JUDGMENT 1. - This appeal is directed against the judgment dated 25-2-93 passed by the Additional Sessions Judge, Sambhar Lake, by which the learned Additional Sessions Judge convicted the appellant for the offence under Section 304 Part II, I.P.C. and sentenced him to undergo six years' rigorous imprisonment and a fine of Rs. 1000 and in default of payment of fine further to undergo-three month's simple imprisonment. 2. Appellant Shankar Lal was tried by the learned Additional Sessions Judge for the offence under Section 302 I.P.C. for committing the murder of Dharmendra Kumar R/o Mojmabad. The case of the prosecution is that on 1-11-91 at about 12.00 in the noon, Dharmendra Kumar was returning from the Jagran. In the way, the shop of one Rajesh Kumar Jain was open and he was doing the white-wash work in his shop. Dharmendra Kumar stayed at the shop of Rajesh Kumar Jain. In the meanwhile, the accused-appellant, also came there and requested Dharmendra Kumar that he will sleep in his house, to which Dharmendra Kumar refused. On the refusal of Dharmendra Kumar and not permitting Shankar Lal to sleep in his house, Shankar Lal felt insulted became angry and started abusing Dharmendra Kumar. Thereafter the accused took out a knife and inflicted two injuries by the knife to Dharmendra Kumar-one on his thigh and the other on his arm-pit. When the appellant inflicted the injuries, PW 5 Rajendra Kumar Jain, PW 6 Rajesh.Kumar Jain and PW 6 Mool Chand were present there, who intervened. Shanker Lal, after inflicting the injuries, went away. Mool Chand went to call the father of Dharmendra Kumar. Uma Shanker the father of Shankar Lal-on being informed by PW 6 Mool Chand, came at the place of the incident, took injured Dharmendra Kumar to the Government Dispensary, Mojmabad where the injured was attended by PW 9 A.R. Farooq the Male Nurse. After giving first-aid, the injured was taken to the house and in the morning, Uma Shanker took the injured to the Government Hospital, Dudu, where he has attended by PW 11 Dr. S.K. Mohanpuria. Dr. S.K. Mohanpuria found two simple injuries by sharp-edged weapon on the person of Dharmendra Kumar. Dharmendra Kumar died on 13-11-91 at 2.00 p.m., due to septicaemic shock brought about as a result of ante-mortem injuries with super-added secondary infection. The autopsy on the corpse of Dharmendra Kumar was performed by PW 8 Dr. S.K. Mohanpuria. Dr. S.K. Mohanpuria found two simple injuries by sharp-edged weapon on the person of Dharmendra Kumar. Dharmendra Kumar died on 13-11-91 at 2.00 p.m., due to septicaemic shock brought about as a result of ante-mortem injuries with super-added secondary infection. The autopsy on the corpse of Dharmendra Kumar was performed by PW 8 Dr. Heera Lal-the Medical Jurist-S.M.S. Hospital, Jaipur, on 14-11-91. The prosecution, in support of its case, examined fourteen witnesses. PW 2 Rajesh Kumar, PW 5 Rajendra Kumar and PW 6 Mool Chand are the eye witnesses to the occurrence but they have not supported the prosecution case during the trial and were declared hostile. This evidence of the eye witnesses was sought to be corroborated by the evidence of the three Motbir witnesses, viz. PW 1 Ashok Kumar, who was the witness to the preparation of the site plan, Panchnama Lash etc.; PW 3 Krishna Lal S/o Govind Lal and PW 4 Krishna Lal S/o Mangu, who are the Motbir witnesses to the arrest of the accused and the recovery of the knife on the information and at the instance of the accused-appellant, vide Ex.P3. These three Motbir witnesses have, also, not supported the prosecution case and were declared hostile. PW 7 Jagdish to whom the knife was handed-over by the accused and from whose custody the knife was recovered, has, also, not supported the prosecution case and was declared hostile. PW 8 Dr. Heera Lal and PW 11 Dr. S.K. Mohanpuria as well as PW 9 A.R. Farooqui are the doctors and the Male Nurse who are connected with giving the medical treatment, conducting the autopsy and providing First Aid to the deceased. PW Uma Shankar is the father of the deceased who was informed by PW 6 Mool Chand regarding the incident whereupon he went to the place of the incident and took the injured to the hospital. PW 12 Ram Gopal Sharma was the Station House Officer, Police Station, Dudu, in whose presence the F.I.R. was lodged; he conducted the investigation and presented the charge-sheet. PW 12 Ram Gopal Sharma was the Station House Officer, Police Station, Dudu, in whose presence the F.I.R. was lodged; he conducted the investigation and presented the charge-sheet. PW 14 Mohammed Ali is the Head Constable/Incharge of the Malkhana of the Police Station concerned, in whose custody the incriminating articles were deposited by PW 12-Ram Gopal Sharma and remained in the same sealed condition since they were deposited in the Malkhana till they were handed over to PW 13 Mohammed Ayyub, Constable, who took these sealed articles and deposited the same for F.S.L. examination in the State Forensic Science Laboratory, Jaipur, and on F.S.L. examination it was found that the knife recovered on the information and at the instance of the accused-appellant was stained with human blood of Group-B, which was the blood-group found on the clothes of the deceased, also. The learned trial Court, after trial, acquitted the accused-appellant of the offence under Section 302 I.P.C. but convicted and sentenced him for the offence under Section 304 Part II, I.P.C., as stated above. It is against this judgment that the appellant has preferred this appeal. 3. The three eye-witnesses produced by the prosecution as well as the Motbir witnesses, produced by the prosecution have not supported the prosecution case and they were declared hostile. Though the evidence of the witnesses, who have been declared hostile and did not support the prosecution case, cannot be completely wiped-off and can be relied-upon provided it is trustworthy and inspires confidence but in the present case nothing turned out from the statements of these witnesses because they have denied to have made any statement before the police. In this view of the matter, the case of the prosecution mainly rests upon the statement of PW 10 Uma Shankar and the dying declaration alleged to have been made by deceased Dharmendra Kumar before this witness as well as the recovery of the knife on the information and at the instance of the accused-appellant which was found containing B-Group of human blood, which was the blood-group of the deceased. The learned trial Court, while convicting and sentencing the appellant, relied-upon (i) the dying declaration made by Dharmendra Kumar before his father PW 10 Uma Shankar; (ii) the statement of PW 9 A.R. Farooqui-the Male Nurse-to whom PW 10 Uma Shankar informed that the injury was inflicted to Dharmendra Kumar by accused-appellant Shankar Lal; (iii) the recovery of the blood-stained knife on the information and at the instance of the accused which was containing B-Group of human blood; and (iv) the medical evidence of PW 8 Dr. Heera Lal who has deposed that the cause of death of deceased Dharmendra Kumar was septicaemic shock brought about as a result of ante-mortem injuries with super-added secondary infection. 4. The question, which requires consideration therefore, is : whether these circumstances, which have been relied-upon by the prosecution and believed by the learned trial Court in convicting and sentencing the accused-appellant are sufficient to establish the guilt of the accused and are conclusive in nature? 5. The first circumstance relied-upon by the learned trial Court is the dying declaration made by deceased Dharmendra Kumar before his father PW 10 Uma Shanker. The principle, on which the dying declaration is admitted in evidence, is based on the legal maxim : "NEMO MORITURUS PROESUMITUR MENTIRIA", -that is, that a man will not meet his maker with a lie in his mouth. The dying declaration can be relied-upon and form the basis for conviction if it is true, voluntary and is not the result of tutoring, prompting or a product of imagination. Whether the alleged dying declaration made by the deceased before PW 10 Uma Shankar answers all these tests which are required to be applied for the acceptance of the dying declaration, is to be seen. PW 10 Uma Shankar lodged the F.I.R. Ex. P 8, which has been written by him. The F.I.R. which is the first version given by the prosecution, does not contain the fact of making dying declaration by Dharmendra Kumar to his father Uma Shankar. At the initial stage, the prosecution never came with the case that any dying declaration was made by Dharmendra Kumar before any person and it is for the first time that the evidence of dying declaration has been introduced. At the initial stage, the prosecution never came with the case that any dying declaration was made by Dharmendra Kumar before any person and it is for the first time that the evidence of dying declaration has been introduced. After careful consideration of the statements of PW 10 Uma Shankar, I am of the opinion that no such dying declaration appears to have been made by deceased Dharmendra Kumar before his father Uma Shankar. If such dying declaration would have been made then alongwith the other facts, it should have found mention in the F.I.R. The evidence of dying declaration, therefore, does not inspire confidence. The learned trial Court was, therefore, not justified in believing this evidence against the accused-appellant. 6. The next evidence, which has been relied upon by the prosecution and believed by the learned trial Court while convicting the appellant is the statement of PW 9 A.R. Farooqui-the Male Nurse-before whom PW 10 Uma Shankar disclosed that Shankar Lal (accused-appellant) inflicted injuries to Dharmendra Kumar by a knife. Uma Shankar was not the eye witness to the occurrence and he reached at the place of the incident after the incident was over. Whatever he has stated to this witness, is hear-say evidence and that cannot form the basis of the conviction of the appellant in itself. This evidence itself is not sufficient to connect the appellant with the crime. 7. The next circumstance relied-upon by the prosecution and believed by the learned trial Court is the recovery of the blood-stained knife which was later on found stained with B-Group of human blood, on the information and at the instance of the accused-appellant. Whether the recovery of the knife from the house of PW 7 Jagdish can be said to be a recovery made under Section 27 of the Indian Evidence Act, and can form the basis of the conviction of the appellant, is to be seen. Whether the recovery of the knife from the house of PW 7 Jagdish can be said to be a recovery made under Section 27 of the Indian Evidence Act, and can form the basis of the conviction of the appellant, is to be seen. Though the witnesses to the recoveries, viz., PW 3 Kishan Lal, PW 4 Kishan Lal S/o Mangu and PW 7 Jagdish have not supported the prosecution case and they have been declared hostile, but even otherwise, as per the prosecution case itself, the accused handed-over the knife to PW 7 Jagdish and gave an information to the Station House Officer PW 12 Ram Gopal Sharma that he kept the knife with Jagdish and it was Jagdish in whose possession the knife was found and who gave it to the police and at the time when the knife was recovered, no blood was found on it. The recovery of the knife, therefore, cannot be said to be made on the information and at the instance of the accused-appellant, and from the possession of the accused. The possession of the knife, at the time of its recovery, was not with the accused-appellant. The learned trial Court was, therefore, not justified to read this evidence against the accused-appellant. This evidence does not connect the appellant with the crime and is not an incriminating circumstance against him. 8. The next evidence believed by the learned trial Court is the evidence of PW 8 Dr. Heera Lal who has opined that the death of the deceased was caused due to septicaemic shock brought about as a result of ante-mortem injuries with super-added secondary infection. The injured was taken to the Government Dispensary, Mojmabad where he was attended-to by A.R. Farooqui and from there he was taken to the Government Hospital, Dudu, where he was attended by PW 11 Dr. S.K. Mohanpuria, who found two incised wound which were simple in nature, on the lumber region and thigh. The cause of death is septicaemic shock. But who had caused these injuries to the deceased is an un-answered question. There is no eye witness to the occurrence and the chain of the circumstances connecting the appellant with the crime has not, also, been established. The circumstances, which have been believed by the learned trial Court, are not sufficient in nature to conclusively establish that the accused-appellant is the perpetrator of the crime. There is no eye witness to the occurrence and the chain of the circumstances connecting the appellant with the crime has not, also, been established. The circumstances, which have been believed by the learned trial Court, are not sufficient in nature to conclusively establish that the accused-appellant is the perpetrator of the crime. The appellant, therefore, deserves to be acquitted, as the prosecution has failed to prove the case against him beyond reasonable manner of doubt. 9. In the result, the appeal, filed by accused-appellant is allowed. The judgment dated 26-2-93, passed by the learned Additional Sessions Judge, Sambhar Lake, convicting and sentencing the accused-appellant for the offence under Section 304 part II, I.PC., is quashed and set-aside and the appellant is acquitted of the offence for which he was charged with, tried and convicted. He is in jail and shall be released forth-with if he is not required in any other case.Appeal Allowed. *******