JUDGMENT 1. - The two appellants, namely, Arif Khan and Altar Khan, who are real brothers, were tried in Sessions Case No. 13/ 1993 for the offence under Section 302 of the Indian Penal Code (for short I.P.C.) in connection with the occurrence which is alleged to have taken place in busy Subhash Market of Tonk City at about 9.p.m. on August 27,1992. The learned Judge, Special Court (Communal Riots Cases-cum-Additional Sessions Judge, Tonk vide his Judgment, dated February 4, 1995, convicted both the appellants under Sections 302/34, I.P.C. and sentenced them to suffer imprisonment for life and to pay a fine of Rs. 500/- each. In default of payment of fine to undergo simple imprisonment for one month. 2. The prosecution case, as unfolded at the trial, is that the deceased Akkan alias Rashid-ul-Rehman was born from first wife of his father Abdul Hamik Patwari, who married again after the death of his first wife. From second wife, the appellants and three more sons were born. Thus the deceased and the appellants were step brothers. It is alleged that there was a dispute between them over the joint house, in which they resided. Few months prior to the occurrence, deceased Akkan was assaulted by his step brothers and out of fear, he sent his wife and children to her parents and he himself started living with PW 5 Mujib-ur-Rehman. About the main occurrence, the prosecution case was that PW I Jamil and PW 11 Ahemd Miyan were going on bicycle towards Mehndi-Baqh from Qafla Bazar, Tonk at about 9 p.m. on 27th August, 1992. Near Panchbatti, deceased Akkan crossed them on a bicycle and he was being followed by his four step-brothers on two bicycles. The story goes that in Subhash Bazar, in front of the shop of Shri Kajod Mal Sarraf, all the four step brothers of the deceased Akkan assaulted him with knives. PW 4 Nanhe Khan was also present there at the time. The assailants, then, ran away after assaulting Akkan. Who fell down on the 'Foot-path' in front of the shop with profused bleeding. 3. The prosecution story further goes that about 9.10 p.m. on the same night. PW 4 Nanhe Khan was also present there at the time. The assailants, then, ran away after assaulting Akkan. Who fell down on the 'Foot-path' in front of the shop with profused bleeding. 3. The prosecution story further goes that about 9.10 p.m. on the same night. PW 3 Kishan Singh, Sub-Inspector, Police Station Kotwali, Tonk received a telephonic message at the Police Station to the effect that Akkan was lying in injured condition in Sarrafa Bazar in front of the shop of Kajod Mal Sarraf. On getting this information, Sub-inspector, Kishan Singh, accompanied with A.S.I. - Bhanwar Lal and Constables Bheru Lal and Kailash Chand came to the scene of the occurrence in a ieep and found Akkan lying in injured condition on the 'Foot-path'. The police personnel's then, took injured Akkan to Saadat Hospital, Tonk in a jeep. In the way S.I. Kishan Singh inquired from the injured Akkan about his name, address and the names of his assailants. He is said to have disclosed the names of the appellants as to have assaulted him with knives alongwith their brothers. His dying declaration was recorded in writing which is Ex. P24 on the record. On reaching at the hospital, injured Akkan was made to lie on the bed where he became unconscious and at 9.30 p.m. he succumbed to his injuries. Then, S.1.-Kishan Singh made a written report at the Police Station at 10 p.m. and crime No. 293 / 1992, under Section 302 I.P.C., was registered on the basis of this report. 4. After registration, investigation of the case was made by the S.I.-Kishan Singh himself. He prepared inquest report of the dead body at 9.a.m. on the following day i.e. 28th August, and thereafter the body was handed over for conducting post mortem examination. Site plan Ex. P.7 was also prepared on 28th August. The blood stained clothes of the deceased were seized vide memo Ex. P.6. Blood stained and controlled stone chips were seized from the place of occurrence vide memo Ex. P8. A bicycle was also seized from there vide Ex. P9. The accused-appellant Arif Khan was arrested on 29th August, 1992 vide arrest memo Ex. P10 while accused Altaf was arrested on 3rd September vide arrest memo Ex. P30. Clothes and a pair of chappal were seized from the person of Arif Khan appellant vide memo Ex. P8. A bicycle was also seized from there vide Ex. P9. The accused-appellant Arif Khan was arrested on 29th August, 1992 vide arrest memo Ex. P10 while accused Altaf was arrested on 3rd September vide arrest memo Ex. P30. Clothes and a pair of chappal were seized from the person of Arif Khan appellant vide memo Ex. P1 1 , Then, on his disclosure the weapon of offence i.e. a 'Gupti' was recovered vide memo Ex. P13 on 2nd September. Similarly, on the information of the appellant Altaf a 'Katar' was recovered vide memo Ex. P17. 5. On the same day autopsy on the dead body was conducted by a Medical Board consisting of PW 17-Dr. S.P. Kothari, Dr. P.S. Sharma and Dr. Y.S. Khetan vide post mortem report Ex.P21. The following injuries were found on the dead body : 1. Incised wound -1" x 1h" x peritoneal cavity deep-right side 1" away from the mid line and right side of xiphi- sternum below costal margin. 2. Incised wound -1" 11h" x 3" left side of chest,1'/i"above the xiphisternum. 3. Incised wound - 1" x 11h" x 3" x 1" below the left nipple - horizontally directed. 4. Incised wound cutting the upper 'h of left external ear attached superiourly with tag of skin. 5. Incised wound - 1" x 1/2 x muscle deep dorsam of left hand on radial aspect. 6. Incised wound - 1" x 1/2" x muscle deep - based of the thumb of left hand - 1" lateral to the Injury No. 5. 7. Linear abrasion -6" long left scapular region on back. 8. Incised wound I" x 1/2" x Muscle deep root of the nose. The cause of his death, as stated by the Medical Board, was hemorrhage due to excessive bleeding from the injuries. 6. After investigation, a charge-sheet was laid against the appellants in the Court of Chief Judicial Magistrate, Tonk. Against remaining accused, investigation was kept pending under Section 173(8) of the Code of Criminal Procedure. As the case was exclusively triable by the Court of Sessions, the same was committed to that Court and from there it was made over for trial to the Special Court (Communal Riots Cases)Cum-Additional Sessions Judge. 7. At the trial prosecution examined 20 witnesses to seek conviction of the appellants. The plea of the accused, in their statements under Section 313, Cr.P.C. was of denial. 7. At the trial prosecution examined 20 witnesses to seek conviction of the appellants. The plea of the accused, in their statements under Section 313, Cr.P.C. was of denial. No witness was examined in defence. The learned Trial Court after completing trial, convicted and sentenced the appellants as aforesaid. 8. Before we deal with the various submissions made by Mr. Bajwa, the learned Counsel appearing for the appellants. We would like to narrate the nature of evidence led by the prosecution to bring home the guilt of the appellants. The evidence mainly, consists as under : (i) statements of the eye-witnesses namely, Shri Jamil PW 1 Shri Nanhe Khan, PW 4 and Shri Ahmed Miyan PW 11; (ii) dying declaration made by the deceased to police persons when he was being shifted to the hospital in a jeep; (iii) recovery of the weapons of offence, blood stained clothes of the accused and the medical evidence. 9. At the outset, we would like to point out that several important circumstances have not been properly taken into consideration by the Trial Court which had serious bearing on decision of the case and it has resulted in serious miscarriage of justice calling for interference from this Court. The first disturbing feature of this case is that investigation of the case has been made by SI Kishan Singh, who himself is the informant or complainant who lodged the FIR for taking action against the appellants. Not only this, he is also an important witness to prove dying declaration of the deceased. It is difficult to understand how in such circumstances, he could undertake investigation of the case. Ordinarily, the complainant or the informant should not investigate a crime for the obvious reasons behind it. Investigation in a criminal case is a most important aspect. It lays down foundation of the structure of a criminal case and as such, it should be free from all sort of concoction and embellishment. A fair and un-blemished investigation is the first requirement in a criminal case. If investigation is found tainted for any reason, it would be a serious infirmity which is bound to reflect on the probative value and credibility of the prosecution case. 10. In this back-ground, we now proceed to examine the direct evidence of the so-called eyewitnesses of the incident. If investigation is found tainted for any reason, it would be a serious infirmity which is bound to reflect on the probative value and credibility of the prosecution case. 10. In this back-ground, we now proceed to examine the direct evidence of the so-called eyewitnesses of the incident. The two eye-witnesses namely, PW 4 Nanhe Khan and PW 11 Ahmed Miyan have not supported the prosecution version to have seen the assailants inflicting injuries to the deceased. Their evidence does not implicate the appellants. Then remains the sole testimony of PW 1 Jamil, who also claims himself to bean eye-witness. However, looking to his previous statement before the police (Ex.D-2) recorded during investigation, his statement in Trial Court that he saw the appellants inflicting knife blows to the deceased alongwith their other brothers does not appear to be worthy of any credence. In his police statement, he has not stated to have seen the appellants inflicting knife blows to the deceased alongwith their brothers. Then, as per own showing of the witness his presence at the scene and time of occurrence was per chance. Further, his abnormal and unnatural behaviour at the time and after the incident also creates strong suspicion on his presence at the scene of occurrence to witness the incident. According to the witness, he knew the deceased from his childhood but still he did not offer him any help either at the time of incident or after the assailants had gone away. No efforts were made by him to save his life even though he was alive after incident. He did not even intimate to his parents. He also did not go to the hospital to enquire about his welfare or condition. He did not go to tell the police that he had witnessed the incident. On going through his statement critically and taking into consideration the various improbabilities and infirmities as pointed out by Shri Bajwa. We are satisfied and agree with Mr. Bajwa that this witness was not likely to be present at the scene of occurrence at the time of the incident and he was finally introduced as an eve-witness by the investigating agency. We, therefore, exclude his testimony from consideration.' 11. We are satisfied and agree with Mr. Bajwa that this witness was not likely to be present at the scene of occurrence at the time of the incident and he was finally introduced as an eve-witness by the investigating agency. We, therefore, exclude his testimony from consideration.' 11. Having come to the conclusion that PW 1 Jamil has been falsely introduced as an eye- witness and the fact that investigation of the case was made by the informant i.e. S.I.-Kishan Singh himself, the remaining evidence of oral dying declaration requires a close scrutiny with more care and caution. The prosecution has strongly relied upon the statement /dying declaration of the deceased alleged to have been made to the police persons and reduced in writing as Ex.P. 24. The statement/dying declaration Ex.P. 24 is not signed by the declarant or the witnesses before whom it was made. A perusal of Ex.P. 24 also shows that.it was prepared in the hospital and there is over writing in time mentioned in it. To prove this dying declaration prosecution has relied on the evidence of ASI Bhanwar Lal (PW 2) S.I.-Kishan Singh (PW 3) and Constables Bheru Lal and Kailash Chand (PW 16 and 19). On critical examination of their testimony, we find serious contradictions and inconsistencies - in their statements on all material facts including as to whether the dying declaration Ex. P.24 was written or not - if written, then where and by whom? 12. As per the evidence of ASI - Bhanwar Lal (PW 2) he reached at the scene of occurrence alongwith S.1.-Kishan Singh and two Con stables, Bheru Lal and Kailash Chand on getting telephonic message that one person was lying injured in Subhash Bazar. The injured was shifted to the hospital in a jeep by them and in the way on asking by S.L-Kishan Singh, he named the appellants and their 4-5 brothers to have assaulted him with knife blows. That the injured breathed his last after some time on reaching at the hospital. This witness did not state a single word that dying declaration (Ex.P. 24) was made and written before him. Contrary to it. S.I.- Kishan Singh (PW 3) has deposed that the injured Akkan alias Rashidul-Rehman, while being shifted to the hospital in a jeep, named Arif appellant and one Arif and their 4-5 brothers to have assaulted him with knives. This witness did not state a single word that dying declaration (Ex.P. 24) was made and written before him. Contrary to it. S.I.- Kishan Singh (PW 3) has deposed that the injured Akkan alias Rashidul-Rehman, while being shifted to the hospital in a jeep, named Arif appellant and one Arif and their 4-5 brothers to have assaulted him with knives. He further stated that the statement of injured Akkan was re- corded by him in writing and he died when he was made to lie on a bed soon after reaching at the hospital. Thus, according to this witness, he did not name the appellant-Altaf as an assailant. Then, according to him, the declaration/ statement made by the deceased was recorded by him in writing. Another significant aspect of his statement is that in examination-in-chief no attempt was made to prove dying declaration (Ex. P.24). In cross examination, he came out with the case that the statement/declaration (Ex. P.24) was made by the deceased in the jeep when he was being shifted to the hospital. The witness was specific that dying declaration /statement (Ex. P.24) was written by him in the jeep and that soon after the statement was made he (deceased) become unconscious. He then, changed his version and stated that Ex.P. 24 was not in his hand writing, but it was written by the Constable Kailash and he put his signature at Portions A to B in the hospital. He also admitted that he made incorrect statement in examination-in-chief that the dying declaration was written by him. PW 10-Kailash Chand, on the other hand, denied to have written the dying declaration (Ex. P.24). In examination-in-chief, this witness was not put any question by the prosecutor about Ex.P.24. In cross-examination, he stated that S.1.-Kishan Singh wrote dying declaration Ex. P.24 in the jeep itself and it was over before reaching to the hospital. He denied the statement to be in 18-20 lines. PW 16 Constable Bheru Lal also did not state in examination-in-chief that Ex.P. 24 was written in his presence. In cross-examination, he deposed that in jeep itself Sub Inspector Kishan Singh was putting questions to Akkan and writing his statement on a paper which was in 18 lines, while Ex. P.24 is in three lines only. 13. On a critical analysis, we find that prosecution evidence is divergent and conflicting about the dying declaration (Ex. In cross-examination, he deposed that in jeep itself Sub Inspector Kishan Singh was putting questions to Akkan and writing his statement on a paper which was in 18 lines, while Ex. P.24 is in three lines only. 13. On a critical analysis, we find that prosecution evidence is divergent and conflicting about the dying declaration (Ex. P.24) as to where it was written and by whom ? A perusal of Ex. P.24 shows that it was written in the hospital, while the witnesses have made a different statement and according to them, it was written in the running jeep. Then, the prosecution has failed to explain precisely as to by whom Ex.P. 24 was written, as according to S.I.-Kishan Singh it was written by Constable Kishan Lal, but Kishan Lal has expressly denied this fact and according to him it was written by S.I.-Kishan Singh. Taking into consideration the facts and the conflicting evidence, we have serious doubt that dying declaration /statement Ex. P.24 was infact made by the deceased. It is also doubtful that the declarant was in a fit condition to make a statement Ex. P.24 does not contain signatures or thumb impressions of the declarant and the witnesses. As per evidence on record, the declarant was lying unconscious at the place of incident when he was taken to the hospital in a jeep and he had become unconscious soon after giving statement Ex. P.24. Thus, according to the prosecution, he gained consciousness only to make the statement which is not believable in the presence of highly conflicting evidence. The evidence of prosecution witnesses in the Trial Court that dying declaration Ex. P.24 was written in running jeep appears to be absurd on its face value as there was neither any light in the jeep nor Ex. P.24 could be written in a running jeep. After our deep consideration, we are unable to place any reliance on the dying declaration Ex. P.24. 14. We may also state here that the law on dying declaration is well settled by now. P.24 could be written in a running jeep. After our deep consideration, we are unable to place any reliance on the dying declaration Ex. P.24. 14. We may also state here that the law on dying declaration is well settled by now. The general rule of the Evidence Act is to exclude 'hear-say' evidence but, Section 32 of the Act embodies exceptions to the 'hear-say rule' and one of them is a statement made by the deceased as to the cause of his death or to any circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes into question. It is because great solemnity and sensitivity is attached to the words of it dying man as a person on the verge of his death is not likely to tell a lie so as to implicate an innocent person. Such statements not being on oath so that their truth could be testified by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statements before acting upon them. The Court, therefore, has to be on guard against the statement of the deceased being the result of either tutoring, prompting or a product of his own imagination. The Court must also be satisfied that the deceased was in a fit state of mind to make the statement and that he had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancor. It goes without saying that the circumstances in which a dying declaration is made and the nature of its con tents are very strong grounds in determining the weight to be attached to a dying declaration. 15. Another serious infirmity in the prosecution case is that the Investigating Officer did not make any effort to record statements of the witnesses of the locality who had seen the occurrence. Admittedly, the incident took place in a busy market of the city and the prosecution has also come with their case that 50 persons or so were there to witness the incident It was a failure on the part of the Investigating Agency that no eye-witness of the locality was examined to prove the guilt of the accused and this fact cannot be lost sight while judging the totality of the circumstances. 16. 16. The up-shot of the above discussion is that the prosecution has miserably failed to prove the guilt against the appellants. Consequently, the appeal deserves to be allowed and it is hereby allowed. Conviction and sentence of the appellants under Sections 302/34, IPC is set aside. They are acquitted of the charge. The are in jail and shall be released forthwith if not required in any other case.Appeal allowed. *******