JUDGMENT 1. - This appeal is directed against the judgment dated 6.9.1989 passed by leraned Sessions Judge, Jhalawar, whereby he convicted the accused appellant of offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/- (Rupees five hundred), in default of the payment of fine the appellant was directed to further undergo one year's RI. 2. The facts giving rise to this appeal are that one Radhey Shyam Chouhan (PW-6) recorded the statement of injured-Bakhshu S/o Shri Ram at the Primary Health Centre, Manohar Thana, and on the basis of this "parcha bayan" (Ex. P/6), a first information report No. 48 of 1988 registered at Police Station-Manohar Thana, wherein Bakhshu, in his statement, stated that half an hour before he was coming to the market from his house; under a pipal tree near the house of Baluji Mehar accused appellant-Bitthal Prasad gave a spear blow from sharp-edged side in his stomach due to previous enmity as a result of which he had sustained grievous injury. He has stated that on the spot 'pipaliwali' lady named Kasturi Bai alongwith one more lady were present. After recording the aforesaid statement the case was registered for offence under Section 307 IPC and investigation was commenced. It may be pertinent to mention here that the time of incident recorded is between 9.00 to 10.00 p.m. on 29.5.1988 and the first information report had been taken down at 11.30 p.m. while the statement was recorded at 10.25 p.m. at Primary Health Centre. It may also be observed that no Medical Officer was available, hence the statement is recorded in presence of one Balkishan. Shri Radhey Shyam Chouhan, S.H.O., thereafter handed over the investigation to Shri Nand Kishor Varma, S.I. (PW-11) who prepared the site plan (Ex. P/1) and recorded the statement of Kasturi Bai. He also recorded the statement of Ratan Bai (PW-7) W/o Bakhshu (deceased) and Kanhiya Lal (PW 9) S/o Bakhshu (deceased). He also recovered a 'trishul' on the information furnished and at the instance of the accused appellant. After completing investigation, he submitted a charge-sheet in the Court of learned Munsif and Judicial Magistrate, Aklera (Jhalawar) for offence under Section 302 IPC who committed the accused to the Court of Sessions, Jhalawar. He also recovered a 'trishul' on the information furnished and at the instance of the accused appellant. After completing investigation, he submitted a charge-sheet in the Court of learned Munsif and Judicial Magistrate, Aklera (Jhalawar) for offence under Section 302 IPC who committed the accused to the Court of Sessions, Jhalawar. The learned Sessions Judge framed charge for offence under Section 302 IPC to which the accused pleaded not guilty and claimed to be tried. Prosecution thereafter examined as many as 11 witnesses in support of its case and thereafter the statement of the accused was recorded under Section 313 Cr. P.C. Accused examined one Mohan Lal (DW-1) as the defence witness. 3. The prosecution evidence consisted of the direct evidence as well as the circumstantial evidence. The direct evidence produced was that of Mu. Ratan Bai (PW-7), Mu. Kasturi Bai (PW-8) and Kanhiya Lal (PW-9), and the circumstantial evidence was the recovery of 'trishul' and the dying declaration of the deceased (Ex. P/6) recorded by Shri Radhey Shyam Chouhan (PW-6), S.H.O. The learned Sessions Judge disbelieved all the three eye witnesses who also did not place reliance on the recovery of the weapon of offence but relying on the dying declaration, he convicted and sentenced the accused appellant as indicated above. 4. In this appeal it is contended by Mr. Manoj Sharma, appearing on behalf of the appellant, that no conviction could be passed on Ex. P/6 (parcha bayan) which has been pleaded as dying declaration as it suffers from several infirmities. His submission is that this was recorded at 10.25 p.m. at Primary Health Centre where according to Dr. Ashraf Ali (PW-2) no medical Officer was available. The S.H.O. had not mentioned as to whether there was any other employee of the hospital available or not and that he had not called any independent 'motbir' also. His submission is that Rule 6.22 of the Rajasthan Police Rules, 1965 (hereinafter referred to as 'the Rule') has been violated. It is then contended that after recording the first information report, the deceased was referred to S.R.G. Hospital, Jhalawar, where he underwent surgical operation. It is submitted that when he was brought to S.R.G. Hospital; he was in senses and his statement could be recorded in presence of the doctor but no statement had been recorded. It is then contended that after recording the first information report, the deceased was referred to S.R.G. Hospital, Jhalawar, where he underwent surgical operation. It is submitted that when he was brought to S.R.G. Hospital; he was in senses and his statement could be recorded in presence of the doctor but no statement had been recorded. It is submitted that the deceased succumbed to the injury on the subsequent day and till then there was sufficient opportunity for the investigating Officer to have recorded the statement of the deceased in presence of a Judicial Magistrate who could be available at both places viz. at Manohar Thana and at Jhalawar. It is submitted that even Balkishan in whose presence Ex. P/6 is alleged to have been recorded has not been produced, and that Radhey Shyam, himself, could not stand the cross-examination and there is inconsistent evidence in his statement and the statement of Ratan Bai (PW-7). 5. Mr. Bhargava, appearing on behalf of the State, supported the judgment of the learned Sessions Judge and submitted that dying declaration by itself can be used for passing conviction of an accused in a case and in this case it is submitted that when the Medical Officer, In-charge of Primary Health Centre, was not available; it could not have been possible for the S.H.O. to have waited as the condition of the patient was very serious. He, therefore, has taken precaution of summoning a 'motbir' in whose presence the statement was recorded. His submission is that the dying declaration Ex. P/6, therefore, has rightly been made the basis of conviction and it should be maintained. 6. We have given our thoughtful consideration of the rival submissions and have perused the entire record. 7. At the very out-set, we may observe that in this case the only eye witness examined who had been named in the first information report is Kasturi Bai (PW-8) but she has been declared hostile. She has not supported the prosecution story for any purpose whatsoever. Prosecution also examined Ratan Bai (PW-7) W/o Bakhshu (deceased) and Kanhiya Lal (PW-9) son of the deceased, as eye-witnesses of the occurrence, but they have not been named in the first information report by the deceased and there are sufficient contradictions in their statements and, in our opinion, they have rightly been disbelieved by the learned trial Court. Prosecution also examined Ratan Bai (PW-7) W/o Bakhshu (deceased) and Kanhiya Lal (PW-9) son of the deceased, as eye-witnesses of the occurrence, but they have not been named in the first information report by the deceased and there are sufficient contradictions in their statements and, in our opinion, they have rightly been disbelieved by the learned trial Court. There is a variance in respect of weapon of offence used in the first information report and in the statement of the witnesses and the weapon of offence actually recovered. The trial Court itself has not believed the information furnished under Section 27 of the Evidence Act and rightly disbelieved the evidence of recovery of the weapon of offence. Therefore, we are left with the dying declaration alone in this case. 8. The only dying declaration which has been relied on in this case is Ex. P/6 which has been recorded as 'parcha bayan' by Radhey Shyam Chouhan (PW-6) S.H.O., Police Station-Manohar Thana, at Primary Health Centre, Manohar Thana. According to Radhey Shyam Chouhan (PW-6), Ratna Bai brought her husband in injured condition on a 'theta' to police station. Thereafter, he was taken to the hospital and his 'parcha bayan' (Ex. P/6) was taken down at 10.15 p.m. on which the case was registered. He has admitted in his cross-examination that when he arrived at the hospital; doctor was not available but he admits that doctor arrived soon thereafter and he estimated the time 5 to 7 minutes. He has not assigned any reason as to why he did not ask the doctor to record the statement or called the Magistrate who was posted in Manohar Thana town for recording the statement. He called one Bal Kishan in whose presence he recorded the statement but he does not say about this fact in his statement recorded in the Court. He has not even mentioned as to where-"from Bal Kishan was called and surprising enough he has not even proved the signature of Bal Kishan on the dying declaration. For reasons best known to the prosecution; Bal Kishan has also not been produced in the Court. Thus there is none else except Radhey Shyam Chouhan (PW-6) to testify to the dying declaration (Ex. P/6) which was recorded in utter disregard to Rule 6.22 of the Rules of 1965, which reads as under: - Dying declarations. For reasons best known to the prosecution; Bal Kishan has also not been produced in the Court. Thus there is none else except Radhey Shyam Chouhan (PW-6) to testify to the dying declaration (Ex. P/6) which was recorded in utter disregard to Rule 6.22 of the Rules of 1965, which reads as under: - Dying declarations. -(1) A dying declaration shall, whenever possible, be recorded by a Megistrate. (2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4) if no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (5) A dying declaration made to a police officer should, under Section 162, Code of Criminal Procedure, be signed by the person making it. " 9. It has been observed in Fazal Khan & Ors. v. State of Rajasthan, 1985 Cr.LR (Raj) 752 , that police officer recording dying declaration as a statement under Section 161 was not conscious to make a detailed statement - R. 6.22 is not complied with. In such circumstances, no reliance can be placed on such dying declaration. This is one of the aspect in this case because as mentioned above he recorded the statement as 'parcha bayan' on which the first information report was taken down. For complying with Rule 6.22; a definite procedure has been laid down and it is obligatory for the Investigating Officer to follow the same. This Court in series of judgments had taken the view that a dying declaration shall, whenever, possible be recorded by the Magistrate and the person making dying declaration shall, if possible, be examined by the medical officer with a view to ascertaining that he is sufficiently in possessions of his reason to make a lucid statement. This Court in series of judgments had taken the view that a dying declaration shall, whenever, possible be recorded by the Magistrate and the person making dying declaration shall, if possible, be examined by the medical officer with a view to ascertaining that he is sufficiently in possessions of his reason to make a lucid statement. In case the Magistrate cannot be obtained, it should be recorded by some gazetted police officer, if he too is not available then in presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. Even if no witness can be obtained without risk of the injured person dying before his statement can be recorded, it can be recorded in presence of two or more officers who should sign the same and the dying declaration should also be got signed by the persons making it. In this case absolutely no efforts were made to call for the Magistrate or to wait for the doctor or to call two independent 'motbir' witnesses or even to call two police officers when there was sufficient opportunity for the Investigating Officer and the S.H.O. to have done so as it is borne out from the record that the deceased was in full senses till the time he was operated in S.R.C. Hospital, Jhalawar, Dr. Ashraf Ali (PW-2) who was medical jurist, had examined the deceased. He categorically stated that at the time of examination the deceased was fully conscious and his pulse rate was 102 per minute and blood rate was 130 per minute. He further stated that the deceased was in a state of condition that he could speak and give statement. In this view of the matter, not getting his dying declaration properly recorded in accordance with the Rules is a serious lapse in the investigation and no reliance can be placed on the 'parcha bayan' (Ex. P/6) which has been recorded by the S.H.O. for the purpose of registering the case. There is no other evidence in the case and we have no option but to extend benefit of doubt to the accused appellant. 10. P/6) which has been recorded by the S.H.O. for the purpose of registering the case. There is no other evidence in the case and we have no option but to extend benefit of doubt to the accused appellant. 10. Before parting with the case, we would like to observe that in this case the investigating Officer has made a serious lapse in not following the provisions of Rule 6.22 and in not even proving the signatures of Bal Kishan on the said document for which the conduct of the S.H.O. (PW-6) Shri Radhey Shyam Chouhan has not left a happy impression on our mind inasmuch as he not only made the aforesaid lapse but also did not investigate the case himself and passed over the investigation to somebody else when the condition of the injured was precarious. 11. The result of the aforesaid discussion is that this appeal is allowed, judgment dated 6.9.1989 passed by the trial Court is set aside. Consequently, the conviction and sentence imposed is also set aside. The accused appellant (Bitthal Prasad S/o Nand Lal) is in jail and he be set at liberty forthwith, if not required in any other case.Appeal accepted. *******