JUDGMENT 1. - These two appeals are directed against the judgement of Additional District and Session Judge No. 2, Jaipur City, dated 15th March, 1979 in Sessions Case No. 6/977, convicting the accused appellants under section 147 and 302 Indian Penal Code read with Section 149 Indian Penal Code for committing murder of Heera Nand, and sentencing each of them to imprisonment for life for the offences under section 302 Indian Penal Code read with Section 149 Indian Penal Code and to undergo six months R.I. and a fine of Rs 250/- under section 147 IPC, in defeault of payment of fine, each accused to undergo further one month's R.I. 2. The prosecution case, in brief, is that on 13-10-1976 at about 8.30 P.M. Heera Nand was at the shop of Nandlal Sabjiwala situated in Sindhi Colony, Bani Park, Jaipur. He was assaulted by five or six boys. One of them gave a fist blow on his stomach and before he could give the second blow, Nanagram, brother of Heeranand, intervened and caught hold of the assailant by his neck and pushed him aside as a result of which he fell down. Nanagram also fell upon him. The remaining boys assaulted Heeranand with knives. One of the assailants Sardar Bahadur Singh inflicted a knife blow on the chest of Heera Nand while Bansi inflicted an injury with knife on his back. Other assailants also inflicted injuries on his abdomen and thighs As a result of the said injuries, Heeranand fell down. One Gop rushed towards the place of occurrence and assailants fled away towards the house of washerman. Gop, Nand, Girdhari, Khushal, Bal Chand, Pohumal came to the place of occurrence. Gopaldas and Girdharilal took Heera Nand to the hospital on scooter and Nanagram reached the hospital on cycle. Nanagram knew Sardar Bahadur, Bansi and Mohan and he did not know the names of others But he could identify them. It has also been mentioned in the First Information Report that earlier during the day at about 1.30 P.M. a quarrel had taken place between Heeranand and Mohan, Banshi and Sardar Bahadur Singh on the shop of Gop while taking tea and at that time, Mohan gave warning to Heeranand that he will see him in the night. It has also been mentioned in the First Information Report that earlier during the day at about 1.30 P.M. a quarrel had taken place between Heeranand and Mohan, Banshi and Sardar Bahadur Singh on the shop of Gop while taking tea and at that time, Mohan gave warning to Heeranand that he will see him in the night. Meanwhile, one Tara Chand informed the Station House Officer, Police Station Bani Park, Jaipur on telephone about the incident and the Station House Officer deputed Shri Bashir Mohammed, Sub Inspector to proceed to the place of occurrence for which there is an entry in the Roznamcha Aaam at No. 592 at 9 P.M. and it is marked as Ex. P.8. Bashir Mohd. rushed to the place of occurrence and found the injured Heeranand had beer. taken to the hospital. He also proceeded to the hospital where Nanagram is alleged to have given a report in writing at about 10.30 P.M. of the aforesaid occurrence to Bashir Mohd. which has been marked as Ex. P. 1 and on which a case was registered under section 147, 148, 149, 342, 324. and 307 IPC. The report was sent from the Hospital to the Police Station on which regular F.I.R. was registered which has been marked Ex. P. 13. Bashir Mohd. recorded the statement of Heera Nand on 16.10 1976 in the presence of a doctor and later on, Heera Nand succumbed to the injuries. on 18.10.1976 in the hospital. 3. After usual investigation, a challan was put up against Arun Kumar, Banshi and Mohan Kumar under section 147, 148, 149, 324, 342 and 302 I.P.C. in the court of Additional Munsif and Judicial Magistrate, First Class, No. 5, Jaipur City. The assailants Sardar Bahadur Singh and Ghanshvam Singh remained enlarged as they could not be arrested till the filing of the challan. The Magistrate committed the accused persons to the court of Sessions Judge, and the learned Additional Session Judge No. 2, on transfer, recorded the statements of the witnesses produced by the prosecution. The accused persons in their statements recorded under Section 313 Cr. P.C. denied all the prosecution allegations and contended that they had been falsely implicated. They did not lead any defence evidence. 4. Additional Sessions Judge No 2 after hearing the arguments. The accused persons in their statements recorded under Section 313 Cr. P.C. denied all the prosecution allegations and contended that they had been falsely implicated. They did not lead any defence evidence. 4. Additional Sessions Judge No 2 after hearing the arguments. convicted all the three accused persons as mentioned above, and it is against this judgement that the present appeal has been filed. 5. Learned counsel for the appellants have submitted that teleponic message registered as Ex. P.8. should be treated as an FIR, and that Ex. P. 13 cannot be treated as an FIR. They have further submitted that in Ex. P. 8 names of any of the accused persons has not been mentioned, and Ex P 13 has been filed as an after-thought, as Nanagram had filed a written report before the Station House Officer, Police Station which has been marked as Ex P 1. Ex P. 13 are hit by Section 162 Criminal Procedure Code. It has further been submitted that the statement of Heeranand (Ex.P. 7) recorded by Bashir Mohd. S.I on 16.10.1976 cannot be regarded as a dying declaration and it is nut admissible in evidence. The incident had taken place on 13-10-1976 and there was enough time with the police to requisition the services of a Magistrate for recording the dying declaration. The mere fact that the doctor has endorsed on the statement as 'verified', will not make the statement admissible in evidence. The doctor has put his signatures only on the margin of the second page and he has not even certified that the deceased Heera Nand was in a fit state of mind to give his statement. It has further been submitted that the statement (Ex.P. 7) is a very lengthy document, running into four pages and that also creates doubt regarding the authenticity of the statement. They have further submitted that Banshilal cannot be treated as an eye witness as even Heeranand has not deposed that Banshi was present at the time of the incident. Moreover, Banshilal did not accompany deceased Heeranand to the Hospital and he is alleged to have gone on a cycle. There is evidence as to from where and how that cycle was procured or was made available to Banshilal. Learned counsel for the accused appellant Arun Kumar has submitted that Arun Kumar has not been named even by Heera Nand. Moreover, Banshilal did not accompany deceased Heeranand to the Hospital and he is alleged to have gone on a cycle. There is evidence as to from where and how that cycle was procured or was made available to Banshilal. Learned counsel for the accused appellant Arun Kumar has submitted that Arun Kumar has not been named even by Heera Nand. The name of Arun Kumar has not been mentioned even in Ex P 1 written report by Bansi and even in Ex D, 1 statement under Section 161 Cr.P.C Nanak Ram has deposed that Ex.P. 1 was written at the Police Station in the morning at 4 or 4.30 AM, whereas endorsement on Ex P. 1 shows that it was produced before the police on 13-10-76 at 10 30 PM and Ex P. 13 has been registered at the Police Station at 11 PM. Therefore, the statement of Nanakram is absolutely false when he says that Ex. P. 1 was written at the Police Station in the morning at 4 or 4.30 am. It has further been submitted that the FIR had reached the Magistrate on 18-10-76 after a delay of five days. specially when Police Station Bani Park is not very far from the Magistrate's Court which is also in Bani Park and the prosecution has failed to furnish any explanation for the same, and therefore, the whole prosecution case seems to be a concocted one. It has further been submitted that the deceased Heera Nand did not die a natural death but he died due to the negligence of the doctor which is obvious from it bare perusal of the medical evidence. Dr. Chouhan (PW-11) who performed the postmortem examination of the deceased has opined that the cause of death was shock. septicaemis cum toxnemia brought about as a result of injuries described in the postmortem report (Ex.P. 4). The knives alleged to have been recovered from the accused persons and alleged to have been found stained with human blood were not shown to the doctor for his opinion as to whether the injuries caused to the deceased could be caused by those knives. Moreover, the prosecution has failed to lead any evidence that as to when the knives were sent and that they were kept in a sealed condition before they reached the Seriologist for his opinion. Moreover, the prosecution has failed to lead any evidence that as to when the knives were sent and that they were kept in a sealed condition before they reached the Seriologist for his opinion. Moreover, there was no motive for murdering Heera Nand Additional Sessions Judge has seriously erred in relying on the statement of PW-2 Gop when he has stated in the cross- examination that whatever he had stated in the court, was under the police pressure. On cross examination, he has deposed that some boys had come and had inflicted blow and Heeranand died but he did not know their names nor could he recognise them. The testimony of PW-1 Nanakram who is a change witness and brother of the deceased has been proved to be a false witness when he states that the FIR was written by him at the Police Station in the morning at about 4 or 4.30 Am. The only other eye witness PW-3 Nandlal who has been relied upon by the trial court is also not a witness of sterling worth. He has also deposed that he did not know accused Arun Kumar. He has further stated that he did not see the actual incident because as soon as he heard the noise, he closed the shutter of his shop and he opened the shutter only after the assailants had fled away. He has resiled from his earlier statement and no reliance can be placed on such a witness. Learned counsel for the appellants have also drawn our attention towards the various contradictions among the various prosecution witnesses and also between the eye witnesses and the medical evidence. 6. We have carefully gone through the record of the whole case as wed as the judgement of the learned trial court and we are of the opinion that the prosecution has failed to bring the charge home to the accused appellants. The only eye witness on whose testimony the accused appellants have been convicted is that of PW-1 Nanakram who is the brother of the deceased and who is also the author of Ex. P.1. This witness has proved to be a her when he says that Ex. P.1 was recorded at the Police Station between 4 to 4.30 AM, whereas the endorsement of the Police on Ex. P.1. This witness has proved to be a her when he says that Ex. P.1 was recorded at the Police Station between 4 to 4.30 AM, whereas the endorsement of the Police on Ex. P. 1 shows that it was submitted before the S.H.O. (PW-21) at 10.30 p.m. and the formal FIR (Ex. P. 13) was also registered at the police station at 11 PM. Moreover, there are several contradictions between his evidence and the other so called eye witnesses PW-2 and PW-3 PW-2 and PW-3 both have resiled from their earlier statements recorded in the court and they have stated that they have given their earlier statements under the pressure of police. In such circumstances there is no guarantee that PW-2 and PW-3 had given the true version at the initial stage. Moreover, the co-accused Sardar Bahadur Singh who was the main assailant has also been acquitted in a separate trial wherein all these prosecution witnesses who have appeared in this case, were examined by the prosecution. Delay in lodging an FIR (Ex P. 13) in the Magistrate's court has also not been explained. The Police Station as well as the Magistrate's court both are situated in Bani Park and it is not believable that if the FIR was really lodged on 13th, it will take five days to travel from Bani Park Police Station to the Magistrate's court also in Bani Park. This creates a great suspicion in the whole prosecution case, coupled with the fact that Ex. P. 13 which is based on Ex. P. 10 was written by PW-1 in the Police Station between 4 to 4.30 A.M., whereas the police endorsement shows that it was received by the police at 10.30 PM. Moreover, the prosecution has utterly failed in proving the motive for the crime or the common object of the accused appellants. The evidence of the doctor PW-11 has given a death blow to the prosecution case. PW-11 Dr. Chouhan has stated that the cause of death of Heera Nand was shock, septicaemia cum toxaemia brought about as a result of injuries described in the postmortem report (Ex. P. 4 ) which shows that the immediate cause of death was not the injuries but the negligence on the part of the doctors which caused septicaemia cum toxaemia. The incident had taken place on 13th and Heeranand died on 18th of October, 1976. 7. P. 4 ) which shows that the immediate cause of death was not the injuries but the negligence on the part of the doctors which caused septicaemia cum toxaemia. The incident had taken place on 13th and Heeranand died on 18th of October, 1976. 7. The another important evidence which has been relied upon by the Additional Sessions Judge is the statement of Heera Nand recorded by Bashir Mohammed. on 16.10.1976 which has been treated by him as dying declaration. It is not understood as to why the services of a Magistrate were not requisitioned. No explanation has been furnished by Bashir Mohd. PW-22 as to why he did not call or send requisition for the Magistrate for the purpose of recording the statement of Heera Nand. It appears that either Heera Nand was quite well and it was never expected that he will succumb to his injuries and therefore, Bashir Mohd. recorded the statement of Heera Nand under Section 161 Cr. P.C in the usual course and it was only when he died because of septicaemia cum toxaemia that he thought to use it as a dying declaration. A bare perusal of Ex. P. 7 shows that it was not a dying declaration. It was a detailed statement under Section 161 Cr. P.C by an injured who had no apprehension of death and since there was no space left, the doctor also has in the corner of the merely written 'verified'. Moreover it has not been recorded by the doctor that Heera Nand was in a fit state of mind and health to give such a long and detailed statement. 8. In view of the above, no reliance can be placed on Ex. P. 7. Having considered all the aspects and the evidence on record and the submissions made by the learned counsel for the appellants, we are of the view that the prosecution has failed to prove its case and the accused appellants are entitled to benefit of doubt. 9. In the result, both these appeals are allowed, the accused appellants are acquitted of all the charges levelled against them. They are on bail. They need not surrender and the bail bonds of the accused appellants are cancelled.Appeal Allowed. *******