FAKHRUDDIN, J. ( 1 ) APPELLANT Sunder Singh having been convicted for the offence under Section 302 of IPC by the Sessions Judge, Shivpuri has preferred this appeal against his conviction and sentence of life imprisonment. ( 2 ) THE appellant was charged for committing murder of Nepal Singh on 28th November, 1989. Two other persons, namely, Padad Singh and Jaswant Singh were also charged for offence\under Section 302 with the aid of Section 34 of IPC but they have been acquitted by the learned trial Judge. ( 3 ) PROSECUTION story, in brief, is that on 28th November, 1989 while Nepal Singh was irrigating the field from the well, accused persons objected and quarrelled with him. Chatur Singh (PW 8) and Babu Singh (PW 6) pacified the matter and accused persons went to the village. After sometime at about 4 p. m. accused persons came again to the well. One of them, Sunder Singh, accused- appellant had a 12 bore gun. Accused persons started abusing Nepal Singh and when he asked them to stop it, Sunder Singh fired gun which hit Nepal Singh. It is alleged that the incident was witnessed by Nepal Singhs father Raghunath Singh, Lakhan Singh, Shisupal Singh, Keshav Singh and Sobran Singh. Prosecution further alleges that Nepal Singh accompanied by his father Raghunath Singh, Shisupal Singh, Keshav Singh and Sobran Singh reached the Police Station, Amolpatha and there the First Information Report (Ex. P114) was lodged at about 17. 30 hours. The report is recorded by Naresh Chandra Chaturvedi, AS. I. (PW 14 ). Nepal Singh was thereafter sent for medical examination but before lie could reach the hospital, he died. Ex. P/15 is the memo sent by the police and on the said memo itself it has been written that Nepal Singh was brought dead at about 8. 00 p. m. ( 4 ) THE police arrested the accused persons and arrest memo of accused persons Ex. P/19 and Ex. P/20 was prepared. After the usual investigation challan was filed. Accused persons abjured the guilt and contended that they have been falsely implicated. ( 5 ) DURING the trial prosecution relied on eye-witnesses account, First Information Report (Ex. P/14) treating it to be a dying declaration and the circumstances. The learned trial Judge relying mainly on Ext. P/19 and Ex. P/20 was prepared. After the usual investigation challan was filed. Accused persons abjured the guilt and contended that they have been falsely implicated. ( 5 ) DURING the trial prosecution relied on eye-witnesses account, First Information Report (Ex. P/14) treating it to be a dying declaration and the circumstances. The learned trial Judge relying mainly on Ext. P/14 (First Information Report) as also on the ground that the gun has been seized and further mentioning that there are reliable circumstances, convicted the appellant. ( 6 ) SMT. Kusum Sharma, learned Counsel for the appellant assailed the finding of conviction. ( 7 ) SHRI P. D. Agarwal, learned Panel Lawyer for the State on the other hand, supported the judgment of the Court below and contended that Ex. P114 (FIR) can be treated to be a dying declaration since the lodger of the same i. e. Nepal Singh expired. ( 8 ) THE prosecution in this case examined eye-witnesses namely, Keshav Singh (PW 4), Sobran Singh (PW 5), Babu Singh (PW 6) and Chatur Singh (PW 8 ). They have not supported the prosecution version at all. It was contended that none of the witnesses who are said to have accompanied Nepal Singh to the Police Station have stated that deceased Nepal Singh) lodged the report (Ex. P/14 ). In this case the prosecution did not examine Raghunath Singh (father of the deceased), Shisupal Singh and Lakan Singh and no reasonable explanation for non-examination has been given. Keshav Singh (PW 4) who is the real brother of the deceased Nepal Singh h3. s not supported the prosecution version. ( 9 ) THE learned defence Counsel further contended that at the time of lodging of report (Ex. P/14) Nepal Singh was not in a fit and proper condition to lodge the report. He was not conscious. In support of her contention she relied on the statement of Keshav Singh (PW 4) (real brother of the deceased) who has stated in para 5 of his statement that it is he who lodged the report in Police Station. PW 8 Chatur Singh in para 5 of his statement stated that while Nepal Singh was being taken to the Police Station he had died on the way. Learned defence counsel also drew attention of the Court on the evidence of-Dr. PW 8 Chatur Singh in para 5 of his statement stated that while Nepal Singh was being taken to the Police Station he had died on the way. Learned defence counsel also drew attention of the Court on the evidence of-Dr. G. D. Agarwal (PW 1) who has stated in para 6 of his statement that it is possible that within an hour victim might have become unconscious and dead. On the basis of this statement it is argued that the deceased was not in a position to lodge the report. It is no doubt true that the lodger of the First Information Report Nepal Singh being dead, the FIR can certainly be used as dying declaration but it has to be proved by legal and reliable evidence that the person who lodged the report was in a fit and proper condition to make such a report in the instant case, there is no evidence on this point. Medical evidence does not corroborate the prosecution version and raises probability and possibility that within an hour victim might have become unconscious and dead and, thus, support the contention of defence. ( 10 ) TO prove Ex. P/14 (First Information Report) prosecution has examined Naresh Chand (PW 14 ). He is Asstt. Sub Inspector of Police. No other person who had accompanied Nepal Singh has testified that the Nepal Singh lodged the report. Balaram and Another v. State of U. P. , the Supreme Court had an occasion to deal with dying declaration alleged to have been made to Investigating Officer. The Supreme Court observed that Investigating Officers are keenly interested in the fruition of their efforts and though we do not suggest that any assumption can be made against their veracity, it is not prudent to base the conviction on a dying declaration made to an Investigating Officer. ( 11 ) THE conviction in this case has been based on the First Information Report (Ex. P114) which in our opinion is not sustainable in law. The learned trial Judge did not consider the evidence of Dr. G. D. Agarwal (PW 1) contained in para 6. Other circumstances relied upon is seizure of a gun. Seizure witnesses have also not supported the prosecution version and have been declared hostile. It is not proved as to how gun is connected with the offence. The learned trial Judge did not consider the evidence of Dr. G. D. Agarwal (PW 1) contained in para 6. Other circumstances relied upon is seizure of a gun. Seizure witnesses have also not supported the prosecution version and have been declared hostile. It is not proved as to how gun is connected with the offence. Learned trial Judge has casually mentioned in para 16 of the judgment that there are other circumstances but did not specify them. A perusal of the judgment shows that learned trial Judge observed that there is no evidence adduced by defence that on the date of incident the deceased had quarrelled with anybody else. The accused is not required to prove his innocence by adducing such evidence. He is supposed to be innocent unless the prosecution proves the guilt beyond reasonable doubt. ( 12 ) HAVING gone through the entire material on record, we are of the opinion that there is no evidence to sustain the conviction and the accused is entitled to benefit of doubt. The appeal is allowed. The conviction is set-aside, the accused be set at liberty, if not otherwise required in any other case. Appeal allowed. .