JUDGMENT Monoj Kumar Mukherjee, J. These two appeals have been heard together as both stem from the judgment delivered by the learned Sessions Judge, Howrah in Sessions Trial no. XXX of April 1979 convicting and sentencing the sole appellant in Criminal Appeal no. 342 of 1979 under s. 302, three of the four appellants in Criminal Appeal no. 336 of 1979 under s. 324, and the other under s. 323 of the Indian Penal Code. 2. The prosecution case, briefly stated, is as follows. In the morning of May 25, 1978, Kamala Kanta Pramanik @ Ashoke Paramanik (P.W.1) along with his two relatives went to a piece of land, adjacent to their residential house in Puranipara within the Police Station of Shyampur. There an altercation stated between him and his neighbour Ram Ratan Paramanik (one of the appellants herein) over an incident of assault that took place a fortnight ago. In course of such altercation Ashoke snatched away the wooden club that Ram Ratan was carrying and hit him with it. Ram Ratan then left the place only to come back after 10 minutes with the other for appellants. They surrounded the house of Ashoke and started petting brick bats towards it. When Ashoke and his father Narendra Nath (the deceased) came out of their house they started assaulting Narendra Nath with lathi, iron rod, brick bats etc. When Ashoke came to his rescue they also started assaulting him. However at the intervention of some neighbours the assault stopped. A local doctor was then summoned who examined Narendra Nath and advised his immediate removal to hospital. In the meantime Ashoke went to the police station and lodged an information about the incident on the basis of which a case under ss. 147, 148, 447 and 324 of the Indian Penal Code was started against the five appellants. As Narendra Nath succumbed to his injuries in the hospital on June 4, 1978, the police submitted charge sheet under s. 304 of the Indian Penal Code also. 3. The appellants pleaded not guilty to the charges levelled against them and contended that they were falsely implicated. 4. To prove its case, the prosecution examined 16 witnesses, some of whom, in their statements recorded under s. 161 Cr. PC., claimed to have seen the incident themselves. During trial however they disowned such claim and as such were declared hostile. The appellants pleaded not guilty to the charges levelled against them and contended that they were falsely implicated. 4. To prove its case, the prosecution examined 16 witnesses, some of whom, in their statements recorded under s. 161 Cr. PC., claimed to have seen the incident themselves. During trial however they disowned such claim and as such were declared hostile. In fact, Ashoke also did not support the case of the prosecution so far as it sought to implicate the appellants. In his deposition, he stated that his father sustained injuries due to throwing of brick bats only, but he could not say whose brick bats hit him. In such circumstances, to prove its case, the prosecution relied on the dying declarations made by the deceased before Dr. Santosh Pal (PW 7), a private medical practioner who examined him after the incident and before Sub-Inspector Gaur Chandra Mondal (PW 16) who recorded the same under s. 161 Cr. PC on May 26, 1978 in the Uluberia hospital. 5. Considering the facts and circumstances of the instant case in the light of the observations made by the Supreme Court in the case of Dalip Singh v. State of Punjab, reported in AIR 1979 SC page 1173 which was approved by it in its later decision in the case of State (Delhi Administration) v. Lakshman Kumar, reported in AIR 1986 SC 250 the statement of the deceased as recorded by the Investigating Officer under s. 161 Cr. PC (Ext. 5) does not inspire confidence. In the case of Dalip Singh (supra) the Supreme Court observed as under : “..................although a dying declaration recorded by a police officer during the course of investigation is admissible under s. 32 of the Indian Evidence Act in view of the exception provided in sub-s. (2) of s. 162 of the Code of Criminal Procedure, 1973 it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a Doctor. As observed by this Court in Munna Raja v. State of Madhya Pradesh (1976) 2 SCR 764 ( AIR 1976 SC 2199 ) the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. As observed by this Court in Munna Raja v. State of Madhya Pradesh (1976) 2 SCR 764 ( AIR 1976 SC 2199 ) the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.” 6. In the instant case, we find that though Narendra Nath was in the Uluberia Hospital on May 26, 1978 when his statement was recorded by the Investigating Officer and continued to stay there till June 4, 1978 when he died, steps were not taken to get his statement recorded by a doctor or a Magistrate. No explanation, far less satisfactory, is also forthcoming as to why it was not so recorded. This apart, we may point out, taking a clue from the Judgment of Lakshman Kumar (supra), that the statement was not signed by the deponent nor was his thumb impression taken. 7. The other dying declaration also does not pass the tests of strictest scrutiny and closest circumspection which are required to be fulfilled before it can be made the sole basis of conviction. 8. Dr. Pal (P.W.7) testified that on May 25, 1978 at 8-30 a.m. he examined Narendra Nath and found some injuries on his person which he detailed. He then said that the patient stated that he had been assaulted by Birendra Nath Dolui, Kanai Dolui, Duron Hazra, Ram Ratan Paramanik and Bhajahari Paramanik (the appellants before us) all of Puranipara, P.S. Shyampur at 6-30 a.m. on the U.B. Road at Puranipara. Considering the fact that such a statement could be treated as a dying declaration if need be, and made the sole basis of capital punishment it can be safely presumed that it was written down in the injury report or as a separate document by the doctor and the signature of the patient was obtained thereon but then no such document was exhibited during trial. It is of course true that the doctor was not at all cross-examined on this aspect of the matter, but then in our opinion it was the bounden duty of the prosecution to enlighten the Court on these aspects of the matter and offer a satisfactory explanation, for not getting it exhibited. The production of such document becomes imperative to enable the Court to look into it and ascertain its genuineness and reliability. We further find that in cross-examination while admitting that the injured did not give the addresses of the assailants, P.W.7 stated that he (the injured) gave the names of the assailants and as he (the doctor) knew their addresses he noted the same in his report. Admittedly, therefore the entire statement purportedly made by the injured to the doctor is not his own. We further find that the statement of the injured as recorded by the doctor, for what it is worth, does not indicate as to which of the appellants caused which injury. This aspect of the matter assumes importance as only one of the five appellants has been found guilty under s. 302 of the Indian Penal Code though charge under s. 302 read with s. 34 was framed against all. In other words, if the above dying declaration was to be relied upon all the appellants were liable to be punished for having caused the death of Narendra Nath with the aid of s. 34 of the Indian Penal Code but after acquittal of the other four of the offence under s. 302 read with 34 of the Indian Penal Code the appellant Duron Hazra alone could not be convicted under s. 302 of the Indian Penal Code; While on this dying declaration, we may lastly point out that none of the appellants in their examination under s. 313 of Cr. P.C. was asked any question in respect of the same which again is a glaring lacuna in the trial. 9. For all these considerations we allow the appeals, set aside the impugned order of conviction and sentence and acquit all the appellants. They are discharged from their respective bail bonds. S.P. Rajkhowa, J. : I agree. Appeals allowed.