JUDGMENT R.K. Saksena, J. - Mustafa, Appellant, aged about 18 years in 1974 AD, stands convicted u/s 302 of the Indian Penal Code, simpliciter, with a sentence of imprisonment for life, per judgment and order dated the 5th of October, 1978, passed by Sri M.M.H. Siddiqui, the then Additional Sessions Judge, Gyanpur, Varanasi. 2. The Grand Trunk Road runs east west in village-Gopiganj, within police station Gopiganj, district Varanasi. On each side of this road, there are shops and a Government Dispensary is in the north of this road at a distance of about 50 paces from the shops. A shop owned and run by one Ram Nath Mali, facing the road, is to the south of the road. To its immediate east, there is the shop of Rajendra Bahadur and then in the same direction we find the shop of Dil Bahadur. These shops also face the road towards north. A Gali running north-south exists to the east of the shop of Dil Bahadur. It connects the road towards north and goes to Mohalla Chaurihar towards south. There is an open place between the southern end of the road and the shops described above. To the north of the shop of Dil Bahadur, there was a wooden Gumati for sale of tea, cigarette, betel etc. A wooden bench was lying to the west of this Gumati for the user of customers. At a distance of about 8 paces towards west from this bench, sand in sufficient quantity was stored just near the southern end of the road. There is no dispute about this topography ; Kalloo PW 1, who is the real brother of Siraj Khan (deceased) has given this description in his statement, which finds corroboration from the site plan prepared by the Investigating Officer in the course of the investigation of this crime. 3. Siraj Khan, then aged about 21 years was, according to the recitals of the report of this crime, lodged at police, station, sitting in front of the shop of Ram Nath Mali described above, on the 7th of November, 1974 at about 6.45 p.m. Mustafa, Appellant, is said to have fired shot at Siraj Khan, which resulted in the sustainment of wounds in both the thighs, lower portion of the abdomen and around the scrotum. Indisputably, the relations between the Appellant and the members of his family, on one hand and Siraj Khan and the members of his family, on the other, were strained from before. Enmity is, therefore, said to be the cause of murderous assault. 4. It would not be out of place to mention here that the oral evidence adduced by the prosecution at the trial fixes the place of the incident in front of the shop of Dil Bahadur. Kalloo PW 1, Qayum Khan PW 2 and Masidi Khan PW 5, who claim to have witnessed the actual assault allegedly made by the assailant on Siraj Khan on the said date and time, have stated that while Siraj Khan (deceased) was sitting on the bench in front of the wooden stall of Dil Bahadur referred to above and was taking tea, Mustafa (Appellant) came there and after having stationed himself on the heep of the sand stored at a distance of about 8 paces from the bench, fired shot at Siraj Khan from a country made pistol, thereby causing wounds on the portions referred to above. 5. The injuries sustained by Siraj Khan were examined in the Primary Health Centre Gopiganj by Dr. N.A. Khan on the 7th of November 1974 at 7.40 P.M. Blood was found oozing out of the wounds which were, per opinion of the doctor, fresh. On the 11th of November, 1974 Siraj Khan was sent from that dispensary to SS.P.G. Hospital, Varanasi where, despite medical aid, he succumbed to his injuries on the 19th of November, 1974 at 5.10 P.M. 6. A written report of the occurrence was allegedly produced on the same evening (7-11-1974) at 7.10 p.m. by Kalloo Khan PW 1, brother of the deceased at police station Gopiganj, which is about two furlongs away from the alleged place of occurrence. The crime was registered and after usual investigation charge sheet was submitted against the Appellant as a consequence whereof he was tried for committing the murder of Siraj Khan. 7. The Appellant denied the accusations and pleaded not guilty. The crime was registered and after usual investigation charge sheet was submitted against the Appellant as a consequence whereof he was tried for committing the murder of Siraj Khan. 7. The Appellant denied the accusations and pleaded not guilty. He had made a report at 9.55 P.M on the same day at the same police station, which recites the counter version to the effect that while he was going to his house and was in front of the dispensary on the G.T. road referred to above, he was attacked by three persons, including the deceased, Siraj Khan, on the said evening (7-11-1974) at about 7 30 P.M. and knife blows were given by the assailants, as a result of which he suffered injuries, which were examined by Dr. S.N. Dubey DW 2 on the same evening in Gyanpur hospital at 8.10 p.m. 5 incised bleeding wounds were found by the Medical Officer on the person of Mustafa at that time. 8. Besides examining two doctors (one PW 8 who had noted the injuries on Mustafa in the wound report at Primary Health Centre, and the other, PW 3 who had conducted an autopsy on the death of Mustafa) and witnesses of formal nature, the prosecution produced Kalloo PW 1, Qayum Khan PW 2 and Masidi Khan PW 5, who have given an ocular account of the incident. 9. It appears that during the trial it was discovered that the statement, popularly known as Dying Declaration of Siraj Khan was recorded in S.S.P.G. Hospital, Varanasi on the 17th of November, 1974 by a Magistrate. The document was summoned and prosecution produced the Magistrate, Sri R.B. Bhaskar PW 10 after having examined, all other witnesses. The Magistrate has stated that Siraj Khan was in a fit mental condition to make a statement and a certificate to this effect was given by the doctor attending on him. The statement recorded by him was proved by the Magistrate. Its rendering in English is as under : This occurrence is dated 7-11-1974 at about 7 P.M. I was going from Gopiganj crossing to my house situate in Mohalla Ghurihari Arman and Mustafa met me in the way near a well, which is in close proximity to Gopiganj crossing (Chauraha). They shouted that he be not allowed to run away and be assaulted. Thereupon, I started running and Mustafa fired a shot at me. They shouted that he be not allowed to run away and be assaulted. Thereupon, I started running and Mustafa fired a shot at me. They are on inimical terms with me. After receiving shots I ran towards house. 10. Accepting the prosecution case and evidence the learned trial Judge has found the Appellant guilty. He has, therefore, convicted and sentenced the Appellant as stated at the outset. The decision has been assailed by the accused by means of this appeal. 11. From the narration of the facts it is clear that there did take place an incident on the 7th of November, 1974 after it had become dark, in which Siraj Khan sustained wounds caused by firing shot from a fire arm and the prosecution evidence establishes beyond doubt that he succumbed to the injuries about 12 days thereafter ;n S.S.P.G. Hospital. There are two versions of the incident and the same has been given above. Mustafa, Appellant, has proved that he had received incised wounds from a knife in the same incident. Kalloo, Qayum Khan and Masidi Khan, who claim to have seen the occurrence, have admitted in their evidence that Mustafa was assaulted by knife in the same transaction. It is well settled that fouler the crime, higher the proof and if in a murder case it is satisfactorily shown by the accused that he had received injuries in the same occurrence which are not explained by the prosecution there arises a manifest defect that the origin and gensis of the occurrence had been deliberately suppressed and this alone leads to the irresistible conclusion that the prosecution has not come out with a true version of the incident. 12. The Learned Counsel for the Appellant rightly contended that the incised wounds, 5 in number on the person of the Appellant have not been satisfactorily explained by the prosecution. No explanation was given in the first information report of the occurrence lodged by Kalloo Khan (PW 1). The said three witnesses have made a statement to the eifect that after firing shot, Mustafa started running in the north east direction, that he was apprehended near the Government Dispensary and some body assaulted him with knife, at that time. Their evidence further shows that after this assault, the Appellant was left there. The said three witnesses have made a statement to the eifect that after firing shot, Mustafa started running in the north east direction, that he was apprehended near the Government Dispensary and some body assaulted him with knife, at that time. Their evidence further shows that after this assault, the Appellant was left there. If some persons had given the Appellant a chase and had succeeded in apprehending him, there was hardly any occasion to allow him to go. The police station is hardly two furlongs away from the dispensary and, in normal course, the Appellant, after his arrest, should have been taken to the police station in custody. The witnesses have, in our opinion, suppressed true facts and the explanation given by them can be safely rejected as after thought and un-convincing. True, the report made by Mustafa at the police station also does not clearly recites the facts connected with the manner in which shot was fired at Siraj Khan in the course of that transaction and even the name of the shooter is not disclosed therein, but the prosecution cannot take any advantage of this omission. Since it was incumbent on the prosecution to satisfactorily explain the injuries suffered by Mustafa in the occurrence and it has failed to discharge the burden which lay heavily on it, the irresistible result follows, namely, the acquittal of the Appellant. 13. Apart, there is a clinching material on the record which clearly establishes that the story laid by the prosecution and specially in regard to the place of occurrence is a fabricated one and that the witnesses named above did not see the incident at all. It may be recalled that according to the first information report Siraj Khan (deceased) suffered injuries at a time while he was sitting at the shop of Ram Nath Mali. In oral evidence, the place was shifted (sic) east, in front of shop of Dil Bahadur. The (sic) repoduced above, on the contrary gives a death blow to the entire claim of the witnesses and specially about the place of occurrence. It mentions some crossing near a well as the place of incident. In the site plan prepared by the Investigating Officer no such crossing or well is shown. It necessarily follows that the crossing and well are at some other places. 14. It mentions some crossing near a well as the place of incident. In the site plan prepared by the Investigating Officer no such crossing or well is shown. It necessarily follows that the crossing and well are at some other places. 14. Further, the evidence of the eye witnesses does not indicate even remotely the presence of Arman, father of the Appellant, at the scene of occurrence and it in no way involves him in the incident but the dying declaration speaks not only about the presence of Arman, but assigned specific role (exhortation) also to Arman. The evidence of the Magistrate who had recorded the statement of Siraj Khan about two days before his death clearly shows that the statement was not the result of prompting or tutoring and that he was in a fit mental condition to give a picture of the incident. The statement of the dying man does not show that his brother Kalloo or any witness was present near about the place where shot was fired at him. We have, therefore, no hesitation in holding that the witnesses set up a completely fabricated case and shifted the place of occurrence also, obviously after due deliberations and consultations. In a situation like this, no implicit reliance can be placed on the contents of the first information report also. Moreover, the witnesses are partisan and not independent. Their claim of being eye witnesses of the incident can thus, be rejected without hesitation. 15. The Learned Counsel for the State urged that because the dying declaration also mentions Mustafa responsible for firing shot, his conviction be based thereon. The contention is, in our opinion, devoid of merit. We have already shown above that the place of incident mentioned in the dying declaration is not fixed up and the Appellant was not called upon to meet it. The charge framed against him gives the place of occurrence as the shop of Ram Nath Mali. The Appellant shall stand materially prejudiced and it will result in mis-carriage of justice if the place given in the dying declaration is accepted without giving an opportunity to the Appellant to meet it. It may be a place where he actually received injuries. In that event the whole complexion of the case would change and the Appellant cannot be held responsible. It may be a place where he actually received injuries. In that event the whole complexion of the case would change and the Appellant cannot be held responsible. Further the dying declaration does not contain any explanation of the injuries suffered by the Appellant in the same transaction as shown above. For this reason also, no weight can be attached to the dying declaration. 16. In the result, the appeal succeeds and is allowed. The judgment and order under appeal are set aside and the Appellant, Mustafa, is found not guilty and is acquitted on the charge framed against him in the case giving rise to this appeal. He is on bail. His sureties are discharged.