VERMA, J.— The learned Sessions Judge, Sirohi has convicted Narayan Lal for offences u/ss. 302 and 450, I.P.C. in Sessions Case No. 2/84 (94/84) vide judgment dated 9.7.86. For offence u/s. 302, I.P.C. Narayan Lal has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-and in default of payment of fine to undergo further R.I for one month. By this very judgment Kanti Lal has been convicted of offence u/s. 450, I.P.C. and has been sentenced to undergo R.I. for five years and to pay a fine of Rs. 100/- and in default of payment of fine to undergo further R.I. for one month. Kanti Lal was also tried for an offence u/s. 302 read with s. 34, I.P.C. but has been acquitted of the said charge. Narayan Lal and Kanti Lal have filed D.B. Criminal Appeal No. 265/86 challenging the legality, correctness and propriety of their convictions and sentences recorded by the learned trial court. D.B. Criminal Appeal No. 403/86 has been filed by the State of Rajasthan with the leave of this Court against the acquittal of Kanti Lal for offence u/s. 302 read with s. 34, I.P.C. (2). The learned Munsif & Judicial Magistrate, Sirohi tried accused Narayan Lal for various offences including offence u/s. 25 Arms Act in Criminal Case No. 529/83 and he found Narayan Lal guilty of offence u/s. 25 Arms Act by his judgment dated 25.8.86 and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 200/- and in default of payment of fine to undergo further R.I. for one month. Aggrieved, he filed Criminal Appeal No. 44/86 before the learned Sessions Judge, Sirohi. This appeal was dismissed by the learned Sessions Judge, Sirohi. Aggrieved, Narayan Lal has filed S.B. Criminal Revision Petition No. 2/89. (3). Since the same gun was involved in both the cases, namely Sessions Case No. 2/84 (94/84) in the court of Sessions Judge, Sirohi and Criminal Case No. 529/83 u/s. 25 Arms Act in the court of Munsif & Judicial Magistrate, Sirohi, S.B. Criminal Revision Petition has been heard along with the aforesaid two appeals with the consent of all concerned, and both the appeals as also aforesaid S.B. Criminal Revision Petition are being disposed of by a common judgment. (4). (4). Briefly stated, the prosecution story is that Narayan Lal was serving as a police constable in the State of Gujarat under the jurisdiction of Deputy Superintendent of Police, Mehsana. On 22.10.83 he was issued a 303 gun bearing no. 156471/butt no. 186 and a bayonet along with 20 cartridges. Narayan Lal was a permanent resident of village Mandar in the District Sirohi of Rajasthan. Kanti Lal, the other appellant before us was also resident of village Mandar. This Kanti Lal was engaged to grand-daughter of Smt. Ashu (P.W.17). This, was not liked by the members of the community including P.W. 11 Moti Lal, who is nephew of Smt. Ashu. Later on, Moti Lals brother Bhawani Shanker- was married. At this marriage invitations were not extended to Kanti Lal, his father Babu Lal and appellant Narayan Lal. This caused annoyance and dis-pleasure to Babu Lal, Kanti Lal and Narayan Lal. (5). It is alleged that Moti Lal had another brother Amrit Lal. Narayan Lal and Kanti Lal had given some beating to Amrit Lal about which a complaint had been filed in the court but the case was compromised due to intervention of certain relations, yet Narayan Lal nursed a grudge against Moti Lal and Amrit Lal. (6). The prosecution story further is that on 4.11.83 at about 9 p.m., Amrit Lal was sitting in his house at village Mandar along with his wife Smt. Jhammo (P.W.3) and niece Manju (P.W.4), Bhawani Shanker (P.W.9), the brother of Amrit Lal and Moti Lal (P.W.ll) were sitting in the house of Moti Lal which was nearby. Kanta the daughter of Moti Lal (P.W.ll) was sitting in the court yard of Moti Lals house. All of a sudden Narayan Lal and Kanti Lal came to the house of Amrit Lal. Narayan Lal was armed with the gun, which had been issued to him by the office of Deputy Superintendent of Police Mehsana by Head Constable Godh Singh on 22.10.83. When the two accused persons reached the house of Amrit Lal, Smt. Jammo and her niece Manju were sitting in the house near a Choolha. Amrit Lal had just entered the house to take his meals and was sitting nearby. He heard the foot-steps of the two accused persons, upon which he got up. When the two accused persons reached the house of Amrit Lal, Smt. Jammo and her niece Manju were sitting in the house near a Choolha. Amrit Lal had just entered the house to take his meals and was sitting nearby. He heard the foot-steps of the two accused persons, upon which he got up. At that very moment Narayan Lal partly stepped in the door with one foot inside the house, the other foot out of the house. He at once fired the gun, which he was carrying, at Amrit Lal. Kanti Lal was standing at a distance of two to three steps behind Narayan Lal. At the time of the incident a lantern was burning in the house while certain lamps were burning out side the house because of the Deepawali. Smt. Jhammo and Manju identified both the assailants and raised an alarm, upon which Bhawani Shanker and Moti Lal rushed towards the house of Amrit Lal. It is alleged that both the accused persons ran away immediately. It is alleged that Narayan Lal was wearing police uniform at that time. It is claimed that Bhawani Shanker, Motilal and Kanta saw the two appellants running away. (7). The prosecution story is that Narayan Lal had been hit by the gun shot on the abdomen and he started bleeding. Soon after-wards Moti Lal (P.W.11) rushed to Police Station, Mandar which was at a distance of one furlong from the scene of occurrence. Before proceeding to Police Station, Mandar, Moti Lal scribed a report about the incident and lodged the same with P.W. 16 Ram Singh, S.H.O. On the basis of this report Ex.P. 11, Ram Singh registered a case for offence u/s. 307, I.P.C. It is alleged that the formal F.I.R. (Ex.P 17) was recorded at 9.05 p.m. and Ram Singh immediately rushed to the spot. (8). The prosecution story is that as soon as Bhawani Shanker saw Amrit Lal in the injured condition, he rushed to summon doctor. P.W. 15 Dr. Prakash Kumar Singhi. Dr. Prakash Kumar Singhi immediately rushed to the scene of occurrence. According to the prosecution, he reached the spot a couple of minutes before the S.H.O. reached the spot. (9). The prosecution story is that looking to the serious condition of the injured Amrit Lal, Shri Ram Singh, S.H.O. requested Dr. Prakash Kumar Singhi (P.W. 15) to record the dying declaration of Amrit Lal. According to the prosecution, he reached the spot a couple of minutes before the S.H.O. reached the spot. (9). The prosecution story is that looking to the serious condition of the injured Amrit Lal, Shri Ram Singh, S.H.O. requested Dr. Prakash Kumar Singhi (P.W. 15) to record the dying declaration of Amrit Lal. Upon this request Dr. Prakash Kumar Singhi recorded the dying declaration (Ex. P.15) of Amrit Lal in his own hand. Dr. Singhi obtained thumb impressions of Amrit Lal on this dying declaration because Amrit Lal was not in a position to affix his signatures due to an injury on his right hand. (10). Under the advice of Dr. Singhi, Amrit Lal was removed to the hospital, where Dr. Singhi administered some treatment to him. Amrit Lal became unconscious and died at 9.40 p.m. (11). The prosecution story is that when Amrit Lal expired, Ram Singh added s. 302, I.P.C. to the case. (12). The prosecution story further is that Ram Singh again went to the scene of occurrence on 5.11.83 and inspected the site and prepared a site inspection memo Ex. P. 12. He also prepared a site plan Ex.D. 9. On the spot, Ram Singh found six pieces of bullet and a belt in a damaged condition belonging to Amrit Lal. He recovered both these things. He also recovered blood stained earth from the spot and control soil. He duly sealed these articles. (13). The prosecution story is that on 5.11.83 itself, Ram Singh examined the dead body of Amrit Lal, which was lying in the hospital and he prepared memo Ex.P. 13 in this connection. He recovered a baniyan, a shirt and underwear and a pent from the body of the deceased and duly sealed them. He also prepared a Panchayatnama Ex.P. 18 in this regard. (14). The prosecution story is that on the request of Ram Singh, Dr. Prakash Kumar Singhi conducted the post mortem examination of the deceased on 5.11.83 at about 10.00 a.m. He found that rigor mortis was present all over, the body and the intestine of the deceased was coming out from the wound on the abdomen. He found following external injuries on the person of the deceased:- "1. Gun shot wound (A) Inlet 3/4 cm x 3/4 cm edges inverted ecchymosed on the posterior aspect of right forearm 4 cm above right wrist. He found following external injuries on the person of the deceased:- "1. Gun shot wound (A) Inlet 3/4 cm x 3/4 cm edges inverted ecchymosed on the posterior aspect of right forearm 4 cm above right wrist. (B) Outlet 1 1/2 cm x 3/4 cm edges everted ecchymosed on the anterior aspect of right forearm 4 cm above right wrist laterally. 2. Gun shot wound (A) Inlet 1 l/2cm x 3/4cm on the abdomen just below right lower border of last rib 8 cm away from epigastrium edges inverted ecchymosed. (B) Outlet :- 16 cm x 8 cm lecerated with irregular margins intestine coming out from this wound. Blackish marks on the muscles and tissue seen. Omehtem coming out through lacerated wound. Blood seen under the skin and muscles below the injury. Dr. Singhi found that both the lungs were pale. Heart was pale and empty. Upon internal examination, he found that peritoneum was perforated at the site of injury. The stomach was pale and food was present therein. Small intestine was ruptured at three places with black markings. Large intestine was pale and empty. Liver, spleen, right kidney were pale. Left kidney was lacerated. Bladder was pale and empty. In the opinion of Dr. Singhi Amrit Lal had died due to shock, due to excessive bleeding and laceration of intestine and left kidney caused by gun shot injury. He prepared post mortem report Ex.P. 16. According to him gun shot wound on the abdomen was sufficient in the course of nature to cause death. According to him both the gun shot wounds, namely, 1 and 2 could be caused by one shot. (15). It appears that some investigation was made in this case by Deputy Superintendent of Police Ram Gopal (P.W.12), who visited the site on 5.11.83. He arrested appellant Narayan Lal on 5.11.83 vide Ex. P. 10 in presence of P.W. 7 Daya and another witness Rawta from the house of one Prabhu (P.W.6), maternal uncle of Narayan Lal resident of Dak. A 303 rifle was recovered from the possession of Narayan Lal. Certain cartridges, bandolier, bolt and halmat were also recovered from the possession of Narayan Lal. These articles were duly sealed. On 9.11.83 wearing appearel of Narayan Lal appellant were taken into possession vide Ex.P. 5, in presence of Bhanwar Singh (P.W.5) and another witness Sawai Singh. A 303 rifle was recovered from the possession of Narayan Lal. Certain cartridges, bandolier, bolt and halmat were also recovered from the possession of Narayan Lal. These articles were duly sealed. On 9.11.83 wearing appearel of Narayan Lal appellant were taken into possession vide Ex.P. 5, in presence of Bhanwar Singh (P.W.5) and another witness Sawai Singh. On 9.11.83 Kanti Lal was arrested vide Ex.P. 7 in presence of Bhanwar Singh (P.W. 5) and aforesaid Sawai Singh. (16). It appears that during police custody, appellant Narayan Lal furnished information to the Investigating Officer Ram Singh (P.W.16) regarding an empty cartridge. This information was recorded in Ex.P. 19. In pursuance of such information Ram Singh recovered one empty cartridge on 9.11.83 in presence of P.W. 5 Bhanwar Singh and Sawai Singh vide Ex.P. 6. (17). The Prosecution story is that various articles recovered during the investigation of the case were kept duly sealed in Malkhana of Police Station, Mandar and were sent to the State Forensic Science Laboratory, Rajasthan, Jaipur, from where report Ex.P. 20 and Ex.P. 21 were received. On the basis of such material, both the accused persons were challaned before the learned Munsif & Judicial Magistrate, Sirohi for offences u/ss. 302 and 450, I.P.C. (18). The learned Magistrate committed the case to the court of the Addl. Sessions Judge, Sirohi. It appears that in the meanwhile a court of Sessions Judge was opened at Sirohi and the case was made over to the said court for trial. On 5.6.84, the learned Sessions Judge, Sirohi framed charges for offences u/ss. 302 and 450, I.P.C. against appellant Narayan Lal and charges u/s. 450 and 302 read with sec. 34, I.P.C against appellant Kanti Lal. Both the accused appellant pleaded not guilty and claimed trial. At the trial the prosecution examined as many as 17 witnesses. In their statements recorded u/s. 313, Cr. P.C. both the accused denied their complicity in the crime. The plea of Kanti Lal was that he was employed in Secondary School, Mandar. On 2.11.83 he had gone on leave to Sirohi and had stayed at Sirohi in a lodge known as Atul Rest House. On 3.11.83 at about 11.30 a.m. he left Sirohi for Pindwada. From Pindwada, he went to village Nana. From 3.11.83 to 6.11.83 he stayed at Nana with his maternal uncle. On 17.11.83 he reached Mandar and went to his school. On 3.11.83 at about 11.30 a.m. he left Sirohi for Pindwada. From Pindwada, he went to village Nana. From 3.11.83 to 6.11.83 he stayed at Nana with his maternal uncle. On 17.11.83 he reached Mandar and went to his school. That day at about 12.45 P.M., a constable came to the school and told him that Narayan Lal had committed murder of Amrit Lal and Moti Lal had named Kanti Lal also as an accused. The constable asked him to accompany him to the Police Station. At this he took permission from the Head Master and went with the constable. The police kept him in detention on 7.11.83 and 8.11.83. His formal arrest was shown by police on 9.11.83. He stated that his parents had earlier gone to Nana and this is why he had also gone to village Nana, after taking necessary permission from the Head Master. (19). Narayan Lal denied the prosecution story altogether and stated that the Deputy Superintendent of Police had fired one shot from the rifle and thereafter an empty had been recovered. That empty had been taken to Mandar. That empty was falsely shown to have been recovered at his instance. (20). In the defence as many as five witnesses were examined. (21). The learned Sessions Judge, after hearing both the sides came to the conclusion that both Narayan Lal and Kanti Lal had gone to the house of Amrit Lal on the fateful day. Narayan Lal was armed with 303 rifle. Narayan Lal shot at Amrit Lal and thereby committted his murder. He accepted the evidence of eye witnesses Smt. Jhummo and Manju as reliable. He found that this testimony was corroborated by the evidence of Moti Lal, Bhawani Shanker and Kanta and was further corroborated by the medical evidence as also the F.I.R, which was lodged immediately after the incident without any loss of time. He further found that this evidence was corroborated by the dying declaration recorded by Dr. Prakash Kumar Singhi soon after the incident. He found this dying declaration to be reliable and cogent. He, however, did not accept the prosecution case that Kanti Lal shared any common intention with Narayan Lal to commit murder of Amrit Lal. He further found that this evidence was corroborated by the dying declaration recorded by Dr. Prakash Kumar Singhi soon after the incident. He found this dying declaration to be reliable and cogent. He, however, did not accept the prosecution case that Kanti Lal shared any common intention with Narayan Lal to commit murder of Amrit Lal. He, accordingly, acquitted Kanti Lal of offence u/s. 302 read with s. 34, I.P.C., however, he convicted him of offence u/s. 450, I.P.C. On the basis of the aforesaid findings he convicted and sentenced Narayan Lal as stated above for offences u/ss. 302 and 450, I.P.C. (22). Here we may recount briefly the facts pertaining to conviction of Narayan Lal for offence u/s. 25 Arms Act. It appears that when Narayan Lal was arrested on 5.11.83 at 3 p.m. by Ram Gopal at village Dak, Narayan Lal tried to commit suicide by firing a gun at himself. Ram Gopal after arresting and recovering the rifle and cartridge etc. from him got a case registered against Narayan Lal for offences u/ss. 309/25 and 27 Arms Act, with regard to which a formal F.I.R. No. 41 dated 5.11.83 was registered at Police Station, Anadra, within jurisdiction of which Narayan Lal was arrested. After due investigation in that case sanction of District Magistrate, Sirohi was obtained for prosecution of Narayan Lal for offences u/s. 3 read with s. 25 (1) (Ch 8) and 27 of the Arms Act. Eventually a challan was filed against Narayan Lal in the court of Munsif & Judicial Magistrate, Sirohi for offences u/s. 309, I.P.C. and 25, and 27 Arms Act. The learned Magistrate framed due charges against Narayan Lal on 27.4.84. Narayan Lal pleaded not guilty to the charge and claimed trial. At the trial, prosecution examined as many as 14 witnesses. In his statement recorded u/s. 313, Cr. PC. Narayan Lal denied the entire story of the prosecution. He took the stand that Deputy Superintendent of Police had himself fired the gun and had got him implicated falsely. He, however, did not lead any defence. The learned Magistrate after hearing both the sides did not believe the prosecution story that Narayan Lal had tried to commit suicide by firing the gun at himself. He, accordingly, acquitted him of the said charge. Likewise, he acquitted Narayan Lal of offence u/s. 27 Arms Act. He, however, did not lead any defence. The learned Magistrate after hearing both the sides did not believe the prosecution story that Narayan Lal had tried to commit suicide by firing the gun at himself. He, accordingly, acquitted him of the said charge. Likewise, he acquitted Narayan Lal of offence u/s. 27 Arms Act. The learned Magistrate, however, found Narayan Lal guilty of offence u/s. 25 Arms Act read with s. 3 of the Arms Act and sentenced him as stated above. Narayan Lal filed an appeal in the court of learned Sessions Judge, Sirohi against his conviction and sentence for offence u/s. 25 Arms Act. The learned Sessions Judge after hearing both the sides rejected the appeal of Narayan Lal and affirmed his conviction against which Narayan Lal has filed S.B. Criminal Revision Petition No. 2/89. It is stated at the bar that no appeal has been filed by the State against the acquittal of Narayan Lal for offences u/s. 309, I.PC. as also for his acquittal u/s. 27 of the Arms Act. Thus these acquittals have become final. (23). We have heard sarva Shri M.L Garg, M.K. Garg for appellant Narayan Lal in D.B. Criminal Appeal No. 265/86 and S.B. Criminal Revision Petition No. 2/89. We have heard sarva Shri S.R. Singhi and Suresh Kumbhat, on behalf of appellant Kanti Lal in D.B. Criminal Appeal No. 265/86 and D.B. Criminal Appeal No. 403/86. We have heard Shri V.S. Choudhary, public prosecutor for the State and Shri T.S. Champawat, learned counsel for the complainant. (24). The learned counsel for appellants Narayan Lal and Kanti Lal submit that the entire prosecution case is a fabricated one. The F.I.R. in this case is a post investigative one. It is submitted that when according to the prosecution Amrit Lal had been shot at in the abdomen, Moti Lal could not have the patience of sitting in the house and scribing the report. He must have immediately rushed to the police. The fact that a written report was prepared by Moti Lal goes to show that the F.I.R. is not spontaneous and must have been prepared later on. It has been urged that the written report lodged by Moti Lal is a detailed document and specifically mentions that Narayal Lal had shot Amrit Lal in the abdomen. The fact that a written report was prepared by Moti Lal goes to show that the F.I.R. is not spontaneous and must have been prepared later on. It has been urged that the written report lodged by Moti Lal is a detailed document and specifically mentions that Narayal Lal had shot Amrit Lal in the abdomen. It is urged that Moti Lal does not claim to have seen Narayan Lal shooting Amrit Lal in the abdomen. It is not his claim that he was informed by Smt. Jhammo or Manju that Narayan Lal had shot Amrit Lal in the abdomen. It is surprising that even then Moti Lal mentioned in the F.I.R. that Narayan Lal had shot Amrit Lal in the abdomen. It is urged that during the course of trial Moti Lal has tried to give a story that Amrit Lal was crying that Narayan Lal had shot him. It is urged that this part of the statement of Moti Lal is an improvement upon his previous statement and the F.I.R. and by this improvement Moti Lal has falsely tried to explain the intruduction of the fact in the written F.I.R. that Narayan Lal had shot at Amrit Lal. (25). It is urged that the endorsement on the written report Ex. P. 11 submitted by Moti Lal before the S.H.O. bears an endorsement that it had been presented at Police Station, Mandar on 4.11.83 at 9.05 p.m., but the formal F.I.R. itself recites its recording at 9 p.m. It is submitted that it is a pointer towards the fabrication of the F.I.R. (26). It is urged that the F.I.R. in this case was not sent to the concerned Magistrate immediately. The endorsement on the F.I.R. goes to show that it was presented by constable Hanwant Singh in the court of Munsif & Judicial Magistrate on 7.11.83. The learned Magistrate signed the F.I.R. on 14.11.83. Constable Hanwant Singh who is said to have taken the F.I.R. to the court of the learned Magistrate has not been examined by the prosecution. Thus there is a good deal of un-explained delay about F.I.R. reaching the court of the learned Munsif & Judicial Magistrate. It is urged that this fact creates a serious doubt about the veracity of the prosecution case. (27). It is next contended that appellant is said to have shot Amrit Lal while he was sitting in the house. Thus there is a good deal of un-explained delay about F.I.R. reaching the court of the learned Munsif & Judicial Magistrate. It is urged that this fact creates a serious doubt about the veracity of the prosecution case. (27). It is next contended that appellant is said to have shot Amrit Lal while he was sitting in the house. The Investigating Officer has tried to show that six pieces of bullet were recovered by him from the spot. These pieces were never sent to the Ballistic Expert to show that they were really pieces of a bullet fired by 303 gun. From medical evidence, it does not appear that any bony portion of Amrit Lal was hit by the bullet. When it was so, the bullet could not have split into six pieces. It is urged that the Deputy Superintendent of Police Ram Gopal has tried to improve upon the version given by Bhanwar Singh by trying to show that the bullet had hit one wall in the room in which deceased was standing. He has thus by implication tried to convey an impression that the bullet got split into pieces by hitting the wall. The Deputy Superintendent of Police has gone to the extent of saying that bullet has caused a hole in the wall. This fact is not corroborated by the other evidence on record nor this important fact finds mention in the site plan prepared at the spot. (28). It is ruged that the doctor claims to have recorded the dying declaration at the instance of Bhanwar Singh, S.H.O. on the spot. If F.I.R. would really have been registered by that time, the number of the F.I.R. and the title of the case would have found mention in the dying declaration recorded by Dr. Prakash Kumar Singhi. The dying declaration does not contain these particulars. It is further submitted that according to Dr. Prakash Kumar Singhi the dying declaration was handed over to the sub-inspector soon after it was recorded. The dying declaration does not contain any endorsement of the S.H.O. regarding such presentation. (29). It is urged that the dying declaration appears to be a fictitious document prepared by Dr. Prakash Kumar Singhi in collusion with the other prosecution witnesses. It does not bear signatures of the deceased even though the deceased was a literate person and knew how to put signatures. (29). It is urged that the dying declaration appears to be a fictitious document prepared by Dr. Prakash Kumar Singhi in collusion with the other prosecution witnesses. It does not bear signatures of the deceased even though the deceased was a literate person and knew how to put signatures. It is urged that there is no cogent explanation of the fact why signatures of deceased were not obtained on the dying declaration. (30). It is further pointed out that the dying declaration is falsified by the testimony of Dr. Prakash Kumar Singhi himself inasmuch as Dr. Singhi found undigested food in the stomach of the deceased. According to Smt. Jhammo, the deceased had not taken his dinner that day and had just sat for dinner when the was shot at. According to her, the deceased had taken his last breakfast at about 4 p.m. in the day when he had eaten Roti. It is urged that if deceased had taken his breakfast at about 4 p.m., then the incident must have taken place within an hour or so of the deceased taking his breakfast and this would falsify the story that the deceased was shot at his house some time before 9 p.m. and had breathed his last at 9.45 p.m. (31). It has been pointed out that the Panchayatnama prepared in this case on 5.11.83, though refers to C.R. No. 33 dated 4.11.83 u/s. 302, I.P.C., yet it does not mention the particulars of the accused or even a brief summary of the incident. Likewise, Ex.P. 13 Fard Soorat Hal Lash was a detailed document. It also mentioned the F.I.R. number but did not give any particulars of the accused persons or of the incident and no details of occurrence appear in this document. It is urged that these facts go to show that till these documents were prepared, the police did not know as to who were the actual assailants and how the incident had taken place. (32). It is urged that the principal prosecution witnesses namely, Jhammo and Manju, who alone have been claimed to be eye-witnesses of the occurrence were not examined on the night of 4.11.83. They were not even examined on 5.11.83, even though these witnesses were available for interrogation. The statements of these witnesses were recorded on 9.11.83 and thus time was given to them to concoct a false story. They were not even examined on 5.11.83, even though these witnesses were available for interrogation. The statements of these witnesses were recorded on 9.11.83 and thus time was given to them to concoct a false story. It is urged that likewise, P.W. 8 Kanta and P.W. 9 Bhawani Shanker were also available for investigation, yet the statements of these witnesses were also not recorded on 4.11.83 or 5.11.83 but were recorded on 9.11.83. (33). It is urged that both Smt. Jhammo and Manju have given parrot like statements regarding the incident but both these witnesses have in unision made identical improvements upon their police version and have given out the story that Narayan Lal had stepped into the room in which these witnesses were sitting and the deceased was also sitting and his one foot had remained out side the room while the other one was within the room. It is urged that this improvement is well designed and deliberate with a view to strengthen the claim of these witnesses that they had really seen Narayan Lal firing at the deceased. It is urged that when witnesses make similar improvement upon their testimony with a design, then the testimony of such witnesses becomes unworthy of credence and cannot be accepted at its face value and should be corroborated in material particular by independent, cogent and reliable evidence. (34). It is urged that had the appellant Narayan Lal fired the gun at the house of the deceased, the empty would have been ejected then and there and should have been found out on the spot but no empty was found on the spot. The gun is said to have been recovered from Narayan Lal on 5.11.83 but there is no evidence that the gun was deposited in the Malkhana soon-after its recovery. An empty cartridge is said to have been recovered on 9.11.83 at the instance and on the information of Narayan Lal but story of this recovery appears to be artificial and manipulated and this possibility cannot be ruled out that the gun might have remained with the police officials in an lun-sealed condition till 9.11.83 when the empty was allegedly recovered. It appears that neither the empty nor gun were sealed on the spot but they were sealed on 30.11.83 in the police station. It appears that neither the empty nor gun were sealed on the spot but they were sealed on 30.11.83 in the police station. Our attention was also drawn in this connection to the statement of P.W. 1 Chatra Ram, who has categorically stated that the articles had been sealed in his presence at the Police station on 30.11.83, the day on which he had taken these articles to police Station, Sirohi. Our attention was also drawn to the Satetment of P.W.13 Hamir Singh which goes to show that he received three sealed articles on 5.11.83 and three sealed articles on 9.11.83 and he handed over all these packets to Chatra Ram on 30.11.83 and sent them vide Ex.P. 1. It is pointed out that in Ex.P. 1 packet marked A contained blood stained soil, while marked B contained controlled soil and packet Marked C Contained blood stained clothes. Packet marked D contained rifle 303. Packet E contained an empty cartridge and packet marked F contained a baniyan and a bushirt. It is pointed out that Hamir Singh has categorically stated in cross-examination that packets marked A, B and C were received on 5.11.83 and packets marked D, E and F were received on 9.11.83. It is urged that this conduct on the part of the investigating agency goes to show that the gun was not sealed on 5.11.83 and was not kept in the malkhana that day with some definite purpose. (35). It is urged that in the circumstances of the case, the prosecution has miserably failed to prove its case against the accused-appellant and, therefore, be acquitted of the charges for which the learned trial court has convicted and sentenced them. (36). So far as the offence u/s. 25 of the Arms Act is concerned, it is submitted that according to the prosecution itself, Narayan Lal had been issued the gun in question by Head Constable God Singh in connection with official duty of the accused Narayan Lal. It has not shown by the prosecution that at the time, the gun had been recovered from him, he had ceased to be on duty or the place from where the gun was recovered, was not within territory to which Narayan Lal had been deputed on duty. It has not shown by the prosecution that at the time, the gun had been recovered from him, he had ceased to be on duty or the place from where the gun was recovered, was not within territory to which Narayan Lal had been deputed on duty. It is submitted that Narayan Lal being employed as a constable in police, and the gun having been issued to him in connection with his official duties, he was not required to take any license in his own name for the gun. It is, therefore, urged that the learned trial court as well as the learned Sessions Judge erred in convicting Narayan Lal of offence u/s. 25 of the Arms Act and maintaining his conviction for the said offence respectively. (37). Learned Public Prosecutor as also the learned counsel for the complainant have seriously opposed the appeal filed by Narayan Lal and Kanti Lal. It is urged that the witnesses of the occurrence were close relations of the deceased and, therefore, presence on the scene of occurrence was natural. Hence, there is no reason to discard their testimony. It is urged that the F.I.R. was lodged without delay and it is wrong to call the F.I.R. post investigative. It is true that the F.I.R. reached the court of the learned Magistrate on 7.11.83 and was signed by the learned Magistrate on 14.11.83 but there was delay in the F.I.R. reaching the court because 5.11.83 and 6.1.1.83 were holidays. Why it could not be placed before the learned Magistrate till 14.11.83 is not known and may be that he might have been on leave. It is submitted that the evidence of the prosecution witnesses is supported by the dying declaration recorded by Dr. Prakash Kumar Singhi. It is true that Dr. Singhi did not obtain signatures of the deceased on the dying declaration. It is also true that the Investigating Officer did not make any endorsement on the dying declaration, but all these facts do not go to show that the dying declaration was not recorded. It fact, Dr. Singhi has no interest in the prosecution and, therefore, his independent testimony should not be discarded. (38). It is also true that the Investigating Officer did not make any endorsement on the dying declaration, but all these facts do not go to show that the dying declaration was not recorded. It fact, Dr. Singhi has no interest in the prosecution and, therefore, his independent testimony should not be discarded. (38). It is urged that witnesses Smt. Jhammo and Manju have made minor improvements in the prosecution story but such minor improvements are to be found inthe testimony of all honest witnesses because of such minor improvements, their testimony, which is otherwise cogent and reliable, cannot be discarded. It is urged that there has not been sufficient cross-examination of Dr. Singhi to discredit his testimony. It is submitted that the testimony of Dr. Singhi should not be disbelieved regarding the time of death of Amrit Lal. It is pointed out that since decased had sustained injury on the right hand, he might not have been in a position to affix his signatures on the dying declaration. It is submitted that though the deceased had his breakfast at about 4 p.m. as stated by Jhammo, the probability remains that he might have eaten some breakfast else where after he had taken his breakfast at 4 p.m. because it was a Deepawaliday. (39). It is also urged that the fact that no empty had been found at the spot is in conclusive. (40). It is submitted that minor lapses by the investigating officer should not go to discard the evidence of the eye-witnesses which is inimpeachable. (41). It is urged that the judgment of the learned trial court is a reasoned one and calls for no interference. (42). The learned public prosecutor very fairly and frankly concedes that there is no material available on record to show that Narayan Lal had ceased to be on duty when the gun was recovered from him. He concedes that appellant being a Constable and the gun having been issued to him in connection with his duties, he was not required to have a personal licence for possession of the gun and as such his conviction for offence u/s. 25 of the Arms Act was not legal. (43). We have bestowed our earnest consideration to the arguments advanced before us. We have also carefully perused the record of the learned trial courts in both the cases. (44). (43). We have bestowed our earnest consideration to the arguments advanced before us. We have also carefully perused the record of the learned trial courts in both the cases. (44). First of all we will take up the appeal filed by Narayan Lal and Kanti Lal, namely, D.B. Criminal Appeal No. 265/86. There is absolutely no doubt that Narayan Lal died of a shock due to excessive bleeding and laceration of intestive and left kindney caused by gun shot injury. He also recieveda gun shot wound on the posterior aspect of right forearm 4 cm above right wrist. The evidence of Dr. Singhi goes to show that both the injuries could have been caused by one gun shot. This aspect of the prosecution case has not been challenged before us. (45). Now, we have to examine if the learned trial judge was not right in holding that Amrit Lal had been shot at by Narayan Lal appellant at his house as alleged by Smt. Jhammo and Manju. (46). In this context, before we deal with the evidence of the alleged eyewitnesses, we may examine the other evidence available on record which may go to show if really the incident had taken place at house of Amrit Lalas alleged by the prosecution. The case of the prosecution is that appellant Narayan Lal fired from a 303 gun at the deceased, the bullet pierced the right asrm as also the abdomen of the deceased and hit wall causing a hole in it and the bullet got split into six pieces. P.W. 12 Ram Gopal is the only witness who has deposed about a hole having been caused in the wall of the room. He was cross-examined on this aspect of the matter and has admitted that Ex.P. 12, the site inspection memo, did not recite the fact that the wall had a hole as claimed by him. He was cross-examined regarding the location of this hole but he was unable to state this location. P.W. 16 Ram Singh is the investigating officer, who claims to have reached the spot soonafter the incident and who claims to have prepared memo Ex.P.12 next day after inspection of the site. This witness does not speak of any hole in the wall at all. P.W. 16 Ram Singh is the investigating officer, who claims to have reached the spot soonafter the incident and who claims to have prepared memo Ex.P.12 next day after inspection of the site. This witness does not speak of any hole in the wall at all. Ex.P. 12 does not recite that any hole was seen in the room in which deceased is said to have been fired at. 303-gun is a powerful gun. As claimed by the prosecution it had pierced the right forearm as also the abdomen of the deceased and the bullet got split into six pieces. Dr. Singhi has admitted that no bony part of deceased was involved in this gun fire. When it is so, the bullet could have split into six pieces only if it would have hit some hard surface. It is in this context, Ram Gopal has tried to show that bullet had caused a hole in the wall of the room but this evidence of Ram Gopal is not corroborated by any other evidence on record, including the statement of Ram Singh. Ex.P. 12 was the earliest document prepared after site inspection and had really there been a hole in the wall, it would have found mention in the same. P.W. 16 Ram Singh categorically contradicts Ram Gopal on this point. He has positively stated that he did not discover any sign of a bullet hitting the wall. He has admitted that he had inspected the wall but no such sign was seen by him. P.W. 3 Smt. Jhammo and P.W. 4 Manju do not say that a bullet had hit the wall of the house or that a hole had been spotted in the wall of the room. Absence of such a tell-tale mark on the wall militates against the theory that Amrit Lal had been shot while he was in the room. (47). 303 is a gun, which on being fired ejects the empty and after the fire, the empty does not remain in the chamber of the gun. P.W. 12 Ram Gopal has admitted this position. It is an admitted case of the prosecution that no empty was found in the room or anywhere nearby. It is not the case of the prosecution that Narayan Lal after firing the gun picked Up the empty cartridge from the spot and ran away from the spot thereafter. P.W. 12 Ram Gopal has admitted this position. It is an admitted case of the prosecution that no empty was found in the room or anywhere nearby. It is not the case of the prosecution that Narayan Lal after firing the gun picked Up the empty cartridge from the spot and ran away from the spot thereafter. Learned Public prosecutor has cited Amar Singh Randhawa and ors. vs. State of Punjab (1) and has urged that the fact that empty was not found on the spot is not conclusive of the matter. We have gone through the aforesaid ruling and we are of the view that this ruling does not assist the prosecution in any way. (48). The nature of the injury caused on the person of the deceased goes to show that he must have profusely blood on the spot. When it is so, he must have been found by the doctor in a pool of blood when he reached the house of Amrit Lal. Dr. Singhi does not say that he found any pool of blood on the spot. (49). The investigating officer claims to have recovered blood stained and control soil from the room. He claims to have sealed the same on the spot vide Ex.P. 12. Ex.P. 12 is said to have been prepared in presence of two independent witnesses, namely, Kasam Khan and Kan Singh. The prosecution has not cared to examine any of these witnesses and the only inference is that had they been examined,they would not have supported the prosecution case. (50). The prosecution story is that six alleged pieces of the bullet were recovered at the scene of occurrence by Ram Singh. It is surprising that the pieces were not forwarded to the State Forensic Science Laboratory. Had they been so sent, the Ballistic Expert could have examined them and could have opined if the pieces recovered from the spot were pieces of a bullet fired from a 303 gun. Moreover, examination of these pieces could have indicated whether they were stained with human blood or not. If the bullet had pierced the abdomen and the right hand of the deceased, the bullet would have carried some blood stains on it and on a proper examination traces of blood could have been detacted on the pieces of the bullet. Moreover, examination of these pieces could have indicated whether they were stained with human blood or not. If the bullet had pierced the abdomen and the right hand of the deceased, the bullet would have carried some blood stains on it and on a proper examination traces of blood could have been detacted on the pieces of the bullet. We may here state that according to Ex.P. 1 six sealed packets pertaining to this case were handed over by P.W. 13 Hamir Singh to P.W. 4 Chatra Ram on 30.11.83 for carrying to the State Forensic Science Laboratory. Chatra Ram has categorically stated that the packets had been sealed in his presence at the police station, that very day i.e. on 30.11.83. This witness has not been declared hostile by the prosecution and has not been cross-examined on this aspect of the matter. The statement of this witness goes to show that various packets had been sealed that very day i.e. On 30.11.83. If it is so, then examination of such articles in the State Forensic Science Laboratory becomes meaningless. The aforesaid circumstances go to throw a good deal of doubt on the prosecution story that deceased Amrit Lal had been shot at in his room. (51). We may state that prosecution witnesses Smt. Jhammo, Manju, Kanta, Bhawani Shanker and Moti Lal were admittedly having strained relations with the accused-persons because grand-daughter of P.W. 17 Ashu had been engaged to Kanti Lal in violation of the customs of the community and for this very reason Babu Lal, Kanti Lal and Narayan Lal had not been invited at the marriage of Bhawani Shanker who is brother of Amrit Lal and Moti Lal. Enmity is a double edged weapon. If in one hand, it furnishes motive for commission of an offence, then on the other hand it equally furnishes a motive for implicating falsely the innocent persons. It is in this background that we shall have to examine testimony of the prosecution witnesses. (52). The prosecution story mainly rests upon the testimony of P.W. 3 Jhammo and P.W. 4 Manju, who alone are said to be actual eye-witnesses of the occurrence. If the statements of these witnesses are found to be unreliable, then the testimony of Kanta, Bhawani Shanker or Moti Lal would not assist the prosecution very much. (53). (52). The prosecution story mainly rests upon the testimony of P.W. 3 Jhammo and P.W. 4 Manju, who alone are said to be actual eye-witnesses of the occurrence. If the statements of these witnesses are found to be unreliable, then the testimony of Kanta, Bhawani Shanker or Moti Lal would not assist the prosecution very much. (53). P.W. 3 Jhammo had deposed in her examination-in-chief that on the fateful night she was sitting in a room of her house along with her niece Manju. Both of them were sitting near the chulha. At about 8-9 p.m. her husband Amrit Lal entered the room with a view to take his meals. he sat in the room. Soon afterwards foot steps of two persons were heard. At this, her husband got up. The witness deposed that Narayan Lal stayed in the door of the room with one foot remaining out side the door. Kanti Lal was at a distance of 2-3 steps behind Narayan Lal. Narayan Lal fired the gun at her husband, upon which her husband fell down. She raised an alarm. Since a lantern was burning in the house and some lamps were burning out side, she recognized both Kanti Lal and Narayal Lal. According to her she and Manju (We) raised alarm at which Bhawani Shanker and Moti Lal came there. At this both accused-persons ran away. She has stated that Moti Lali and Bhawani Shanker then went out side. After some time the doctor arrived and soonafter the police also arrived. After some time police and doctor started examining her husband and they (Jhammo and Manju) were asked to go out. Thereafter her husband was placed on a cot and was taken to the hospital. (54). It is surprising that the statement of this witness was not recorded by the investigating officer that day or eveh on the next day. Her statement was first of all recorded on 9.11.83. No cogent or reasonable explanation was forth coming why such an important witness was not examined for so many days. She was confronted with Ex.D. 1 her previous police statement wherein it was not stated that Narayan Lal had partly stepped in the house and his one foot was in the room and the other foot was out side the room. Ex.D. 1 has been proved by the investigating officer. She was confronted with Ex.D. 1 her previous police statement wherein it was not stated that Narayan Lal had partly stepped in the house and his one foot was in the room and the other foot was out side the room. Ex.D. 1 has been proved by the investigating officer. It appears that this witness has improved upon her police version given in Ex.D.l and has made an improvement on this vital aspect of the matter, namely, that accused Narayan Lal had partly stepped in the door and had advanced one foot in the room and one foot was out side the room. In itself, this improvement might not have been of much importance. But, we find that P.W. 4 Manju has given the same story as was given by Jhammo. She has also made a similar improvement in the story. It may here be stated that Manju was not examined by the investigating officer till 9.11.83 and even on 9.11.83 she had not given the story that accused Narayan Lal had partly advanced in the house with one step within the room and one out side the room. (55). An omission or a mistake is an individual phenomenon. It would be rare that two persons would be making a similar mistake. When two persons make similar omission or similar mistake and later on repair omission or the mistake by a similar improvement, then it becomes a matter of serious concern. It would be legitimate to infer that the improvement is purposeful, designed and intentional. This improvement in the testimony of both these witnesses, who are inimically disposed towards the accused-appellants, renders their statements unreliable on vital aspect of the matter. (56). Ex.D.9 is the site plan pertaining to the scene of occurrence prepared by the investigating officer. This site plan shows that house of deceased Amrit Lal consisted of one room measuring 15 1/2 ft. west to east and 14 1/2 ft. north to south. The door of this room opens on the east in a osary or verandah which is 10 1/2 ft. in width from east to west and is of the same length as the room i.e. from north to south. According to this site plan C is the place where Smt. Jhammo was sitting and B is the place where the accused Narayan Lal is said to have fired at the deceased. in width from east to west and is of the same length as the room i.e. from north to south. According to this site plan C is the place where Smt. Jhammo was sitting and B is the place where the accused Narayan Lal is said to have fired at the deceased. This point B is in the osary itself and is away from the door of the room which opens fowards this osary. If Jhammo was really sitting at point C in the room, then it is extremely doubtful if she could have seen the assailant firing at her husband from point B in the osary. It appears that to make her story plausible Jhammo has made this improvement that Narayan Lal at the time of firing the gun was standing in the door with one step in side the room and the other out side the room. Manju appears to have made a similar statement with a similar object. In our opinion, this vital improvement renders the testimony of Jhammo and Manju unsafe to be relied upon. (57). The prosecution story is that just before the incident P.W.8 Kanta daughter of Moti Lal was standing infront of her house and she saw Narayan Lal and Kanti Lal entering the house of Amrit Lal from a direction of bara, where these people used to go for toilet. She also claims that she saw a gun in the hand of Narayan Lal. She has also stated that she heard a gun fire and also heard her Kaki (Jhammo) and Manju shouting. Thereafter, she saw that both the accused-persons came back and went away. Surprisingly, this witness was also not examined by the investigating officer on the night of the incident or even the next day. She was also examined for the first time on 9.11.83. There is no satisfactory explanation why the statement of this witness was recorded after such a great delay. This witness has admitted in her cross-examination that when she saw both the accused-persons entering the bara, she did not raise any alarm. She has given an explanation that she thought that the accused persons may be going to their house because their houses were near the vicinity. This witness has admitted in her cross-examination that when she saw both the accused-persons entering the bara, she did not raise any alarm. She has given an explanation that she thought that the accused persons may be going to their house because their houses were near the vicinity. This witness has introduced an improvement similar to that introduced by Jhammo and Manju and has stated that when Narayan Lal fired the shot, he was partly inside the room and partly out side the room. This improvement is again in tune with the improvement made by Manju and Jhammo and goes to show that this witness is also unreliable one. Actually, according to her statement in examination in-chief, she had never seen Narayan Lal firing a gun shot at Amrit Lal. (58). This witness has made one more improvement in her story. She has stated that after Amrit Lal had been shot he was muttering aloud repeatedly that Narayan Lal shot him. She has admitted that when her statement Ex.D. 3 was recorded, she did not depose about this fact. This improvement is also purposeful and designed, as we will demonstrate just now. (59). Admittedly, P.W. 11 Moti Lal had not seen the occurrence. He had not seen Narayan Lal shooting at deceased Amrit Lal. He is a person who claims to have lodged the report with regard to this incident soon afterwards. He is real brother of the deceased Amrit Lal. In his report Ex.P. 11 he has stated that Narayan Lal had shot at his brother. Now, Ex.D. 11 is a detailed document and according to Moti Lal he wrote it out in his house before proceeding to the police station. It is surprising that even when his brother has been shot at, and the assailants had run away, he had the patience of sitting in the house for scribing report Ex.P. 11 which is quite a detailed document. This is against human conduct. The police station is only on furlong away and he could have rushed to the police station immediately and could have orally reported the matter. Be it, as it may, the fact is that Moti Lal mentioned in the f.I.R. Ex. P. 11 Narayan Lal had shot at Amrti Lal. This is against human conduct. The police station is only on furlong away and he could have rushed to the police station immediately and could have orally reported the matter. Be it, as it may, the fact is that Moti Lal mentioned in the f.I.R. Ex. P. 11 Narayan Lal had shot at Amrti Lal. During the course of trial Moti Lal has admitted that he mentioned this fact, namely, that Narayan Lal had shot at Amrit Lal because Amrit Lal was muttering aloud that he had been shot at by Narayan Lal. Now, even though Ex.P. 11 is a detailed document, this fact does not find mention in Ex.P.ll that the Amrit Lal was muttering aloud that he had been shoot at by Narayan Lal. He has admitted that he did not mention in Ex.P. 11 that Amrit Lal was crying that he had been shot at by Narayan Lal. His statement Ex.D. 8 is said to have been recorded the same day by the investigating officer but even in Ex.D. 8 it was not mentioned that Amrit Lal was crying that Narayan Lal had shot at him. It appears, that to fill up this lacuna Kanta was made to say that Amrit Lal was muttering aloud that he had been shot at by Narayan Lal. Thus we find that on this material particular, both Moti Lal and Kanti Lal have made deliberate and designed improvement. The improvement, to us does not appear to be innocent. (60). It may be mentioned here that both according to Moti Lal and Bhawani Shanker, both of them had entered the room of Amrit Lal together. If Amrit Lal would have been crying or muttering aloud that Narayan Lal had shot at him. Bhawani Shanker would have also noticed this fact. According to Bhawani Shanker, Amrti Lal was simply saying "vjs yx xbZ" (61). Had Smt. Jhammo really seen Narayan Lal shooting her husband, it is but natural that she would have mentioned this fact to Moti Lal and Bhawani Shanker and other inmates of the house who had assembled soonafter. In her cross-examination she has admitted that Moti Lal, Bhawani Shanker, wife of Moti Lal and her own mother-in-law had come soonafter. Moti Lal had askedher husband Amrit Lai as to who had shot at him. She does not say that Amrit Lal made any reply. In her cross-examination she has admitted that Moti Lal, Bhawani Shanker, wife of Moti Lal and her own mother-in-law had come soonafter. Moti Lal had askedher husband Amrit Lai as to who had shot at him. She does not say that Amrit Lal made any reply. She has admitted that she herself did not fell any body that Narayan Lal had shot at Amrit Lal. The explanation given by her is that she was not asked regarding this and hence she did not state this fact to the persons who had come there. This conduct on the part of Smt. Jhammo also militates against her claim that she had seen Narayan Lal shooting at Amrit Lal. (62). Manju (P.W. 4) has stated that when Amrit Lal had been shot at she and her Mami (Smt. Jhammo) raised an alarm, upon which Bhawani Shanker, Moti Lal, wife of Moti Lal, Manjus Nani and Nana had come there. She has categorically stated that none of them enquired from Amrit Lal as to who had shot at him. She has further categorically stated that none of those assembled persons enquired from them or from her Mami (Jhammo) as to who had shot at Amrit Lal. She has stated that Amrit Lal was only shouting "ekjk js ekjs js", This statement of Manju belies her claim that she had really seen Narayan Lal shooting at Amrit Lal. (63). Ex.P. 17 is the formal F.I.R. recorded by the investigating officer Ram Singh. In the column pertaining to the time of the lodging of the report it mentions 9.00 p.m. In the column pertaining to the investigating officers departure from the police station it mentions 9.10 p.m. However, Ex.P. 11, the written report lodged by Moti Lal bears an endorsement by Ram Singh that it had been presented to him at 9.05 p.m. It is surprising how Ex.P. 17 was recorded prior to presentation of Ex.P. 11 before Ram Singh. Ram Singh was cross-examined on this aspect of the matter and he has said that it was by mistake that in Ex.P. 17, 9 p.m. was recorded as the time at which the F.I.R. was lodged. He has not explained the nature of mistake which led him to enter 9 p.m. in Ex.P. 17 as the time at which the F.I.R. was lodged. (64). He has not explained the nature of mistake which led him to enter 9 p.m. in Ex.P. 17 as the time at which the F.I.R. was lodged. (64). The prosecution case is that Bhawani Shanker had gone to call the doctor, while Moti Lal had gone away to lodge the report with police station and Dr. Prakash Kumar Singhi had immediately come to the spot. The prosecution case further is that Dr. Singhi recorded the dying declaration of the deceased in his house. In cross-examination Dr. Singhi has stated that he did not recollect if requisition for recording dying declaration was given to him in writing or orally. He, however, added that in case a requisition was given in writing, it must be available in his office. Here We may stale that no affort was made to obtain any such requisition from the office of Dr. Singhi. P.W. 16 Ram Singh has made a categorical statement that he had given a written requisition to Dr. Singhi for recording the dying declaration. Why no steps were taken to produce this requisition during the course of trial is simply baffling. (65). Dr. Prakash Kumar Singhi had deposed that when he was requested to record the dying declaration of Amrit Lal, he asked the investigating officer to go out. Why this was done, has not been explained. Dr. Singhi has stated that Ex.P. 15 is a dying declaration which he had recorded. He has further stated that he obtained thumb impression of Amrit Lal at point X on the same. He has further stated that since Amrit Lal had been injured in his right hand, he, therefore, could not sign it. He has also deposed that Amrit Lal was in a bit serious condition and was groaning with bullet injury. This witness has not stated in his examination-in-chief that Amrit Lal made any statement in his presence and he recorded such a statement at dictation of Amrit Lal. He does not state that he had read over Ex.P. 15 to Amrit Lal and Amrit Lal had admitted it to be correct. (66). Ex. P. 15 does not bear any certificate of Dr. Singhi that Amrit Lal was in a fit and conscious state of mind to give a statement, or that he had recorded the statement as it was given to him by Amrit Lal. (66). Ex. P. 15 does not bear any certificate of Dr. Singhi that Amrit Lal was in a fit and conscious state of mind to give a statement, or that he had recorded the statement as it was given to him by Amrit Lal. He has admitted in his cross-examination categorically that inspite of injury no. 1 Amrit Lal could have signed the dying declaration. Here we may state that Dr. Singhi had admitted that Amrit Lal know how to sign. He has made this statement on the basis that at an earlier occasion, he had prepared an injury report and Amrit Lal had signed the same. When Amrit Lal could have signed the dying declaration inspite of injury no. 1, it is surprising why Dr. Singhi did not obtain his signatures on the same. (67). Dr. Singhi has admitted that when he recorded the dying declaration the other persons of the family were also not there. Why did he exclude other members of the family of the deceased while recording alleged dying declaration is not understandable. (68). It does not appear that Dr. Singhi made any preliminary examination of Amrit Lal to ascertain his physical and mental state to give a dying declaration. He has given a vague statement that the deceased was in a bit serious condition. What did he mean by saying so, is not clear. It does not appear that he recorded the blood pressure of the deceased at that time. Of course, according to him he found that just before death the deceased had become senseless and his symbolic blood pressure was 40. The condition of the wound on the body of the deceased shows that he must have bleeding profusely and must have died within minutes of having been shot. It is, therefore, extremely doubtful that the deceased was in fit mental and physical condition to give any statement. (69). There is one more reason why this dying declaration is not worthy of belief. According to Smt. Jhammo, her husband had taken breakfast at about 4 p.m. that day. He had not taken his evening meals. The doctor has categorically stated that he found undigested food in the stomach of the deceased. According to Dr. Singhi, the deceased must have taken his meals within 4-5 hourse of his death. According to Smt. Jhammo, her husband had taken breakfast at about 4 p.m. that day. He had not taken his evening meals. The doctor has categorically stated that he found undigested food in the stomach of the deceased. According to Dr. Singhi, the deceased must have taken his meals within 4-5 hourse of his death. In the next breath he has modulated the statement and has stated that deceased might have taken his food half an hour prior to his death. He had admitted in cross-examination that the food consisting of vegetable, roti and dal gets digested Within three hours and reaches intestines. If it is so, the food must have been consumed by the deceased within a short while of his death. According to Dr. Singhi, the deceased died at 9.40 p.m. Looking to the fact that the food was wholly undigested and had not passed into intestines, it is reasonable to suppose that the last food or breakfast was taken within one to two hours of the death. Admittedly, the deceased took his last breakfast at 4 p.m. and, therefore, he must have died not at 9.40 p.m. but must have died much earlier. No undigested food would have been found in the stomach had the deceased died at 9.40 p.m. (70). Learned counsel for the complainant as also the learned public prosecutor urged that since it was a Deepawali day, the deceased might have consumed some food elsewhere after his breakfast at 4 p.m. and before the dinner that he was going to take immediately before the death. This argument is based only on conjectures and we would not be justified in basing our conclusion upon mere conjectures. This is true that doctor has stated that the deceased had died at 9.40 p.m. but this statement is hot corroborated by any contemporaneous record, normally, when death takes place in the hospital, a witten intimation is sent to the concerned police station regarding the occurrence of the death as well as the time of such death. In the present case no such contemporaneous written intimation sent by Dr. Singhi to the investigating officer is available on record. (71). It is to be remembered that post-mortem examination took place on 5.11.83. In the normal course an injury report would have been prepared by the doctor on 4.11.83. Dr. In the present case no such contemporaneous written intimation sent by Dr. Singhi to the investigating officer is available on record. (71). It is to be remembered that post-mortem examination took place on 5.11.83. In the normal course an injury report would have been prepared by the doctor on 4.11.83. Dr. Singhi has admitted that he did not prepare any injury report with regard to the injuries of Amrit Lal and the explanation that he has given is that he had no chance for preparing any injury report. He has, however, stated that he had written a prescription for treatment of Amrit Lal and had given the same to the attendant of Amrit Lal. He has, however, admitted that no contemporaneous record was maintained in the hospital regarding this. The best evidence in this case regarding the time of death would have been the intimation sent by the doctor to the S.H.O. on the night of 4.11.83 regarding death of the deceased. As already stated, such intimation is not available and hence looking to the fact that the deceased had taken his last break fast at about 4 p.m., it is difficult to accept the statement of doctor that deceased had died at 9.40 p.m. that night. We are supported in our view by an observation in Shambhoo Missir and another vs. State of Bihar (2), wherein 8 ounce of undigested food was found in the stomach of the deceased. The prosecution alleged that the death had occured at 3 p.m. But, admittedly, deceased had taken his food at 8 a.m. It was, therefore, held that no undigested food would have been found in the stomach at that hour and because of this it was held that whole case of the prosecution case must crumble. (72). Ir, Medical Jurisprudence and Texicology by Mr. Modi, edited by Mr. C.A. Frankllin (Twenty-first Edition) following observations have been made at page 185 :- "The rate of emptying of stomach varies in in healthy persons. The emptying of stomach depends on (i) consistency of food, (ii) motility of stomach, (iii) osmotic pressure of stomach contents, (iv) quantity of food in duodenum, (v) surroundings in which food is taken, (vi) emotional factors and (vii) residual variations. It varies in man from 2.5-6 hours. A meal containing carbohydrates generally leaves the stomach early and one containing proteins later. It varies in man from 2.5-6 hours. A meal containing carbohydrates generally leaves the stomach early and one containing proteins later. The fatty food delays emptying time while liquids leave the stomach immediately after ingestion." (73). Learned counsel for the complainant relied upon Shivaji Sahebrao Bobade v. State of Maharashtra (3) in support of the proposition that Smt. Jhammo was a rustic witness and her statement about the time at which her husband had taken the breakfast could not be given much importance and on the basis of this statement no attempt should be made to ascertain the time when the deceased died. In that case semi-digested solid food particles, were observed in the stomach of the deceased and the inference sought to be too neatly drawn therefrom was that the man must have come to his end after two to three hours of his last lunch. In that case their Lordships of the apex Court said that the "sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor even like taking a morning meal existed, and hence 10.30 a.m. stated by the witness could well have been an hour or more one way or the other and too much play on such slippery facts goes against realism so essential in a testimonial appraisal. It was further observed that" the court must not abandon a scientific attitude to medical science." In the present case we may observed that it was not during the cross-examination that the time regarding taking of breakfast was given out by Smt. Jhammo. Actually she had volunteered the statement on her own regarding the time her husband had consumed the breakfast at 4 p.m. She volunteered that her husband had taken roti at that time. Normally rustic witnesses may not have very accurate sense of time, but when a witness volunteers a statement about a particular fact and asserts the same, there is no reason to discard such a statement on a fact which is otherwise not very significant. We, therefore, find that the deceased might have died much earlier than the prosecution wants un to believe. We, therefore, find that the deceased might have died much earlier than the prosecution wants un to believe. We have already adverted to the fact that the prosecution has failed to establish satisfactorily that the deceased had been shot at in his house in presence of Smt. Jhammo and Manju. (74). The learned counsel for the appellants vehemently contended that deceased might have been shot at elsewhere and his dead body might have been brought to the house and then the witnesses, who had grudge against the accused-persons might have concocted the entire case. We need not pronounce affirmatively on this part, but suffice it to say that the prosecution has not satisfactorily proved that it was accused Narayan Lal who had shot at the deceased. (75). In this case the F.I.R. is said to have reached the learned Magistrates court on 7.11.83 but actually it appears to have been put up before the Magistrate only on 14.11.83. Ex.P. 17 bears an endorsement regarding its presentation by Hanwant Singh, Constable. We do not know as to who made this endorsement on Ex.P. 17. Constable Hanwant Singh has not been produced in this case. No clerk of the court of Munsif & Judicial Magistrate, Sirohi has been examined to show as to when the F.I.R. was actually received in that court. The endorsement by Munsif & Judicial Magistrate, Sirohi with the caption seen bears the date 14.11.83. The learned counsel for the complainant urged that there were holidays on 5th and 6th of November, 1983. May be it is so, but we do not know as to why the F.I.R. was placed before the Magistrate only on 14.11.83. By itself some delay in despatching the F.I.R. to the Magistrate, may not be of much importance, but when viewed in the conspectus of the circumstances it may assume importance. (76). The recovery of gun and subsequent recovery of empty in this case is not of much significance. As already stated, there is no evidence to show that the accused-persons had picked up the empty from the scene of occurrence and, therefore, Narayan Lal might have an opportunity of concealing it. According to the prosecution the gun had been recovered from accused Narayan Lal at the time of his arrest on 5.1.83 itself. As already stated, there is no evidence to show that the accused-persons had picked up the empty from the scene of occurrence and, therefore, Narayan Lal might have an opportunity of concealing it. According to the prosecution the gun had been recovered from accused Narayan Lal at the time of his arrest on 5.1.83 itself. Hamir Singh in his cross-examination has stated that articles D, E and F mentioned in Ex.P. 1 were received by him in the Malkhana on 9.11.83. Article D is the rifle itself. There is no explanation why this rifle was not deposited in the Malkhana, the day it had been recovered. Depositing the gun in Malkhana on 9.11.83 along with empty cartridge renders the recoveries worthless. The possibility, that gun and cartridges are after being recovered from the accused might have been firred and an empty might have been recovered to connect it with the gun, has not been ruled out in this case. (77). To sum up, we find that in this case the principal prosecution witnesses Smt. Jhammo and Manju, who claim to have seen the incident are not very reliable. Firstly, they did not narrate the fact that appellant Narayan Lal had fired at Amrit Lal which goes to create a doubt if they at all saw Narayan La; firing the gun on Amrit Lal. Secondly, both of them have tried to improve upon their previous version and have tried to come out with a new theory that while shooting at the deceased-appellant Narain Lal partly entered the room with one step in the room and the other out side. Thirdly, statements of these witnesses but were not recorded immediately were recorded after a good deal of delay for which there is no cogent and proper explanation. The F.I.R. in this case does not appear to be spontaneous and the discrepancy in the presentation of Ex.P. 11 and the time mentioned in Ex.P. 17 regarding lodging of the written report create a doubt about veracity of the prosecution story. The alleged dying declaration is not free from doubt. The time of the death of the deceased has not been established satisfactorily. The investigation in this case was perfunctory and not very meticulous. The alleged dying declaration is not free from doubt. The time of the death of the deceased has not been established satisfactorily. The investigation in this case was perfunctory and not very meticulous. The eye-witnesses and the other witnesses who claim to have seen the accused persons come to the house of the deceased or claim to have seen them running away are all partisan witnesses. In view of these facts, there remains a reasonable doubt about the guilt of the accused persons. (78). In view of what we have stated above, we find that the conviction of Narayan Lal for offences u/ss. 302 and 450, I.P.C. cannot be maintained and he deserves to be acquitted of both the charges by extending him benefit of reasonable doubt. The conviction of appellant Kanti Lal for offence u/s. 450, I.P.C. also cannot be maintained for the same reasons and he also deserves to be acquitted of the said charge. In view of our discussion made above, the State Appeal also fails. D.B. Criminal Revision No. 2/89 filed by Narayan Lal deserves to be accepted since we find that offence u/s. 25 of the Arms Act has not been established against him beyond shadow of reasonable doubt. (79). In the result we accept the appeal filed by Narayan La and Kanti Lal and acquit Narayan La of charges u/ss. 302 and 450, I.P.C. and set aside the conviction and sentence passed upon him by the learned courts below. He is in jail and he shall be released forthwith if not required in any other case. Kanti Lal is acquitted of charge u/s. 450, I.P.C. He is on bail and need not surrender. D.B. Criminal Appeal No. 403/86 filed by the State is dismissed. S.B. Criminal Revision No. 2/89 is accepted and conviction and sentence passed against Naranyan Lal by the learned Munsif & Judicial Magistrate, Sirohi and affirmed by the learned Sessions Judge, Sirohi for offence u/s. 25 Arms Act are set aside. He is acquitted of the said charge.