MADAN MOHAN LAL, J. ( 1 ) THIS is an appeal against the judgement and order dated 28-3-1978 passed by Sri Brahma Kishore, the then III Additional Sessions Judge, Kanpur by which he has convicted Sudhir Kumar Shukla under S. 302, I. P. C. and has sentenced him to imprisonment for life. ( 2 ) ABOUT seven or eight years prior to this incident Shitla Prasad Misra deceased had lodged a first information report at Police Station Kotwali, Kanpur, against one Ashok Kumar alias Babban in connection with the murder of Uma Shanker alias Bare Babban which led to the prosecution of said Ashok Kumar and his three companions. On account of the same Ashok Kumar and his companions were aggrieved with Shitla Prasad Misra deceased. The appellant was said to be a member of the party of the said Ashok Kumar. ( 3 ) SHITLA Prasad Misra deceased and the appellant etc. were also involved in a case under Ss. 107/117, Cr. P. C. On account of the same the relations between the parties were strained. ( 4 ) ACCORDING to the case of the prosecution on 5-10-1976, at about 4. 45 p. m. Shitla Prasad Misra deceased, along with his sales man Laxmi Kant Gupta, was sitting in his embroidary shop situated in Khas Bazar, Kanpur. At that time the appellant came at the said shop and started firing from a pistol which attracted witnesses to the place of occurrence. The appellant ran away, Shitla Prasad Misra, who was injured was rushed to the hospital, where he was medically examined. ( 5 ) RAJENDRA Prasad Misra is the son of Shitla Prasad Misra deceased. He had brought him to the hospital. From the hospital the said Rajendra Prasad Misra went to Police Station Kotwali, Kanpur, where he lodged a written report of the incident on which this ease was registered. ( 6 ) IN support of its case the prosecution examined P. W. 1 Rajendra Prasad Misra, informant and two eye-witnesses P. W. 5 Durga Shanker Shukla and P. W. 6 Vijai Shanker Pandey. Both these eye-witnesses turned out to be hostile. ( 7 ) ON 5-10-1976 at 9 p. m. P. W. 3 Smt. Alka Srivastava, Magistrate had recorded dying declaration of Shitla Prasad Misra at the hospital. P. W. 4 Dr. Both these eye-witnesses turned out to be hostile. ( 7 ) ON 5-10-1976 at 9 p. m. P. W. 3 Smt. Alka Srivastava, Magistrate had recorded dying declaration of Shitla Prasad Misra at the hospital. P. W. 4 Dr. A. K. Gupta had given a certificate on the said dying declaration that Shitla Prasad Misra was in a fit mental condition to give his statement. ( 8 ) P. W. 2 Dr. B. M. Pandey, the then Medical Officer, U. H. M. Hospital, Kanpur, had examined injuries of Shitla Prasad Misra on 5-10-76 at 5. 20 p. m. He had found the following injuries on his person : 1. Lacerated wound rounded left side abdomen at level to umblious 14 cm left, diameters of wound 1 cm x. 75 cm. Margins were blackned and inverted. Depth was kept under observation. 2. Lacerated wound left para spinal region, 1 cm x 1 cm at the level of, above the iliac crests, third lumber spine margins were blackened, G. C. was weak. Pulse was 126 per minute. B. P. was 98/60. 3. Lacerated wounds rounded 1 cm x 1 cm back of left forearm two in number 5 cm below olecranon. Margins were blackened. 4. Lacerated wounds two in number right hand one thenar eminence another over dorsum of wrist 1. 5 cm inner to radistyloid, dimensions 1 cm x 0. 7 cm and 1 cm x 0. 75 cm Margins were blackned. Fresh bleeding was present from all the wounds. Soft tissues were coming out of wound No. 2. 5. Two lacerated wounds right arm, one over the anterior aspect upper 1/3rd another over back of right arm middle, dimensions 1 cm x 1 cm x depth kept under observation. Advised X-Ray of right arm. Margins wounds were blackened. ( 9 ) THE post-mortem examination of the dead body of the deceased Shitla Prasad Misra was conducted by P. W. 7 Dr. M. M. Nathani, the then Medial Officer, U. H. M. Hospital, Kanpur on 16-10-1976. The said doctor found the following ante-mortem injuries on the said dead body :- 1. Stitched transverse wound (vertical) on left abdomen region size 6" 1/10". 2. Two scab wounds on both sides of right wrist back 1/2" x 1/4" under injury injured tissues. 3. One scab wound on middle of right arm 1/2" x 1/4" situated 3" above the right elbow. Tissues were healing. Stitched transverse wound (vertical) on left abdomen region size 6" 1/10". 2. Two scab wounds on both sides of right wrist back 1/2" x 1/4" under injury injured tissues. 3. One scab wound on middle of right arm 1/2" x 1/4" situated 3" above the right elbow. Tissues were healing. 4. One scab wound 1/4" x 1/4" on right arm front. 5. Two scab wounds on left fore-arm 1/4" x 1/4" each, 2" below the elbow. Each other underlying injured. Tissues were healing. 6. One scab wound on left lower part of back of size 1" x 1/2" x 1" away from spine. Underlying tissues were healing. 7. One transstitched surgical wound on right arm. ( 10 ) ACCORDING to the doctor the death of Shitla Prasad Misra was due to shock and haemorrhage as a result of the aforesaid injuries. ( 11 ) THE investigation of this case was made by P. W. 8 Sri Jagdish Chand Dubey, Sub-Inspector. ( 12 ) THE appellant in his statement recorded under S. 313, Cr. P. C. denied the case of the prosecution. He further stated that he had no enmity with Shitla Prasad Misra deceased and that in fact there was enmity between him and Ashok Kumar. He also stated that it was Mool Narain Misra who had got himself falsely implicated in this case because at his instance he was not prepared to take revenge from Ashok Kumar. ( 13 ) THE appellant in his defence examined two witnesses which, according to the learned counsel for the appellant, were not material. ( 14 ) THE learned sessions judge has believed the case set up and the evidence produced by the prosecution and has accordingly convicted and sentenced the appellant as aforesaid. Aggrieved by the same the appellant has filed this appeal. ( 15 ) WE have heard the learned counsel for the appellant and the Government Advocate and have perused the record carefully. ( 16 ) IN order to make out its case the prosecution has relied upon the evidence given by the eye-witnesses and the dying declaration. ( 17 ) BESIDES P. W. 1 Rajendra Prasad Misra, the informant, the only two eyewitnesses, namely, P. W. 5 Durga Shanker Shukla and P. W. 6 Vijai Shanker Pandey who were examined in this case turned out to be hostile. ( 17 ) BESIDES P. W. 1 Rajendra Prasad Misra, the informant, the only two eyewitnesses, namely, P. W. 5 Durga Shanker Shukla and P. W. 6 Vijai Shanker Pandey who were examined in this case turned out to be hostile. Although they stated in their evidence that after the incident they had reached the place of occurrence, yet they added that they had not seen the assailant. The evidence of these two eye-witnesses, therefore, does not help the prosecution in establishing its case against the appellant. ( 18 ) THE only other witness is P. W. 1 Rajendra Prasad Misra, informant, who is the son of Shitla Prasad Misra deceased. Shitla Prasad Misra and P. W. 1 Rajendra Prasad Misra were running separate embroidery shops. The said shops were situate close by and are shown by the Investigating Officer in the site plan. P. W. 1 Rajendra Prasad Misra tried to deposet that at the time of the incident he was standing in front of his shop when he saw the appellant coming to the shop of his father i. e. Shitla Prasad Misra deceased, and firing four shots on his from the revolver. He further deposed that as a result of the said shots his father sustained injuries and fell down. He further deposed that he, along with Durga Shanker Shukla P. W. 5 took Shitla Prasad Misra to the hospital on rickshaw. ( 19 ) THE learned counsel for the appellant has urged before us that P. W. 1 Rajendra Prasad Misra was not present at the time of the occurrence and had, therefore, not witnessed the incident. We find force in the said submission. ( 20 ) EXT. Ka-3 is the injury report which shows that Shitla Prasad Misra was medically examined at U. H. M. Hospital on 5-10-76 to 5. 20 p. m. The said injury report records that Shitla Prasad Misra, injured, was brought by Durga Shanker Shukla. In our opinion, had Shitla Prasad Misra been taken to the hospital by his own son, i. e. P. W. 1 Rajendra Prasad Misra, then it would have been mentioned in the injury report that the injured was brought by said Rajendra Prasad Misra. In our opinion, had Shitla Prasad Misra been taken to the hospital by his own son, i. e. P. W. 1 Rajendra Prasad Misra, then it would have been mentioned in the injury report that the injured was brought by said Rajendra Prasad Misra. ( 21 ) THE learned counsel for the State has urged before us that when Rajendra Prasad Misra and Durga Shanker Shukla had taken Shitla Prasad Misra to the hospital and in that case the doctor had merely recorded the name of Durga Shanker Shukla, the presence of Rajendra Prasad Misra could not be excluded. We find no merit in the said argument. This is not a case where the presence of the son of the injured was not brought to the notice of the doctor. P. W. 1 Rajendra Prasad Misra has stated in his evidence that in the hospital he had told the doctor his own name as also his relationship with the injured person and as also the fact that he had brought the said injured for his medical examination. In our opinion, had P. W. 1 Rajendra Prasad Misra taken his father to the hospital for his medical examination, then the doctor would have recorded his name in the injury report. The fact that the same was not done shows that P. W. 1 Rajendra Prasad Misra had not taken his father to the hospital. This fact in result leads to the inference that P. W. 1 Rajendra Prasad Misra was not present at the place of the occurrence to witness the incident because had he been present there, he would have taken his father to the hospital. ( 22 ) THERE is yet another reason to show that P. W. 1 Rajendra Prasad Misra had not witnessed the incident. Whereas in his dying declaration Shitla Prasad Misra stated that when this crime was committed, the assailant was accompanied by one other person, to whom he could not recognise. P. W. 1 Rajendra Prasad Misra denies that the assailant was accompanied by any other companion. This is a material contradiction which cannot be reconciled. Therefore, we have no hesitation to say that P. W. 1 Rajendra Prasad Misra was not present at the place of the occurrence and that he had come forward to depose on account of his relationship with the deceased. This is a material contradiction which cannot be reconciled. Therefore, we have no hesitation to say that P. W. 1 Rajendra Prasad Misra was not present at the place of the occurrence and that he had come forward to depose on account of his relationship with the deceased. ( 23 ) AFTER the evidence of P. W. 1 Rajendra Prasad Misra is discarded, the only other evidence which remains on record against the appellant is dying declaration recorded by P. W. 3 Smt. Alka Srivastava, Magistrate, at the hospital on 5-10-76 at 9 p. m. ( 24 ) THE dying declaration is undoubtedly admissible under S. 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the word is of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. However, in this case we are reluctant to place reliance on the dying declaration made by Shitla Prasad Misra for the reasons given here. ( 25 ) THE identity of the assailant given in the dying declaration is not established in this case. It cannot be said that Sudhir Kumar Shukla who has been described as an assailant in the said dying declaration was no other person than the appellant in this case. Shitla Prasad Misra deceased in his dying declaration not only gave the name of the assailant as Sudhir but also the name of his father as Lal Bahadur Shukla. It cannot be said that Sudhir Kumar Shukla who has been described as an assailant in the said dying declaration was no other person than the appellant in this case. Shitla Prasad Misra deceased in his dying declaration not only gave the name of the assailant as Sudhir but also the name of his father as Lal Bahadur Shukla. Although we may say that instead of taking the full name of Sudhir Kumar Shukla the deceased merely gave his name as Sudhir, yet it is difficult to imagine that had the appellant been the assailant, the deceased would have given a different name of his father It may be noted that whereas the name of the father of the appellant is Ram Babu Shukla Shitla Prasad Misra deceased gave the name of the father of the assailant as Ram Bahadur Shukla. This is not all. The name of the place/mohalla where the appellant is residing is also not the same. It may be noted that in his dying declaration the deceased stated that the assailant was living in the same mohalla in which he himself was living, i. e. Bengali Mohalla. It may be noted that the appellant, on the other hand, is living in Bhainsiya Ka Ahata, Bazar Kailash Mandir, Kanpur. ( 26 ) THE learned Assistant Government Advocate has, urged before us that because there was enmity between Shitla Prasad Misra deceased, on the one hand and one Ashok Kumar, on the other and that because the appellant belongs to the party of Ashok Kumar, hence the identity of the appellant was established. In our opinion, the said argument is devoid of force because there is no material on the record to substantiate the same. We are convinced that there is no material on record which may establish that Sudhir Kumar Shukla referred in the dying declaration is no other person than the appellant. ( 27 ) THERE is yet another reason which shows that probably the aforesaid dying declaration was made under some influence and after some consultations. It is the clear evidence of P. W. 1 Rajendra Prasad Misra that at the time of the incident he was present in front of his own shop, from where he went to the place of occurrence. It is the clear evidence of P. W. 1 Rajendra Prasad Misra that at the time of the incident he was present in front of his own shop, from where he went to the place of occurrence. As against the same it is stated in the dying declaration by Shitla Prasad Misra deceased that his son Rajendra Prasad Misra was also present at the shop along with him at the time of the incident. In our opinion, the said statement was made with a view to make Rajendra Prasad Misra a good witness in this case. Therefore, we do not consider it safe to rely upon the dying declaration in any view of the matter. ( 28 ) THE learned Assistant Government Advocate has urged before us that the statement of Shitla Prasad Misra deceased recorded by the Investigating Officer under S. 161, Cr. P. C. can be treated as dying declaration and that from the same it can be gathered that it was Sudhir Kumar Shukla appellant who had committed the aforesaid murder. The learned counsel for the appellant, on the other hand, has urged before us that in fact the Investigating Officer had not gone to the hospital to record the statement of Shitla Prasad Misra deceased and that had he in fact gone there, then he would have taken the permission of the doctor to record his statement. He has also urged that in any case the Investigating Officer ought to have taken the certificate from the doctor that Shitla Prasad Misra was in a fit state of mind to give statement. In any case even if some reliance was to be placed upon the said statement of Shitla Prasad Misra recorded by the Investigating Officer, the identity of the assailant cannot be established from the same. In the said statement Shitla Prasad Misra, deceased, simply named Sudhir Shukla as his assailant. Neither the name of his father nor the place of his residence was mentioned in the said statement. Therefore, it is difficult to say from the said statement as well that it was the appellant and none else who had committed the aforesaid murder. ( 29 ) IN view of the discussions made, and for the reasons stated, we are of the opinion that the case of the prosecution against the appellant was not free from reasonable doubt. Therefore, it is difficult to say from the said statement as well that it was the appellant and none else who had committed the aforesaid murder. ( 29 ) IN view of the discussions made, and for the reasons stated, we are of the opinion that the case of the prosecution against the appellant was not free from reasonable doubt. ( 30 ) ACCORDINGLY this appeal is allowed and the conviction and the sentence of the appellant Sudhir Kumar Shukla under S. 302, I. P. C. is set aside. He is held not guilty of the offence under S. 302, I. P. C. and he is accordingly acquitted of the same. ( 31 ) THE appellant is on bail. He need not surrender to his bail bonds, which hereby stand discharged. Appeal allowed. .