BHARGAVA, J.—This appeal has been filed by the appellants against the judgment passed by Additional Sessions Judge, Karauli convicting each of the accused persons u/s 302/34 IPC, and sentencing each of them to undergo imprisonment for fife and a fine of Rs. 500/-, in default of payment of fine, fur-ther 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 Parch a Bayan (Ex.P. 1) of Ram Kishan (PW-1) 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 (PW1) Ramlal (PW-2) and Mahipat (deceased). At about 10 PM Ummed s/o 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 Maena 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/s 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 counsel 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 counsel 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.l1) 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 lateron 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. 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:- ^^¼1½ ih-MCY;w-1 jkefdku us vius c;ku esa dgk fd mldk ijpk c;ku iznkZ ih-1?kVuk ds nwljs fnu 8 cts iqfyl )kjk fy[kk x;k Fkk tcfd izFke lwpuk iznkZ ih@15 ls ;g yxrk gS fd ipkZ c;ku jkr dks 10 ctdj 40 feuV ij gh fy[k fy;k x;k FkkA ih-M-1 jkefdku e`rd eghir dk cguksbZ gS vkSj tc og Lo;a ;g dgrk gS fd mlds c;ku nwljs fnu fy;s x;s rks bl ckr esa lanasg gksrk gS fd iqfyl )kjk izFke lwpuk fy[krs le; vfHk;qäx.k dh la[;k c<+knh xbZ gSA blds vfrfjä lHkh peíhn xokgku~ e`rd ds lEcU/kh Fks vkSj fjrs esa gksrs FksA blds vfrfjä izFke lwpuk esa ftu yksxksa dks peíhn xokgku crk;k x;k gS os gjsr] jruyky vkSj eqjyh gS] buesa ls dsoy gjsr us?kVuk dk leFkZu fd;k gSA jru yky vkSj eqjyh us?kVuk dk leFkZu ugha fd;k gSA ¼2½ lcls egRoiw.kZ fcUnq ;g gS fd e`R;q iwoZ c;ku esa?kVuk LFky dSyknsoh ds rky ds ikl dk LFkku crk;k x;k gSA iznkZ ih@11 vkSj iznkZ ih@12 nksuksa esa?kVuk LFky dSyknsoh ds rky ds ikl crk;k x;k gS tcfd lHkh xokgku~ us?kVuk LFky ykaxqjkth ds ikl crk;k gSA ;g vius vki esa ,d cgqr egRowi.kZ fojks/kkHkkl gS vkSj xokgku~ dh lR;rk vkSj mudk peíhn xokgku~ gksus ds ckjs esa izufpUg yxk nsrh gSA ¼3½ ;fn pksV izfrosnu vkSj xokgku~ ds c;ku ns[ks tk; rks xokgku~ ds c;kuksa ls pksV izfrosnu iznkZ ih@6 vkSj iksLV ekVZe fjiksVZ ih@14 dks Hkh leFkZu ugha feyrkA ih-MCY;w 1 jkefdku] ih-MCY;w- 3 gjsr vkSj ih-MCY;w-6 jkexksiky rhuksa us dgk gS fd dUgS;k us e`rd dh tka?k ij?kaMklh dh pksV ekjh e`rd dh tk¡?k ij dksbZ pksV ugha gSA ykyir )kjk ykBh dh pksV ekjuk crk;k tkrk gS tcfd e`rd ds ykBh dh Hkh dksbZ pksV ugha gSA bl izdkj pksV izfrosnu vkSj c;kuksa esa xaHkhj fojks/kkHkkl gSA ¼4½ ;fn lkekU; :i ls vkSj foosd ls ns[kk tk; rks Hkh ;g laHko ugha yxrk fd 5 O;fä e`rd ds 4 pksVs igqpk;sA ;s pkj pksVs /kkjnkj gfFk;kj dh vkbZ gqbZ gSA tc dksbZ O;fä fdlh dks tku ls ekjus ds bjkns ls tkrk gS rks lkekUr;k ,slk ugha gksrk fd ,d O;fä ,d pksV ekjdj vyx gks tkos vkSj nwljk O;fä nwljh pksV igqapkosA e`rd ds kjhj ij dqy 4 pksVsa gS vkSj mls 5 vfHk;qäx.k )kjk ekjuk crk;k x;k gSA bl izdkj ,d vfHk;qä ds fgLls esa ,d pksV Hkh ugha vkrh vkSj lkekU;:i ls ;g fooluh; Hkh ugha gS fd ,d O;fä ,d pksV ekjs rFkk tka?k ij pksV ekjus ds ekeys esa Hkh xokgku~ ds c;ku fooluh; ugha gS] ftudk o.kZu Åij fd;k x;k gSA ¼5½ lHkh xokgku~ us ftjg ds le; vius iqfyl esa fn;s x;s c;kuksa esa Hkh bUdkjh dh gS blfy, muds c;ku fooluh; izrhr ugha gksrs gSA 8. Therefore, we do not want to discuss the evidence of the eye witnesses in detail so as to burden this judgment. 9. 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. 10. 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 1 Shri Laxmi Narain. 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 1 Shri Laxmi Narain. Since the entire case is based on these two dying declarations, we shall like to reproduce them as under: ^^ipkZ c;ku Jh eghir iq= yYyq tkfr] ehuk vk;q 30 fl;kjk us nj;kIr ij c;ku fd;k fd esjk uke eghir gS] eSa c;ku djrk gwW fd jksku ckbZ] iq=h ghjkckbZ] dkSe ehuk] fu- fl;kjk esjs lkFk tcjnLrh xbZ Fkh jken;ky] iq= Jh ghjkpan ehuk o jksku iq= Jh ghjkpan ehuk] fu- fl;kjk us eq>s dqYgkM+h o Qjlk ls ekjk eq>s dSyknsoh ds rky ds ikl ekjk eq>s bu yksxksa us jksku ckbZ ds Åij gh ekjk gS bl le; jksku ckbZ clsjk okyksa ds ikl gS] ftldks jksku jken;ky us fHktok;k Fkk jksku ckbZ esjs lkFk jguk jkth [kqkh pkgrh gSA tc eq>s bu yksxksa us ekjk rks ogka ij gjsr iq= Jh jkeukjk;.k ehuk] eqthiqjk] jruyky iq= Jh yYyq ehuk fl;kjkA eqjyh iq= Jh?khL;k ehuk] vkj-1 fl;kjk ekStwn FksA jkgj dk jkef[kykM+h iq= Jh izlknh ehuk Hkh ekSds ij FkkA vkSj cgqr vkneh Fks ijUrq esa tkurk ugha gwWA eSa kiFk iwoZd c;ku djrk gwW fd esjk uke eghir iq= yYyw] tkfr eh.kk] mez djhc 30 o"kZ fuoklh fl;kjk Fkkuk dSyknsoh gSA ¼1½ izu % vkids lkFk D;k D;k gqvk\ c;ku djsA mÙkj % eSa vkt dh kke djhc 10 cts dSyknsoh ds rky ds ikl x;k FkkA eq>s 1- jken;ky iq= Jh ghjkpUn eh.kk] fu- fl;kjk ,oa 2- jksku iq= Jh ghjkpUnz eh.kk] fu- fl;kjk us eq>s dqYgkM+h ,oa xaMklh ls ekjk FkkA mudh cfgu jksku ckbZ viuh bPNk ls esjs lkFk vkbZ FkhA ¼2½ izu % bl okds dks fdl fdl us ns[kk\ mÙkj % bl okds dks gjsr iq= jkeukjk;.k eh/kk] fu- e`xhiqjk o jru iq= yYyw eh.kk] fu- fl;kjk o eqjyh iq=?khlk eh.kk us Hkh ns[kk FkkA eq>s dY;k.k iq= gjoakk eh.kk us crk;k ftlds ck, gkFk esa pksV vkbZA mEesn eh.kk ikuh fiykus eq>s ogka ys x;k FkkA ¼3½ izu % vkidk jksku ckbZ ds Åij muls >xM+k D;ksa gqvk\ mÙkj % jksku ckbZ mudh cfgu gS] tks LosPNk ls djhc 11 ekg ls esjs lkFk jg jgh gSA bl ckr ij iapk;r Hkh tqM+h FkhA ¼4½ izu % bl oä jksku ckbZ dgk gS\ mÙkj % vktdy jksku ckbZ vjksjk xkao esa ckcw yky ds ikl gS] ftlds cki dk uke xqykc eh.kk gSA ifgys mldh kknh ckcwyky ds lkFk gqbZ o mlls ukjkt gksdj jksku ckbZ esjs ikl vk xbZ FkhA ¼5½ izu % vksj dqN dguk gS\ mÙkj % bl okds dks jke f[kykM+h iq= Jh ijlknh eh.kk] fuoklh jkgj o vkSjks us Hkh ns[kk gS] ftuds uke ugha tkurk gwWA uksV %& xokg ds ck;a dku ds uhps o ihB ij ck;s QSaQM+s dh vksj vUnj rd rst/kkj nkj gfFk;kj dh xgjh pksVsa gSA xokg dks c;ku iM+dj lquk;k ftlus lqu dj lgha Lohdkj fd;kA 11. After examining these two dying declarations, we find that in Ex. P. 11, Mahipat had stated that Ram Dayal and Roshan had inflicted the injuries by axe and Farsa near Kaila Devi 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 where Mahipat was found lying after the incident. In the site plan, Kaila Devi ka Taal has not been shown. 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 anamoly. Prosecution should have led evidence that there is Kaila Devi ka Taal near 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. P. 12, we found that at one stage, in reply to question No. 1, the Magistrate had recorded KULHADI AVAM GANDASI TATHA FARSI but lateron the words TATHA AND FARSI have been deleted and the words GANDASI TATHA appear in between the two lines i.e. WORDS KULHADI AVAM GANDASI TATHA FARSI 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 Witness-1, 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 FARS1 but when he was asked what sort of weapon is FARS1, 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 TATHA appears for GANDASI. So this has made the whole 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 writing the word Gan-dasi in between the two lines and deleting words TATHA` and FARSI. So this has made the whole 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 writing the word Gan-dasi in between the two lines and deleting words TATHA` 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 No. 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). 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. 12. 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 vs. State of Rajasthan (1), Learned counsel for the appellants also brought to our notice Ramnath vs. State of MP (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 by the deceased, no reliance should be placed. He has also brought to our notice Mohd. Ikramul vs. State of Bihar (3) wherein their lordships have observed that conviction should not be based solely on the basis of dying declaration. 13. Reliance has also been placed on Prathviraj vs. The State of Rajas than (4) 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. 14. Our attention was also drawn to Puran Chandra vs. State of Orissa (5) wherein their lordships 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 suspicion features and infirmities in the evidence adduced at the trial with regard to the dying declaration. 15. Reliance has also been placed on Kailash vs. The State of Rajasthan (6) wherein the dying declaration was not relied for convicting the accused as the prosecution developed a new story. 16. Great reliance was placed on Kanhaiya vs. The State of Rajasthan (7) wherein their lordships observed that where there is contradiction in the dying declaration and the FIR it is not safe to place reliance on the dying declaration. 17. Reliance was also placed on Rashid Beg vs. State of MP (8) wherein also it has been observed that where there are two dying declarations, under suspicious circumstances, the court should insist for corroboration. Our attention was also drawn to Mohar Singh vs. State of Punjab (9) 18. 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 injury 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. 19. 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. 20. Public Prosecutor placed reliance on Ramawati V. The State of Bihar (10) 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. 21. He has also placed reliance on Suresh v. State of M.P. (11) where dying declaration was relied as according to the doctor, the deponent was found to be in a fit state of health to make the dying declaration. 22. Reliance was also placed on Bacchan Dan V. State of Rajasthan (12) wherein also, dying declaration was relied for conviction. 23. Thereafter, reliance was placed on the State of U.P. V. Ram Sagar Yadav (13) wherein it has been observed that as a matter of law, a dying declaration can be acted upon even without corroboration. 24. Reliance was also placed on Kusa V. State of Orissa (14) 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 Maharashtra (15). 25. 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 Maharashtra (15). 25. 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 cannot be discarded; in this connection, he has placed reliance on Chandra Kant v. The State of Maharashtra (16). Public Prosecutor has also placed reliance on Santo Singh v. The State of Rajasthan (17) and Taga and Lakha V. State of Rajasthan (18). 26. 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. 27. 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 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 to the accused persons beyond reasonable doubt and the appellants are therefore entitled to benefit of doubt. 28. 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.