Judgment : N. L. Ganguly, J. 1. APPELLANT Murli filed this appeal against the judgment and order dated 19.1.1979 passed by the Sessions Judge, Etawah, convicting the appellant under Section 302, I.P.C. and sentencing to life imprisonment. 2. ORAL F.I.R was lodged at the P. S. Ajeetmal on 25.5.1977 at 3.30 a.m. by Randhir Singh, deceased himself, naming the appellant Murli having assaulted him with firearm. The deceased-informant stated that he was assaulted at the Khalihan situate in village Gokulpur at 9.30 p.m. on 24.5.77. He named the appellant as the assailant having caused firearm injuries to him. He named Sipahi Ram and Ram Autar as witnesses who had seen the assailant in the moonlight assaulting him. The police station is 4 miles from the place of occurrence. The prosecution case is that Randhir, deceased was a resident of the village Gokulpur. Prior to the occurrence, Gur Narayan and Jay Narayan had obtained a sale-deed of some land from Smt. Kaushalya, mausi of the appellant Murli. Next day after the execution of the sale-deed Smt. Kaushalya accompanied by the accused had come to the appellant at his baara. The appellant had told the informant-deceased that on previous date, Rs. 5,00 had been paid less in connection with the sale-deed. There were heated exchanges between the two. 3. ACCORDING to the prosecution, on the date of occurrence, Sipahi Ram, Randhir (deceased) and Ram Autar were lying on the cot in the plot of Cheda Lal. Their Khalihans were also lying there. It was a moonlit night at. 9.30 p.m. they were talking to one another. Then Murli appellant came there armed with a tamancha in his hand. He talked to Randhir, deceased in connection with the sale-deed executed by Smt. Kaushalya and then accused appellant fired a shot at Randhir. After that, Murli appellant escaped. Slpahi Ram and Ram Autar tried to apprehend him but out of fear, they did not move ahead and the appellant had made good his escape. On the alarm raised by the witnesses, Chotey Lal, | Pancham, Padam and many other persons came there. Sipahi Ram, Ram Autar and Randhir told those persons that Murli, appellant ran away after firing at Randhir. Randhir victim was made to lie on his cot and the cot was taken to the police station Ajeetmal. On the alarm raised by the witnesses, Chotey Lal, | Pancham, Padam and many other persons came there. Sipahi Ram, Ram Autar and Randhir told those persons that Murli, appellant ran away after firing at Randhir. Randhir victim was made to lie on his cot and the cot was taken to the police station Ajeetmal. As already stated, F.I.R. was dictated by the victim Randhir himself to the head constable at P. S. Ajeetmal at 4.30 a.m. After registering the case, the victim was sent for medical examination to the District Hospital, Etawah where he was examined and on 27.5.77 Randhir victim succumbed to his injuries in the hospital at Etawah. S. I. Shri Netrapal Singh of P. S. Kotwali prepared the inquest report of the dead body of Randhir and the dead body was sent for post-mortem examination along with the necessary papers through constable. Rais Ahmed, S. I. I/C Ajeetmal was not present at the police station at the time of recording of the F.I.R. He received copy of the F.I.R. and made entries in the general diary at the door of Chaudhari Lal Singh. He after receiving the information, rushed to the police station and there recorded the statement of victim Randhir under Section 161, Cr. P.C. Rais Ahmad, S. I. thereafter recorded the statement of Chhotey Lal and the injured was went to the District Hospital, Etawah, as his condition was quite serious. Thereafter, he recorded the statement of Pancham, Padam, Ramadhar and Ram Gopal. Then he left the police station and arrived village Gokulpur at about 3.30-4.00 a.m. He could not find out the appellant Murli. The other villagers were not available as it was dark. In the morning, Rais Ahmad, S.I. sent to the scene of occurrence, where he met Sipahi Ram, prepared the site plan, recovered blood stained and plain earth from the scene of occurrence and also recovered a pellet from the spot. The appellant was not available. The Sub-Inspector interrogated Sub-Registrar, Tahsil Auraiya and Sri Rajendra Singh on 18.6.77. The appellant was not apprehended. Proceeding under Section 82/83, Cr. P.C. was taken. Thereafter, Murli appellant surrendered before the Court on 17.6.77. 4. IN support of the prosecution case, eye-witness P.W. 1 Sipahi Ram and P.W. Ramadhar were examined. P.W. 2 Dr. Chandra Prakash, who had conducted the post-mortem examination of the deceased, was examined. P.W. 5. Dr. The appellant was not apprehended. Proceeding under Section 82/83, Cr. P.C. was taken. Thereafter, Murli appellant surrendered before the Court on 17.6.77. 4. IN support of the prosecution case, eye-witness P.W. 1 Sipahi Ram and P.W. Ramadhar were examined. P.W. 2 Dr. Chandra Prakash, who had conducted the post-mortem examination of the deceased, was examined. P.W. 5. Dr. S. D. Misra of the District Hospital, Etawah whose injury report showing the injuries on the person of the deceased Randhir, was also examined. P.W. 3 Netrapal Singh proved the inquest report after duly preparing the inquest report. He prepared photo-lash, challan-lash and sent them along with a letter to the Chief Medical Officer. P.W. 6 Rais Ahmad had investigated the case and has submitted the charge-sheet. Constables Daya Ram Misra, Ram Shehi Lal and Ram Rakshpal Singh had filed affidavits as formal witnesses which had been proved and marked as Exts. Ka. 19, Ka. 20 and Ka. 23. Bhola Singh, Constable, Ram Prakash and B. Rai, Firearms Expert have also been examined as court witnesses. There was no defence witness examined in the case. 5. DR. S. D. Misra, P.W. 5, who was on emergency duty on 26.5.77, examined the injuries of Randhir at District Hosptial, Etawah. The injuries found on the body of the victim Randhir are quoted as under : 1. Gunshot wound 2/10 cm. x 2/10 cm. x not probed with inverted lacerated margins with abrasion 2 cm. x 2 cm. on the left side front of chest, 2 cm. away from the left nipple at 9 O'clock position. 2. Gunshot wound of entry 2/10 cm. x 2/10 cm. x not probed with abrasion all round in area of 3 cm. x 4 cm. placed 1 cm. below left nipple. 3. Gunshot wound of entry 2/10 cm. x 2/10 cm. x not probed on the left side front of chest at the level of 10th rib 7 cm. left to mid line with abrasion 2.5 cm. x 3 cm all round. 4 Gunshot wound, of entry 1/2 cm. x 1/2 cm. on the left side 6.5 cm below injury No. 3. 5 Gunshot wound of entry with inverted and lacerated margins 11/2 cm. x 1 cm. on the left joint in the middle. 6 Gunshot wound of entry 2/10 cm. x 2/10 cm. x 3 cm all round. 4 Gunshot wound, of entry 1/2 cm. x 1/2 cm. on the left side 6.5 cm below injury No. 3. 5 Gunshot wound of entry with inverted and lacerated margins 11/2 cm. x 1 cm. on the left joint in the middle. 6 Gunshot wound of entry 2/10 cm. x 2/10 cm. x communicating with wound No. 7 on the back of the root of right thumb base. 7. Gunshot wound of exit 2/10 cm. x 2/10 cm. x communicating with wound No. 6 with overted margins on the inner aspect of thumb in middle. 8 Gunshot wound of entry 4/10 cm. x 4/10 cm. on the middle of right middle finger, radial aspect communicating through and through with. 9. Gunshot wound of exit 2/10 cm. x 2/10 cm. on the outer aspect of the middle of right middle finger. 10. Lacerated wound 3 cm. x 1/5 cm. x skin deep on the back of right middle finger placed horizontally at its base. 11. Three gunshot wounds each 1.5 cm. x 1 cm. communicating with gunshot wound of exit on the radial aspect of forearm in an area of 9 cm x 4 cm. with inverted and lacerated margins. 12. Gunshot wounds of exit three in number on the ulna aspect and front of left forearm each 1 cm. x 1 cm. with lacerated overted margins in an area 11 cm. x 5 cm. 13. Gunshot wound of entry 21/2 cm. x 11/2 cm. x muscle deep on the left thigh front in the middle with direction anterior posteriorly and downwards. In the opinion of the Doctor, the injuries were dangerous and caused with 7 firearms. Their duration was fresh. The general condition of the patient was poor. His pulse was fast and feeble. Blood pressure was unrecordable. X-ray of right hand and left firearm was advised. 6. DR. Chandra Prakash P.W. 2 who was posted at District Hospital, Etawah on 27.5.77 had conducted the post-mortem examination on the dead body of Randhir, deceased at 3.45 p.m. He found the following ante-mortem injuries. 1. Gunshot wound 2/10" x 2/10" x through and through with lacerated and inverted margins on the back and base of right thumb laterally (wound of entry). 2. 1. Gunshot wound 2/10" x 2/10" x through and through with lacerated and inverted margins on the back and base of right thumb laterally (wound of entry). 2. Gunshot wound 3/10" x 3/10" x through and through on the right base of thumb medially with lacerated and overted margins communicating with injury No. 1 (wound of exit). 3 Lacerated wound 1/2" x 2/10" x muscle deep on the right thumb back and medially in the middle. 4 Lacerated wound 1 1/2" x 1/2" muscle deep on the dorsum of right hand between knuckles of index and middle finger obliquely. 5. Gunshot wound 2/10" x 2/10" x muscle deep with abrasion 11/2" x 1/2" around it on left chest 9/10" medial to left nipple with lacerated and inverted margins (wound of entry) one shot recovered from its musculature. 6 Gunshot wound 2/10" x 2/10" x muscle deep with abrasion 21 /2" x 7/10" around it on the left side chest 2 1 /2" below left nipple with lacerated and inverted margins (wound of entry). 7. Gunshot wound 11/2" x 1/2" below and medial to injury No. (6). On exploration subcutaneous tissue, soft tissues and 8th rib were found fractured, on further exploration adjacent pleura and base of left lung were lacerated in an area 3/4" x 1/2". Left chest cavity contained 4 oz. of clotted blood. One shot found embedded in the lung (left). i 8. Gunshot wound 3/10" x 2/10" x cavity deep on the left side abdomen 2 ! 1/2" above left anterior superior iliac spine with abrasion 1/2 x 2/10" area around it. On exploration subcutaneous tissues and muscles were lacerated underneath and one shot found embedded on left iliac crest and recovered. 9. Gunshot wound 2/10" x 2/10" x muscle deep with abrasion 1" x 1/2" area around it on the left thigh in the middle in front aspect with lacerated and inverted margins. One shot embedded in the musculature of left thigh. 10. Gunshot wound 2/10" x 2/10" x muscle deep on the left thigh 3" below injury No. 9. 11. Gunshot wound 3/10" x 3/10" x through and through (with lacerated and inverted margins on the left forearm 4 1/2" above left wrist dorsum aspect (wound of entry). 12. One shot embedded in the musculature of left thigh. 10. Gunshot wound 2/10" x 2/10" x muscle deep on the left thigh 3" below injury No. 9. 11. Gunshot wound 3/10" x 3/10" x through and through (with lacerated and inverted margins on the left forearm 4 1/2" above left wrist dorsum aspect (wound of entry). 12. Gunshot wound 4/10" x 4/10" x through and through on the medial aspect of left forearm 5" below left elbow and communication with injury No. 11 (wound of exit) margins lacerated and overted. 13. Gunshot wound 3/10" x 3/10" x through and through with lacerated and inverted margins on the left forearm dorsum aspect 1 1/2" below injury No. 11 (wound of entry). 14. Gunshot wound 4/10" x 4/10" x through and through with lacerated and overted margins on the left medial and back aspect of forearm 2" below injury No. 12 (wound of exit) communicating with injury No. 13. 15. Gunshot wound 3/10" x 3/10" through and through with lacerated and inverted margins on the left forearm 11/4" below injury No. 13 (wound of entry). 16. Gunshot wound 6/10" x 1/2" through and through with lacerated and overted margins on the left forearm 11/2" lateral to injury No. 14 communicating with injury No. 15. On internal examination, the doctor found the following things : The left lung was lacerated at its base. The heart was full. Abdomen was j distended. The stomach was empty. The intestines contained gases and fecal matter. The bladder was full. Heard Sri S. S. Tiwari, Senior Advocate appearing for the appellant. He assailed the evidence and broadly pointed out that the F.I.R. alleged to have been dictated by the victim himself orally to the head constable at the police station is wholly unbelievable. It was not possible for the victim after receiving such serious injuries of firearm to be in a physical condition to orally dictate the facts and circumstances, as is seen in the F.I.R Sri Tiwari submitted that the eyewitness Sipahi Ram, P.W. 1 also is not a reliable witness. His presence at the spot at the relevant time is unbelievable. The injuries caused to the victim according to the F.I.R and the statement of witness Sipahi Ram P.W. 1 is specific that there have been only one fireshot. His presence at the spot at the relevant time is unbelievable. The injuries caused to the victim according to the F.I.R and the statement of witness Sipahi Ram P.W. 1 is specific that there have been only one fireshot. Sri Tiwari submitted that the perusal of the postmortem examination report and the injury report clearly show that atleast there have been three shots caused on the person of the deceased and the prosecution case that there was only shot is wholly false and unbelievable. He submitted that the size and site of the injuries on the person of the victim are such which clearly show that atleast three fireshots were given which had 3 different type pellets in the cartridges, causing injuries of varying sizes. The prosecution case, as set up of only single shot, is incorrect and false, as the medical report belies and contradicts the oral testimony. P.W. 4 Ram Adhar is not an eye-witness. He had admitted in his statement that he reached after the incident and heard the witnesses saying that appellant had assaulted with firearm at Randhir, deceased. His evidence is res gestae. Sri Tiwari also submitted that the F.I.R. lodged at the police station was belated. The alleged F.I.R, at no stretch, could be treated as a dying declaration of the deceased Randhir. 7. SRI Tewari also pointed out that the alleged statement recorded under Section 161, Cr. P.C. by the Investigating Officer also cannot be treated as a dying declaration of the deceased. The prosecution case, as set up in the F.I.R., is imaginary and not worth reliance. No one would go to ask for payment of Rs. 500 which was not paid at the time of registration of the sale-deed after about 20 days of the execution of the sale-deed and that also at 9.30 p.m. away from the residence of the person. 8. WE would now proceed to examine the evidence of eye-witness Sipahi Ram P.W. 1 first. A perusal of the site plan proved in the case shows that at place A' in the plot where deceased Randhir was sleeping on a cot. 8. WE would now proceed to examine the evidence of eye-witness Sipahi Ram P.W. 1 first. A perusal of the site plan proved in the case shows that at place A' in the plot where deceased Randhir was sleeping on a cot. 'B' and 'C are the places where the witnesses Sipahi Ram and Ram Autar were said to have been lying on their cots which were placed at the distance of three paces on each other.' A' is the place shown in the site plan from where appellant Murli is said to have fired at the deceased which is 5 to 6 paces towards the north of the place where the deceased Randhir was lying. In the statement of Sipahi Ram P.W. 1, he stated that at about 9.30 p.m. in the night, appellant Murli came to the khalihan where the deceased and witnesses Sipahi Ram and Ram Autar were lying on the cots and talking among themselves. Murli appellant came and started talking with Randhir deceased and fired a shot at him which hit Randhir. Witness Sipahi Ram P.W. 1 stated to have tried to apprehend the appellant but due to fear, did not go ahead and the appellant escaped from the place. On hearing the alarm raised by him, Chottey Lal, Pancham and Padam Singh and several other persons arrives at the place of occurrence. It is to be noted that the sale-deed in respect of the plot was got executed some 20 days back of the date of occurrence on which date, the appellant is said to have come at 9.30 p.m. to ask for paying Rs. 500 less paid to the seller. It is highly improbable that a person would come to demand Rs. 500 paid less after 20 days of the sale-deed at 9.30 p.m. at a distant place. WE may assume that the appellant may have an intention to coerce and threatened the deceased so that he may pay the amount to him and in case of refusal, the accused is determined to shoot and kill him. A person may go to ask for payment of money of Rs. 500 from the house of the person where he is going to ask for payment. It is not worth believing that the accused would go to ask for money at 9.30 p.m. when the victim was lying on the cot in his khalihan. A person may go to ask for payment of money of Rs. 500 from the house of the person where he is going to ask for payment. It is not worth believing that the accused would go to ask for money at 9.30 p.m. when the victim was lying on the cot in his khalihan. Nobody goes to sleep in the khalihan with money. Thus, the story, as disclosed, does not appear to be probable. Further in the evidence of P.W. 1 Sipahi Ram, he has stated that the appellant had reached the place and was talking about the sale- deed. He do not say that there was any exchange of hot words or exchange of abuses at that time when the appellant shot at Randhir deceased with his tamancha. The witness says that they were talking and then Randhir was shot by tamancha. In the F.I.R., the version disclosed is that the appellant came armed with tamancha and asked the victim Randhir that Rs. 500 were due to be paid by Guru Narayan in respect of the sale-deed executed by appellant Murli. Why is not being paid". The victim said that full money has been paid to Guru Narayan and you are dishonest and the appellant also in the terms said that you are dishonest and fired at the victim Randhir with his tamancha. In the F.I.R, it was said that the victim received injuries at leg, hand and abdomen and chest. The facts stated in the F.I.R. have not been said by witness Sipahi Ram. Thus, his version is different than what was stated in the F.I.R It is the definite case of the prosecution that only one shot was given by the appellant. Sri Tewari submitted that, as disclosed by the prosecution, Murli had come to the khalihan and was talking with deceased Randhir. One would not talk for payment of money from a long distance. According to the site plan, fireshot was given from a distance of 5 to 6 paces. 5 to 6 paces approximately would be about 15 ft. The shot if given from a distance of 15 ft. would naturally be with sufficient dispersal of pellets. The post-mortem report shows that there were gunshot wounds at Serial Nos. 1, 3, 5, 6, 9 and 10 which were 2/10" x 2/10" x muscle deep. Injury Nos. 5 to 6 paces approximately would be about 15 ft. The shot if given from a distance of 15 ft. would naturally be with sufficient dispersal of pellets. The post-mortem report shows that there were gunshot wounds at Serial Nos. 1, 3, 5, 6, 9 and 10 which were 2/10" x 2/10" x muscle deep. Injury Nos. 8, 11, 13 and 15 are 3/10" x 3/10" x through and through. Injury No. 2 is an wound of exit but injury Nos. 8, 11, 13 and 15 are wounds of entry. Injury No. 12 is 4/10" x 4/10" x through and through, injury No. 16 is 6/10" x 1/2" through and through is the wound of exit of injury No. 15. 9. FROM careful examination of the injuries, it becomes clear that all these injuries could not be possibly caused by a single shot. The record shows that Dr. S. D. Misra had examined the victim on 26.5.77 at 2 a.m. and stated in his examination-in-chief that all the injuries on victim could be caused by one shot. In his cross-examination, he further stated that injuries could have been caused with more than one shot also. j 10. P.W. 2 Dr. Chandra Prakash, who had performed the post-mortem examination of the dead body of Randhir, admitted that injuries could have been caused with more than one shot. He clearly and categorically repudiated the suggestion that all the injuries could not have been caused with one shot. He was recalled for further cross-examination on the request of the accused on 11.5.78. In that statement, he admitted that the injuries 1 to 4 were on the right side, injuries 11 to 16 were on the left hand, injuries 5 to 7 were near the left nipple, injury No. 8 was in the lower portion of the abdomen and injuries Nos. 9 and 10 were in the middle of the left thigh. According to him uprokt choten chot Number 8 ko chhorkar sharir ke bayen our seedhe bhag me 4 alag alag clusters me hain. He then stated that these injuries could not have been caused with one shot. The direction of injury No. 8 from upward to downward, could not have been received if the injured was standing and shot was fired from front side. He then stated that these injuries could not have been caused with one shot. The direction of injury No. 8 from upward to downward, could not have been received if the injured was standing and shot was fired from front side. C.W. 3 Sri B. Rai, who is a Firearm Expert, stated that if only one shot is fired from a country made pistol with S. G. pellets and from a distance of 5-6 paces, the injuries found on the deadbody could have been caused, if all the injuries are within one firing zone. He in his cross-examination further stated that firing zone, we mean dispersal area and admittedly dispersal area depends upon the distance from which shot is fired. He admitted that dispersal area of every country-made pistol is different. 11. SRI Jagdish Tiwari, A.G.A. submitted that all the gunshot injuries on the person of the victim are by one firearm and a single shot. He submitted that it is a country-made pistol. It is also not disputed that no empty cartridge was recovered from the place. There are chances and possibility that a cartridge prepared other than standard cartridge may cause injuries of different sizes. Thus, he submitted that merely the variance of the sizes of the injuries, is no ground to disbelieve the eye-witness and the dying declaration, F.I.R. and the statement of the victim deceased recorded under Section 161, Cr. P.C. by the Investigation Officer. About the direction of injury No. 8 from upward to downward, is explained by SRI Jagdish Tewari in a peculiar manner. He submitted that when the shot was given, the victim appears to have Jumped erect and one leg towards upside and injury No. 8 was caused when his thigh was towards the upper side. We fail to endorse the imagination of SRI Jagdish Tewari, as argued by him. The variance in the statements of Dr. S. D. Misra and Dr. Chandra Prakash, coupled with the fact the statement of SRI V. B. Rai, Firearm Expert, who said that the injuries could have been caused by more than one shot appears to be Just and correct. The learned Sessions Judge was wrong in discarding the evidence of SRI Rai, C.W. 3. 12. S. D. Misra and Dr. Chandra Prakash, coupled with the fact the statement of SRI V. B. Rai, Firearm Expert, who said that the injuries could have been caused by more than one shot appears to be Just and correct. The learned Sessions Judge was wrong in discarding the evidence of SRI Rai, C.W. 3. 12. AFTER examining the post-mortem report, injury report and the statement of the two Doctors and the Firearm Expert, we have no hitch in holding that the injuries were caused by more than one shot and the prosecution version of one single shot appears to be false and unbelievable. We have already discussed and appraised the evidence of Sri Sipahi Ram P.W. 1. According to his statement, when the alarm was raised after the fire was shot at the victim, people of the village arrived after half an hour and they were about 10-15 persons and soon after ten minutes, the victim was carried to the police station on a cot. The victim had not covered himself with any clothe when he was lying. He was wearing a shirt and trousers. A yellow coloured chaddar was beneath his head. There was no other cloth near him. He had not seen whether any blood was fallen on the cot nor he had seen whether blood had stained the trouser and shirt. He stated that his cot was placed to 5 yards away from the cot of the deceased. He also stated that when the Investigation Officer reached in the morning, the cots of the witnesses were lying there. 13. P.W. 6 Sri Rais Ahmad, I.O. in his statement stated that at the spot when he visited, he had not seen any cot lying at the place of occurrence. One important aspect further submitted by Sri S. S. Tewari is that P.W. 1 stated that the deceased was wearing a trouser and a shirt at the time of occurrence. In the inquest memo dated 3.6.77, the deceased Randhir was shown to be wearing a tahmat and a T-shirt. This evidence also is in conflict with the two versions which has come before the Court. 14. THE prosecution case is based on the evidence of dying declaration. THE F.I.R. which is alleged to have been dictated by the victim Randhir at the police station himself and the statement recorded under Section 161, Cr. This evidence also is in conflict with the two versions which has come before the Court. 14. THE prosecution case is based on the evidence of dying declaration. THE F.I.R. which is alleged to have been dictated by the victim Randhir at the police station himself and the statement recorded under Section 161, Cr. P.C. by the Investigation Officer are relied by the prosecution to be important piece of evidence and dying declaration. THE court below after referring to the law about the tests laid by the Supreme Court and this Court about the dying declaration, observed that there is no denying of the fact that the human fact is so constituted as to be inclined to attach a very high important to a dying declaration. He also observed that it is true that accused has no opportunity of cross-examination of the person making the statement to test the correctness of such statement but that alone is not a ground to discard the dying declaration, if it is otherwise found to be genuine and reliable from the facts and attending circumstances. Sri S. S. Tewari, learned counsel for the appellant placed the entire F.I.R. and the statement recorded under Section 161, Cr. P.C. by the Investigation Officer. It is relevant to note that at the time when the F.I.R. was orally dictated to the head constable at the police station by the victim, the Sub-Inspector who investigated the case, was not present at the police station who later on arrived soon after receiving the information and he stated to have recorded the statement of the victim under Section 161, Cr. P.C. We consider it appropriate to reproduce the statement of the victim dictated at the police station as an oral F.I.R. and the statement under Section 161, Cr. P.C. to the Investigating Officer which is quoted as under : "Mera nam Randhir Singh Pita ka nam Ram Sahai Kom Caperia Goan Gokulpw Thana Ajitmal Jila Etawah may rahta hai Aaz karib 9 1/2 baje mai apne khalihan men leta tha aur pas ke khalihan men Sipahi Ram wa Ram Autar wagarah lete the. Rat chandni the ki Murli wald Munshi gram Talepur khalihan me apne hath me tamancha lia hua aaya aur mujshe bola ki turn Guru Narain ka 500 Rupaye jo meri mosi ka banama ke daraj rah gaya the kyon nahi dene de rahe ho. Rat chandni the ki Murli wald Munshi gram Talepur khalihan me apne hath me tamancha lia hua aaya aur mujshe bola ki turn Guru Narain ka 500 Rupaye jo meri mosi ka banama ke daraj rah gaya the kyon nahi dene de rahe ho. Maine kaka ki poora rupya Guru Narain ne de diya hat Turn bemani per utaru ho ki etne me usne yeh kahte hue ki tum he beman ho mere ooper tamancha se fire kar diya jiski choten mere par hath wa pet wa seene me aai hai. Murli ko mere ooper fire karte hua Gawahan Sipahi Ram wa Ram Autar ne chandni ki roshini me dekha hat Mere wa gawahan ke chillane per Murli bhag gaya. Ettale likhkar John ki jai Bayan Parwakar suna theek hai yahi likhai hastakhter banata houn." A close scrutiny of the statement of Section 161, Cr. P.C. and oral version dictated to the head constable as F.I.R shows that it is exactly reproduction word by word what was stated in the F.I.R. THE number of injuries received by the deceased at the time of the incident is already mentioned above. THE injuries received were such and serious that a person if asked to repeat about the facts of the incident, it is not humanly possible to reproduce each and every word verbatim with same "comma" and "full stop", as has been done in the present case. The A.G.A. referred to statement of P.W. 4 Ram Adhar. Sri Jagdish Tewari submitted that his statement is res gestae, soon after the firing by the accused appellant which is a relevant evidence and has sufficient evidentiary value which corroborates the dying declaration of the victim. P.W. 1 Sipahi Ram P.W. 1 stated that witnesses on hearing the alarm, had reached after half an hour and after ten minutes thereafter, the victim was taken to the hospital. Ram Adhar is a witness who came from the village. He was not named in the F.I.R. to be present lying near the victim at the time of occurrence. Thus, the statement of Ram Adhar (P.W. 4) is almost after half an hour of the incident when the assailant would not remain standing so that the witness may see him and his evidence may be utilised as res gestae. Ram Autar named as the witness lying at the time of occurrence, was not examined by the prosecution. 15. Thus, the statement of Ram Adhar (P.W. 4) is almost after half an hour of the incident when the assailant would not remain standing so that the witness may see him and his evidence may be utilised as res gestae. Ram Autar named as the witness lying at the time of occurrence, was not examined by the prosecution. 15. SRI Jagdish Tewari, A.G.A. submitted that it is wholly immaterial that motive of the appellant was not very serious. It was a trivial one that does not mean that the prosecution case be discarded on that court alone. He referred to a decision referred in State of Maharashtra v. Rajendra Garbad Patil, AIR 1994 SC 475 . The Hon'ble Supreme Court was considering an appeal against acquittal against the Judgment of the High Court reversing the judgment of the trial court and the Hon'ble Supreme Court observed as under : "The High Court by giving undue importance to some trivial and insignificant contradictions between the evidence of the witnesses and the version of the dying declaration (declarant) regarding as to whether the knife, namely the weapon of offence was lying on the road for carried away by the respondent or whether the injured was made to walk up to the Anand Guest House or removed on a cycle up to that place, has rejected the dying declaration. These reasons given by the High Court for disbelieving the dying declarations in our considered opinion are very tenuous, flimsy and unacceptable." The authority cited by SRI Jagdish Tewari, A.G.A. is of no help to the prosecution case. In the case, referred the two dying declarations in the said case, was recorded in the presence of the medical officer and that was disbelieved by the High Court in appeal. In the present case, the dying declaration is said to be oral statement made to the head constable of the police station, who wrote it on his dictation and that was treated by the trial court a dying declaration. As we have already discussed that the condition of the victim after so many injuries on his person, was such that it was perhaps not possible to speak in so much detail as was done in the present case and the verbatim reproduction of the same to the Investigating Officer in statement under Section 161, Cr. As we have already discussed that the condition of the victim after so many injuries on his person, was such that it was perhaps not possible to speak in so much detail as was done in the present case and the verbatim reproduction of the same to the Investigating Officer in statement under Section 161, Cr. P.C. is nothing but the copying out of the alleged F.I.R by the I. O. labelling it was the statement of Section 161, Cr. P.C. is not to be believed easily, as suggested by the learned A.G.A. We are taking this view looking into the nature of the injuries, variance of the injuries, dimensions and use of shots whether one shot or three shots creates a reasonable doubt in the prosecution case. The learned A.G.A. also cited another decision reported in Smt Paniben v. State of Gujarat, 1992 Vol II SCJ 509 also reported in AIR 1992 SC 1817 . The Hon'ble Supreme Court in the judgment of Paniben observed as under : "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power of essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, promoting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated." The Hon'ble Supreme Court relied on Munna Raja v. State of U. P., AIR 1976 SC 2119 ; Ranawati Devi v. State of Bihar, AIR 1985 SC 416 ; Ram Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 ; Rashid Beg v. State of Madhya Pradesh etc., AIR 1974 SC 332 , in making the above observations in the judgment of Smt. Paniben v. State of Gujarat's case. The law is settled and the learned A.G.A. has not appreciated the distinction and the law laid down by the Hon'ble Supreme Court in making his submission. It is not only the sole dying declaration. The dying declaration, if tested with the medical evidence which completely contradicts about the manner of shooting and number of shots given by the assailant. If such is the case, the court has to be very cautious and seeks further corroboration to come to a conclusion. We have no doubt that the ocular testimony and the medical evidence is at variance. The motive, as suggested, is very insignificant. The time of occurrence, as alleged by the prosecution for going to the deceased in khalihan for demanding money was not probable and no one would go to khalihan at 9.30 p.m. for asking for payment of money. No one carries money with him when he goes to sleep in his khalihan. The so-called dying declaration is not to be accepted on its face value as it is not a dying declaration by a Magistrate or a person who may be stated without any difficulty. 16. CONSIDERING the facts and circumstances of the case, narrated above, we are of the view that in the present case, the prosecution has not been able to bring home the case against the appellant beyond all reasonable doubts. The submission of the learned A.G.A. Sri Jagdish Tewari that real culprit may not be acquitted on flimsy ground is the law laid down by the Hon'ble Supreme Court. The submission of the learned A.G.A. Sri Jagdish Tewari that real culprit may not be acquitted on flimsy ground is the law laid down by the Hon'ble Supreme Court. We are not allowing the appeal on the flimsy ground. The reasons, facts and circumstances and the legal position, discussed above, clearly show that the prosecution case cannot be explicitly relied and cannot be said to have proved the case against the appellant beyond all reasonable doubts. The benefit of doubt is to be given to the appellant. The appeal is, thus, allowed. The conviction and sentence awarded to the appellant is set aside. The appellant is on bail, his bail bonds are cancelled and sureties are discharged. 17. R. N. Roy, J.- I agree.