TEJ SHANKER, J. ( 1 ) THIS appeal against the order of acquittal of accused Pulandar, Puran Singh and Nihal Singh of charges under Section 102/34; I. P. C. passed by Shri B. N. Saxena, the hen Sessions Judge, Bhind, has been preferred by he State. ( 2 ) ACCUSED Nihal Singh is reported to have lied during the pendency of the appeal. Briefly larrated fact of the case are that there was one Ramsingh, deceased, who was a dacoit and who lad surrendered. He had come out of jail a few days prior to the occurrence. On 22. 4. 1980, at about 4. 15 p. m. he along with Pehalwan singh had one to Gohad Bazar. When he was going from Itayali gate, Gohad Bazar, accused Pulandersingh came out from the lane near the shop of Bharoo Panwala, from behind and fired on him, which hit lim on the back and an injury was caused and through, he fall down near the shop of Dr. Sukhlal. Along with Pulendersingh his brothers Nihal Singh and Puran Singh were also there. Pehalwan Singh (P. W. 4) picked up the injured Ramsingh and took him to Gohad Hospital, where his injuries were examined and his dying declaration was recorded. Intimation was given to the police station Gohad in the meantime. Ramsingh died. A case was registered against the appellants and Nihalsingh and usual investigation took place. After completion of the investigation, charge-sheet was submitted against all the three accused persons. ( 3 ) THE learned Sessions Judge in his well reasoned judgment held that the prosecution has not proved its case against the accused persons and consequently they were given benefit of doubt and acquitted. ( 4 ) LEARNED counsel for the State contended that the learned trial Court wrongly discarded the dying declaration and the statements of the witnesses. There is trustworthy dying declaration on record and it itself was sufficient to hold the appellant-accused Pulendersingh guilty of the offence for which he was tried. Learned counsel for the respondent contended that dying declaration is a weak type of evidence and unless the Court comes to the conclusion that it was trustworthy and reliable and can. be acted upon, no conviction can be based on it ( 5 ) WE now proceed to deal with the evidence produced by the prosecution including the dying declaration. Learned counsel for the respondent contended that dying declaration is a weak type of evidence and unless the Court comes to the conclusion that it was trustworthy and reliable and can. be acted upon, no conviction can be based on it ( 5 ) WE now proceed to deal with the evidence produced by the prosecution including the dying declaration. But before dealing with the evidence, it is necessary to mention law relating to dying, declaration. Dying declarations arc admissible under Section 32 (1) of the Evidence Act. Dying declaration is a statement of a person as to cause of his death or as to any of the circumstances of the transaction which resulted in his death. It must be kept in mind that it is not a deposition in Court and is neither made on oath nor in the presence of the accused. It has also not been tested by cross-examination. The Court has to scrutinize the attending circumstances before acting upon the dying declaration. It may be made either to a Magistrate or to a public servant or a private person and may either be oral or in writing. It may be taken in the form of simple narration or in the form of questions and answers, but it must be taken down in the exact words, which the person making it used in order that it may be possible from those words to arrive at a conclusion that it is trustworthy and reliable, i. e. the declaration given by the person is correct and true. It is admissible only when it is proved to be made voluntarily and not as a result of prompting. No absolute rule of law can be laid down in this regard and each case has to be determined on its own facts. It stands on the same footing as any other piece of evidence and has to be established in the alleged surrounding circumstances. If the surrounding circumstances show that the statement could not have been made by the maker, as he was not in a fit state of mind, or was not physically fit to make such a statement, it cannot be relied upon. With this background, we now proceed to deal with the evidence on record. If the surrounding circumstances show that the statement could not have been made by the maker, as he was not in a fit state of mind, or was not physically fit to make such a statement, it cannot be relied upon. With this background, we now proceed to deal with the evidence on record. ( 6 ) IT is significant to mention in the very beginning that the occurrence is alleged to have taken place, according to the prosecution, at Gohad Basar. Ex. P-9 is the site plan prepared by Munnalal (P. W. 14) and it has been shown in the map at point2 that it is a place where investigating officer also found blood. It is relevant, so far as the fact relates to the recovery of blood at this place. Statements of the alleged eye-witnesses also show that the occurrence took place at the crossing pehalwan Singh (P. W. 4) is the nephew of the deceased, and the first informant. The witness Madansingh (P. W. 5) is his real uncle. Visunsingh (P. W. 6) is also related to the deceased Ramsingh, inasmuch as Ramsinghs cousin sister was married to him. Besides these three relation- witnesses, the prosecution has not any other witnesses, because they have not supported its case. The first informant Pehalwansingh has specifically stated in his statement in the Bazar there were shops on both the sides. He also deposed the fire was made in front of the shop of a gold-smith, whose name he did not remember. The shop of Rameshwar was in the same lane. He also said that just in Front of the crossing, there were shops of goldsmiths. It, therefore, clearly goes to show that there must have been shop-keepers and other persons present at the lime of occurrence, because the occurrence is alleged to have taken place at 2. 15 p. m. Not a single independent witness has either been named or examined in the case for the reasons best known to the prosecution. It may also be mentioned here that all the three accused persons are real brothers, as stated by Pehalwansingh himself. 15 p. m. Not a single independent witness has either been named or examined in the case for the reasons best known to the prosecution. It may also be mentioned here that all the three accused persons are real brothers, as stated by Pehalwansingh himself. It is also an admitted pact now that the accused persons are inimical, inasmuch as Pehalwansingh (P. W. 1) deposed that one Gandharva Singh had been murdered earlier, who was the real brother of the accused persons and for that Sardar Singh, Gulab Singh, Harvilas Singh and Ramsingh were convicted. Thus, it is apparent that the accused persons were on inimical terms with the deceased as well as the witnesses who are close relations of the deceased. We are conscious of the fact that the witnesses are relations is not by totally sufficient to discard their testimony, but it puts certainly the Court on guard and cast a duty upon it to scrutinize the evidence with great care and caution. In the present case, as there is admittedly enmity between the parties, the duty is enhanced. If we go through the evidence of all the three witnesses and the circumstances in which the dying declaration is alleged to have been recorded, we find that it is one of those cases in which the doctor, who claims to have recorded the dying declaration also appears to be in league with the witnesses and prosecution side. This conclusion is based upon the circumstances to be mentioned hereinafter. ( 7 ) IN the F. I. R. lodged by Pehalwansingh (Ex. P-A), we find that he has specifically mentioned that Mere Chacha Ram Singh Behosi halat me hai so report karta hun. It therefore clearly shows that when Ramsingh was taken to the Police Station he was in unconscious state. In his statement on oath before the Court, he tried to wringle out from this fact in order to justify that Ramsingh was in a fit state to give a statement at the time of dying declaration. He deposed T1ramsingh Goli lagane ke bad bhi hosh me tha Aur bolte huye haspatal gaya tha. T He appears to have forgotten that he had given a report that he was unconscious. Madansingh (P. W. 5) stated in this regard that Ramsingh continued to speak after the occurrence and he was not perplexed. He deposed T1ramsingh Goli lagane ke bad bhi hosh me tha Aur bolte huye haspatal gaya tha. T He appears to have forgotten that he had given a report that he was unconscious. Madansingh (P. W. 5) stated in this regard that Ramsingh continued to speak after the occurrence and he was not perplexed. He had said to him that he should not be perplexed as he was not going to die. This fact was said before Pehalwansingh and Vishnu. Bisunsingh (P. W. 6) gave another theory, when he deposed that after Ramsingh was hit by fire-arm, he was slightly unconscious. To quote his own words, he said: Goli lagne ke bad Ramsingh thode thode behosh ho gaye the le kin waha raste me Bolte huye gaye the. Now, we peruse the injury report Ex. P-1. We find that when injuredwas taken to the hospital, he was admitted in the emergency bed and a prescription was prepared. Ex. P-2 shows that it was prepared at 4. 30 p. m. on 22. 4. 1980. It is copy of bed-head ticket. It further shows the condition of the patient at that time. The pulse was less, blood-pressure was not recordable, pupils were semidialated but it was mentioned that the patient was conscious. In face of the fact that Pehalwansingh had specifically mentioned in the F. I. R. that he was not conscious, it is difficult to believe that he would have been conscious at the time when the doctor examined him. The conduct of the doctor, who examined him is also not free from suspicion. Dr. M. K. Goyal (P. W. 1) deposed that he admitted the patient in the hospital vide Ex. P-i and prepared his bed -head ticket Ex. P - 2. He recorded the dying declaration Ex. P-3, which was written and signed by him. At that time Ramsingh was in a fit mental condition and had remained in conscious state throughout and yet gave a certificate in this regard in the dying declaration. When he saw Ramsingh for the first time a towel had been tied on his wound. He sent the intimation to the police, but after recording the dying declaration. He untied the towel and after seeing the wound sent the report. He first recorded the dying declaration, as the injured was pulseless. When he saw Ramsingh for the first time a towel had been tied on his wound. He sent the intimation to the police, but after recording the dying declaration. He untied the towel and after seeing the wound sent the report. He first recorded the dying declaration, as the injured was pulseless. It is unconvincing and not becoming of a doctor to have neglected the patient, who was in a precarious condition, inasmuch as the duty of the doctor was to have given first aid to the patient and to have taken due care in order to save his life, but the doctor neglected his duty and recorded the dying declaration initially for the reasons best known to him. We also stated that the treatment is written on Ex. P-2, which was given to Ramsingh before information was sent to the police. Thereafter injection Pathedine was given. The information was sent after recording the dying declaration. The injured was accompanied by 20 to 25 persons, when he was brought to the hospital. In spite of the fact that he has stated that injured was in a fit state of mind to give statement, we find ourselves unable to accept it, as the condition given by him itself shows that he must not have been in a fit state of mind to give the statement. Not only this a perusal of his statement shows he has tried to give mathematical account of the time in order to justify his conduct. Again, in para 18 of his statement he stated that he recorded the bed-head ticket Ex. P-2 in the sequence in which steps had been taken, but when his attention was drawn to the note police informed and the words T1dying declaration recorded, he stated that the recording might have been in the reverse order. Dying declaration Ex. P- 3 shows that the deceased had stated that his enemy Raghunaths son is in force. His, name was Raghunath Pulandersingh. Pulander Singh had fired at him. Police be sent immediately. This statement cannot be accepted because had it been a fact that Ramsingh was in a fit state of mind to give the statement and he was talking throughout the way as stated by the witnesses as mentioned above, he must have told them the name of his assailant, but there is nothing in the statement of the witnesses in this regard. Rather the witnesses have stated that he said that they should not be perplexed as he would not die. This all goes to suggest that the story that he had been talking throughout the Rasta has been cooked up in order to bring on record that he was conscious, though Pehlawansingh had himself mentioned earlier that he was unconscious as said above. Taking into consideration all these facts and the physical state; in which he was examined by the Doctor, we find ourselves unable to place implicit faith upon the dying declaration. It is shrouded in suspicion circumstances. We have already said that the witnesses, who have been examined are none else but the close relations and enimical persons. Though the occurrence is said to have taken place at a busy place i. e. at Gohad Bazar no independent witness is examined. Possibility of the presence of large number of persons at 4. 15 p. m. , when the occurrence is alleged to have taken place, cannot be ruled out. The prosecution has not been able to show as to why an attempt was not made to examine any independent witnesses in the case. Taking into consideration all these facts and circumstances, we agree with the learned trial Court. It was perfectly justified in discarding the dying declaration as well as the oral evidence adduced before it. The learned Sessions Judge has taken great pains in going through the entire evidence on record and has given sound reasons for discarding the evidence. There is no reason to interfere with the findings arrived at by the learned Sessions Judge. ( 8 ) WE, therefore, find no merit in the appeal and confirm the findings of the learned Sessions Judge. The appeal is accordingly dismissed. Appeal dismissed. .