P. C. PATHAK, J. ( 1 ) SIX appellants have filed this appeal challenging their convictions u/s. 147, 302/149 IPC and sentence of R. I. for 1 year and imprisonment for life respectively. ( 2 ) THE prosecution story is that on account of previous enmity all the appellants went armed with hammer, Sabbal and lathies where deceased Dhanpat had gone for agricultural operations. The appellants bet him. On hearing the cries made by the deceased Nandlal (P. W. 1) and Prithviraj (P. W. 4) reached the spot. Seeing them all the appellants fled away. They shifted the deceased under the shade of a tree and also sent information to deceaseds father Ramsajiwan (P. W. 3 ). Along with Ramsajiwan the village people also came and the deceased made an oral dying declaration to them that he was assaulted by the appellants. Therefore on a bullock cart he was taken to Nagode hospital. Ramsajiwan lodged F. I. R. Ex. ? P-3 in the police station since the condition of the deceased was precarious. He advised recording of his dying declaration immediately. Dying declaration Ex. P-15 was recorded by head Constable Shyambihari (P. W. 9) in presence of Dr. R. B. Patel (P. W. 8 ). The deceased died soon thereafter. Dr. Patel performed his post mortem and found injuries as detailed in Ex. P-16. The cause of death was shock and haemorrhage. After completing investigation, challan was filed against all the appellants. ( 3 ) THE appellants denied their guilt. They examined 5 witnesses in their defence. Relying on the statements of eye-witness Nandlal (P. W. 1) and the oral dying declaration before Bhaiya lal (P. W. 2) and Chitrakoti (P. W. 5) and written dying declaration (Exs. P-15) the learned Trial Court convicted and sentenced all the appellants as aforesaid. Hence this appeal. ( 4 ) THE first question for decision is whether dying declaration Ex. P-15 is reliable and can be acted upon? This was recorded by head constable Shyambihari (P. W. 9) on 18-3-1984. The statement is not recorded in question answer form. No time is mentioned as to the commencement it must have been about 5-15 p. m. Shyambihari further submitted that the conditions of the deceased was such that he was stammering and which was not audible to others. Therefore he was silting close to him to hear his statement properly and record the same. No time is mentioned as to the commencement it must have been about 5-15 p. m. Shyambihari further submitted that the conditions of the deceased was such that he was stammering and which was not audible to others. Therefore he was silting close to him to hear his statement properly and record the same. ( 5 ) DR. Patel (P. W. 8) stated that the deceased was brought to the hospital at 5. 30 p. m. and he breathed his last at 5. 38 p. m. as communicated to the police by Ex. P. 13. The doctor on EX. P-15 mentioned the time as 5-15 p. m. We presume that the doctors statement that the deceased was brought at 5-38 p. m. refers to the time when recording of dying declaration was over. The prosecution did not seek any clarification from the doctor as to reconcile the time noted by him in Ex. P-15 and the time stated by him in examination in chief. In corss examination he admitted that the reply given by the deceased was in low tone so much that Shyambihari had to take his ears close to his mouth to ascertain what the deceased had spoken. The doctor also admitted that within 5 minutes of the recording of his statement the deceased died. ( 6 ) THE deceased had already come in contact of the dying declaration. The signature of the deceased was not obtained on it. Down below there is a signature of Dr. Patel to the effect that the deceased was in proper senses and the statement was taken in his presence. Under his signatures the time mentioned is 5-15 p. m. ( 7 ) SHYAMBIHARI (P. W. 9) stated that he was the head constable Moharir on the relevant day. The deceased was brought to the police station at 4-35 p. m. The recording of F. I. R. must have taken 5-10 minutes. Thereafter deceased was shifted on a bullock cart to the hospital which is at a distance of 1 km. The estimated time of Journey is 15-20 minutes. The doctor was immediately sent for and he arrived within 5 minutes. On cursory examination the doctor declared that condition of Dhanpat was very serious and his dying declaration should immediately be recorded. If he goes to call the station officer the deceased may not survive. Therefore, Shyambihari recorded the dying declaration. The estimated time of Journey is 15-20 minutes. The doctor was immediately sent for and he arrived within 5 minutes. On cursory examination the doctor declared that condition of Dhanpat was very serious and his dying declaration should immediately be recorded. If he goes to call the station officer the deceased may not survive. Therefore, Shyambihari recorded the dying declaration. The witnesses has nowhere stated as to the time he stared recording the statement of the deceased. Calculating the time consumed in shifting the deceased from the police station to the hospital and till the time the doctor arrived, accept that the deceased was capable to make the statement It is also not possible to accept that the statement was correctly recorded when the power and capacity of speech of the deceased itself was effected; We, therefore, hold that dying declaration Ex. P-15 is not reliable and the appellants conviction cannot be based thereon. ( 8 ) IN view of the precarious condition of the deceased, we cannot also act on oral dying declaration made by the deceased before Bhaiyalal (P. W. 2) and Chitrakoti (P. W. 5 ). ( 9 ) WE are now left with the ocular testimony of Nandlal (P. W. 1 ). In cross-examination he admitted that he had a quarrel with the appellant; and he is-not on talking terms with the appellants for the last more than 10 years. On account of the said incident his relation with the appellants are strained. It is true that enmity alone is no ground to disbelieve the witness. But he should be scrutinized with greater care and caution. When that is done we find that his statement does not inspire confidence. On the date of the incident he was engaged in agricultural operations, with his near, relations as also the villagers. This apart he general condition was not satisfactory as is apparent from the numerous injuries on his person involving his head and as also the admission of 2 witnesses referred to above. Shyambihari has not explained as to why he could not requisition the services of any Magistrate or did not even request the doctor himself to record the dying declaration. In this connection we may refer to State (Delhi Admn ). v. Laxman Kumar. Shyambihari has not explained as to why he could not requisition the services of any Magistrate or did not even request the doctor himself to record the dying declaration. In this connection we may refer to State (Delhi Admn ). v. Laxman Kumar. In that case the dying declaration of a burnt bride was not recorded by a Magistrate nor by a doctor but by the investigating officer without explaining the non-availability of the magistrate and the doctor. It was not signed by the deponent although literate and not proved to be incapacitated to sign by the burn injuries. The time of the statement was also not indicated in the document. At the time the declaration was recorded none of her relations were present. The fitness of the deponent to make a declaration was also. doubtful. Lastly the dying declaration was also not recorded in. form of questions and answers. In these circumstances the dying declaration was held not acceptable. In the present case also the dying declaration also suffers from similar infirmities and it is difficult to when he heard Marc Marc from the bank of a Govt. tank, he rushed in that direction and saw that the appellants were assaulting the deceased. Appellant Jagdish was armed with hammer. While Rohni was armed with a Sabri and the rest were armed with lathies. Bhukkulal (P. W. 12) was harvesting the crops in the nearby field. He was the first to render assistance to the deceased by giving him first aid. Bhukkulal did not support the prosecution and was declared hostile. He was cross-examined but nothing fruitful was brought out in cross examination. Thus, we are left with the sole testimony of Nandlal without corroboration from any independent witness. Ramsajiwan (P. W. 3) deceaseds father who reached the spot on information from Nandlal and who had lodged the F. I. R. Ex. P-3, also did not support the prosecution and was declare hostile. Therefore, in the absence of corroboration from independent sources, it will not be safe to convict the appellants on the testimony of Nandlal. The appellants are entitled to benefit of doubt. ( 10 ) THE appeal is allowed. The appellants conviction u/s. 302, 149 and 147 IPC and the sentences awarded to them there under are hereby set aside and are acquitted of both the charges. All the appellants are in jail. The appellants are entitled to benefit of doubt. ( 10 ) THE appeal is allowed. The appellants conviction u/s. 302, 149 and 147 IPC and the sentences awarded to them there under are hereby set aside and are acquitted of both the charges. All the appellants are in jail. They be released forth with if not required in any other case. Appeal allowed. .