Judgment S.N. Jha & R.N. Lal, JJ. Both these appeals were heard together as they arise out of common judgment and they are being disposed of by this judgment. 2. In Criminal Appeal No. 192 of 1988 there arc two appellants; Raj Bali Mahto @ Raj Bali Koiri and Kamresh Kumar @ Kamlesh Mahto. In Criminal Appeal No. 198 of 1988 also there are two appellants; Suresh Mahto and Deva Nand Mahto. All the four appellants have been convicted under section 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. Suresh Mahto and Den Nand Mahto were further convicted under section 27 of the Arms Act, and were sentenced to undergo rigorous imprisonment for one year. The sentences were ordered to run concurrently. 3. On the 20th October, 1984 at about 8.45 A.M. a Fardbeyan (Ext. 6) was recorded on the statement of Kamta Singh (Deceased) of village Charpokhari within the same police station in the District of Bhojpur by Sri B.B. Sharma, Assistant Sub-Inspector of Arrah town police station at surgical ward of Arrah Sadar Hospital stating, inter alia, that while the deceased was on morning; stroll he saw appellants Raj Bali Mahto @ Raj Bali Koiri and Kamresh Kumar @ Kamlesh Mahto sitting there near the canal. It is said that on seeing him the appellant, Deva Nand Mahto, fired from his country made pistol which struck on his left chest. The deceased tried to flee away but Deva Nand Mahto fired another shot which also hit him in the left chest and then the deceased fell down. Thereafter, appellant Raj Bali gave a fasuli blow aiming on the neck of the deceased but the deceased tried to ward off the fasuli blow which hit his right palm and caused injury. It is further alleged that appellant, Raj Bali Mahto gave another fasuli blow which bit on the neck of the deceased. The deceased raised alarm on which Sheo Shankar Singh (P.W. 4) Shibji Ray (not examined) and others arrived there and the appellants fled away. It is stated in the Fardbeyan that the motive of the occurrence was on account of standing litigations and enmity between the parties. 4. The deceased was carried to Sadar Hospital Arrah on a Rickshaw and his injury was examined at 7.30 A.M. by Dr. It is stated in the Fardbeyan that the motive of the occurrence was on account of standing litigations and enmity between the parties. 4. The deceased was carried to Sadar Hospital Arrah on a Rickshaw and his injury was examined at 7.30 A.M. by Dr. S.K. Singh (P.W. 6) who was posted as Civil Assistant Surgeon in the said hospital. Thereafter, Sri B.B. Sharma, Assistant Sub-inspector, reached the Sadar Hospital, Arrah on receiving information on O.D. Slip and recorded his statement (Ext. 6) on the basis of which a formal first information report was drawn up and criminal case was registered at Arrah, Nawada police station. 5. The deceased was admitted at Arrah Sadar Hospital at 7 A.M. and after examination of his injury he has referred to Patna Medical College Hospital for further treatment at 7.45 A.M. 6. After recording the case, the investigation was made by the police and after completing it, the police submitted charge-sheet against the aforesaid accused persons. The learned Chief Judicial Magistrate took cognizance and committed the case to the court of sessions. The trial proceeded and charges were framed against the (accused persons under section 302/34 of the Indian Penal Code and 27 of the Arms Act, as indicated above. 7. The defence of the appellants is that the entire case has been concocted and fabricated with a view to implicate them out of enmity by Sheo Shankar Singh (P.W. 4). 8. The prosecution in order to substantiate the charges levelled against the appellants has examined eight witnesses, out of them P.Ws. 1, 2 and 4 are said to be the eye witnesses. Ambika Singh (P.W. 3) is the witness on the point of seizure. Ashok Kumar (P.W. 5) is the son of the deceased and is a hearsay witness P.W. 6 is a doctor who examined the injury on the person of the deceased at Arrah Sadar Hospital. P.W. 7 is the Assistant Sub-inspector of police who recorded the fardbeyan (Ext. 6) of the deceased in Arrah Sadar Hospital and P.W. 8 is the Investigating Officer in this case. 9. The trial court after considering the materials available on the record convicted the appellants and sentenced them to undergo imprisonment for life as indicated above. Hence this appeal. 10. Learned c8unsel appearing on behalf of the appellants has submitted that the prosecution has failed to prove the charges levelled against these appellants. 9. The trial court after considering the materials available on the record convicted the appellants and sentenced them to undergo imprisonment for life as indicated above. Hence this appeal. 10. Learned c8unsel appearing on behalf of the appellants has submitted that the prosecution has failed to prove the charges levelled against these appellants. Therefore, me conviction passed on such evidence is not sustainable in law and fit to be set aside. It is further contended that the fardbeyan which was recorded by P.W. 7 in Arrah Sadar Hospital is a doubtful document and it has not been recorded in accordance with law. Therefore, reliance cannot be placed on such so called dying declaration. 11. According to the prosecution case, the deceased was having his morning stroll as usual on the canal road and when he had preceded near the canal lock he saw four persons sitting there from before. It is alleged that all the four persons after seeing deceased stood up and appellant, Deva Nand Mahto, fired from his country made pistol which struck him on his left chest. The deceased tried to flee away but appellant Deva Nand Mahto fired second time which hit his left chest, as a result of which he fell down. 'Thereafter, appellant Raj Bali Mahto gave fasuli blow on his neck which the informant tried to stop by his right hand which caused injury in his right palm. On hullah many people including P.Ws. 1, 2 and 4 came there and thereafter he was carried to the Arrah Sadar Hospital on a rickshaw where he was examined by Dr. S.K. Singh (P.W. 6) and his statement was recorded, by B.B. Sharma. A.S.I. (P.W. 7). Dr. S.K. Singh (P.W. 6) found the condition of the injured precarious and he referred the patient to Patna Medical College Hospital for further treatment at 7.45 A. M. as indicated in Ext. A which is hed head ticket. Fardbeyan (Ext. 6) was signed by Sheo Shankar Singh (P.W. 4) and left thumb impression of the deceased was obtained on the said fardbeyan. 12. B.B. Sharma, A.S.I. (P.W. 7) has stated in his evidence in the court that on 20-10-84 he reached the Arrah Sadar Hospital on O.D. Slip and recorded the statement of Kamta 1Prasad Singh (Deceased). Kamta Prasad Singh put his left thumb impression on the said statement. He has further stated and prepared injury report (Ext. 12. B.B. Sharma, A.S.I. (P.W. 7) has stated in his evidence in the court that on 20-10-84 he reached the Arrah Sadar Hospital on O.D. Slip and recorded the statement of Kamta 1Prasad Singh (Deceased). Kamta Prasad Singh put his left thumb impression on the said statement. He has further stated and prepared injury report (Ext. 7). This witness has not seen the bed head ticket and be injury report prepared by the doctor. He has further stated that he did not obtain the signature of either the doctor on duty or any officer of the hospital. He could not even tried to know the name of the doctor who had examined the deceased in Arrah Sadar Hospital. This witness had not even tried to requisition the service of any Magistrate at the time of recording the dying declaration. Nothing has come in his evidence that what was the condition of the deceased at the time of recording his fardbeyan in the hospital. 13. Learned counsel appearing on behalf of the appellants has vehemently argued that the fardbeyan which has been treated as dying declaration has not been recorded in accordance with law. In this connection, he has drawn our attention to Rule 169 of the Bihar Police Manual, 1978 which reads as follows:- "Dying declaration-If a person connected with a case whose statement is required, is in imminent danger of death his statement, whether recorded before or not, shall be recorded by a judicial Magistrate or if such a magistrate is not available by an executive magistrate and if he can also not be available by any Gazetted Officer whenever possible. When this cannot be arranged, and it becomes necessary for some other person to record a dying declaration, this shall be done, whenever possible in the presence of the accused and of attesting witnesses. A dying declaration made to a police officer shall be signed as far as possible by the person making it." According to learned counsel appearing on behalf of the appellants the police officer who recorded the dying declaration did not even requisition the services of any of the Magistrates nor he 'took' the signature of any of the employees of hospital or the doctor on duty. Of course it has been signed by one witness Shiv Shankar Singh (P.W. 4) and left thumb impression was obtained of the deceased. Of course it has been signed by one witness Shiv Shankar Singh (P.W. 4) and left thumb impression was obtained of the deceased. From the evidence availble on the record it is clear that after recording of the fardbeyan (Ext. 6) the decased was further examined by the Investigating Officer (P.W. 8) in the Arrah Sadar Hospital itself. 14. Dr. S.K. Singh (P.W. 6) who was on duty in Arrah Sardar Hospital examined the deceased and found the following injuries:- (i) One incised wound 6"x½" bone deep front of neck high ward bone was cut. (ii) One incised wound 5"x½"x tender deep dorsen of right hand extending from right wrist to terminal plealange of right ring finger. (iii) circular wound of 1" diameter with blackening and scorching all around on left side chest in anterior auxiliary fold and multiple black spot all around the wound. (iv) Fracture of fourth rib of the left side chest with surgical emphysema. (v) Multiple circular lacerated wound of 1/4" diameter left side back below left scapula blackening and scorching all around. According to the opinion of the doctor the age of the injury was within six hours. The nature of injury no. l and 2 were grievous caused by sharp cutting weapon such as Fasuli. The nature of injury nos. 3 and 5 was simple in nature caused by fire arms. 15. P.W. 6 has also stated in the court that on the bed head ticket it was mentioned that at 7.45 A.M. the patient was restless and was referred to Patna Medical College Hospital. 16. Now coming to the evidence of P.Ws. 1, 2 and 4, P.W. 1 is said to be a chance witness who happened to be a morning walker on the canal. At the relevant point of time he was also walking on the canal where alleged occurrence is said to have taken place. P.W. 1 has stated that he saw the deceased going from north to south and when he reached near a bridge, the four accused personas rushed to him and appellant Deva Nand Mahto, fired from his country made pistol which hit his left chest. The deceased ran towards small canal but he was chased by the appellants and appellant Deva Nand Mahto fired again but this witness did not know whether it hit or not. The deceased ran towards small canal but he was chased by the appellants and appellant Deva Nand Mahto fired again but this witness did not know whether it hit or not. According to this witness when the deceased reached in a paddy field adjacent to the canal he saw appellant Sudesh Mahto firing, as a result of which he fell down. The other appellants Kamresh Kumar caught hold of the deceased and Raj Bali Mahto assaulted him with fasuli. 17. It was pointed out by the learned counsel appearing on behalf of the appellants that the firing alleged by appellant Suresh Mahto is not mentioned in the Fardbeyan of the deceased. A new story has been developed by this witness. It is also submitted that this witness has been set up by P.W. 4, Sheo Shankar Singh, just to corroborate the prosecution case. As a matter of fact, he was not present at the place of occurrence. According to this witness there were three firings; two by appellant. Deva Nand Mahto and one by Suresh Mahto P.W. 2 has also stated in his evidence that in the morning at about 5½ hours he was walking on the canal where the deceased was also walking. According to him when he reached near the small canal he saw four accused persons attacking on the deceased whom he identified. According to him, appellant Deva Nand Mahto and Suresh Mahto were armed with country made pistol and appellant Raj Bali Mahto was armed with Fasuli. Appellant Kamresh Kumar was empty handed. 'This witness has said that when the deceased reached on the flank of small canal the appellants chased him and appellant Deva Nand Mahto fired at him. The deceased tried to flee away but appellant Deva Nand Mahto again fired which did not hit him and when the deceased came in the paddy field appellant Suresh Mahto fired at him, as a result of which he fell down. Thereafter, appellant Kamresh and others caught hold of him and appellant Raj Bali Mahto gave him a Fasuli blow. 18. This witness was also a chance witness. From his evidence, it appears that he had come to Arrah two days earlier from the date of occurrence to obtain his certificate and on the date of occurrence he was having his morning stroll on the canal. 18. This witness was also a chance witness. From his evidence, it appears that he had come to Arrah two days earlier from the date of occurrence to obtain his certificate and on the date of occurrence he was having his morning stroll on the canal. According to him also there were three shots; one by appellant Deva Nand Mahto which hit, the deceased in his left chest and another shot was also made by him which did not hit the deceased and the third firing was made by appellant Suresh Mahto. It has come in his evidence that six to seven persons brought Kamta Singh (deceased from small canal to main canal and put him on the rickshaw and he was sent to the hospital. It is an admitted fact that the prosecution neither examined the rickshaw puller who took the deceased to the hospital nor the rickshaw on which the blood is said to have been found was produced. This witness has also stated that he was not knowing the deceased nor his son, Ashok Kumar, from before. He has stated before the police that appellant Deva Nand Mahto fired twice and appellant Suresh Mahto also fired when the deceased was in the paddy field just near the canal. This fact has been contradicted by the Investigating Officer in his evidence in the court. 19. P.W. 4 who is said to have played the primary role, according to the defence, in this case has stated that he had also gone for a morning walk on the date of occurrence at about 5 to 6 A.M. Prof. Kamta Singh (deceased) was also walking ahead of him. When the deceased reached near Dhanpura line, all the four appellants surrounded him. According to this witness, appellant Deva Nand Mahto and Suresh Mahto were armed with country made pistol and appellant, Raj Bali Mahto was armed with Fasuli and appellant Kamresh Kumar was empty handed. Deva Nand Mahto fired with country made pistol which hit the deceased in the left chest, as a result of which the deceased fell down. Thereafter it is said that appellant Raj Bali Mahto gave Fasuli blow on his neck which was warded off by the deceased which caused injury in his palm. Deva Nand Mahto fired with country made pistol which hit the deceased in the left chest, as a result of which the deceased fell down. Thereafter it is said that appellant Raj Bali Mahto gave Fasuli blow on his neck which was warded off by the deceased which caused injury in his palm. According to this witness, appellant Kamresh Kumar caught hold of the deceased at the time of assault and Raj Bali caused injury by means of Fasuli. 20. In his cross-examination, this witness has admitted that some litigations were going on between him and the wife of appellant Deva Nand Mahto (Chanchal Devi) in which appellant Deva Nand Mahto and his sons appellant Suresh Mahto and Kamresh Kumar were witnesses and the said case is still pending in the court of Sri N. Mishra, Judicial Magistrate. This witness was also a chance witness. It is admitted that the occurrence took place in the morning hours near the canal where many people were walking in the morning and he was also one of the morning walkers. He has not said about any case pending between the deceased and these appellants. Even Ashok Kumar (P.W. 5) who is son of the deceased has not said anything about any particular case except that there was enmity between his further and the appellants. From the evidence of P.W. 4, it appears to us that some cases are pending and there was enmity between P.W. 4 and the appellants but there is nothing on the record to show that there was enmity between the deceased and the appellants except the bald statement of Ashok Kumar (P.W. 5) who happens to be son of the deceased. 21. P.W. 5 who is son of the deceased has stated in the Court that he got information of murder of his father at about 7.15A.M. He rushed to the Arrah Sadar Hospital where he found his father in injured condition. He has further stated that his father made certain statement (Ext. 7) in presence of B.B. Sharma, A.S.I. (P.W.7.) but curiously enough, his signature was not obtained by the police officer (P.W. 7) who recorded the Fardbeyan which was treated to be the dying declaration after the death. He has further stated that his father made certain statement (Ext. 7) in presence of B.B. Sharma, A.S.I. (P.W.7.) but curiously enough, his signature was not obtained by the police officer (P.W. 7) who recorded the Fardbeyan which was treated to be the dying declaration after the death. This witness has further stated that his father told to take him to Patna and he hired a car and came in the hospital and saw the officer in-charge (P.W. 8) taking statement of his father. According to him, thereafter he took his father to Patna Medical College Hospital and kept' him in the emergency ward but he died there. Police officer of Pirbahor police station inspected the dead body and sent it for post mortem which was done by Sri R.B. Chaudhary who has not been examined in this case since he is dead. The post mortem report has been proved by P.W. 5 which was written in his presence. 22. P.W. 8 is the Investigating Officer who has stated in his evidence in the court that on the date of occurrence he was posted at Arrah Nawada police station lie received information that some body bas fired at the professor and he has been taken to Arrah Sadar Hospital for treatment. He rushed to the hospital where he found the deceased in injured condition. He learnt there that Sri B.B. Sharma, A.S.I., (P.W. 7) had already recorded the Fardbeyan of the deceased. This witness again examined the deceased who, according to this witness, supported the statement made in the Fardbeyan. This witness has also stated that the deceased told him that appellant Deva Nand Mahto fired from his county made pistol which hit his left chest and when he tried to flee away appellant Suresh Mahto fired second time which hit his left chest, as a result of which he fell down. Thereafter, appellant Raj Bali gave him a Fasuli blow on his neck which he tried to ward off but it caused injury in his right palm. This witness has also stated that the motive of the occurrence was old enmity with appellant Deva Nand Mahto. We may point out again here that so far as the enmity with the deceased is concerned, no document has been placed before us by the prosecution. This witness has also stated that the motive of the occurrence was old enmity with appellant Deva Nand Mahto. We may point out again here that so far as the enmity with the deceased is concerned, no document has been placed before us by the prosecution. Thereafter, be examined Shiv Shankar Singh (P.W 4 and Shivji Rai (not examined) in the hospital itself. At 10.25 A.M. he returned and first information report was recorded by him in the police station which is ext. 8. The Investigating Officer also inspected the place of occurrence which is eastern 'bandh of south canal at a distance of one kilometer from Arrah canal lock which is like a road. There is a small canal to the east of it which goes towards Dhanpura. On the juncture of canal there is a bridge. There is a paddy field at a distance of 250 steps north-east to that canal. The Investigating Officer also found copious blood in that paddy field. He seized blood stained earth and wad in presence of P.W. 4 and one Ambika Singh (not examined). After inspection he submitted charge-sheet against the appellants. 23. In his cross-examination, the Investigating officer has stated that he left some pages in the case diary so as to insert the Fardbeyan which was recorded by P.W. 7 in the hospital. He has stated that he did not record statement of the deceased in presence of any Magistrate. He took about twenty minute’s time to record the statement of the deceased. He was speaking continuously. According to him the condition of the deceased was precarious and he was to be removed to Patna Medical College Hospital. A suggestion was made on behalf of the defence that no such statement, was recorded by the Investigating Officer from the deceased which he has denied. He has further stated that he did not send the seized blood stained earth to chemical examiner for examination for the reasons best known to him. He has also stated that P.W. 1 did not state in his presence that appellant Suresh Mahto fired at Kamta Singh (deceased) from a close range. He has also stated that P.W. 2 did not say about chasing of the deceased by the appellants. These are the evidences available on the record in this case. 24. It is true that Prof. He has also stated that P.W. 2 did not say about chasing of the deceased by the appellants. These are the evidences available on the record in this case. 24. It is true that Prof. Kamta Singh was murdered but the question is as to who committed this heinous crime. The defence has already denied the allegations levelled against them. According to the defence the entire case has been initiated at the instance of P.W. 4 who wants to take revenge against the appellants due to the old enmity. 25. The learned Sessions Judge has relied upon the dying declaration made by the deceased. According to the learned Sessions Judge, the statement of the deceased has been corroborated by the evidences of P.Ws. 1, 2 and 4. As we have already stated above that the learned counsel appearing on behalf of the appellants has vehemently argued that the so called dying declaration was not the statement of the deceased because he was not in a position to make any statement as his condition was deteriorating fast. P.W. 6 who first of all examined the deceased in Arrah Sadar Hospital found that the patient was restless, pulse less and blood pressure was not recordable and he after giving first aid referred the patient to Patna Medical College Hospital at once. 26. It is well settled that the dying declaration is the statement made by a person as to cause of his death or as to the circumstances resulting in his death and it becomes relevant in a case in which the cause of death of a person comes to a question. It is, no doubt, true that the great sanctity is attached to the words of a dying man because a person on the verge of death is not likely to state lie but the court must be satisfied that the deceased was in a fit state of mind to make the statement. Rule 169 of the Bihar Police Manual, 1978 has also laid down that if a person connected with a case whose statement is required is in imminent danger of death, his statement shall be recorded by a Judicial Magistrate or if such a Magistrate is not available by an Executive Magistrate and if he can also not be available, by any Gazetted Officer whenever possible. When this cannot be arranged and it becomes necessary for some other person to record the dying declaration, this shall be done whenever possible in the presence of the accused or of attesting witnesses. The dying declaration made to a police officer shall be signed as for as possible by a person making it. Therefore, the Rule bas laid down that efforts should be made to record such statement by a Judicial Magistrate and if it is not possible then by some Executive Magistrate. If this is also not possible then by any Gazetted Officer even if it is not possible then it can be recorded by the Police Officer but it must be attested by the witnesses in whose presence it has been recorded. 27. In the instant case, the prosecution case is that it was recorded in Arrah Sadar Hospital by P.W. 7, a Police officer, but curiously enough, he did not take any step for the requisition of any Judicial Magistrate or even an Executive Magistrate. He has gone too far. He even did not take signature of the doctor who gave first aid in Arrah Sadar Hospital and who examined the injury on the person of the deceased. P.W. 7 has stated that he even did not enquire about the name of the doctor who gave the deceased first aid. It has come in the evidence of P.W. 5 who is son of the deceased that the statement was recorded in his presence, but it is not understandable as to why his signature was not obtained by the recording officer. After all why Shiv Shankar Singh's signature was obtained who was admittedly inimical to the appellants. The absence of signature of the doctor and son of the deceased makes the dying declaration doubtful and suspicious, more: so there is no mention or whisper of any firing made by appellant Suresh Mahto. 28. It cannot be argued on behalf of the State that requisition of the services of a Judicial Magistrate, or any Executive Magistrate or any Gazetted Officer could not be made due to paucity of time because it has come on the record that after the statement was recorded, the Investigating Officer reached the Hospital and took further statement of the deceased but he too did not care to inform the Judicial Magistrate. This is another circumstance to create doubt in the mind of the court as to whether it was the statement of the deceased or it was some concocted statement. Taking into consideration all these facts, in our opinion, it is hazardous to rely on such dying declaration and to base the conviction on such statement. 29. It has been observed in many cases either by the Hon'ble Supreme Court or by this Court that the dying declaration recorded in suspicious circumstances cannot be borated. When it suffers from some infirmity, it requires corroboration in order to test the reliability and from close scrutiny one must be satisfied that the deceased was in a fit state or mind. In the instant case, as we have noticed earlier that the patient was restless, pulse less and blood pressure was not recordable. All these facts go to show that the deceased was not in a fit state of mind to make any statement even the prosecution has not asked the recording officer (P.W. 7) as to whether the patient was in a fit state of mind to make the statement. As it is, it cannot be laid with any amount of certainty that the deceased made the dying declaration as recorded by P.W. 7. 30. Quite apart even the statements made by so called chance witnesses namely P.Ws 1, 2 and 4 do not inspire confidence because there are lots of contradictions in the so called statement made by the deceased as well as statements made by these witnesses. 31. It has al so been noticed that P.W. 1 is the relation of P.W. 4 and P.W. 2 is non-first information report witness and Shivji Rai who is named in the first information report has not been examined in this case. 32. We may also indicate here that so far as the examination of appellant Suresh Mahto under section 313 of the Code of Criminal Procedure is concerned, his attention his not been drawn to the allegation that he also fired at the deceased. His attention ought to have been drawn by the prosecution. The absence of this also hits the prosecution case so far as the allegation against appellant Suresh Mahto is concerned. 33. His attention ought to have been drawn by the prosecution. The absence of this also hits the prosecution case so far as the allegation against appellant Suresh Mahto is concerned. 33. Taking into consideration all the facts and circumstances of the case, we are of the opinion that the prosecution has not been able to prove the charges levelled against the appellants beyond reasonable doubts and the appellants are entitled for benefit of doubt. Accordingly, both the appeals are allowed and the appellants are acquitted. They shall be exonerated from their respective bail bonds. Appellants Raj Bali Mahto @ Raj Bali Koiri and Deva Nand Mahto be set at liberty at once if they are not wanted in any other case. Appeals allowed.