G. D. DUBEY, J. ( 1 ) APPELLANT Ram Naresh was convicted and sentenced to imprisonment for life under section 302, I. P. C. by Sixth Additional Sessions Judge, Etah, Aggrieved by this order, Ram Naresh has preferred the present appeal. ( 2 ) THE prosecution case was that Shanker Lal (deceased) was a police constable. He was posted at Police-Station Khairagdam, district Mainpuri. On the date of his murder, he had come to his village Kurra. At about 10. 00 a. m. on 14th January, 1978, Lala Ram, Pradhan of the village (P. W. 2), had asked Ram Naresh to make arrangement for the flow of water of his drain as it was spreading in the passage and causing nuisance. Shanker Lal also arrived at the place. He also supported Lala Ram and stated that Lala Ram was stating correct facts and Ram Naresh would have to make adequate arrangement for the flow of his drain water or stop it altogether. Ram Naresh became infuriated and stated that Shanker Lal was taking too much side of Lala Ram Pradhan and he would teach him a lesson one day. Thereupon, Lala Ram told Ram Naresh in presence of Han Om and Laturi that he would take adequate legal action against Ram Naresh. ( 3 ) SAME evening i. e. at about 7. 00 p. m. on 14-1-1976, Lala Ram, Rakshpal and Shanker Lal were warming themselves around a fire burning in front of the house of Lala Ram Pradhan. Another fire was burning in front of the Chaupal of Ram Chantra, and Jagdish Prasad, Ram Sewak and Ram Naresh were warming around the fire, Shanker Lal got up from the fire burning in front of the house of Lala Ram along with Surendra. Surendra and Shanker Lal proceeded towards their house. As they passed by. the side of fire burning in front of Chaupal of Ram Chandra, Ram Naresh also got up and followed them from behind. As soon as all the three had gone a little distance, a firearm shot was heard. Jagdish and Ram Sewak got up. Surendra raised an alarm stating that Ram Naresh had fired his country made pistol toward Shanker Lal. Ram Naresh was seen running towards these witnesses. Seeing these two persons, he turned towards south and ran way towards Nagla of Haburan. Jagdish and Ram Sewak got up. Surendra raised an alarm stating that Ram Naresh had fired his country made pistol toward Shanker Lal. Ram Naresh was seen running towards these witnesses. Seeing these two persons, he turned towards south and ran way towards Nagla of Haburan. The witnesses chased Ram Naresh for some distance, but they could not catch him on account of fear of country-made pistol. It was stated that there was ample moon light and they had recognized Ram Naresh in this light. When they returned back, they found Shanker Lal lying on the ground. Bullet had passed through his body. ( 4 ) AFTER the occurrence, Jagdish Prasad got a report (Ext. Ka. 1) written by one Han Om. He took the report and Shanker Lal to Police-station Sahawar and lodged his report at 11. 00 same day. Shanker Lal was sent to District Hospital, Etah. ( 5 ) DR. R. R. Sharma (p. W. 8) had, examined Shanker Lal at 2. 00 a. m. on 15-1-1976 in District Hospital, Etah. He found one gun-shot wound of entry 3/4 cm. x. 3/4 cm x chest cavity deep on the left side back upper part margins inverted. The skin around the injury was neither blackened nor totooed. 5. One gun-shot wound of exit was also found measuring 1-1/2cm x 1-1/2cm. chest cavity deep on the left side chest upper part. The margins of the skin were everted and fresh blood was oozing through the wound. The skin around injury was normal. The doctor opined that these injuries were fresh in nature and could be caused by a firearm. ( 6 ) THE condition of Shanker Lal was quite serious. Consequently, Dr. R. R. Sharma (P. W. 8) sent a memo (Ext. Ka. 12) at 2. 30 a. m. on 15-1-1976 to S. D. M. , Etah for recording dying declaration of Shanker Lal in the hospital. The Sub Divisional Magistrate could not be contacted at that time. Hence the said memo was sent again after an endorsement at 9. 30 a. m. on 15-1-1976 to the Sub Divisional Magistrate, S. K. Gupta (P. W. 18), the Sub Divisional Magistrate, Etah recorded dying declaration (Ext. Ka. 14) of said Shanker Lalat 11. 00 a. m. on 15-1-1976. The Sub Divisional Magistrate could not be contacted at that time. Hence the said memo was sent again after an endorsement at 9. 30 a. m. on 15-1-1976 to the Sub Divisional Magistrate, S. K. Gupta (P. W. 18), the Sub Divisional Magistrate, Etah recorded dying declaration (Ext. Ka. 14) of said Shanker Lalat 11. 00 a. m. on 15-1-1976. This Shanker Lal had been transferred to Medical College Hospital at Agra where he died in the morning of 24-1-1976 of account of septiceamia. ( 7 ) IT is noteworthy that originally the case was registered under section 307, LP. C. At that time, Harihar Singh Chandel (P. W. 13), Sub Inspector of Police-Station Sahawar was present. He had sent Shanker Lal to the hospital for medical aid. He started investigation on 16-1-1976. On that date, he interrogated the witnesses, and, on the pointing out of Jagdish Prasad, he had prepared site-plan (Ext. Ka. 16 ). The appellant was searched, but he was not available. On that date the blood stained clothes of Shanker Lal were handed over to the Sub Inspector. ( 8 ) AFTER the death of S hanker Lal, K. B. Singh, Sub Inspector, Kotwali (P. W. 6) had prepared the inquest report of dead-body of Shanker Lal in S. N. Hospital, Agra on 24-1-1976. The post mortem examination was done on 25-1-1976 by Dr. R. B. Singh (P. W. 9 ). Since an operation had already taken place between the examination of the injuries by Dr. Sharma and the death of Shanker Lal, the injuries were found to be stitched. The doctor had found that there was puss in the lungs and this was the cause of death. ( 9 ) HARIHAR Singh Chandel had sent the bloodstained clothes and the plain earth collected from the spot on 16-1-1976 to the Chemical Examiner and Serologist, Agra for analysis. He had interrogated appellant Ram Naresh on 7-5-1976 who had by then surrendered in the court and was bailed out. Thereafter, a charge-sheet was submitted against the appellant. ( 10 ) THE prosecution has examined nine witnesses. The main evidence of the prosecution is of two categories. It is stated that J agdish Prasad, Lala Ram and Rakshpal had seen the accused running away from the place of occurrence. Thereafter, a charge-sheet was submitted against the appellant. ( 10 ) THE prosecution has examined nine witnesses. The main evidence of the prosecution is of two categories. It is stated that J agdish Prasad, Lala Ram and Rakshpal had seen the accused running away from the place of occurrence. As soon as they had arrived at the spot, Shanker Lal had told them that he had been shot at by Rani Naresh appellant. Lala Ram is also a witness regarding motive which is said to have developed in the same morning at 10. 00 a. m. on the point of closing the drain. The prosecution has also relied upon the dying declaration recorded by S. K. Gupta (P. W. 18 ). The other witnesses are of formal nature. Their details and the nature of evidence has been described in detail by the lower court in its judgment. It is not necessary to state them. After finding the above evidence satisfactory, the learned Sessions Judge has held the appellant guilty of the charge under section 302, I. P. C. ( 11 ) LEARNED counsel for the appellant has argued that it is no doubt true that even solitary evidence of dying declaration may be sufficient to entail conviction of a person but such a dying declaration should be reliable and should not be shrouded with any iota of doubt regarding its correctness. It was argued that the night was a winter night. Keeping in view the nature of the injuries on the person of Shanker Lal, it was obvious that the fire must have been shot at from a distance more than six feet otherwise there should have been blackening and tatooing around the wound of entry. Consequently, fire was shot from a considerable distance. Our attention was drawn to page 61 of the book Modis Medical Jurisprudence and Toxicology XX Edition, wherein the following observation have been made about the recognition of a person in moon light. The said portion of passage reads:according to Tidy, the best known person cannot be recognized in the clearest moon light beyond a distance of 17 yards. Colonel Bay I. M. S. is of opinion that at a distance greater than 12 yards the strature of outline of the figure along is available as a man of identification. The definite feature even at shorter distance is practicably impossible by moon light. Colonel Bay I. M. S. is of opinion that at a distance greater than 12 yards the strature of outline of the figure along is available as a man of identification. The definite feature even at shorter distance is practicably impossible by moon light. ( 12 ) IT was, therefore, urged that the wound of entry was on the back. According to the witnesses, Shanker Lal was lying on the ground with his face towards the ground. In such a situation, after receiving the shot, Shanker Lal could not have been in a position to recognize the assailant. It was also urged that, in view of such a situation, the statements of other witnesses that Shanker Lal had told them that Ram Naresh had fired at him is not at all possible. All this is the creation of the witnesses themselves. Besides the above, it was also urged that motive was very weak. According to the witnesses, the relations between Ram Naresh and the deceased had been very cordial before the accurrence. It was, therefore, not at all probable that for such a flimsy matter regarding now of drain, Ram Naresh should have murdered Shanker Lal. ( 13 ) WE have heard learned Additional Public Prosecutor also. He has urged that there was no possibility of false implication because a dying person does not generally speak falsehood. Our attention was drawn to the dying declaration (Ext. Ka. 16) recorded by the Magistrate. It was urged that in this statement there are specific accusation against the appellant and there is no justification to disbelieve it. ( 14 ) THE dying declaration recorded by the S. D. M. reads as under: -Shanker Lal Putra Angan Lal aayu lagbbhag 50 varsh niwasi Kaudhra thana Sahawar ne bayan kiya ki Shaam ke sadhe chha baje kal main Lala Ram Pradhan ke agiyane se taap ker gher ja raha tha jo Ram Naresh gali me khada huva tha jo Ram Nath ka larka hai aur padosan hai hamara gaon ka hai. Jaise hi main uske barabar se jakar aage badha to usne pichhe se tamancha se fire kiya uske saath aur bhi log the jinhe main nahi pahchana. Usne fire pichhe se kiya tha ek fire kiya tha uske saath jo log the vah gaon ke bhi the aur usmeh kutchh bahar ke the Mera unse man matao tha. Jaise hi main uske barabar se jakar aage badha to usne pichhe se tamancha se fire kiya uske saath aur bhi log the jinhe main nahi pahchana. Usne fire pichhe se kiya tha ek fire kiya tha uske saath jo log the vah gaon ke bhi the aur usmeh kutchh bahar ke the Mera unse man matao tha. ( 15 ) TWO facts occurring in the above quoted declaration are worth consideration. In this dying declaration, Shanker Lal had stated that when he was going from the hcluse of Lala Ram after warming himself from fire, he found Ram Naresh standing in the Gali He also stated that along with him there were some other persons whom he could not recognize. Out of them some were of his village and others were outsiders. This statement is quite contradictory to the first information report. According to the first information report, Ram Naresh had followed Shanker Lal. If the version in dying declaration (Ext. Ka. 14) was correct, then Ram Naresh would have gone ahead of Shanker Lal and would have been awaiting for Shanker Lal along with some other persons of his village and some outsiders. This is a major discrepancy in the prosecution version and this will benefit the defence and not the prosecution. If Ram Naresh was standing from before hand, then the whole prosecution story narrated by Jagdish Prasad (P. W. 1), Lala Ram (P. W. 2) and Rakshpal (P. W. 4) becomes false. ( 16 ) IN the above dying declaration, the deceased had stated that he could not recognize the persons assembled at the spot even though some of them belonged to his village. If it was so he could not have recognized Ram Naresh. He also could not see as to who out of the persons standing at the spot along with Ram Naresh had fired at him. Hence his statement that Ram Naresh had fired at him is not based on his observation. Shanker Lal is stating all these facts either on account of some tutoring or under some confusion in recognizing the assailant. ( 17 ) ON close examination of the very text of the dying declaration, we find that he does not inspire confidence at all. Shanker Lal is stating all these facts either on account of some tutoring or under some confusion in recognizing the assailant. ( 17 ) ON close examination of the very text of the dying declaration, we find that he does not inspire confidence at all. Hence this dying declaration if read with the observations in Modis Medical Jurisprudence quoted above, it becomes doubtful that Shanker Lal was in a position, to recognize the real assailant in the moon light. In January night, the visibility in moon light becomes adversely affected. The moon chart prepared and kept in this Court shows that on 14-1-1976 the moon had arisen at 2. 59 p. m. and had set at 3. 56 a. m. on 15-1-1976. In this way, the moon would not have been full moon. The full moon arises seen after the sun-set. On 14-1-1976, the sun-set would have been near about 5. 00 p. m. In this way, the insufficient size of the illuminated part of the moon, which was emitting moon light, would not have been very sufficient for any person to recognize the assailant. ( 18 ) THE site plan Ext. Ka 17 indicates the place of occurrence by figure 3. A Jamun tree is standing towards east of this place. Keeping in view the proximity of this tree with the place of occurrence it becomes obvious that at such place there would have been sufficient light as to ellable the deceased to recognize the assailant. ( 19 ) THE motive of occurrence was also of such a character which would have ordinarily promoted to take a drastic action of killing Shanker Lal only on an intervention of the deceased in the talks between Lala Ram and the appellant. The deceased had only supported the objection raised by Lala Ram Pradhan on the flowing of rain water of the house of the appellant. Lala Ram had stated at the time of exchange of talks between the appellant and him on the drain matter that he will take legal action against Ram Naresh. Therefore, the main target could be Lala Ram and not Shanker Lal. ( 20 ) P. W. 1 Jugdish Prasad had admitted in paragraph 16 of his cross-examination that there were no enmity between Ram Naresh and Shanker Lal before the date of occurrence. Shanker Lal had feasted Ram Naresh several times. Therefore, the main target could be Lala Ram and not Shanker Lal. ( 20 ) P. W. 1 Jugdish Prasad had admitted in paragraph 16 of his cross-examination that there were no enmity between Ram Naresh and Shanker Lal before the date of occurrence. Shanker Lal had feasted Ram Naresh several times. In the marriage of daughter of Shanker Lal, Ram Naresh was made incharge. There were very good relations, between appellant and Shanker Lal. These circumstances, therefore, go to show that Ram Naresh would not have become so disperate as to kill Shanker Lal on a simple intervention in the objection raised by Lal Ram with Ram Naresh about the now of rain water. ( 21 ) SINCE the circumstances discussed above reveal that Shanker Lal would not have been in a position to recognize the assailant, the statements of the three eye witnesses that Shanker Lal had told him the name of the assailant soon after the Occurrence is also not believable. The postmortem report shows that the bullet had passed through chest cavity fracturing scapula and 5th rib posteriorty and lower angle of left scapula. In such a situation Shanker Lal would have been in a state of extreme shock and, would not have been in a position to tell the witnesses as to who had shot at him. ( 22 ) THE lower court had not examine the, statements of the witnesses on the test of probabilities. While examining the text of the dying declaration, the lower court had not examined from this angle whether the contents of the dying declaration are such on the scrutiny of which it can be said that the deceased could have recognised the assailants, and whatever he was stating is his correct version. Had the lower court examined the dying declaration in. the above manner, it would have been apparent that it is a tutored statement. ( 23 ) THERE is a long distance to traverse between may be truet and must be true. The prosecution has failed to cover it. The evidence of the eye witnesses was mostly based on their surmises. They are labouring under the impression that Ram Naresh appellant was the assailant. There is no clinching evidence to show that Ram Naresh must be the killer. The prosecution has failed to cover it. The evidence of the eye witnesses was mostly based on their surmises. They are labouring under the impression that Ram Naresh appellant was the assailant. There is no clinching evidence to show that Ram Naresh must be the killer. This probability is further ruled out by not noticing any fire-arm on the person of Ram Naresh when he was warming himself in front of the Chaupal of Ram Chander. No body will sit with a country-made pistol in it front of the fire at Ram Chandras Chaupal with an intention to kill a person. He will always try to conceal his identity from other person and will not enable them to notice that he is following the deceased for the purpose of committing murder. In this way the story put forward in the first information report also becomes very doubtful and shrouded with suspicion. ( 24 ) FOR the reasons mentioned above, we find that the learned Sessions Judge had erred in holding the appellant guilty of murder. ( 25 ) IN the result, the appeal succeeds and is allowed. The judgment and order of the court below are set aside. The appellant is acquitted of the charge levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged, Appeal allowed. .