Judgment S. N. BHARGAVA, J. ( 1 ) THIS appeal has been filed by the appellants against the judgment passed by Additional Sessions Judge, Karauli convicting each of the accused persons u/ss. 302/ 34 IPC, and sentencing each of them to undergo imprisonment for life and a fine of Rs. 500. 00 in default of payment of fine, further rigorous imprisonment for six months. ( 2 ) IN this case, FIR (Ex. P. 15) was registered on 8. 4. 1984 at 10. 40 PM at Police Station Kaila Devi on the basis of Parcha Bayan (Ex. P. 1) of Ram Kishan (PW-l) recorded at 10. 30 P. M. wherein Ramkishan stated that in the morning at about 8-9 AM, he had gone in the fair of Kaila Devi. His brother-in-law Mahipat met him at about 10-11 AM near Langura, and thereafter he was with his brother-in-law Mahipat in the Mela (fair ). At about 7 PM on the same day, they were playing cards in front of Langura, along with Harhet, (PW-3) Ramlal (PW-2) and Mahipat (deceased ). At about 10 PM, Ummed sb Ratan Lal (PW-4) asked Mahipat to go to the tap for drinking water whereupon they left. Mahipat went ahead and Ummed followed him. Mishri, Kanhaiya, sons of Heera Chand Meena having Gandasi, and Lalpat son of Heera Chand Meena having a stick and Roshan son of Heera Chand having an axe, started beating Mahipat; as a result of the assault, Mahipat fell down on the Chowk. At that time, Kalyan was also present who tried to save Mahipat, as a result of which, he also got injury on his hand. Meanwhile, police people came there. At that time, Harhet (PW-3), Ratanlal PW-8 Murli (PW-5) were present. ( 3 ) THE police registered case u/ss. 307, 147, 148, 149 and 323 IPC against five accused persons. After the death of Mahipat, the case was converted into one u/s 302 IPC. ( 4 ) POLICE after usual investigation, submitted a challan in the court of Magistrate who committed the case to the court of Sessions. Additional Sessions Judge, Karauli after trial, convicted the accused appellants as aforesaid and so also Mishri, Lalpat and Kanhaiya. ( 5 ) WE have heard learned counsels for the parties and have also perused the record of the case as well as the judgment of the trial court. Additional Sessions Judge, Karauli after trial, convicted the accused appellants as aforesaid and so also Mishri, Lalpat and Kanhaiya. ( 5 ) WE have heard learned counsels for the parties and have also perused the record of the case as well as the judgment of the trial court. The trial court after considering the evidence, did not rely on the evidence of the eye witnesses namely PW-1 Ramkishan, PW-2 Ramlal, PW-3 Harhet, and PW. 6 Ramgopal, but convicted the accused appellants on the basis of dying declaration (Ex. P. II) recorded by Head Constable Arjun Singh (PW-14) and Ex. P. 12 statement of Mahipat recorded u/s 164 Cr. P. C. by the Magistrate. The Magistrate was later on examined by this court as CW-1. ( 6 ) PUBLIC Prosecutor has submitted that the evidence of the eye witnesses should not be ignored altogether. ( 7 ) WE have ourselves gone through the evidence of the eye witnesses as also the comment made by the trial court in the judgment regarding these eye witnesses. We are also of the opinion that no reliance can be placed on the evidence of these eye witnesses and the learned trial court was right and justified in rejecting evidence of the eye witnesses and the five reasons given by the trial court in detail are quite justified. The reasons given by the trial court read as under:. . (Vernacular Matter Ommited ). . Therefore, we do not want to discuss the evidence of the eye witnesses in detail so as to burden this judgment. ( 8 ) PROSECUTION did not examine Kalyan, though he was named in the FIR, as a person who had seen the incident and who had tried to save Mahipat as a result of which he had also received injury on his hand. The prosecution was given enough time to produce Kalyan. Originally his address was not sufficient and he was not traceable. Thereafter, a number of opportunities were given to the prosecution but the prosecution was unable to secure attendance of Kalyan. PW-4 Ummed and PW-5 Murli who were also admittedly eye witnesses according to the prosecution, have been declared hostile and they have not supported the prosecution case. ( 9 ) WHEN the arguments were heard by this court in this case on 24. 7. 1987, an objection was taken by the learned counsel for the appellants that Ex. PW-4 Ummed and PW-5 Murli who were also admittedly eye witnesses according to the prosecution, have been declared hostile and they have not supported the prosecution case. ( 9 ) WHEN the arguments were heard by this court in this case on 24. 7. 1987, an objection was taken by the learned counsel for the appellants that Ex. P. 12, dying declaration recorded by the Magistrate, could not be taken into evidence. After examining the order-sheets of the trial court, we thought it proper that the Munsif Magistrate Shri Laxmi Narain should be examined as Court Witness and we have given our detailed reasons in the order-sheet dated 24. 7. 87. Shri Laxmi Narain, Magistrate was examined as a Court Witness in this court, and thereafter, accused was again examined u/s 313 Cr. P. C. and opportunity was given to the accused-appellants to lead defence evidence, if any, if they so liked, but they have not led any evidence to rebut the evidence of Court Witness I Shri Laxmi Narain. Since the entire case is based on these two dying declarations, we shall like to reproduce them as under:. . (Vernacular Matter Ommited ). . ( 10 ) AFTER examining these two dying declarations, we find that in Ex. p. ii, Mahipat had stated that Ram Dayal and Roshan had inflicted the injuries by axe and Farsa near, Kaila Devi Ka Taal, whereas in the Parcha Bayan of Ram Kishan, the place of incident has been shown near the Langura. Ex. P. 2 site plan shows that it was point B from where Mahipat was found lying after the incident. In the site plan, Kaila Devi ka Taal has not been show. In the evidence it has not come as to where Kaila Devi ka Taal is situated, and the prosecution, has not tried to lead any evidence to explain this anomaly. Prosecution should have led evidence that there is Kaila Devi ka Taal hear point B but it has utterly failed to explain: this inconsistency between the FIR, site plan on the one hand, and the oral evidence of eye witnesses and on the other hand, dying declaration of deceased Mahipat. Again in Ex. P. 11, the weapon used by the accused appellants, is axe and Farsa, whereas in Ex. P. 12 it is axe and Gandasi. When we examined original Ex. Again in Ex. P. 11, the weapon used by the accused appellants, is axe and Farsa, whereas in Ex. P. 12 it is axe and Gandasi. When we examined original Ex. P. 12, we found that at one stage, in reply to question No. 1, the Magistrate had recorded KUL HANDI AVAM GANDASI TATHA FARSI but later on the words TATHA AND FARSI have been deleted and the words GANDASI TATHA appear in between the two lines i. e. words TKULHADI AVAM GANDASI TATHA FARSIT do not appear in one line. Magistrate Laxmi Narain who had, recorded the dying declaration Ex. P. 12 when appeared in this court as Court witnesses has been cross-examined. His evidence that he has given does not seem to be convincing because at one stage, he has stated that originally the deponent had told KULHADI and FARSI but when he was asked what sort of weapon is FARSI, he changed his version and said that it was Gandasi and therefore, he (CW-1) wrote Gandasi in between the lines. We are unable to understand as to how the word TTHATHA appears for: GANDASI. So this has made the whore thing very suspicious. Magistrate CW-1 has stated that he had written as was told by Mahipat. If that was really so, what was the occasion of willing the word TGandasi in between the two lines and deleting words TTHATHA and FARSI. The Magistrate had recorded the dying declaration in question form. Questions No. 1, 2 and 5 are quite obvious and should have been asked but we are unable to find as to how and why the Magistrate asked questions Nos. 3 and 4 as these questions do not arise out of the answers given by the deceased Mahipat to questions No. 1 and 2. Either the Investigating Agency must have suggested these questions or the Magistrate had before him Ex. P. 11 before he recorded Ex. P. 12. In Ex. P. 12 deceased Mahipat has mentioned that Ram Khiladi was also present and he had seen the incident but the prosecution has not cared to examine Ram Khiladi who was a very important witness being an eye witness of the incident as mentioned in the dying declaration (Ex. P. 12 ). P. 12. In Ex. P. 12 deceased Mahipat has mentioned that Ram Khiladi was also present and he had seen the incident but the prosecution has not cared to examine Ram Khiladi who was a very important witness being an eye witness of the incident as mentioned in the dying declaration (Ex. P. 12 ). Moreover, in the present case, even the Investigating Officer, S. H. O. has not been examined who could have thrown some light regarding the inconsistency between the place of incident given in the FIR and the dying declaration and as such, the prosecution has not been fair in this case. As has already been observed even by the trial court, prosecution has not brought the whole truth before the court. ( 11 ) LEARNED counsel for the appellants has submitted that Ex. P. 11 should not be considered as it had been recorded by the Head Constable, though the doctor was present, and in this connection, he has placed reliance on Chameli v. State of Rajasthan1. Learned counsel for the appellants also brought to our notice Ramnath v. State of M. P. 2 wherein their Lordships have observed that it is not safe to convict an accused person merely on the evidence furnished by dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination, and because maker of it may be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It has further been observed in that case that unless one is certain about the exact words uttered by the deceased, no reliance should be placed. He has also brought to our notice Mohd. Ikramul v. State of Bihar3 wherein their Lordships have observed that conviction should not by based solely on the basis of dying declaration. Reliance has also been placed on Prithviraj v. The State of Rajasthan4 wherein this court observed that the dying declaration is a weak type of evidence and unless corroborated by independent evidence, conviction cannot be sustained on it. Reliance has also been placed on Prithviraj v. The State of Rajasthan4 wherein this court observed that the dying declaration is a weak type of evidence and unless corroborated by independent evidence, conviction cannot be sustained on it. Our attention was also drawn to Puran Chandra v. State of Orissa5 wherein their Lordship have discussed the entire case law at great length and have observed that it would be hazardous and unsafe to accept the dying declaration and base conviction thereon in view of suspicious features and infirmities in the evidence adduced at the trial with regard to the dying declaration. Reliance has also been placed on Kailash v. The State of Rajasthan6 wherein the dying declaration was not relied for convicting the accused as the prosecution developed a new story. Great reliance was placed on Kanhaiya and others v. The State of Rajasthan7 wherein their Lordships observed that where there is contradiction in the dying declaration and the F. I. R. it is not safe to place reliance on the dying declaration. Reliance was also placed on Rashid Beg v. State of M. P. 8 wherein also it has been observed that there are two dying declarations, under suspicious circumstances, the court should insist for corroboration. Our attention was also drawn to Mohar Singh v. State of Punjab9. On the other hand, the prosecution has supported the judgment of the learned Additional Sessions Judge and it has been stated by the Public Prosecutor that evidence of the eye witnesses should not be ignored altogether. The prosecution has examined PW-17 Gulab Khan who is in service of R. A. C. and was on duty in the fair of Kaila Devi on the day of incident and who had seen a person lying injured near Mandir Langura, and one other person who had injured on his hand (may be referring to Kalyan) and it was he, who brought a trolley and took the deceased to the Hospital. On the way, they met S. H. O. Police Station Kaila Devi to whom the trolley along with the injured was handed over. Similarly, PW-14 Arjun is an independent witness and who is a Constable of Karanpur Police Station but posted, at the relevant time, in the fair of Kaila Devi. He had recorded Ex. P. 11, therefore, full reliance should be placed on Ex. P. 11. Similarly, PW-14 Arjun is an independent witness and who is a Constable of Karanpur Police Station but posted, at the relevant time, in the fair of Kaila Devi. He had recorded Ex. P. 11, therefore, full reliance should be placed on Ex. P. 11. Public Prosecutor placed reliance on Ramawati v. The State of Bihar1 wherein it has been observed that dying declaration must not necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such a statement must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of the dying declaration, in the light of the facts and circumstances of the case. He has also placed reliance on Suresh v. State of M. P. 11 where dying declaration was relied on as according to the doctor, the deponent was found to be in a fit state of health to make the dying declaration. Reliance was also placed on Bacchan Dan v. State of Rajasthan12 wherein also, dying declaration was relied on for conviction. Thereafter, reliance was placed on the State of U. P. v. Ram Sagar Yadav13 wherein it has been observed that as a matter of law, a dying declaration can be acted upon even without corroboration. Reliance was also placed on Kusa v. State of Orissa14 wherein their Lordships have observed that although a dying declaration should be carefully scrutinised but if after perusal of the same, the court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement, and is coherent and consistent, there is no impediment in founding the conviction on such a dying declaration even if there is no corroboration. Their Lordships have further observed that AIR 1953 SC 420 stands over-ruled in view of a later decision in Tara Chand v. State of Maharashtra15. Learned Public Prosecutor has also submitted that even if there are some lapses on the part of the Investigating Officer, the whole prosecution case cannot be thrown and the accusations can not be discarded; in this connection, he has placed reliance on Chandra Kant v. The State of Maharashtra16 Public Prosecutor has also placed reliance in Santo Singh v. The State of Rajasthan17 and Taqa and Lakha v. State of Rajasthan18. ( 12 ) WE have considered the whole matter and have given our anxious considerations. We have also carefully gone through the record of the case and enormous authorities cited at the bar. ( 13 ) IN the present case, we have two stories, one given in the Parcha Bayan and the statement of eye witnesses, and the other given by the deceased in the dying declarations, though different with regard to the place of incident, use of weapons and participation of accused persons. Since evidence of the eye witnesses in the present case has not been relied on by the Additional Sessions Judge, and in our opinion rightly, we are left with two dying declarations which also do not inspire confidence so as to hold the accused guilty of serious charge u/s 302 IPC. The prosecution has failed to examine the important witnesses who have been mentioned above and therefore, we are of the opinion that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt and the appellants are therefore entitled to benefit of doubt. ( 14 ) IN the result, this appeal is allowed, the judgment of the learned Additional Sessions Judge, Karauli is set aside, and the accused appellants are acquitted of the offences levelled against them. They are in jail. They should be released forthwith if not required in any other case.