JUDGMENT 1. 1. This appeal has been preferred against the judgment dated 23.12.86 passed by the Addl. Sessions Judge, No. 2, Kota, convicting the appellant under Section 302 Indian Penal Code and sentencing him to undergo life imprisonment and a fine of Rs. 500/-, in default of payment of fine, to further undergo 6 months' R. I. 2. Shri Abdul Zabbar on 29.7.82 gave a Parcha Bayan at 11.45 a. m. in M. B. S Hospital. Kota where in he has stated that when he was going to his shop situated in Chhawani Kota one and half hour before, the appellant and three other persons i.e. Daud, Nurudin and Hanif met him near the temple of Ram Chanderji. They had enimical relations with him. On account of this enmity Gaud, Hanif and Nurudin cought hold of him and Daud started heating him with stick, but somehow he managed to escape. While running he fell down and the appellant inflicted two knife blows on the left side of his chest and one knife blow on his stomach. Thereafter, he engaged a riksha and proceeded towards Kotwali. but when he reached at the gate of Kotwali, the Police took him to hospital On the basis of this Parcha Bayan regular F. I. R. was prepared and a case under section 307/34 was registered Abdul Zabbar died in the hospital and the case was then converted under section 302 I.P.C, After completing that usual investigation the Police submitted challan against four accused-persons. 3. The trial Court framed charge against accused Munna under Section 302/34 Indian Penal Code and 4/25 of the Arms Act and against other accused persons under Section 302/34 Indian Penal Code. The accused persons pleaded not guilty and claimed trial. 4. The prosecution has examined 20 witnesses to establish it's case. The accused persons also examined two defence witnesses. After concluding trial the learned trial Court found the appellant Munna guilty under section 302 IPC and sentenced him as mentioned above The trial Court did not find the other accused persons guilty under section 302/34 I.P.C. and acquitted them. 5. The learned counsel for the appellant has argued that at the time of this incident accused Munna was of 15 years of age, and as such, his trial by the learned Sessions Judge is void and illegal. 5. The learned counsel for the appellant has argued that at the time of this incident accused Munna was of 15 years of age, and as such, his trial by the learned Sessions Judge is void and illegal. The appellant should have been tried by the Children Court instead of by the Sessions Court. Much stress has been laid on this argument by the learned counsel for the appellant. This argument has no force The accused raised some objections in the trial Court and after hearing both the parties the trial Court vide it's Order dated 14.9.83, rejected the plea of the accused and held that the accused Munna was more than 16 years of age at the time of incident and the Sessions Court was competent to try this case. Against this order, a revision petition No. 338/83 was filed on behalf of Munna in this Court and the learned brother Justice K.S. Sidhu vide his order dated 26.10.83, dismissed that revision petition. In the order it has been stated that the learned Addl. Sessions Judge has given cogent and convincing reasons for giving preference to the opinion of the Medical Expert based upon the Radiological Examination to the entries in the scholar register, and this Court has observed that there is no reason to hold that the accused petitioner was child. Therefore the plea that the accused was child below the age of 16 years at the time of incident and the Sessions Judge has no jurisdiction to try this case has no substance. 6. We have beard the arguments of both the learned counsel and gone through the entire record of this case. There are only two eyewitnesses whose statements are material and they are Zaffar Mohammad (PW 1) and Mustkim (PW 2). We have gone through the statements of these two witnesses minutely and we are of this opinion that both these witnesses are chance witnesses. The deceased Abdul Zabbar has a tailoring shop in the Chhawani Kota and there are number of other shops adjacent to his shop. In the Parcha Bayan Ex. P 20, Zabbar has stated that at the time of incident there were number of persons whose shops were there but he did not name any person. The deceased Abdul Zabbar has a tailoring shop in the Chhawani Kota and there are number of other shops adjacent to his shop. In the Parcha Bayan Ex. P 20, Zabbar has stated that at the time of incident there were number of persons whose shops were there but he did not name any person. He named only Zaffar Mohammad and Mustkim and about other shopkeepers he has stated that they were present, but he did not name any of the shopkeepers. Why he did not name the independent person who had witnessed this incident? It was purposely done. From reading the statement of Mustkim it is clear that Musikim is co-accused with Zabbar (deceased) in a criminal case under section 307 for inflicting the injuries to accused Munna. Therefore, Mustkim (PW 2) has enimical terms with this accused Munna. That criminal case was registered on the incident which occurred on 14th March,'82. So vurposely Mustkim was mentioned in the Parcha Bayan Ex. P 20 by Zabbar Apart from this after reading the statements of both these witnesses i e. Zaffar and Mustkim, we are of this opinion that the statements are most unreliable and untrustworthy. Sagar Chand (PW 3) and Chandra Shekhar (PW 4) have been examined by the prosecution but they have not supported the prosecution story. Hukam Chand Jain (PW 5) has been examined by the prosecution and he stated that he informed the police on telephone and within 15-20 minutes the Police had arrived at the spot. Hukam Chand was also declared hostile by the prosecution. Thus, the position is that independent witnesses were examined but they did not support the prosecution case. Only two witnesses were produced by the prosecution and both these witnesses are interested and made out one. It is unnecessary to repeat in detail the contradictory statements of these two witnesses but it is suffice to mention that both these witnesses Zaffar Mohammad (PW 1) and Mustkim (PW 2) are unreliable and untrustworthy witnesses and on the testimony of these witnesses no conviction can he based. 7. From the record of this case what we find is that after this incident Zabbar (deceased) came in rickshaw at the Police Station and from there he was accompanied by A. S. I. and other Police Officials to hospital. In the hospital Parcha Bayan Ex. P 20 was recorded by A.S.I. Hajari Lal. 7. From the record of this case what we find is that after this incident Zabbar (deceased) came in rickshaw at the Police Station and from there he was accompanied by A. S. I. and other Police Officials to hospital. In the hospital Parcha Bayan Ex. P 20 was recorded by A.S.I. Hajari Lal. There is an endorsement on this Parcha Bayan Ex. P-20 made by Dr. N. M. Motyani. The endorsement is like this : "When I went to attend case in outdoor, the Police was recording the statement". It means that the statement of Zabbar was recorded by the A. S. I. without getting it verified as to whether injured Zabbar was in a fit condition to give statement or not. It was not recorded in presence of the doctor even. Shri Hajari (PW 17) has stated that be. Abdul Sharadh A.S.I. and Din Dayal Head Constable left the Police Station after receiving telephonic message. When they came at the gate of the Kotwali Abdual Zabbar met them in the rickshaw who was bleeding and looking to his serious condition he was immediately taken to M.B.S. Hospital in a auto rikshaw. He was admitted in the hospital and after taking the opinion about the condition of injured from the doctor, the Parcha Bayan Ex. P 20 was recorded. He has also stated that the statement was recorded in presence of Dr. M.L. Motyani who verified it. So according to Hajari Lal the doctor gave his opinion that the injured was in a fit condition to give the statement and thereafter his statement was recorded. Bit this is not correct position. The doctor has not made any endorsement to this collect that the injured was in a fit condition to give his statement. He has only stated that when he went to attend the case in outdoor the Police was recording the statement. So the A.S.I Hajari Lal started recording the Parcha Bayan before the arrival of the Dr. M.L. Motyani. 8. Deen Dayal (PW 15) who accompanied Hajari Lal A. S. I. (PW 17), has stated that Abdul Zabbar was taken to hospital where the doctor told that the condition of the injured is very serious and his dying declaration is to be recorded by a Magistrate. At this he went to call the Magistrate and the Magistrate came, but by that time the injured became unconscious. At this he went to call the Magistrate and the Magistrate came, but by that time the injured became unconscious. He was not in a fit condition to give statement. Therefore. the Magistrate without recording the dying declaration returned back. Then A.S.I. Hajari Lal gave Parcha Bayan Ex. P 20 to him and directed to take it to Kotwali. He went to Kotwali with the Parcha Bayan Ex. P.20 and handed over to Laxminarain S.H.O. In the cross-examination he has stated that as soon as they reached the hospital, within 5 minutes the doctor started examining the injured. At 11.35 a.m. he wont to call the Magistrate just after 5 minutes of the arrival at the hospital. It means that they reached the hospital at 11.20 a. m and at 11.35 a. m. he left the hospital to call the Magistrate. Immediately he went to call the Magistrate and 11.50 a m. he along with the Magistrate reached the hospital Deen Dayal has not stated that the Parcha Bayan Ex. P 20 was recorded in his presence by A.S.I. Hajri Lal (PW 17). So Deen Dayal (PW 13) has completely contradicted the statement of Hajari Lal (PW 17). The statements of both these Police Officers are inconsistent to each other. Another important factor is that the Police has not examined the Magistrate who was called by Deen Dayal Head Constable. No requisition letter has been produced by the prosecution requesting the Magistrate to come and record the dying declaration. No doctor has stated that Magistrate had come to the hospital to record the dying declaration. To there is no proof about the fact that the Magistrate was called and who attended the injured, but the statement could not be recorded as he was unconscious. It has been mentioned in the Parcha Bayan Ex. P 20 that it was recorded at 11.45 a.m. It means that A.S.I. Hajari Lal started recording the Bayan of Zabbar at 11.45 a.m. and it must have taken some time to record it. According to Deen Dayal at 11.50 a.m. he along with Magistrate reached the hospital and at that time injured Zabbar was unconscious. There is also another aspect to consider about the genuineness of Ex P20, The endorsement on Parcba Bayan Ex. P 20 is that the tatement was being recorded when the doctor came to attend the injured. According to Deen Dayal at 11.50 a.m. he along with Magistrate reached the hospital and at that time injured Zabbar was unconscious. There is also another aspect to consider about the genuineness of Ex P20, The endorsement on Parcba Bayan Ex. P 20 is that the tatement was being recorded when the doctor came to attend the injured. It has not been mentioned in the endorsement that doctor asked the Head Constable or A. S.I. to call the Magistrate to record the dying declaration. Dr. Motyani (PW 18) has been examined and he has stated that when he went to outdoor to attend the injured the Police was recording the statement In the cross-examination he has stated that after recording the Bayan Ex P 20 the Police asked him to give the endorsement. It means that after recording the statement Ex. P 20, the doctor was asked to make this endorsement. He has also stated that when he went to outdoor to attend the patient they were recording the statement but at that time no Police officials talked him about this case. The statement of Deen Dayal (PW 15) also indicates that when he came back to the hospital with Magistrate the injured was found unconscious and therefore, the Magistrate could not record the dying declaration. But, the A.S.I gave him the Parcha Bayan Ex. P20 and directed him to take it to Kotwali and hand it over to Laxminarain S.H.O. He took the Parcha Bayan and gave it to Laxminarain S.H.O. It means that the Parcha Bayan Ex. P 20 was recorded prior to his arrival at the hospital with the Magistrate. When the statement had already been recorded by the A.S.I. Hajri Lal why he did not tell this fact to the Magistrate that he has already recorded the statement. The Magistrate should have been produced in the evidence to corroborate the statement of Deen Dayal and to corroborate the fact that when he arrived at the hospital the injures Zabbar was unconscious, but his statement had already been recorded by A, S. I Hajari Lal. So all these aspects show that the Parcba Bayan Ex. P 20 is not a genuine one but has been prepared later on by A.S.I. Hajari Lal. So all these aspects show that the Parcba Bayan Ex. P 20 is not a genuine one but has been prepared later on by A.S.I. Hajari Lal. Zabbar did not give any Parcha Bayan to Hajari Lal A.S.I but this has been created by him later on and a false case has been connected by him. It creates doubt on the entire story of the prosecution. From the very beginning the case has been manipulated by A.S.I. Hajari Lal and a false statement of Zabbar has been recorded by him. 9. The prosecution has submitted the report of the Forensic Science Laboratory. The report of it is that the articles had human blood, but there was no report about blood-grouping. So this report is also of no help to the prosecution. 10. In view of our above discussion we are of this opinion that the entire case is full of suspicious and the Parcha Bayan Ex. P 20 cannot be treated as genuine one. The alleged eye-witnesses Zaffar Mohammad and Mustkim Ahmed (PW 2) are interested and made out witnesses. The learned trial Court has failed to appreciate the evidence and also failed to appreciate the correctness of the entire prosecution story. We are not in agreement with the finding arrived at by the trial Court. 11. As a result, the appeal is accepted. The appellant is not found guilty of the charges under section 302 Indian Penal Code and Section 4/25 of the Arms Act and is here by acquitted. The appellant is in jail. He be set at liberty forthwith, if not required in any other case.Appeal accepted. *******