JUDGMENT 1. - In this appeal, Chandra Shekhar has challenged the legality of his conviction under Section 302, Indian Penal Code, and sentence of life imprisonment with a fine of Rs. 100/- upon him by the Additional Sessions Judge, Hindaun City. 2. Necessary facts may be stated herein in a nutshell. One, Mahesh s/o Kishorilal, is alleged to have sustained injuries by sharp object inside shop of Jagan Mahajan in Sarafa Bazar, Hindaun City on August 21, 1986. He succumbed to injuries and was taken to hospital at Hindaun in a hand driven cart (Thela). In the hospital, the doctor declared Mahesh dead at 6.10 p.m. Before it, a telephonic message is said to have been received and noted down at police station Hindaun at 6 p.m. vide Ex.P. 28 about sustaining of knife injuries to one boy in Sarafa Bazar. Thereafter, Tikam Chand uncle of the deceased is said to have gone to the police station at 6.20 p.m. and lodged an information about the death of Mahesh as a result of knife injuries. This information is Ex.P. 29. Upon receipt of the aforesaid information, Laxmi Kant ASI and Bhawani Singh were deputed to proceed to the scene of occurrence at Sarafa Bazar while Ghanshyam Dutta (PW 22) on telephone proceeded to the hospital and where prepared inquest memo (Ex.P. 4) and made an endorsement therein that Mahesh expired as a result of prof used bleeding by knife injury and lying the injured unattended for a long time. 3. Autopsy was conducted by Dr. N.L. Bhardwaj (PW 12) vide report Ex.P. 10 stating therein the cause of death of the deceased as shock due to massive internal bleeding haemorrhage caused by punctured wound of the left lungs. The injuries were said to be of fresh duration and were sufficient in the ordinary course of nature to cause death. The following external injuries were found on the person of the deceased - 1. Verticle stab wound with clean cut regular margins 2 cm X 5 cm X 3 cm on the dorsal aspect of the left shoulder of upper ⅓rd of the upper arm below the acromial. 2. The following external injuries were found on the person of the deceased - 1. Verticle stab wound with clean cut regular margins 2 cm X 5 cm X 3 cm on the dorsal aspect of the left shoulder of upper ⅓rd of the upper arm below the acromial. 2. Oblique incised stab wound with clear cut regular margins 3 cm X 4 cm into probe entries the thoromic cavity on the anxila in the third inter cortal space corresponding tears over the shift which he was putting on, were present for injury No. 1 and 2. On internal examination the doctor found phera torn on the left side opposite injury No. 2, left plural cavity full of blood massive haemathorex cloths and in left lung punctured wound 2 cm X 2 cm X 6 cm on the upper part opposite injuries No. 2. Chambers of left chest was empty and right contained little quantity of blood and in small instantaneous food material in stage of digestion was found. 4. The site is said to have been inspected by Ghanshyam Dutta on 21.8.1986 at 9 o'clock in the night, but its plan and inspection memo was prepared on 22.8.1986 vide Ex.P. 11 and R 12. The articles of the deceased, viz. cloths, medicines, rupees, and spectacles etc., were taken in custody vide memo (ExP. 13). The blood stains and its samples were taken in custody from the spot, bed sheet cover and mattress in the shop. The knife found at the spot was also taken in custody. The slab of stone used as stair-case to the shop, being stained with blood was also taken into custody. Two statements of Babulal and Tikain Chand were recorded under Section 161, Criminal Procedure Code on 22.8.1986 in which both of them stated as to the dying declaration alleged to have been made by the deceased to them namely that one Chandra Shekhar inflicted knife injury to him (deceased). There-upon the appellant was arrested on August 29, 1986 and on his disclosures of the information, a bu-shirt stained with blood was recovered. The blood stained cloths and articles recovered at the spot were sent for chemical examination wherein they were found stained with human blood, except the blood on bu-shirt of the appellant. 5. There-upon the appellant was arrested on August 29, 1986 and on his disclosures of the information, a bu-shirt stained with blood was recovered. The blood stained cloths and articles recovered at the spot were sent for chemical examination wherein they were found stained with human blood, except the blood on bu-shirt of the appellant. 5. The appellant and other co-accused, Satish and Ved Prakash were changed with the offence punishable under Section 302, and 302/34, Indian Penal Code, respectively. All of them denied to the charge and claimed trial. Twenty two witnesses were produced by the prosecution in support of its charge. The accused were examined but they did not produce any witness. The trial court after considering the evidence and other material on record, held the appellant guilty and acquitted other two co-accused. The appellant was convicted and sentenced for the offence under Section 302, Indian Penal Code, as indicated above. Hence this appeal. 6. We have heard the learned counsel for the parties, and have perused the entire record. 7. Mr. S.R. Bajwa appearing on behalf of the appellant contended that the conviction of the present appellant is based on the testimony of Tikam Chand (PW 1) and Babulal (PW 2) who are relatives of the deceased-PW 1 being uncle (Chacha) and PW 2 as husband of his fathers sister (Phupha), and no eye witness of the occurrence has been produced by the prosecution, inasmuch as the evidence of PW 1 and PW 2 does not give out ocular account of the occurrence but their evidence is based on the dying declaration alleged to have been made by the deceased to these witnesses when they were allegedly lifting/shifting the deceased from the shop to the hospital in a hand- driven cart. Shri Bajwa added that as per the version of these two witnesses to whom the deceased is alleged to have made dying declaration, the deceased disclosed that Ved Prakash and Satish caught hold of him with arms and the appellant stabbed him. Shri Bajwa added that as per the version of these two witnesses to whom the deceased is alleged to have made dying declaration, the deceased disclosed that Ved Prakash and Satish caught hold of him with arms and the appellant stabbed him. Shri Bajwa has challenged the alleged dying declaration by contending that even as per the prosecution version, on account of sustaining the injuries, huge amount of the oozed blood spreaded over not only in the shop but also it has flown into the drain, and, therefore, in this state of situation of the blood having oozed out excessively and flown into the drain, the deceased could not have been expected or in a position to have made any such alleged dying declaration but in fact, he could have died instantaneously on account of loss of huge amount of the blood being oozed out. Taking the aid of these facts and circumstances of the case, Shri Bajwa urged that the alleged dying declaration is a creation of an after-thought having been concocted as would be evident from the material on record. 8. Shri Bajwa then contended that the occurrence is alleged to have taken place in the market situated in the heart of the Hindaun City where large number of shops having good deal of business transaction in the day light, are situated and where on account of the business transaction, number of customers are expected to be present in the market; but, none of the customers or persons from the gathering of the market-shops have produced by the prosecution. Taking the aid of the aforesaid circumstances, Shri Bajwa then urged that it is a case of lack of independent evidence of independent witnesses and therefore, it is not safe to convict the appellant on the basis of the dying declaration as well as uncorroborated evidence of any of the circumstances. 9. It has also been contended by Shri Bajwa that when a part of the dying declaration has been disbelieved against some of the accused then the same could not have been believed against the appellant. 9. It has also been contended by Shri Bajwa that when a part of the dying declaration has been disbelieved against some of the accused then the same could not have been believed against the appellant. That apart, possibility cannot be ruled out that the deceased could have died immediately after sustaining the alleged injuries as would be emphatically clear from the circumstances, viz that the deceased was lifted from the shop and then put in a hand driven cart (Thela) but no blood has been found on the said Thela inasmuch as there is nothing on record to show that there were blood stains on the earth in between the way of the shop and the hospital where the deceased was taken just after the occurrence. Shri Bajwa urged that if the deceased would have been alive then definitely the blood would have necessarily oozed out either at the Thela or in the way to the hospital, and therefore, absence of the blood on the Thela and stains on the earth of the way to the hospital shows that the injured died at the shop, itself and he was not alive at the time when he was lifted at the Thela. 10. Shri Bajwa further urged that the testimony of PW 1 and PW 2 that the deceased died in the way when he was being taken to the hospital where the doctor declared him (deceased) as pre-dcad, is not acceptable in view of the testimony of the police sepoys who met in the way and had seen the person lying at the Thela.Shri Bajwa also urged that the theory of dying declaration is false also on the ground that Tikam Chand (PW 1) want to the hospital and lodged the report that Mahesh died as a result of the injuries and this report was entered in the Rojnamcha (Ex.P. 29) but in this report (Ex.P. 29) the fact of the dying declaration does not find place. Similarly, the inquest report was prepared in the presence of PW 1 and PW 2 but in that report also (Ex.P. 4) it has nowhere been stated that the deceased had made any dying declaration. 11. Similarly, the inquest report was prepared in the presence of PW 1 and PW 2 but in that report also (Ex.P. 4) it has nowhere been stated that the deceased had made any dying declaration. 11. Next contention urged by Shri Bajwa is that it was the duty of the prosecution to have asked the doctor as to the condition of the injures and could have also obtained an answer in affirmative that even after loss of huge blood being oozed out, the injured could not have died immediately and could be in a position to give any dying declaration. But that has not been done by the prosecution in the case at hand. Shri Bajwa added that as per the version of PW 1 and PW 2, the deceased was taken in the Thela of Ram Khilari (PW 3) but he did not at all state that at the time when the deceased was being lifted in the Thela, he (deceased) was alive. According to Shri Bajwa, when the prosecution has examined Ram Khilari (PW 3) only for this purpose that the witness would depose that the person was alive when he was put in his Thela but, he did not support the prosecution version in this respect, and similarly is the situation of Dinesh Panda (PW 4), Chandra Mohan (PW 5) and Nathilal (PW 6). Taking the aid of these facts and circumstances, Shri Bajwa also urged that the testimony of PWs 1 and 2 stood uncorroborated by any of the witnesses produced by the prosecution. 12. It has also been contended that in the instant case, no motive has been alleged against the appellant for committing murder of Mahesh, and that only evidence produced by the prosecution is that some altercation had taken place in between the deceased and the brother of the appellant but that altercation was not of such a nature which could have enraged the appellant thereby committing murder of Mahesh. Shri Bajwa therefore urged that it is a case where the prosecution has miserably failed to spell motive for the alleged murder, and neither proximate cause nor genesis of occurrence has been supplied. And, in the absence of which, the prosecution case becomes highly doubtful. In this regard, Shri Bajwa referred to the decision of the Supreme Court in State of Bihar v. Mohd. Khursheed 1971 CAR 172 (SC) . And, in the absence of which, the prosecution case becomes highly doubtful. In this regard, Shri Bajwa referred to the decision of the Supreme Court in State of Bihar v. Mohd. Khursheed 1971 CAR 172 (SC) . In this case (supra), their Lordships of the Supreme Court observed that the prosecution has not been able to explain, why the respondent should suddenly take in his head to attack the deceased while he was in the company of three persons, and there must have been some immediate reason why this incident took place. 13. Shri Bajwa then contended that there is evidence on record to show that certain packets of cloths were also found on the shop. This shows that purchase and sale transaction had been going on at the shop so, the presence of other persons cannot be ruled out but, unfortunately, no evidence has been led by the prosecution of independent witnesses. 14. As stated earlier, the prosecution has been claiming that the deceased was taken alive from the place of incident to the hospital but no blood was found either on the Thela or in the way leading to the hospital. And, when the deceased was lifted by PWs 1 and 2 then clothes of these two witnesses would have stained with blood but, this is not the position herein so, in these circumstances also, the testimony of PWs 1 and 2 becomes highly doubtful. 15. This Court in similarly circumstances as of the present case, Mada Singh v. State of Rajasthan and State of Rajasthan v. Banta Singh and others 1985 Cr.L.R. Raj. p. 73 observed that the witnesses stating to physically carry victim from lane to room with bleeding head injury then in the absence of blood stains on clothes of witnesses, their evidence regarding seeing incident is shattered. We totally agree with the contention urged by Shri Bajwa in this regard and hold that the evidence regarding their reaching after the starting of the coagulation of blood or in the alive condition of the deceased stands shattered on account of the absence of the blood stained clothes of the witnesses. 16. Mr. We totally agree with the contention urged by Shri Bajwa in this regard and hold that the evidence regarding their reaching after the starting of the coagulation of blood or in the alive condition of the deceased stands shattered on account of the absence of the blood stained clothes of the witnesses. 16. Mr. Bajwa relying on the decision of Bir Singh v. State of Uttar Pradesh (AIR, 1978 SC 59) urged that admittedly the occurrence took place allegedly in a busy market and that too in the shop of Jagan Mahajan but, neither Jagan-owner of the shop-nor his employee Raman Bohra nor persons present in the disputed shop or from the neighbouring shops has been produced by the prosecution who were material and independent witnesses to spell out the genesis of occurrence, nor any explanation for non-production of these witnesses is forth coming. So, Shri Bajwa urged that the impugned assault is shrouded in mystery. 17. Learned Public Prosecutor and the learned counsel for the Complainant on the other hand contended that the learned trial court was justified in convicting the appellant basing it on the dying declaration and the testimony of PWs 1 and 2 whose version has not been shattered and there is no reason to disbelieve or discard their testimony from any of the circumstances pointed out by the learned counsel for the appellant. The learned counsel for the Complainant urged that it is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record, specially when the evidence of prosecution suffers from no infirmity or incongruity and could be relied upon being corroborative. 18. Having gone through the evidence of PWs 1 and 2 in the light of the contention urged by Shri Bajwa and having given earnest consideration to the contention of the learned counsel for the Complainant as to the application of rule of multiplication of witnesses, we are of the view that the contention of the Complainant is not of any significance in the facts and circumstances of the case pointed out by Shri Bajwa. We may lend support from the decision in Bir Singh v. State of U.P. (supra) and observe that of course it is rule that it is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record but, this rule does not apply where the evidence of the eye witnesses suffers from various infirmities and could be relied upon only if properly corroborated. In the case at hand, neither independent witnesses to support the theory of dying declaration were examined nor any reasonable explanation was given by the prosecution, whereas the circumstances pointed out by the learned counsel for the appellant which we will deal with a little later, render the evidence of PWs 1 and 2 as to the theory of the dying declaration as false and shrouded in mystry, therefore, we have not option but to draw an adverse inference against the prosecution. 19. No doubt, PWs 1 and 2 have been produced to prove the theory of dying declaration alleged to have been made by the deceased to these witnesses. PWs 3 to 6 have been produced to prove that the deceased was in a position to give statement. But, in our view also, they did not support the prosecution version obviously because, they tinned hostile. PW 7 is a Tailor from whose shop the deceased had collected his clothes tailored by him just before the incident. PW 9 is brother of the deceased and he has appeared in witness box to allege the motive but, his evidence is not of any significance because, the altercation alleged by him, if any, might have taken place with the brother of the appellant then the gravity of the altercation in circumstances alleged by him cannot be said to be so serious which could have enrased him to take a drastic step of committing murder of the deceased. From a perusal of the statement of PW 1 it has also come on record that he was informed by one Raman that his nephew (witnesss) (PW l's) was lying injured in the shop of Jagan Mahajan. In these circumstances, Raman was the first person to have informed about the incident to PW 1 and he was also a competent and independent person to have disclosed actual sequence of the incident being ocular witness. But, he has not been produced by the prosecution. In these circumstances, Raman was the first person to have informed about the incident to PW 1 and he was also a competent and independent person to have disclosed actual sequence of the incident being ocular witness. But, he has not been produced by the prosecution. That apart, his presence at the shop was and could not have been doubted being servant of Jagan Mahajan-owner of the shop in question. 20. As stated above, in the facts and circumstances of the case, PW 1 himself went to the police station and made an oral report which has been recorded in the daily diary vide Ex.P. 29. But, upon reading Ex.P. 29, we find that at that time also, PW 1 did not disclose name of the appellant or assailants to the melee in the context of the alleged dying declaration made to him by the deceased. We find that two information's were given to the police and they have been recorded in the daily diary vide Ex.P. 28 and P. 29 but, curiously enough, these information's do not disclose name of the appellant as assailant. His name has been disclosed as assailant for the first time in a report Ex.P. 1 given by PW 1 to the Dy. S.P. who reached the hospital after receiving message recorded in Ex.P. 28 and P. 29 and at that time, in the hospital, Ex.P. 1 was given and asked to lodge in the police station. We fail to understand as to why PW 1 and PW 2 kept themselves silent and why did they fail to disclose name of the appellant as assailant and the fact of oral dying declaration allegedly made by the deceased to them. We further find from the statements of PWs 1 and 2 and according to PW 1, oral dying declaration was made to them in the shop itself whereas as per PW 2, it was made before them outside the shop when the deceased was being lifted and put at the Thela, that there are material inconsistencies in their version which cannot be lost sight of and because of such material inconsistency so also the delayed disclosure of the facts of the oral dying declaration and disclose of name of the appellant as assailant, their testimony smacks of concoction of the theory of the dying declaration and their testimony cannot be worthy of credence. 21. 21. Further, when both the witnesses are closely related to the deceased and as per the statement of Tikam Chand (PW 1), the information by Raman was given to him at about 5 or 5.15 p.m. and just thereafter, he and PW 2, Babulal, reached the shop of Jagan Mahajan and thereafter at 6.20 p.m. Tikam Chand had gone to the police station and given an information (Ex.P. 29) there that Mahesh expired as a result of knife injuries and on this information Laxmikant ASI was directed to proceed to the spot, and (Ex.P. 29)/Ghanshyam Dutta (PW 22) Dy. S.P. proceeded upon Ex.P. 28-telephonic message, to the hospital where he prepared inquest report (Ex.P. 24) Which does not indicate/disclose the fact of dying declaration but which merely states that Mahesh expired as a result of profused bleeding out of injuries, then we are unable to understand that a police officer of a rank of Dy. S.P. could not have enquired about the assailant or the details of the incident. As stated above, in the inquest report; nothing has been mentioned about the name of the assailant and the details of the incident when the same was prepared in the presence of PW 1 and PW 2. Therefore, this is also a significant circumstance to discard the testimony of PWs 1 and 2 as the theory of the alleged dying declaration made to them by the deceased. 22. We must not forget that if the evidence of a witness has no intrinsic worth, such evidence is not be accepted merely because of his disinterestedness and further that, upon re-appreciation of evidence, the dying declaration is found to be incredible and the prosecution witness being interested and inimical, guilt of the accused cannot be held to have been proved and so, is that situation, the answer of the question, whether the prosecution failed to establish that the appellant was the author of the crime, would be in affirmative. 23. In the case at hand, there is no evidence than that of PWs 1 and 2 that the deceased made oral dying declaration to them by saying that two of the accused Ved Prakash and Satish Chartd caught hold of him by arms and Chandrashekhar (appellant) had stabbed him. According to the statements of these two witnesses (PWs. 23. In the case at hand, there is no evidence than that of PWs 1 and 2 that the deceased made oral dying declaration to them by saying that two of the accused Ved Prakash and Satish Chartd caught hold of him by arms and Chandrashekhar (appellant) had stabbed him. According to the statements of these two witnesses (PWs. 1 and 2), a number of persons assembled there at the scene of occurrence but, again, both of them nowhere claimed that they disclosed name of the assailants or the fact of the dying declaration allegedly made by the deceased, (to them. We fail to understand as why name of the assailant and the fact of oral dying declaration has been disclosed by PWs 1 and 2 at a belated stage. In our view, had the fact of oral dying declaration discussing the name of the assailant been in existence, then PWs 1 and 2 would have narrated these facts as to the dying declaration to other persons present in the crowd at the scene of occurrence at an earliest point of time immediately; and to the Dy. S.P. so that Dy. S.P. could have been in a position to state those facts of dying declaration in the inquest report prepared by him. Failure to do so also casts doubt On the theory of the dying declaration, tending to draw inference that it is a figment of imagination. 24. In Thulia Kali v. State of Tamil Nadu (AIR, 1973 SC 501) their Lordships of the Apex Court observed that first information report In a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the Scene of occurrence. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the Scene of occurrence. The delay in lodging the first information report quite often results in embellishment which is a creative of after-thought, and on account of delay, the report hot only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. 25. We find from Ex.P. 29 that information was lodged by PW 1 to the police at 6.20 p.m. but, as stated above, it does not state name of assailant or the fact of dying declaration. Similarly is the situation in inquest report (Ex.P. 4) prepared in the hospital before lodging of the F.I.R. (Ex.P. 1) which was lodged at 7.30 p.m. as would be evident from Ex.P. 4. In these circumstances, the delayed lodging of the information stating the name of the assailant or the dying declaration allegedly made to the witnesses by the deceased, is a creature of afterthought and, therefore, it is unsafe to base conviction upon such evidence. And, an adverse inference should be drawn against the prosecution entitling the accused to get benefit of doubt. 26. There is nothing on record to show that PWs. 1 and 2 were residing at some near distance from the place of occurrence and their presence at the scene of occurrence was a matter of chance. But, both the witnesses stated that they were informed by Raman who has not been produced by the prosecution that Mahesh was lying as injured in the shop. Thus, Raman is said to have informed them at about 5 or 5.10 p.m. and in that situation and in the absence of distance of their residence, it could not be inferred that the witnesses could have reached immediately after receipt of the information from Raman. Thus, Raman is said to have informed them at about 5 or 5.10 p.m. and in that situation and in the absence of distance of their residence, it could not be inferred that the witnesses could have reached immediately after receipt of the information from Raman. Rather it can be inferred that they could have reached after coagulation of blood in huge quantity and atleast they could have reached there, after succumbing of the deceased to the injuries on account of heavy coagulation of blood as a result of the alleged injury. And, thereby, the chances of making any dying declaration by the deceased to these two witnesses were blank nay nil as we infer from the circumstances pointed out above. 27. Learned counsel for the Complainants cited decision of the Apex Court, viz. Suresh v. State of M.P. (1987 (2) SCC P. 32) ; Surajdeo Oza v. State of Bihar (AIR, 1979 SC P. 1505) but having gone through them, we find that these cases pertain to the dying declaration made before the doctor and keeping in view the fit state of health of the deceased before the doctor to state the dying declaration, their Lordships held that there was no doubt about truthfulness of the dying declaration on the facts of the respective cases. But, in the case at hand, as stated above, such are not the things as were in the cited cases (supra). Hence the decisions cited by the learned counsel for the Complainant render no help in the facts and circumstances of the present case.In the instant case, the prosecution has failed to obtain opinion of the doctor that after sustaining of the injuries, the injured could have made oral dying declaration allegedly before the witnesses. But no such opinion seems to have been got. Contrarily, it has come on record that after sustaining injuries large quantity of blood oozed out from the body of the deceased on account of the alleged knife blow resulting in trail of blood not only at the shop staining the mattresses and other clothes kept there, but also upto the ladder of the stair case attached to the shop. Contrarily, it has come on record that after sustaining injuries large quantity of blood oozed out from the body of the deceased on account of the alleged knife blow resulting in trail of blood not only at the shop staining the mattresses and other clothes kept there, but also upto the ladder of the stair case attached to the shop. As would be evident from the site plan prepared during the investigation so also from the photo graphs (Ex.P. 19 to 21) and memos (Ex.P. 15 to 18), the blood oozed out from the deceaseds injuries spreaded over the mattresses, bed sheet covers, floor, ladder of the stair car, and resulted in trail upto the drain below the shops ladder. Thus is can be inferred that large quantity of blood had oozed out from the deceaseds injuries putting him in an unfit state of health to make any dying declaration before anybody else muchless the witnesses (PWs. 1 and 2) who could have been expected at the scene of occurrence after receipt of the information given by one Raman, i.e. much after 5 or 5.15 p.m. or even 5.45 p.m. In our view, taking into consideration the circumstances of trail of blood upto the drain, and other circumstances on record, narrated above, the deceased had died instantaneously immediately after sustaining the injuries otherwise when the deceased was being put in Thela if he was in living condition, then the Thela would have blood stains. But unfortunately, neither Thela was recovered nor any memo was prepared to show that there was blood stain at the Thela. Similarly no blood was found on the earth in the way leading to the hospital. Had there been any chances of the deceased being in living condition, there would have been trail of blood on the earth in the way. Non seizure of the Thela so also blood stained earth or soil of the way leading to the hospital is a strong pointer to the fact that there was no blood in the Thela or the earth. In view of these circumstances also, the chances of the deceased having made any dying declaration to the witnesses (PWs. 1 and 2) in view of his unfit state of health on account of profusedly bleeding and because of his instantaneous death then, were bleak nay nil. 28. In view of these circumstances also, the chances of the deceased having made any dying declaration to the witnesses (PWs. 1 and 2) in view of his unfit state of health on account of profusedly bleeding and because of his instantaneous death then, were bleak nay nil. 28. Further more, symptoms of the injuries found by the doctor while conducting the autopsy of the deceased show that the deceased died long before he was taken to the hospital. Duration of death which was given by the doctor is in between 2 p.m. to 5 p.m. In this state of evidence, the occurrence could have been taken place in between 2 p.m. to 5 p.m. But, it is not the case of prosecution. At best, it can be inferred that the occurrence took place before 5 p.m. Then keeping in view of the nature of injuries, it could not be expected that till the witnesses reached after coagulation of blood, the deceased was a fit state of health to make any dying declaration, after atleast complete one hour. 29. Hamir Singh (PW 17) deposed that on 21.8.86, he was posted at outpost Hindaun and on the direction of Ramswarup Sharma, he alongwith Ranvir Singh proceeded to Sarafa Bazar, Hindaun and in the way he found that on the dump demp road, one man lying at the Thela was being brought by Tikam Chand and other persons to the hospital. According to him at that time, the condition of that person lying at the Thela was serious and he was not speaking. Ranveer Singh (PW 15) belied the statement of Tikam Chand when he stated that when they were going towards Sarafa Bazar, they found a man lying in the Thela being taken to the hospital by Tikani Chand and that Thela was intercepted by them and then he and Hamir Singh (PW 17), both asked Tikam Chand as to what happened, on this, Tikam Chand replied that they had not seen anything and that the people were saying that Ved Prakash Satish and Chandra Shekhar have caused injuries on the person of the deceased. The witness further deposed that Tikam Chand did not inform him as to from whom they got such informations. The witness further deposed that Tikam Chand did not inform him as to from whom they got such informations. From these depositions, it is clear that Tikam Chand was questioned by Ranveer Singh and Hamir Singh as to how they could know that two persons over-powered the deceased and the accused appellant stabbed the deceased. On their question, it was not stated that the information was got by them from the deceased, himself who is alleged to have made oral dying declaration either before PW 1 or PW 2 or before them. Thus, from the statements of PW 15 and 17, the theory of dying declaration is again not only falsified but also concocted. 30. Even according to the alleged dying declaration made orally to PWs 1 and 2, three persons have been named as culprits for the commission of the offence of murder of the deceased but, out of three, two have been acquitted by the trial court, itself, discarding the self-same dying declaration from the evidence on record. However, it is precisely clear that the testimony of PWs 1 and 2 has been totally disbelieved against two persons acquitted by the trial court. So, keeping in view the infirmities in the evidence of PWs 1 and 2 on account of the circumstances pointed out so as to render the theory of oral dying declaration as doubtful, we are of the opinion that third person i.e. the appellant also cannot be convicted on the self same evidence which has been discarded while acquitting co-accused, in the facts and circumstances of the case. 31. Tikam Chand (PW 1) in his statement admitted that report (Ex.P. 1) was got written at the instance of Ram Kishore. So, facts mentioned in the report (Ex.P. 1) were also known to Ram Kishore but, we may observe that he was also not produced by the production despite he being an important witnesses. 32. Dinesh Chand (PW 9) is real brother of the deceased. He deposed that there was no previous animosity with the appellant, whereas Kishorilal (PW 14) deposed that there was dispute of way with the appellants father. But, we find that this fact has not been disclosed by him his police statement. So, his statement on this point is not reliable. 33. He deposed that there was no previous animosity with the appellant, whereas Kishorilal (PW 14) deposed that there was dispute of way with the appellants father. But, we find that this fact has not been disclosed by him his police statement. So, his statement on this point is not reliable. 33. Ram Khilari was present through the period when the deceased was being lifted from the shop in the Thela and taken to the hospital but he has denied to the giving of alleged oral dying declaration by the deceased to any one of them including PWs 1 and 2. 34. However, it seems to us that it is a case of totally lack of motive. The Prosecution has not been able to explain as to what were the circumstances which persuaded the appellant or other co-accused to take a ghastly action of committing murder of the deceased. Had there been any culpable intention of the appellant or co-accused-out of the alleged animosity if any, we fail to understand, why they had choosen the busy market in the heart of the town, that too a shop having presence of the customers, so as to murder Mahesh (the deceased). But, the prosecution has not put forth the genesis and the manner of the occurrence. Thus, no motive can be discerned. There must and would have been some immediate reason why this incident took place. Since we find some doubt as to the origin of the fight then definitely the benefit must go to the appellant (accused). 35. The circumstances in our opinion, as discussed above, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the appellant upon it. 36. It is also not clear as to why the accused should leave knife at the scene of occurrence. We thus find that although the deceased had died a homicidal death, but the prosecution had failed to establish that the appellant was the author of crime. And, on totally of the circumstances here discussed, we are of the opinion that the case of the present appellant cannot be distinguished from the two other acquitted persons and, therefore, the appellant must get the same benefit which others have received. And, on totally of the circumstances here discussed, we are of the opinion that the case of the present appellant cannot be distinguished from the two other acquitted persons and, therefore, the appellant must get the same benefit which others have received. It is not possible to sustain the conviction of the appellant on the evidence adduced. 37. We accordingly accept the appeal, set aside the conviction of the appellant and acquit him. The appellant is in jail. He be released forthwith if not wanted in any other case.Appeal allowed *******