JUDGMENT 1. - This appeal is directed against the judgment of learned Sessions Judge, Sawaimadhopur, dated August 21, 1986, convicting the accused appellant for offence under Section 304 Part II IPC and sentenced him to undergo seven years rigorous imprisonment. 2. This appeal was admitted for hearing on September 10, 1986 but when the bail application came up for hearing after the receipt of the record on October 15, 1986 it was agreed to between learned counsel for both the sides that the entire appeal may be heard and to that effect an order was again passed on November 5, 1986, hence the appeal was heard and arguments concluded on December 5, 1986. 3. The accused-appellant was tried alongwith two others for offence under Section 302 IPC by the learned Sessions Judge, Sawaimadhopur on a case being committed by Chief Judicial Magistrate, Sawaimadhopur. 4. The prosecution case in brief is that Chhitar Lal son of deceased Dhulilal filed a typed report before the station house officer, police station, Khandar at 6.00 p.m. on October 1, 1985 wherein it was alleged that he is a resident of village Akhegarh, his father Dhulilal had gone to his field for looking after his crop at 8.00 a.m. on October 1, 1985. After some time at about 9.00 a.m. he saw that Bajranga, Murari etc. were bringing his father to the house duly lifted. When he went near them he found his father with profuse bleeding and in an unconscious state. He had injuries by lathi and clubs on his entire body. On enquiry Bajranga and Murari etc. told him that his father has been beaten by Arjun, Ram Kishan and Laddu sons of Narsingh by caste Jat of Akhegarh. These persons were alleged to be laying in ambush, they would have beaten upto death provided Bajranga, Murari and others would not have intervened. Chhitarmal alongwith his brother and relations brought the injured to Khandar hospital and got him admitted where his father was receiving treatment. It was mentioned in the report that his father was in a precarious condition. He had also been medically examined, hence the report was filed. It was further mentioned in the report that the accused persons are miscreants and convicted persons and they are likely to abscond to become dacoits. It was mentioned in the report that his father was in a precarious condition. He had also been medically examined, hence the report was filed. It was further mentioned in the report that the accused persons are miscreants and convicted persons and they are likely to abscond to become dacoits. Medico-legal report was also submitted alongwith this F.I.R. On receipt of this report a case under Sections 323 and 325 IPC was registered and investigation commenced. It is pertinent to mention here that injured died subsequently and, therefore, the case was altered into one under section 300 IPC. It is pertinent to mention here that post-mortem examination of the deceased was done on October 2, 1985 at 6.30 a.m. but this report discloses that days and hour of death are not known. However, after completing the investigation the police submitted charge-sheet against the appellant alongwith Laddu and Ram Kishan before the learned Chief Judicial Magistrate, Sawaimadhopur who committed them to Sessions. Learned Sessions Judge framed charge under Section 302 IPC against Arjun and Section 302 r.w. Section 34 IPC against Laddu and Ram Kishan. At trial the prosecution examined nine witnesses in support of its case. The accused denied the occurrence and did not lead any defence. The learned Sessions Judge acquitted Laddu and Ram Kishan but convicted and sentenced accused-appellant as indicated above. 5. It is submitted by the learned counsel for the accused-appellant that the learned Sessions Judge has not correctly appreciated the evidence and has wrongly relied upon the statements of Murarilal and Bajranga. It is submitted that it is borne out in the statement of Ranvir Singh, A.S.I, police station, Khandar who was also working as station house officer that he had received a report from the hospital prior to his receiving F.I.R. about this case being medico-legal and he had gone to the hospital for recording the statement of the injured but the injured was in an unconscious state and was unable to give the statement. It is further submitted that according to the F.I.R. the injured was through-out in an unconscious state and, therefore, the statements of PW.2 Laxmi Narain and PW 5 Chhitarmal regarding oral dying declaration, cannot be accepted. It is further submitted that according to the F.I.R. the injured was through-out in an unconscious state and, therefore, the statements of PW.2 Laxmi Narain and PW 5 Chhitarmal regarding oral dying declaration, cannot be accepted. Regarding the statement of Murarilal PW.6 the learned counsel submits that Murarilal had gone to the hospital, Khandar alongwith injured and had this been a fact that he was an eye witness he would have lodged a report at the police station which was only one furlong from the hospital he at least would have given out the names of the assailants when the Asstt. Sub Inspector came to the hospital after receiving a Tehrir from the Doctor. Regarding the statement or Bajranglal learned counsel submits that he is a witness who had enmity with the accused-appellant inasmuch as litigation has been admitted even by him in cross examination Accused-appellant was tried for committing rape on the wife of this witness and obviously he wants to take the revenge. The report was only lodged after he had reached Khandar and contacted the sons of the deceased. It is, therefore, submitted that the prosecution case falls short of requisite proof. 6. The learned Public Prosecutor has supported the judgment of the trial court and submits that Murarilal and Bajranglal are atleast partly truthful witnesses if not wholly truthful and their statements being corroborated by medical evidence and the F.I.R. the conviction of the accused-appellant can well be maintained. 7. I have given my earnest consideration to the rival contentions and have perused the entire record. 8. The investigation in this case has been most scatching and the investigating officer has not discharged his duties as required by him under Rajasthan Police Rules and for that the Court is handicapped in finding out the truth. Ranvir Singh, PW 3, has, according to his own saying, reached the hospital between 1 to 2 in the noon after having received a Tehrir from the Doctor incharge of the hospital that there is a medicolegal case which has come in the hospital. Shri Ranvir Singh has neither produced an entry to that effect in Rojnamcha nor retained the Tehrir. He even did not seize the Tehrir received from the hospital. Shri Ranvir Singh has neither produced an entry to that effect in Rojnamcha nor retained the Tehrir. He even did not seize the Tehrir received from the hospital. It is also not borne out and cannot be accepted as truth that despite the fact that injured was in an unconscious state was unable to give a statement he could not record the statement of either of his sons or Murarilal PW 6 who had gone alongwith the injured to the hospital. Had Shri Ranvir Singh taken care in recording their statements probably the defence could not have raised the arguments about manipulation in the prosecution story. It is again that the injured had already been examined at 1.10 p.m. on October 1, 1985 which has subsequently been produced alongwith the typed FIR and the same also bears a remark that the patient is admitted in hospital for needful treatment and observation. Yet no effort was made by the investigating officer to either recover this report at that point of time or his bed-head ticket even subsequently. It is from the post-mortem report that it is borne out that injured was referred to General Hospital, Sawaimadhopur at 2.00 p.m. and it was subsequent to this that injured succumbed to the injuries somewhere on the way as deposed by the witnesses. Thus, it was between 1 to 2 that the injury report was prepared, he was admitted as an indoor patient and then referred to the General Hospital, Sawaimadhopur and it is within this period between 1 to 2 that the investigating officer, PW 3 Shri Ranvir Singh remained in the hospital but there is nothing on record to suggest that he had drawn any proceedings worth the name and, therefore, the purported FIR Ex. P 3 has to be closely scrutinized. It is an admitted case of the prosecution that by noon the injured had been taken to Khandar and the distance between hospital and the police station is only I furlong but no reason has been assigned as to why the report was not lodged and the I fact was also not disclosed to Ranvir Singh when he himself came to the hospital. Three of the witnesses, namely, PW 2 Laxmi Narain, PW 5 Chhitarmal and PW 6 Murarilal were present in Khandar for three hours and during this period the name of the accused was not divulged to anyone. Three of the witnesses, namely, PW 2 Laxmi Narain, PW 5 Chhitarmal and PW 6 Murarilal were present in Khandar for three hours and during this period the name of the accused was not divulged to anyone. Even the typed FIR filed at 6.00 p.m. is silent about it. Therefore, I have absolutely no doubt in my mind that the story of oral dying declaration to both the sons is an afterthought and this story has been cooked up much after the investigation has proceded. Regarding Murarilal being an eye witness this fact has been mentioned in the FIR but this report has only been written after Bajranglal had arrived at Khandar. Had Murarilal been an eye witness nothing prevented him either to lodge the report or to disclose this fact to Ranvir Singh or to the Doctor in the hospital, particularly when the deceased Dhulilal was real elder brother of his father. Thus, we are left with the solitary testimony of Bajranglal. Admittedly Bajranglal is a witness with whom Arjun had previous enmity. He had filed a case against Arjun earlier also for committing rape with his wife wherein Arjun was acquitted. Therefore his statement cannot be accepted on the face value unless it was corroborated by some other independent evidence which is lacking in the case. This witness admits that he had gone to Khandar but did not lodge the report in the police station. He assigns no reason for it. He otherwise also is a chance witness as he states that he was going to Gohra alongwith Murari as his mother was sick, while Murari does not come out with this story and according to him he had gone for collecting grass in the field nearby the place of occurrence. 9. Thus, there is no reliable convincing evidence on the basis of which the conviction of the accused-appellant can be maintained. There are other lacunae also in the prosecution story which need not be mentioned as in my opinion the aforesaid grounds themselves are enough for setting aside the conviction. 10. The result is that this appeal is allowed. The conviction and sentence passed against the accused-appellant by the learned Sessions Judge, Sawaimadhopur is set aside and he is acquitted of the charge. The accused-appellants is in Jail and shall be released forthwith if not required in any other case.Appeal allowed. *******