K. J. VAIDYA, J. ( 1 ) VALABHAI Malabhai and three others by this appeal have challenged the impugned judgment and order dated 22-7- 1994 rendered in Sessions Case No. 32/94 by the learned Additional Sessions Judge. Bhavnagar, wherein on their coming to be tried for the alleged offences punishable under Section 302 read with Section 34 of ipc at the end of the trial, were ordered to be convicted for the same and sentenced to undergo RI for life and to pay a fine of Rs. 500/- each. ( 2 ) TO briefly narrate the prosecution case, the incident in question, wherein bhikhu Bijal came to be poisoned to death by Valabhai Malabhai and his three brothers namely Bhankabhai, Rupabhai and balabhai, took place on 27-11-1993 at about 5-00 p. m. in the Sim of village dungarni Rajasthali (Palitana ). The prosecution case gets unfolded from the evidence of PW-4 Abhram Bijal who happens to be brother of the deceased Bhikhu Bijal. According to him, the appellants-accused were his distant relatives. On the date of the incident, all the accused persons had come to his house alleging that the nosering of Lakhuben was allegedly stolen by bhikhu Bijal. This was denied and accused were told that Bhikhu was innocent and that he had not committed any theft. Thereafter, the accused persons went away threatening that they will be filing a police case against Bhikhu. Once again at about 1-00 p. m. all the four accused persons came to his house to take Bhikhu with them which was objected to PW-4. At this stage, that accused persons assuring him stated that after all they were relatives and were taking Bhikhu only with a view to pursuade him. Thereafter till 5-00 p. m. Bhikhu did not return home and in the meantime, PW- 4 went to the school in search of the cows. At that time, he saw his brother-Bhikhu coming stumbling from the opposite direction, whereupon he rushed and caught hold of him. On making inquiry as to what had happened to him Bhikhu stated that "aaropioe Bal-Jabrithi Dava Pivravi Didhi chhe" meaning thereby the accused persons have forcibly made him drink some medicine. At that time, smell of some medicine was coming out from the mouth of bhikhu. On making inquiry as to what had happened to him Bhikhu stated that "aaropioe Bal-Jabrithi Dava Pivravi Didhi chhe" meaning thereby the accused persons have forcibly made him drink some medicine. At that time, smell of some medicine was coming out from the mouth of bhikhu. On making further inquiry as to where the medicine was given to him, bhikhu could not utter a word further as he started vomitting and became unconscious. Thereafter, PW-4 took Bhikhu to his house and therefrom to Sir Mansinhji Hospital, palitana, where PW-2 Dr. V. P. Boricha examined him (Bhikhu) at 15-15 hours. According to this Doctor, Bhikhu was brought to him by his family members at 5-15 p. m. and on examining him, he was found to be unconscious smell of poison was coming from his mouth, his pupils were moving round, respiration has decreased, etc. Looking to the serious condition of Bhikhu, he advised the attending relatives to take him to some other hospital for the treatment and simultaneously also informed the police about the incident. This information was taken down by PW-9 nanu Kalu, Head Constable, Palitana town Police Station, who entered the same in the Station Diary, which is produced at ex. 41. The medical certificate in this regard was also issued by the said Doctor. Accordingly, Bhikhu was taken to PW-1 mo Vithalbhai Premjibhai, Sir T. Hospital, bhavnagar. While on way to it, Bhikhu expired. Thereafter, PW-10 R. B. Zala, duty Head Constable at Sir T. Hospital recorded the FIR (Ex-32) as given by PW- 4. On the basis of this information, after the investigation was over, the appellant- accused came to be charge-sheeted for the aforesaid alleged offences to stand trial before the Sessions Court at Bhavnagar. ( 3 ) AT trial, the appellants pleaded not guilty and claimed to be tried. The defence of the appellants was that of total denial. ( 4 ) THE Trial Court relying upon the oral dying declaration made by Bhikhu Bijal before his brother PW-4 Abhram Bijal and fsl Report (Ex-39) showing poison in the nails of the accused persons, convicted and sentenced all of them as stated hereinabove in para-1 of this judgment, giving rise to the present appeal. ( 5 ) HEARD Mr. A. D. Shah, the learned advocate appearing for the appellants and mr. M. A. Bukhari, the learned APP appearing for the State. ( 5 ) HEARD Mr. A. D. Shah, the learned advocate appearing for the appellants and mr. M. A. Bukhari, the learned APP appearing for the State. ( 6 ) ON going through the record, it is so very clear that the fate of the prosecution case, ultimately hinges upon the slender, doubtful oral dying declaration made by bhikhu Bijal before his brother PW-4 abhram Bijal and the FSL Report (Ex-39) showing detection of phosphamidon dimecron, which is a poison found from the nails of four appellant-accused. It may be stated at this stage without any hesitation that there is no law as such where the court cannot accept and act upon the oral dying declaration for recording the order of conviction. In fact, if the oral dying declaration appears to have been made before a witnesses of an unimpeachable credibility, and accordingly, found to be trustworthy, dependable enough then in that case, the same can be safely acted upon without any corroboration, though in a given case, it is always left to the just discretion of the Trial court whether by way of abundant caution and prudence should it insist upon some independent corroboration forthcoming on the record. Of course, it is quite true that before placing the implicit reliance upon the oral dying declaration as coming from a person of an unimpeachably credibility, prudence requires it to be also tested by the attending facts and circumstances of the case. In the instant case, we are not inclined to accept the dying declaration of Bhikhu bijal not merely because it is oral and that too before his own brother PW-4 Abhram bijal, but then what prompts us to reject the same is the attending circumstances which clearly throw thick cloud of suspicion around the said dying declaration. In this view of the matter, it is indeed necessary to highlight and give catalogue of those circumstances one by one which create grave doubt about the genuineness and truthfulness of the said oral dying declaration, they are :- (1) It clearly appears from the cross-examination of PW-2 Dr. Boricha that when Bhikhu was brought to him, the history given by the relatives was that he (Bhikhu) had taken medicine. This information as it is, was precisely passed on to the police station, accordingly, (2) Ex. 28 which is an entry at Sr. Boricha that when Bhikhu was brought to him, the history given by the relatives was that he (Bhikhu) had taken medicine. This information as it is, was precisely passed on to the police station, accordingly, (2) Ex. 28 which is an entry at Sr. No. 9 in the Police station diary recorded by PW-9 Nanu Kalu also reveals that Bhikhu had drunk some medicine and was brought for treatment in mansinhji Hospital and that his condition was serious. It is required to be specifically noted here that neither PW-2 Dr. Boricha nor PW-9 Head Constable Nanu Kalu have been declared hostile or in any other way it is suggested even to them that entry made in Police station diary was false. In fact, there is nothing on the record to suggest that either PW-2 Dr. Boricha and/or for that purpose PW-9 H. C. Nanu Kalu had any axe to grind to give false evidence before the Court in favour of the accused or against the prosecution case !! (3) In this regard, PW-4 Abhram Bijal has also admitted that when he carried his brother Bhikhu bijal to Shri Mansinhji Hospital, Palitana. Dr. Boricha made some inquiries, he was present, but it was Oghadbhai (not examined) had replied. Not only that, but PW-4 has also further admitted that it was oghadbhai only who had passed on the imformation at Bhavnagar Hospital and also at the time of making the Inquest report. This earliest version before PW-2 dr. Boricha at Palitana, which is reflected in the contemporaneous police record (Ex-28) taken down by PW-9 Nanubhai kalubhai clearly belies the case of PW-4 regarding the alleged oral dying declaration made by Bijal before him because if at the relevant point of time when Oghad gave a statement, if PW-4 was very much present alongwith him, then in that case, PW-4 would have immediately objected to oghadbhai (not examined) merely stating that Bhikhu had drunk some medicine. In order to prove that Oghad has not stated before PW-2 Dr. Boricha that Bhikhu has taken the medicine and that the evidence given by him and PW-9 Nanubhai Kalubhai is false, both these witnesses, in the first instance, ought to have been declared hostile and in the second instance, the prosecution further ought to have taken care to examine Oghad. But the fact remains that oghadbhai is not examined. Boricha that Bhikhu has taken the medicine and that the evidence given by him and PW-9 Nanubhai Kalubhai is false, both these witnesses, in the first instance, ought to have been declared hostile and in the second instance, the prosecution further ought to have taken care to examine Oghad. But the fact remains that oghadbhai is not examined. We do not know as perhaps in some such case a person may be right but then Ogad should have been examined before the Court if the prosecution was keen to accept its case as deposed to by PW-4 Abhram. Under the circumstances, in absence of Ogad being examined by the prosecution, it is indeed not possible to accept the evidence of PW- 4 Abhram Bijal as a witness of sterling quality, worthy of any credence to be acted upon for the purpose of recording the order of conviction and sentence and that too under Section 302 of IPC and further that too against four persons to be sentenced to ri for life. Thus, having regard to the attending facts and circumstances of the case, since the evidence of PW-4 having been rendered doubtful, rather proved to be false, it is indeed not possible to sustain the order of conviction and sentence passed against four accused persons by the Trial court. ( 7 ) APART the unreliable oral dying declaration, the prosection case is even otherwise suffering from a patent vice of improbability and the dishonest investigation !! There is indeed nothing in the evidence to show as to out of four accused persons who actually administered the poison to Bhikhu bijal. Not only that but still further look at the farcicle investigation of the police wherein it collected nails of all the four acoused persons, after two days, which quite surprisingly as FSL report reveals contained the poison who on the earth is to believe such cooked up story ! As per the evidence of the Doctor, poison would not have been there any more as the hands having been often washed in the meantime. Finding of poison in the nails of all the four accused persons is such a cock and bull unpellatable story which can ever be accepted by anyone. Despite this fact, the fact remains that such a story was dished out by the investigating agency and quite surprizingly also accepted by the Trial court ! Finding of poison in the nails of all the four accused persons is such a cock and bull unpellatable story which can ever be accepted by anyone. Despite this fact, the fact remains that such a story was dished out by the investigating agency and quite surprizingly also accepted by the Trial court ! We cannot be a party to such a story in accepting it. Further, on the next day of the incident, i. e. on 28th when panchnama was made no nails were taken. Another panchnama was drawn on 29th and somehow it struck to the Investigating officer to take nails of the accused persons. This unnatural investigation is quite disturbing. The reason is that when a complaint is filed before the police, the police is bound to investigate the case, but while doing so, it has to present before the court a picture of unvarnished facts as it is. No efforts should be made by the Investigating agency to give additional gloss to the material collected during the course of the investigation supports allegations made in the complaint and accordingly further to misdirect the Court. The duty of the Investigating agency is to help assist the Court in reaching just decision and deliver justice and not to secure conviction at any cost by dishonestly investigating the case in a manner suiting the allegations made in the complaint. Complaint may be right. Complaint may be false. One does not know. Even the investigating Officer, which discharges duty may not know at the earliest and accordingly he should not throw himself in imbalance by either straightway accepting or rejecting the contents of the complaint at its face value. His duty is to closely verify the contents of allegation, collect the evidence and ultimately take a decision whether material collected during the investigation warrants charge-sheet to be filed or not. To secure conviction only and at any cost can never be the moto or goal of the investigation. The value of investigation is in its remaining honest, sincere, efficient, fair and impartial. The only and the basic difference between the approach of the investigating Agency while investigating the case and that of the learned Judge trying the case is the respective art and wisdom in approaching the case from quite opposite angles. The value of investigation is in its remaining honest, sincere, efficient, fair and impartial. The only and the basic difference between the approach of the investigating Agency while investigating the case and that of the learned Judge trying the case is the respective art and wisdom in approaching the case from quite opposite angles. The approach of the police in detecting crime rather the master golden key to it lies in eye of suspicion that is to say whenever I. O collects material, he should collect with eye of suspicion that goes against the accused person, while for the court pending trial, ordinarily during the course of the investigation is that of suspicion as the case is still within domain of investigation, but once the trial commences and evidence is recorded to be appreciated to reach ultimate conclusion, the mandate of the criminal jurisprudence is to give benefit of reasonable to doubt the accused. Thus the master key for the I. A to detect crime is suspicion, while for the Court at pre-trial of suspicion and at time of trial, it is the benefit of doubt. ( 8 ) WE are also sill further surprised at the way in which the Investigating Agency resorted to repeatedly depricated practice of joint discovery, at the instance of four accused persons who were taken to the scene of offence to show the place where the poison was alleged to have been administered and to recover bottle !! Such type of over-zealous and unintelligent investigation unnecessily creates a doubt where even a good prosecution case may be lost if there is some evidence to record and sustain the order of conviction. This practice of the joint discovery has time and again been strongly depricated by this Court as well as the Apex Court, and still it appears that it has not abated, meaning thereby there is some communication gap between the courts deciding cases making observation in judgment and the investigating agency on conducting the, investigation. To cite some such decisions on the. point of illegality of joint discovery, they are (1) 1975, GLR 782; and (2) AIR 1983, SC, 366. To cite some such decisions on the. point of illegality of joint discovery, they are (1) 1975, GLR 782; and (2) AIR 1983, SC, 366. With a view to see that some such illegal practice of joint discovery does not take place in future, some time damaging the credibility of the prosecution case, the Director General of Police shall have to take suitable steps to meet with such situation by issuing fresh circulars on the point warning the investigating Officers that despite clear position of law, if because of such carelessness in investigation, the prosecution suffers to lose the case they would be liable to departmental proceedings. We believe that this sort of circular and the periodical monitoring the efficiency of the Investigating officer such investigation lapses can be regulated, controlled and ultimately eradicated. In fact, whenever any court comes across any seriousness in the investigation, it is its duty and accordingly we direct them to forward a copy of judgment to D. S. P. or commissioner of Police of the concerned area and/or to the Secretary, Home Department, for information and necessary action. ( 9 ) IN the result, this appeal is allowed. The impugned judgment and order of conviction against each of the four accused persons is hereby quashed and set aside. The appellants are ordered to be set at liberty forthwith unless their presence in jail is required in connection with any other case. 9. 1. Taking into consideration the perverse appreciation of evidence made by the learned Trial Judge, the same deserves to be kept in his Confidential File and be kept accordingly. Appeal allowed. .