated that the accused persons had themselves told him their names at the time of incident and this is how he came to know about their names, but he had not mentioned this fact in his statement recorded by the police. It is, therefore, clear from the above statements that both these witnesses did not know either by name or by face the accused appellants and if they had known the accused appellants by name, there was no reason for both the accused to have given full description. probable age, heights and name to the police. P. W. 2 Ashok Kumar also says that he had mentioned Full description of the accused appellants in the F. I. R., but the same is not mentioned in Ex. P. 5, the F.I.R. available on the file. P. W. 3 Rajkumar has clearly stated that he had not spoken either to his brother Ashok Kumar (PW 2) or to his father Chothmal before the F. I. R. was lodged by P. W. 2 Ashok Kumar and even at the Police Station they were sitting separately and the F. I. R. was lodged by Ashok Kumar. P. W. 3 Raj Kumar also says that he does not know what Ashok Kumar wrote in the F. I. R. Since he had not even talked to Ashok Kumar (PW 2) before lodging of the F. I. R., therefore, even if it is believed that the accused appellants themselves told him about their names, which they would not be expected to do in the natural course of events, still P. W. 2 Ashok Kumar had no occasion to know the names of the accused persons even from his brother P. W 3 Ashok Kumar. No identification parade has been held for identifying the accused appellants. No identification parade has been held for identifying the accused appellants. Therefore, in these circumstances, it becomes suspicious that the original written F. I. R. which was lodged by Ashok Kumar (PW 2) in which full description of the accused appellants including their probable age, height etc. was mentioned, has not been produced in the court, but another F. I. R. in which the names of the accused are mentioned has been placed on record. Coupled with this, appellant Mahendra Singh in his statement under Section 313 Cr. P. C. has mentioned has been falsely implicated in the case, as the S.H.O., Shri Beni Madhaw was on inimical terms with their whole family as during the investigation of the case of murder of his elder brother Narendra, complaints were made against Beni Madhaw for not carrying on the investigation property. P. W. 12 Beni Madhaw has stated in his statement that he had himself written the F.I.R as dictated by P. W. 2 Ashok Kumar, but again he states that the same was written by some other person at his instance. 7. P. W. 11 Devi Dutt Panwala who had his shop near the place of incident has stated that he was sitting alone when the incident took place. He states that he has catract in one of his eyes, therefore, he is not able to see with that eye. He also states that other shops were also opened at that time and as it was public road. people were also passing by the place of occurrence and at that time also people were passing by. He further says that on account of injury, father of Raj Kumar did not fall down at that time and he could not recognise the 3rd person due to darkness. He says that he did not know Mahendra Singh earlier than the incident. This witness has been cross-examined on behalf of accused Mali Ram. An application was filed on behalf' of appellant Mali Ram for recalling him for cross-examination, which was allowed by the trial court vide order dated 17.6.83. Summons, bailable warrants and Non-bailable warrants were issued from time to time by the learned trial court on more than 14 dates from 22.6.83 to 15.3.84 when the evidence of the prosecution was closed, but he could not be traced for producing in the court for the purpose of cross-examination. 8. Summons, bailable warrants and Non-bailable warrants were issued from time to time by the learned trial court on more than 14 dates from 22.6.83 to 15.3.84 when the evidence of the prosecution was closed, but he could not be traced for producing in the court for the purpose of cross-examination. 8. In the matter of (1) Badri v. State of Rajasthan, AIR 1976 S. C. 560, their Lordships of the Supreme Court have held that where a prosecution evidence was not allowed to be cross-examined by defence on a material point with reference to his earlier statement made before the police, his evidence stands untested by the cross-examination and cannot be accepted as corroborating the evidence of other witnesses. In the instant case, the witness itself could not be produced for cross-examination by one of the appellants i. e. Mali Ram whose presence he had confirmed in his statement, at the time of occurrence, therefore, unless an opportunity was given to Mali Ram to cross-examine the witness, his statement remainsun-tested and cannot be read against appellant Mali Ram. Therefore, the statement of Mali Ram is not of much use to the prosecution. So far as appellant Mahendra Singh is concerned, this witness has clearly stated that he had not seen him earlier than the incident and has not given the source of information of the name of appellant Mahendra Singh by which he came to identify him. The prosecution, therefore, cannot draw any benefit from his testimony. 9. The dying declaration is the statement of deceased Chothmal recorded under Section 161 Cr.P.C. at the Police Station soon after the F.I.R. was lodged. The deceased was injured and was immediately rushed to the hospital for treatment and died on the next day. Since he was being taken to the hospital, it was only proper to have taken his dying declaration in the hospital itself, in accordance with law, rather than at the police station. In Ex. P. 23 the dying declaration, the deceased has given the names of the appellants, which as discussed above, were not known either to him or to his sons. P. W 3 Raj Kumar has also stated that he too did not know the accused persons, but they themselves gave out their names to him. In Ex. P. 23 the dying declaration, the deceased has given the names of the appellants, which as discussed above, were not known either to him or to his sons. P. W 3 Raj Kumar has also stated that he too did not know the accused persons, but they themselves gave out their names to him. The names were not told by him either to the deceased or to his brother at the time when the F. I. R. was lodged. It is further stated in this dying declaration that Devi Dutt Panwala had come on the spot, whereas Devi Dutt (PW 1) says that he did not go to the spot and was sitting on the shop as he felt afraid. He says that the people were assembled there at the time when the incident took place. Whereas, in this dying declaration it has been stated that several people gathered there when the incident took place. In the matter of Munna Raja and others v. State of M. P., AIR 1976 S. C. 2199, their Lordships of the Supreme Court have held as under: "It is well settled that though a dying declaration must be approached with for the reason that the maker of the statement cannot be subjected to cross examination, there is neither a rule of law nor a rule of prudence, which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration". As stated above, this is a dying declaration, which has been taken by the S. H. O. at the police station and, therefore, it is necessary to look out for corroboration, which is not found in the evidence on record. In the matter of (3) Balak Ram & Anr. v. State of U. P., AIR 1974 S. C. 2165 their Lordship's of the Supreme Court have held that "it is not prudent to base conviction on dying declaration made to the Investigating Officer, particularly when it is not signed by the declarant or by the witnesses". In the matter of (3) Balak Ram & Anr. v. State of U. P., AIR 1974 S. C. 2165 their Lordship's of the Supreme Court have held that "it is not prudent to base conviction on dying declaration made to the Investigating Officer, particularly when it is not signed by the declarant or by the witnesses". In this case also the dying declaration is neither signed by the deceased nor by any of the witness, but is signed by Moti Lal (PW 13) who is the Investigating Officer in the case. We are therefore, of the considered opinion that the dying declaration cannot be relied upon and the prosecution cannot draw any advantage out of the same. 10. Keeping in view the evidence discussed above, we feel that the F. I. R. (Ex. P. 5) is not a reliable document on which conviction can be based, as the oral (sic written) F I. R. has not been placed on record. Coupled with this, the evidence of another eye witness Devi Dutt (PW 11) is of no help to the prosecution. The dying declaration also cannot be relied upon to support the prosecution case. In these circumstances, even though a cold blooded murder has been committed, but in the absence of sufficient proof, the conviction cannot be based on mere suspicion, however strong it may be. 11. In the result, the appeals are allowed. The judgement and order of learned Sessions Judge dated 30.4.94, is set-aside. The benefit of doubt is given to the accused appellants and they are acquitted of the charges levelled against them. Accused appellant Mali Ram is in jail. He shall be released forthwith, if not required in any other case. Accused appellant Mahendra Singh is on bail. He need not surrender to his bail bonds, which are hereby cancelled.Appeals Allowed. *******