Judgment B. R. ARORA, J. ( 1 ) THIS appeal is directed against the judgment dated 29/03/1985, passed by the Sessions Judge, Jalore, by which the learned Sessions Judge convicted and sentenced the accused-appellant for the offence under Sections 302 and 447 IPC. ( 2 ) THE incident, which led to the prosecution of the accused-appellant, took place on 12-11-83 at dinner time near the Barwa tubewell situated in the out-skirt of village Gajapura, where Hamira S/o Moola was murdered by the accused-appellant. The case of the prosecution is that deceased Hamira, Bharmal and Chela were on the Barwa tubewell. Bharmal and Chela left for the village for taking their meals while Hamira remained on the tube well. Hamira slept near the tube well. When Bharmal and Chela came towards the village, they saw accused Babura armed with a Kulhari, going towards the tube well. Both remained standing there in order to see where Babura was going. Babura proceeded towards the tube well where Hamira was staying. When they saw Babura going towards the well of Hamira, they followed him. They followed him from a distance of 10 Paundas (fifty feet ). They heard the cries of hamira and saw accused-appellant Babura inflicting injuries to Hamira with the axe. Both of them thereafter did not proceed towards Hamira but went to inform Jagta the brother of Hamira regarding the incident. They went to the village, Gajapura, informed Jagta that accused Babura is inflicting injuries to Hamira, whereupon Jagta, Bhakha, Bharmal and Chela proceeded towards the tube well and reached there. They found Hamira badly injured and profusely bleeding. On enquiry, Hamira told them that Babura Bheel (R/o Gajapura) had inflicted injuries upon him. Thereupon all these witnesses took Hamira in a bullock-cart to the Police Station and lodged the F. I. R. at Police Station, Jaswantpura. The condition of Hamira was serious and, therefore, after recording the F. I. R. , Hamira was sent to the hospital, where his dying declaration was recorded. The prosecution, in support of its case, examined eight witnesses. Thereupon all these witnesses took Hamira in a bullock-cart to the Police Station and lodged the F. I. R. at Police Station, Jaswantpura. The condition of Hamira was serious and, therefore, after recording the F. I. R. , Hamira was sent to the hospital, where his dying declaration was recorded. The prosecution, in support of its case, examined eight witnesses. ( 3 ) IT is contended by the learned counsel for the appellant that PW 2 Bharmal and PW 3 Chela the alleged eye witnesses of the occurrence are not reliable witnesses and their presence at the scene of the occurrence is doubtful and no reliance can be placed upon these witnesses as they are merely chance witnesses. Their conduct at the time of the incident and thereafter makes them wholly unreliable. Even their presence at the place, from where they have alleged to have seen the occurrence, has not been shown in the site plan prepared by the investigating officer. The dying declaration, relied upon by the learned trial Court in convicting and sentencing the accused, also, does not inspire confidence because the deceased Hamira was not in a position to make the alleged statement. It is further submitted that the accused-appellant had neither any motive nor any strained relations with the deceased and, therefore, there was no question of committing the murder of Hamira by the accused. It is further submitted that the recoveries of the axe, the Dhoti and other clothes do not connect the accused-appellant with the crime as the recoveries of these articles appear to be false and fabricated one. The recovery of axe is highly doubtful. Lastly, it is contended that the appellant never absconded from the village and there is no evidence on record to prove that the appellant remained absconded and the learned trial Court committed an error in convicting the appellant on the ground that he remained absconding from the village. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court and submitted that the learned Sessions Judge has properly considered the evidence on record and rightly convicted and sentenced the accused-appellant. ( 4 ) WE have considered the submissions made by the learned counsel for the parties. ( 5 ) THE prosecution case mainly rests upon the evidence of two eye witnesses, viz. ( 4 ) WE have considered the submissions made by the learned counsel for the parties. ( 5 ) THE prosecution case mainly rests upon the evidence of two eye witnesses, viz. , PW 2 Bharmal and PW 3 Chela, which is sought to be corroborated by the evidence of PW 1 Jagta and the two Motbir witnesses, namely, PW 4 Bhair Singh and PW 5 Bhopal Singh as well as PW 7 Dr. Gopal Ram Dhawal - the Medical Jurist and, also, from the two dying declarations out of which one was made by the deceased Hamira in the hospital in the presence of PW 6 Kapoora Ram and PW 7 Dr. Gopal Ram. PW 2 Bharmal has stated that the land of Jagta, Hamira, Chela as well as his own land, were being irrigating through the Barwa tube well which is jointly owned by them. About twelve months before, in the evening, he along with Chela was returning from the well to the village. Hamira remained at the well as they told him that they would bring his meals. When they came out of the field and proceeded towards the village, at some distance in the way, accused-appellant Babura met them. As Babura, at that time, was armed with a Kulhari and was proceeding towards the well where Hamira remained stayed, a suspicion arose why Babura was proceeding toward the well and, therefore, he and Chela followed him. When they reached near a tree, they saw the accused inflicting injuries on Hamira by the axe. Hamira, at that time, was lying on the cot. On seeing this, they went towards the village and informed Jagta in the village and returned with Jagta on the well. At that time Hamira was lying on the ground having multiple injuries and he was drenched with the blood but he was conscious. On enquiry made by Jagta, Hamira informed that Babura Bheel inflicted injuries to him by the Kulhari. These witnesses thereupon took Hamira in a bullock-cart to Jaswantpura. He has further stated that accused Babura had killed Hamira because he was pursuing a case against the accused. In the cross-examination, this witness has admitted that on account of fear from the accused, neither they raised any alarm nor they rescued Hamira. These witnesses thereupon took Hamira in a bullock-cart to Jaswantpura. He has further stated that accused Babura had killed Hamira because he was pursuing a case against the accused. In the cross-examination, this witness has admitted that on account of fear from the accused, neither they raised any alarm nor they rescued Hamira. This witness has, also, admitted that at the relevant time there was a crop of Raida standing in the field and in the adjoining fields, there were tube wells but they did not go to the other tube wells to inform the persons nor they called them for help. He has, also, admitted that though he along with the deceased went to the hospital but he was not interrogated by the police there. ( 6 ) PW 3 Chela has, also, stated that about twelve months before, his land was being irrigated by Barwa tube well and he along with Bharmal proceeded towards the village for taking their meals leaving Hamira at the tube well. When they reached near the Magra, accused Babura, armed with a Kulhari, met them. He proceeded towards the well and when he entered in the cote (Jaav) then they followed him and saw accused Babura inflicting injuries to Hamira. They saw this incident from a distance of ten Paundas (fifty feet ). They did not intervene and proceeded towards village Gajapura and informed Jagta and returned with Jagta to the well, saw Hamira lying on the grounds, badly injured and drenched with blood. On enquiry made by Jagta, Hamira informed him that Babura Bheel had inflicted injuries with Kulhari to him and after inflicting the injuries, the accused ran away. Thereafter Hamira was brought in a bullock-cart to the hospital at Jaswantpura, where he succumbed to the injuries in the hospital at about the mid-night. In the cross-examination, this witness has admitted that when Babura crossed them, no talk took place between them and Hamira and as Babura had strained relations with the deceased, therefore, a suspicion arose why the accused was proceeding towards the well of Hamira and in order to avoid any quarrel, they followed the accused. He has, also admitted that on account of fear they did not raise any alarm as they were apprehending that if they would raise any alarm, the accused would kill them, also. He has, also admitted that on account of fear they did not raise any alarm as they were apprehending that if they would raise any alarm, the accused would kill them, also. He has, also, admitted that he did not go to Karnail Singhs well for help. He has, also, admitted that they saw the accused entering in the field of Hamira from a distance of about 25 Paudas and the field of Hamira has the fencing on two sides. He has, also, admitted that the land, which is being irrigated by the well, has a small fencing on all the sides. He has, also, admitted that though they saw Babura inflicting injuries on Hamira but they did not raise any alarm nor they tried to rescue Hamira as they were afraid that if they would raise any alarm, the accused would kill them, also. He has, also, admitted that he along with injured Hamira went to the hospital and was present in the hospital, but his statement was not recorded by the police. He has, also, admitted that at the time when he, Bharmal and Jagta went in the field, at that time Hamira was in the state of consciousness and was speaking. He, however, denied the suggestion regarding his inimical relations with the accused-appellant. ( 7 ) THE prosecution has produced these two witnesses, namely, PW 2 Bharmal and PW 3 Chela as the eye-witnesses of the occurrence. It, is an admitted fact that these two witnesses, though as per their evidence, witnessed the incident from a distance but neither they raised any alarm nor they intervened in the matter. Even they did not go near the place of the incident and as soon as they saw the accused inflicting the injuries, they went towards the village Gajapura. They even did not try to call any person from the neighbouring tube-wells or fields where the owners of those tube-wells and fields were present, nor they took any help to rescue Hamira. As per their own version, they directly went to village and informed PW 1 Jagta. These witnesses have been shown in the FIR as the eye-witnesses of the occurrence but the FIR does not bear their signatures. Injured Hamira was taken to the hospital along with injured Hamira and Jagta. The condition of Hamira was serious and, therefore, his dying declaration was recorded. These witnesses have been shown in the FIR as the eye-witnesses of the occurrence but the FIR does not bear their signatures. Injured Hamira was taken to the hospital along with injured Hamira and Jagta. The condition of Hamira was serious and, therefore, his dying declaration was recorded. In the dying declaration (Ex. P. P. 7-A), the witnesses to the dying declaration are PW 4 Bhair Singh and one Pooran Singh. These two witnesses have not been shown as the witnesses, in whose presence the dying declaration was recorded. Even in the Panchnama - Lash, nor in any other memo, these two witnesses have been shown as the Motbir witnesses and none of the documents bears their signatures. The site plan was prepared at the instance of PW 1 Jagta and in that site plan, the place from where these witnesses alleged to have seen the occurrence, has not been shown. These witnesses were the alleged eye-witnesses of the occurrence and they were present in the village but still they were not called at the time of preparation of the site plan. Even the statements of these witnesses under Section 161, Cr. P. C. were recorded after some delay. PW 6 Kapoora Ram the Station House Officer (the investigating officer) has tried to explain the delay by stating in the cross-examination that firstly, he was busy with the treatment of the injured Hamira, thereafter he remained busy in preparing the site plan etc. and thereafter he tried to arrest the accused and, therefore, he could not record the statements of these witnesses, though the names of these witnesses appeared in the FIR as the eyewitnesses of the occurrence and they were found as the eye-witnesses. PW 6 Kapoora Ram has, also, stated that at the Police Station, PW 1 Jagta came all-alone and these two witnesses were not present at the time when the site plan was prepared and as the site was shown by PW 1 Jagta and, therefore, he did not think it necessary to call these two witnesses. PW 6 Kapoora Ram has, also, stated that at the Police Station, PW 1 Jagta came all-alone and these two witnesses were not present at the time when the site plan was prepared and as the site was shown by PW 1 Jagta and, therefore, he did not think it necessary to call these two witnesses. The conduct of these witnesses in not raising the alarm or taking any steps to rescue Hamira or for not calling the neighbouring inmates of the tube-wells and fields for help and going straight to the village, coupled with the fact that these witnesses are not the signatories of any of the memos including the site plan, Furd Surat Haal Lash or of the dying declaration (s), raise a suspicion regarding the presence of these witnesses at the time of the incident and, therefore, on the basis of the evidence of these two so-called eye-witnesses, the accused-appellant cannot be connected with the crime. ( 8 ) THE other evidence relied upon by the prosecution is regarding the recovery of the blood-stained axe on the information and at the instance of the accused, as well as the recovery of Dhoti of the accused, which were found stained with human-blood. These recoveries are, also, of no assistance to the prosecution because according to PW 6 Kapoora Ram, investigating officer, he sent six packets for FSL examination with PW 8 Hari Singh, while PW 8 Hari Singh has stated that he had taken eight packets for FSL examination and handed them over at the State Forensic Science Laboratory, Jaipur. Eight packets were received by the aforesaid laboratory. The difference in number of packets as well as the fact that there is nor evidence on the record which could prove that the articles were properly sealed and their seals, through-out the period, remained intact, since they were sealed and up to the time they were received by the State Forensic Science Laboratory. Even the Malkhana In charge, in whose custody these sealed articles remained, has not been produced by the prosecution. Even the name of the person, who was the incharge of the Malkhana, and in whose custody these articles remained, has not been shown. The recoveries of these articles, therefore, is of no help to the prosecution, particularly when the human blood-group on the Dhoti of the accused and that of the accused was not known. Even the name of the person, who was the incharge of the Malkhana, and in whose custody these articles remained, has not been shown. The recoveries of these articles, therefore, is of no help to the prosecution, particularly when the human blood-group on the Dhoti of the accused and that of the accused was not known. This circumstance, therefore, does not connect the accused-appellant with the crime. There is one another aspect of the case, also. The incident in the present case, took place on 12-11-83, and the accused-appellant was arrested by the police at Mount Abu on 24-11-83, in another case and. was taken over by the police in the present case on 25-11-83. According to the prosecution, the accused, at the time of arrest, i. e. on 25-11-83, was wearing the same Dhoti and the same was found stained with blood. It is not expected that the accused-appellant will remain in the same cloth (Dhoti) for about twelve days and that too without washing the Dhoti. At least the Dhoti would have been washed during this period for two or three times and, therefore, the presence of blood-stains/spots of blood on the Dhoti was not possible. ( 9 ) THE last circumstance, on which reliance has been placed by the prosecution, is the dying declarations made by the deceased Hamira. As per the prosecution, there are two dying declarations made by the deceased Hamira. First dying declaration was made by Hamira immediately after the occurrence before PW 1 Jagta, PW 2 Bharmal and PW 3 Chela. So far as PW 2 Bharmal and PW 3 Chela are concerned, their presence at the scene of the occurrence appears to be somewhat doubtful because their presence has not been recorded in any of the memos prepared by the police immediately after the occurrence, but so far as PW 1 Jagta is concerned, he is the brother of the deceased who went to the place of the occurrence and took injured Hamira to hospital at Jaswantpura and lodged the FIR. The presence of this witness, viz. , PW 1 Jagta at the hospital as well as at the Police Station stands proved from the statements of PW 7 Dr. Gopal Ram and PW 6 Kapoora Ram, S. H. O. , who recorded the FIR. The presence of this witness, viz. , PW 1 Jagta at the hospital as well as at the Police Station stands proved from the statements of PW 7 Dr. Gopal Ram and PW 6 Kapoora Ram, S. H. O. , who recorded the FIR. PW 1 Jagta has stated that at the time when he went to Barawa well, he saw his brother Hamira injured and was profusely bleeding. At that time Hamira was conscious and on enquiry, Hamira informed him that Babura Bhil has inflicted injuries to him by a Kulhari and after inflicting the injuries, he ran away. From there, Hamira was brought to Police Station and from there to the hospital at Jaswantpura. This witness, immediately reached at the place of occurrence and as the injured was conscious, therefore, he was in a position to narrate the incident. This dying declaration made by the deceased before PW 1 Jagta was most natural, true and voluntary and inspires confidence. ( 10 ) THE other dying declaration was made by Hamira to PW 7 Dr. Gopal Ram Dhawal and PW 6 Kapoora Ram S. H. O. , which was recorded by PW 6 Kapoora Ram - the investigating officer. Before recording the statement, the doctor gave the certificate that Hamira S/o Moola is in a serious condition due to excessive bleeding and is just near to collapse and, therefore, his statement may be recorded immediately. In the dying declaration Ex. P. 7-A, Hamira has stated that he was sleeping on his well Barawa; the accused Babura Bhil came there and inflicted injuries upon him by a Dhariya, which was :the learned counsel for the appellant has challenged this dying declaration on the ground that Hamira was profusely bleeding as his mouth was cut, he was not in a position to make any statement and the alleged dying declaration has been falsely recorded. We have considered the submissions made by the learned counsel for the parties. For placing reliance over the dying declaration, a strict screening of the statement is required to be made because it is not a statement on oath and its veracity cannot be tested by cross-examination. We have considered the submissions made by the learned counsel for the parties. For placing reliance over the dying declaration, a strict screening of the statement is required to be made because it is not a statement on oath and its veracity cannot be tested by cross-examination. Before acting upon the dying declaration, it should, therefore, be ensured that the dying declaration made by the deceased should be of such a nature as to inspire confidence of the Court regarding its correctness and further that it is not a result of tutoring or prompting. In the present case, the dying declaration has neither been recorded by a Magistrate nor has it been recorded by the doctor, but it has been recorded by the investigating officer himself, though in the presence of the doctor and after taking his opinion that the injured is in a fit condition to give the statement. The investigating officer is naturally interested in the success of the investigation and, therefore, the dying declaration recorded by him has to be scrutinized very cautiously and if after a close scrutiny of the dying declaration the Court is satisfied that the dying declaration made by the injured is truthful then the conviction can be based on such dying declaration. PW 7 Dr. Gopal Ram Dhawal has stated that the injured Hamira was profusely bleeding, no vein was cut but the arteries were cut and it was not possible to stop the bleeding though primary first aid was provided. According to the doctor, the left jaw of the injured was cut and both the lips separated and without the external aid, it was not possible for the injured to join both the lips and for clear speech, it was necessary to provide some external aid for the movement of both the lips and the statement of Hamira was recorded in this very condition by applying external aid by hand in order to join upper and lower portions of jaw/lips. Similar is the statement of PW 6 Kapoora Ram, who has stated that there were injuries on the jaw of the injured and when he was speaking, some air was passing and the voice was not clear but when the doctor, with the aid of hand connected both the lips then the voice became clear and the dying declaration was recorded in that position. The learned counsel for the appellant has tried to place stress on the earlier part of the statement of this witness wherein he stated that when the injured was speaking, he was speaking without the aid of the doctor, but this witness, in the later part of his statement, in the cross-examination, has specifically stated that when the dying declaration was recorded, it was recorded with the help/aid of the doctor, who put his hand and connected both the lips and only thereafter, the statement of the injured was recorded as the voice became clear. The dying declaration was recorded at 10. 10 p. m. and Hamira died at about 02. 30 a. m. , i. e. , after about four hours. When the medical evidence is clear that Hamira was in a fit condition to give statement and the death took place after four hours of the incident then it cannot be said that Hamira was not in a fit state to give Statement. The accused-appellant was known to the deceased and it is not the case of the accused-appellant that he could not have identified the assailant. It is, also, not the case of the defence that the dying declaration is the result of prompting or tutoring. After a careful reading of the evidence on record and the dying declarations made by the injured Hamira, we are of the opinion that the injured was in a fit condition to give statement and the dying declaration was truly made and inspires confidence. It is truthful and voluntary and is not the result of tutoring or prompting. ( 11 ) THE learned lower Court was, therefore, justified in placing reliance over the dying declaration made by the injured. These two dying declarations made by the deceased, therefore, clearly establish that the accused was the perpetrator of the crime. The prosecution has, therefore, been able to prove the case against the accused-appellant Babura beyond any reasonable manner of doubt. ( 12 ) IN the result, we do not find any merit in this appeal and the same is hereby dismissed appeal dismissed.