A. R. TIWARI, J. ( 1 ) THE VERDICT of guilt and INCARCERATION for life under S. 302, IPC, recorded by Additional Sessions Judge, Rajgarh (Biora) in Sessions Trial No. 102/90 on 28th Dec. 1991, are under challenge in this appeal presented u/ S. 374 of Criminal Procedure Code. (for Short, 'the Code' ). ( 2 ) TERSELY stated, facts at the trial were that Amarsingh (deceased) and Kalibai (his daughter) were tattooing the morter to brand their house on 5-6-90 at about 12-30 p. m. in village Aamlava. Between the deceased and appellant, there existed an enmity over tamarind tree and bada. The appellant came there armed with a ballam (Art A) and inflicted two injuries on the head of the deceased. The damnable incident was witnessed by the daughter Kalibai (P. W. 4) and the labourer Kesharbai (P. W. 1 ). Certain persons gathered on the spot once the appellant had fled away. Amarsingh, the injured, was taken to the Police Station, Machalpur in a bullock cart by Kalibai accompanied by Ramlal (P. W. 5), Bhagawansingh (P. W. 8) and Madhusingh (P. W. 2 ). On the way, when questioned, Amarsingh stated as dying declaration to Madhusingh (P. W. 2) and Ramlal (P. W. 5) that the appellant had assaulted him by ballam. Without any attempt at dawdling away, Kalibai lodged the First Information Report (Exh. P/2) at 3. 00 P. M. From there, Amarsingh was rushed to the hospital, Machalpur for treatment. There he succumbed to the injuries at 3. 35 p. m. on 5-6-90 itself. The FIR was recorded by ASI Dayachand Verma (P. W. 14 ). The medical report is Ex. P. 11. The autopsy was conducted by Dr. Y. P. Parikh (P. W. 12), who gave Post Mortem Report Ex. P. 13. The reports from Serologist and Chemical Examiner and Forensic Science Laboratory, Sagar are respectively marked as Ex. P. 15 and P. 16. The spot maps drawn by thc Police and Patwari are exhibited as Ex. P. 3 and P. 6. The appellant was arrested on 12-6-90 vide arrest memo Ex. P. 8. The weapon of offence, Ballam (Art. 1) was seized pursuant to information recorded in Ex. P. 9. After completion of usual investigation, the charge-sheet was filed in the Court. The case was committed for trial. P. 3 and P. 6. The appellant was arrested on 12-6-90 vide arrest memo Ex. P. 8. The weapon of offence, Ballam (Art. 1) was seized pursuant to information recorded in Ex. P. 9. After completion of usual investigation, the charge-sheet was filed in the Court. The case was committed for trial. The trial Court framed charge under S. 302, IPC to which the appellant pleaded not guilty. The defence was one of total denial and false implication due to pre-existing enmity. On evaluation of evidence, the learned trial Judge recorded conviction and senttence as above. ( 3 ) AGGRIEVED, the appellant has impugned this judgment. ( 4 ) WE have heard Shri Jaisingh, learned counsel for the appellant and Shri S. S. Swami learned Panel Lawyer for the respondent/ State. ( 5 ) SHRI Jaisingh directed scathing attack against the adverse judgment as under : (A)THE principal witnesses, P. W. 1 Kesharbai and P. W. 4 Kalibai are interested once and leculently enough have perjured themselves. (b) The oral dying declaration, deposed to by P. W. 2 Madhusingh and P. W. 5 Ramlal, is miles away from truth and is manifestation of 'creation' out of 'airy nothings'. The written version of the deceased, as disclosed in paras 8 and 9 of P. W. 5, is suppressed needing drawing of an adverse inference. The decision reported in AIR 1975 SC 1026 : (1975 Cri LJ 870) (Ramkumar Pande v. The State of MP) is pertinent. (c) The inconsistency between ocular and medical evidence introduced fundamental defect and delivers death blow to the case as put forward. ( 6 ) SHRI Swami, on the other hand; supported the judgment and submitted that the (a) Witnesses were natural and truthful (b) the conclusion was on firm foundation not liable to be dislodged (c) Minor inconsistencies could not be blown out of proportion and (d) Contentions of the appellant were nonmeritorious. ( 7 ) AS chronicled above, subvert the verdict, urges the counsel for the appellant. Sustain it, pleads the lawyer for the State. We now proceed to examine the merits of the matter. ( 8 ) THE factual side evidences that the prosecution story began with the lodgement of FIR (Ex. P/2) by Kalibai (P. W. 4), the daughter of the deceased Amarsingh. Sustain it, pleads the lawyer for the State. We now proceed to examine the merits of the matter. ( 8 ) THE factual side evidences that the prosecution story began with the lodgement of FIR (Ex. P/2) by Kalibai (P. W. 4), the daughter of the deceased Amarsingh. The incident was said to have occurred at 12-30 p. m. on 5-6-90 in front of the residential house and the report; as it was made to appear was promptly lodged at 3-00 p. m. at Police Station,. Machalpur, being 6kms. away from the place of incident. It was recorded by Dayachand Verma (P. W. 14), Assistant Sub Inspector, under S. 307, IPC. Later it was altered to S. 302, IPC. Three features of this report are at once noticeable : (A) Ramlal (P. W. 5), Bhagwansingh (P. W. 8), Madhusingh (P. W. 2) etc. accompanied the injured Amarsingh and his daughter Kalibai right up to the Police Station and P. W. 2 and P. W. 5 claimed to have been told about the assault by the appellant, yet this part of the story is conspicuously absent in FIR (Ex. P/2 ). (b) Kalibai (P. W. 4) and Kesharbai (P. W. 1) are named as eye witnesses to the incident. (c) There is no mention as to how Amarsingh sustained other two injuries (Contusions) as noted in Exh. P/13- Post Mortem Report. ( 9 ) WE shall first assess the worth of oral dying declaration allegedly made to PW 2 and PW 5. PW 2 Madhusingh pledged his oath to state that, on being questioned, Amarsingh had told him that Rodu had assaulted with Ballam. This witness is related to the deceased. (para 3 ). His version in Court is at variance with the statement recorded under Section 161 Cr. P. C. (Ex. D/2 ). He claimed to have. been interrogated by the police on the date of incident itself when he had gone to the police station ant denied having made any statement on the next day. The case diary, however, contained only one statement of 6-6-90 (which is unclaimed) and had none of 5-6-90 (which is asserted on oath ). This conundrum thus remained unsolved. The version contained in Ex. D/2 introduced considerable doubt even about the fitness of Amarsing to be able to make any statement. The case diary, however, contained only one statement of 6-6-90 (which is unclaimed) and had none of 5-6-90 (which is asserted on oath ). This conundrum thus remained unsolved. The version contained in Ex. D/2 introduced considerable doubt even about the fitness of Amarsing to be able to make any statement. P. W 5 Ramlal, also a relation, stated more or less on the same line. His statement in Court, when compared with the one (Ex. D / 3) before Police indicates the unnaturalness and embroidery work. We find it apt to form the view that it would be extremely hazardous to place any reliance on the statements of these two witnesses. Few features more listed below are which render their testimony discardable. (A) The contention of dying declaration as deposed to by PW 2 and PW 5, despite their presence at police station, is not corroborated by FIR. (b) Amarsingh is said to be unconscious on the spot (Para 8 of PW 5 ). (c) In the event of fitness, Amarsingh. would have been the natural maker of FIR. No explanation is given as to why Kalibai lodged report. (d) Ex. P/11, medical report, noted that pulse was very feeble and BP was not recordable. (e) The version of dying declaration is not supported even by PW 1 Kesharbai and PW 4 Kalibai. (f) The written version (paras 8 and 9 of PW 5 Ramlal) has been withheld. ( 10 ) IT is most unlikely that Amarsingh was in a fit mental state to state facts as claimed. The trial Court, in para 29, made erroneous assumption about the naturality and reliability of these witnesses. The approach seemed to be palpably perishable. The aforesaid features did not seem to be present in the mind of the learned trial Judge. In AIR 1975 SC 1026 : (1975 Cri LJ 870) - (Ram Kumar Pande v. The State of MP) it is held that-"no doubt, an FIR is previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. " ( 11 ) IN assessment of the worth of dying declaration, when pressed into service, the undernoted circumstances, as indicated in AIR 1976 SC 1994 : (1976 Cri LJ 1548), (K. Ramchandra Reddy. v. The Public Prosecutor) needed to be kept in view -"in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example. Whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and the statement had been made at the earliest opportunity and was not the result of tutoring by intersted parties. " ( 12 ) IN the result, on our scrutiny, we have no hesitation in holding and this part of the story is manifestly meritorious and has been lavishly introduced in an effort to bolster up an otherwise week accusation. ( 13 ) THIS then brings us to the consideration of evidence furnished by PW 1 and PW 4. It is well established by law that reletionship does not make the testimony rejectable but it does demand a more careful and cautious scrutiny. PW 1 Kesharbai, a labourer, stated that she saw the appellant causing injury second time with Ballam. She deposed that she had stated all facts to the police on the date of incident itself but such a statement was not on the record. Her statement is contradicted by Police statement (Ex. D/ 1 ). PW 4 Kalibai, albeit corroborating to some extent. PW 1 Kesharbai was confronted with her earlier statement (Ex. D / 2 ). ( 14 ) APART from the infirmities galore in their statements, delivering dent, almost beyond repair, on the verity,the undernoted portions virtually pull the carpet from below the feet of the prosecution story and debilitate the substratum : p. W. 4 - ''cewves cesjs efhelee mes het? D / 2 ). ( 14 ) APART from the infirmities galore in their statements, delivering dent, almost beyond repair, on the verity,the undernoted portions virtually pull the carpet from below the feet of the prosecution story and debilitate the substratum : p. W. 4 - ''cewves cesjs efhelee mes het? efke?ew?s ueieer Deewj efke?ves ceeje lees cesjs efhelee ves yelee?e efke?eejesheer ves Gvns oes yeuuece ceejs '' (hewje 12)p. W. 1- '' cewves yeeo cew Decejefmebn mes het? Lee efke?egpes efke?ves ceeje leye Decejefmebn ves yelee?e efke?vns jeppet ves yeuuece ceeje'' (hewje 9) p. W. 5 '_eye cew ?ejer hej Dee?e Lee Deewj Decejefmebn ke? Iee?ue oskee Lee Deewj Jeneb hej yengle meer Deewjles Leer lees cewves Gvemes het? Lee efkeb?e?e ngdee? lees Gveves ke?b efke?ces ceeuetce vener Gve Deewjlees cew ke?eeryeefand Deewj kes?jyeefand Yeer Leer (hewje 15)no attempt was made in seeking clarification through re-examination Section 138 of the Evidence Act seems to have been sent on holiday. Now if PW 1 and PW 4 had really witnessed the incident and seen the assailant then it would not be inbred of them to question the injured that way. In 1980 MPWN 185 (DB) (State of M. P. v. Indriya) this Court had observed that "if these witnesses had seen the assailant, they would not have tried to ascertain from their father the name of the assialant. " ( 15 ) IT is thus inutile and futile to accept PW 1 and PW 4 as eye witnesses. And the story about acquisition of knowledge, as above, is simply apocryphal because (a) it was not the version during investigation (d) the fitness of Amarsingh to understand questions and give rational answers is itself in doubt. There is no satisfactory evidence about his consciousness and mental fitness. The story, as unfolded, is guileful. ( 16 ) THERE is yet one more feature which completely destroys the entire warp and woof of the case as was spun. PW 12 Dr. Y. P. Parikh recorded 4 injuries (2 contusions and 2 incised wounds) in his report Ex. P/13 and testified in the Court accordingly. The witnesses are, however, mum about 2 contusions. As to the remaining two incised injuries, this expert witness categorically stated on oath that considering the shape and "size, there two injuries, categorised as incised ones, could not be caused with Ballam. (Art. A ). P/13 and testified in the Court accordingly. The witnesses are, however, mum about 2 contusions. As to the remaining two incised injuries, this expert witness categorically stated on oath that considering the shape and "size, there two injuries, categorised as incised ones, could not be caused with Ballam. (Art. A ). He spoke of Farsi as a possible weapon. No one, however, deposed about infliction of injuries by Farsi. There is thus apparent inconsistency between ocular and medical evidence. In AIR 1975 SC 1727 : (1975 Cri LJ 1500) (Ram Narain (In Crl. Appeal No. 258 / 74); Jaggar Singh v. The State of Punjab) (In Cri Appeal No. 259/74) the Apex Court held that -"where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert. this is most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case, "following the aforesaid decision, their Lordships of the Supreme Court reiterated this principle and position in AIR 1987 SC 826 : (1987 Cri L. J 706) - (Amersingh v. State of Punjab ). ( 17 ) PW 9 Devilal and PW 13 Roduram turned hostile. The evidence furnished by PW 3 Anarsingh, PW 6 Yashwantsingh. PW 7 Balram PW 8 Bhagwansingh, PW 10 Harisingh and PW 11 Banwarilal is inconsequential. PW 14 Dayachand Verma has proved the contradictions but has not said anything about compliance of Section 157 of the Cr. P. C. ( 18 ) NOW if report was recordcd as per Ex. P/2 which contained nature of offence and name of the assailant, then how is it that the case had to be registered under Section 174 Cr. P. C. ? (Para 8 of P W 14 Dayachand Verma ). And there is no explanation, muchless plausible, as to why the arrest of the appellant was delayed for 7 days till 12-6-90 ? The story remains esoteric and darkened, Masquerade is easily discernible. 18a. The 'doubt' thus lingers on the mind and it is indeed 'reasonable'. P. C. ? (Para 8 of P W 14 Dayachand Verma ). And there is no explanation, muchless plausible, as to why the arrest of the appellant was delayed for 7 days till 12-6-90 ? The story remains esoteric and darkened, Masquerade is easily discernible. 18a. The 'doubt' thus lingers on the mind and it is indeed 'reasonable'. In AIR 1990 SC 1459 : (1990 Cri LJ 1510) (Vijayee Singh v. State of U. P.) it is pointed out that at Page 1528; of Cri L. J :-"lt can be argued that the concept of reasonable doubt is vague in nature and the standard of 'burden of proof (contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. The 'reasonable doubt' is one which occurs to a prudent and reasonable man. S. 3 while explaining meaning of the words 'proved', 'disproved' and 'not proved' lays down the 'standard of proof, namely about the existence or non-existence of the circumstances from the point of view of prudent man. The Section is so worded as to provide for two conditions of mind. first, that in which man feels absolutely certain of a fact, in other words, 'believes it to exist' and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances of condition of probability or improbability. It is this degree of certainity to be arrived where the circumstance before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of prudent man the fact is not proved i. e. neither proved nor disproved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of prudent man the fact is not proved i. e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the filed of criminal disputes. It is some thing different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'. " ( 19 ) IT seems that the truth was seen buried under deep debris and a different story was structured perhaps to lug the appellant into trial under the serious offence. It may be visualised that the non-serious dispute over tree and bada, would normally have not furnished a motive for such a serious crime. Be that as it may, the evidence fails to inspire confidence. If an incident did take place at 12. 30 p. m. in the place as asserted, then surely we would expect some independent persons to come and tell the tale. The story nidificated by such material remained unconvincing and needed lifting of vizard. We in this exercise, find the version invertebrate and infirm. ( 20 ) IT is often said that 'fouler the crime, higher the degree of proof'. We have passed through the process of keen examination of the entire material and found compelling reasons, as catelogued above, to disagree with the conclusion reached and recorded by the learned Sessions Judge. The verdict is thus held to be subvertible. The appeal then turns out to be irrecusable. Amercement should then be anaesthetized. ( 21 ) CONSEQUENLTY, we allow this appeal and set aside the conviction and sentence. Accordingly we acquit the appellant and direct that appellant shall be set at liberty at once unless wanted in some other case. Appeal allowed. .