JUDGMENT 1. - Appellant Ram Karan, his brother Badri and nephews Ramkesh and Kaluram faced trial for the offences Under sections 147, 448, 307, 307/149, 302 and 302/149 Indian Penal Code before the learned Sessions Judge, Sawaimadhopur by his judgment dated 23.12.94 acquitted all the accused persons for offences Under section 147, 448, 307, 307/149 and co-accused Ramkesh, Kaluram and Badri for the offences Under section 302/149 Indian Penal Code but convicted appellant Ram Karan Under section 302 Indian Penal Code and sentenced him to life imprisonment and fine of Rs. 200/- and in default of payment of fine to further undergo three months simple imprisonment. 2. The prosecution case can be recapitulated within a narrow compass. It appears that in the evening of 21.11.1992 deceased-Karanpuri, had come from Jaipur and stayed at the house of Morpal Ex-Sarpanch situated in village Soorwal. During the night he slept on a wooden plank in the room of Morpal. In the same room Morpal was sleeping on a cot while Smt. Keshar, the mother-in-law of Morpal's son and a disciple of deceased Karanpuri was sleeping nearby on the floor of the said room. The room was bolted from inside. It is alleged that at about 2.00 A.M., appellant Ram Karan armed with a muzzle loading Double Barrel Gun came alongwith four co-accused persons after having formed an unlawful assembly with a common object to commit the murder of Morpal & Karanpuri, criminal trespassed by climbing over the Chabutra of Morpal. The appellant fired twice from his gun by putting its barrel in the cravice (Daraaj) of the doors of that room with result that Karanpuri sustained grievous injuries. It is the case of the prosecution that Morpal hearing the bang of the gun shots opened the door of his room and saw that appellant Ram Karan was standing there. Karanpuri was immediately brought in a jeep by Morpal and his son PW-3 Suresh and PW-4 Ram Sahai and others to Government Hospital, Sawai Madhopur, where he was admitted and his injuries were examined by PW 7 Dr. PC. Gupta. Karanpuri was immediately brought in a jeep by Morpal and his son PW-3 Suresh and PW-4 Ram Sahai and others to Government Hospital, Sawai Madhopur, where he was admitted and his injuries were examined by PW 7 Dr. PC. Gupta. It is also the case of the prosecution that appellant and co- accused persons were on inimical terms with Morpal and criminal litigation was also pending between them, that they intended to kill Morpal because generally the latter used to sleep on the wooden plank but on the ill fated night deceased-Karanpuri slept on that wooden plank while Morpal slept on a separate cot and as such Karanpuri sustained firearm injuries. PW-1 Hazarilal Head Constable, who on the information received by the SHO, Police Station, Man Town from the Doctor, was directed to go to the hospital. He recorded the Parcha Bayan Ex.P 1 of Karanpuri, at 6 A.M. on 22.11.92, which was attested by the doctor. On the basis of Parcha Bayan Ex.P 1, initially the case was registered Under section 307 Indian Penal Code against the appellant only. 3. PW-7, Dr. PC. Gupta examined Karanpuri on 22.11.92 at 4 A.M. and as per M.L.R. Ex.P 13 found the following injuries : (i) circular wound of entry with clotted blood 1/4 x 1/4 x 1/2 cm on antro lateral surface of right arm with collar of abrasion. There was no tattooing and no blackening. (ii) circular wound of entry 1/2 x 1/2 cm x depth leading inside the abdomen on right illiac fossa 2.5 cm above the anterior superior illiac spine with collar of abrasion. No tattooing. There was corresponding hole in yellow colour cloth worn by the injured, which was blood stained. (iii) two circular wounds of entry with clotted blood with corresponding holes in yellow coloured cloth worn by the injured, which was blood stained, 3/4 cm x 3/4 cm x depth leading inside the abdominal cavity 3.5 cm above right anterior superior illiac spine with collar of abrasion. No tattooing or blackening. (iv) abrasion with clotted blood 2 cm x 1 cm transversely placed on right illiac fossa 5 cm above the anterior superior illiac spine and 10 cm away from the umblicus. The general condition of Karanpuri was very poor. His abdomen was distended and intestinal sounds were absent. No tattooing or blackening. (iv) abrasion with clotted blood 2 cm x 1 cm transversely placed on right illiac fossa 5 cm above the anterior superior illiac spine and 10 cm away from the umblicus. The general condition of Karanpuri was very poor. His abdomen was distended and intestinal sounds were absent. Injuries No. 1, 2 & 3 were caused by a firearm, while injury No. 4 was caused by blunt weapon. The doctor advised for the Radiological Examination, which revealed that there was no bone injury in the right arm nor any radio opaque metallic shadow was visible. However, there was gas under the right dome of diaphram and three radio opaque homogenous rounded opacity were seen, which were metallic in nature on the right side of abdomen. Thus injuries No. 2 & 3 were dangerous to life. 4. On 23.11.92 at 3.10 P.M. Karanpuri succumbed to his injuries ^hereupon offence Under section 302 Indian Penal Code was also added. Shri Rameshwar Tiwari, S.H.O. conducted the investigation. Appellant was arrested on 18.1.93 vide arrest memo Ex.P-6. Co-accused Badri and other accused persons were arrested on 18th, 22th January 1993, respectively. It is alleged that the appellant in pursuance of his information got recovered his licenced Double Barrel Muzzle Loading gun concealed under the roots of trees situated near his house vide recovery memo Ex.P-11. This sealed packet of the recovered gun as also sealed packets of pieces of the yellow coloured cloth, blanket and a sealed bottle containing the pellets taken out the doctor from the body of the deceased were sent to the State Forensic Science Laboratory for chemical examination. After completion of the investigation a challan was filed against the appellant and co-accused persons in the court of learned Chief Judicial Magistrate, Sawai Madhopur, who in turn committed the case to the learned Sessions Judge. 5. The appellant and co-accused persons denied all the charge and claimed trial. To prove its case, the prosecution examined as many as nine witnesses. The appellant and co-accused persons in their pleas recorded Under section 313 Criminal Procedure Code categorically denied all the circumstances appearing against them in the prosecution evidence and asserted that they have been falsely implicated due to enemity by Morpal. However they did not examine any witness in defence. 6. The appellant and co-accused persons in their pleas recorded Under section 313 Criminal Procedure Code categorically denied all the circumstances appearing against them in the prosecution evidence and asserted that they have been falsely implicated due to enemity by Morpal. However they did not examine any witness in defence. 6. After trial, the learned Sessions Judge dis-believed the prosecution evidence in respect of co-accused persons and acquitted them from all the charges. The learned Sessions Judge however held that Parcha Bayan Ex.P 1 of deceased Karanpuri was admissible in evidence as his dying declaration, that the same was voluntary and reliable and at deceased Karanpuri had also made similar oral dying declaration before PW2 Smt. Keli and PW-3 Suresh. He also placed reliance on the testimony of PW-2 Smt. Keli and by his impugned Judgment convicted the appellant for the offence Under section 302 Indian Penal Code and sentenced him in the manner indicated above. Hence this appeal. 7. We have heard Shri Biri Singh the learned counsel for the appellant and S/Shri Gyaneshwar Vyas and M L. Goyal the learned Public Prosecutors for the State at length and carefully perused the record of the trial court in extenso. 8. Shri Biri Singh strenuously contended that the prosecution has deliberately withheld the initial version of the incident because as per statement of PW-2 Suresh, he alongwith others had brought Karanpuri first of all to the Police Station where he had given the details of the incident to the SHO. Even the injuries of Karanpuri were examined by PW 7 Dr. PC. Gupta at 4.00 A.M. on 22.11.92 on the requisition of the police. Thereafter Parcha Bayan Ex.P 1 of Karanpuri was recorded at 6.00 A.M. hit by provisions of S. 162 Criminal Procedure Code and which was inadmissible in evidence. According to him, even Parcha Bayan Ex.P 1 was not voluntary and that the possibility of tutoring and prompting injured Karanpuri by Morpal, Suresh and others cannot be ruled out. He urged that the Parcha Bayan Ex.P 1 also does not find corroboration by any or circumstantial evidence and as such it does not inspite confidence. Moreover, the said dying declaration was no recorded in accordance with the provisions of the Rajasthan Police Rules. The alleged oral dying declaration made by deceased Karanpuri also does not stand fairly established by the evidence recorded in this case. Moreover, the said dying declaration was no recorded in accordance with the provisions of the Rajasthan Police Rules. The alleged oral dying declaration made by deceased Karanpuri also does not stand fairly established by the evidence recorded in this case. Thus the trial judge has committed grave illegality in convincing the appellant on the basis of Parcha Bayan Ex.P 1 and alleged oral dying declaration. Shri Biri Singh has pointed out that the prosecution has deliberately withheld material witnesses. Even Rameshwar Tiwari, SHO, who conducted the investigation has not beer examined. The recovery of the licenced DBML gun of the appellant is meaningless because no report of the Ballistic Expert has been filed by the prosecution. He has asserted that PW-2 Smt. Keli is not at all a reliable witness and no conviction can be maintained on the basis of her statement without any corroboration from any other independent source. Moreover her statement is in clear contra-distinction with the contents of Parcha Bayan Ex.P 1. According to him the prosecution has miserably failed to prove any motive for the murder because the appellant had no enemity with the deceased. He has, therefore, asserted that the learned trial judge has committed illegality of fact as well as of law in convicting the appellant. 9. On the other hand the learned Public Prosecutors have claimed that the prosecution has not withheld the initial version of the incident, and that the case was registered on the basis of Parcha Bayan of deceased Karanpuri, which was not hit by the provisions of section 162 Criminal Procedure Code Since Morpal was murdered during the trial of this case, he could not be examined. However, they have admitted that there was a gross negligence on the part of Rameshwar Tiwari, the then SHO, Police Station, Mantown, who despite ample opportunities given by the court did not appear in the witness box but asserted that even his non-examination is not fatal to the prosecution case because, there is no valid reason to disbelieve the dying declaration Ex.P 1. They have re-iterated the reasonings given by the trial judge and supported the impugned judgment. 10. We have bestowed our most anxious and careful consideration to the rival submissions made before us. First of all we intend to briefly scan, examine and evaluate the evidence recorded in this case. 11. They have re-iterated the reasonings given by the trial judge and supported the impugned judgment. 10. We have bestowed our most anxious and careful consideration to the rival submissions made before us. First of all we intend to briefly scan, examine and evaluate the evidence recorded in this case. 11. PW-1 Hazari Lal, Head Constable deposed that on the direction of the SHO, Police Station, Man Town, on 22.11.92 he went to the Govt. Hospital, Sawai Madhopur, where at 6.00 A.M. he recorded the Parcha Bayan Ex.P1 of deceased Karanpuri, who was admitted as an indoor patient there in presence of the doctor. He further deposed that the doctor had given him two sealed packets containing the pieces of yellow coloured cloth and blanket and the sealed bottle, which he seized vide seizure memo Ex.P 2, kept those articles in Malkhana of the Police Station and thereafter sent those to the State Forensic Science Laboratory. He admitted that when he reached to the hospital, Karanpuri was served by number of persons, whom he did not know, that Karanpuri was in a fit state to give his statement and that he recorded his statement in the presence of Dr. Prakash Chand. But, PW 7 Dr. PC. Gupta has not corroborated he statemerft of PW 1 Hazarilal HC nor proved Parcha Bayan Ex.P 1. 12. PW-2 Smt. Keli, aged 20 years is the daughter of Morpal. She stated that on the ill-fated night deceased Karanpuri had stayed at their house, that he slept on a wooden plank, where generally her father Morpal used to sleep, that she was sleeping in a nearby room alongwith her sister-in-law Smt. Tulsa, that in the night she got- up and went outside to urinate, that she had a torch with her and that in the light thereof she saw appellant Ram Karan, co-accused Badri, Rameshwar, Ramkesho & Kaluram standing near her house, and that thereafter she went inside her room and closed the doors. She deposed that after sometime, she heard bangs of gun-shots and that thereafter she alongwith Smt. Tulsa came outside the room and saw the five accused-persons running away. She further deposed that at that time Mahatmaji (deceased Karanpuri) told "Tumare ghar mein Sarpanchji goli chalgayi hein" and that thereafter she opened the doors of that room wherein her father Mahatmaji (deceased) were sleeping and saw that Mahatmaji had sustained gun-shot injuries. She further deposed that at that time Mahatmaji (deceased Karanpuri) told "Tumare ghar mein Sarpanchji goli chalgayi hein" and that thereafter she opened the doors of that room wherein her father Mahatmaji (deceased) were sleeping and saw that Mahatmaji had sustained gun-shot injuries. In cross-examination she admitted that prior to the incident, a `marpeet' had taken place between her father and the accused persons and for that incident a criminal case was pending. She stated that after that incident her family members were not on talking terms with accused persons. She admitted that co-accused Badri, and appellant Ram Karan are her real uncles and that their houses are situated near to her house and that the accused persons had not come to their house after the said incident of `marpeet'. She told that when she had come out of her room to urinate she had seen accused persons standing near `Paravada' (boundary) of her house, but she neither had any conversation with accused persons, nor informed about their presence to Smt.Tulsa. She asserted that she was not frightened by seeing accused persons standing near the "Paravada" of her house even in dead hour of night. She further stated that after hearing the bangs of the gun shots when she again came out from her room, she saw that those accused persons running away and that at that time appellant was armed with a gun. She told that all the five accused persons were standing on the `Chabutra' and were getting down there-from. She specifically stated that when she had come out for passing urine, she did not see the gun in the hands of the appellant. She further deposed that after hearing the gun shot, when she had put on her torch, then she had seen the accused persons from their back side running away, who descended in the `Nala'. She specifically deposed that Morpal had opened the doors of his room, where the incident had occurred, only after the accused persons had ran away and that thereafter she had informed Morpal and Mahatmaji (deceased) that the appellant had fired the gun shots. But, in Parcha Bayan Ex.P1, Karanpuri narrated an entirely different story. She specifically deposed that Morpal had opened the doors of his room, where the incident had occurred, only after the accused persons had ran away and that thereafter she had informed Morpal and Mahatmaji (deceased) that the appellant had fired the gun shots. But, in Parcha Bayan Ex.P1, Karanpuri narrated an entirely different story. In Parcha Bayan Ex.p.1, Karanpuri informed that on the ill fated night he was sleepihg on the wooden plank inside the room alongwith Morpal and his disciple (Smt. Kesar), who was lying on the floor, that from the crevices of that doors of the room two gun shots were fired, that immediately after the gun shots were fired Morpal opened the door and they saw that appellant Ram Karan was standing there and that he did not know about other assailants. Thus as per version given in Parcha Bayan Ex.P1, two gun shots were fired from the crevices of the doors of that room and immediately thereafter when Morpal open that door; appellant Ram Karan was sighted standing there. But according to the testimony of PW-1 Smt Keli, after hearing bangs of the gun shots she had again opened her room and saw accused persons were running after alighting from the `Chabutra' that thereafter she raised alarm and thereupon Morpal opened the door of his room and she found that Karanpuri was lying injured. Thus if the statement of Smt. Keli is to be believed than it was not all possible for Karanpuri and Morpal to have seen the appellant standing in front of the doors of the room. Therefore, the version given by Karanpuri in Parcha Bayan Ex.P.1 on this count does not find any cor/oboration from the sworn testimony of PW-2 Smt. Keli. 13. Besides this, the version of incident given in Parcha Bayan Ex.P.1 appears to be quite suspicious and un-reliable. Admittedly, the appellant and coaccused persons had enimity with Morpal and a criminal litigation was also pending between them. 13. Besides this, the version of incident given in Parcha Bayan Ex.P.1 appears to be quite suspicious and un-reliable. Admittedly, the appellant and coaccused persons had enimity with Morpal and a criminal litigation was also pending between them. Had Smt. Keli in fact, seen the appellant armed with a gun and other co-accused persons standing near the boundary of her house in the dead hour of the night, then in the normal course of human conduct, she ought to have informed about that fact to her sister-in-law Smt. Tuisa, who has not been produced by the prosecution, or to her father Morpal or to have enquired from accused persons as to why they were standing there ? On the other hand she simply went inside the room and lay down. Thus, this inaction on her part was clearly unnatural and against the natural human conduct. She stated that immediately after the incident, when she entered in the room she had told Morpal and the deceased that the gun was fired by appellant Ram Karan, but this fact also does not find mention in Parcha bayan Ex.P.1. 14. PW-2 Smt. Keli deposed that she had also gone to the hospital where she constantly remained with deceased Karanpuri, that she returned from the hospital at about 8- 10 A.M. and that by that time, the police did not record the Parcha Bayan of the deceased. She admitted that she had enquired from Karanpuri in the hospital as to what had happened to him to which he replied "Beti karo aur khaho, humko Ram Karan ne maardiya hai". Hence if in fact, Smt. Keli had seen the appellant with a gun alongwith co-accused persons at the time of alleged incident, then there was absolutely no occasion for to enquire from the deceased as to what had happened to him ? This fact positively indicate that she had also not seen the appellant armed with gun and the co-accused persons at the time of the alleged occurrence. Smt. Keli further stated that in the hospital she had again told the deceased that appellant Ram Karan had fired the gun. This fact also reflects that Karanpuri had not seen the appellant firing gun shots towards him and that it was Smt. Keli, who had informed him that appellant Ramkaran had fired the gun shot. Smt. Keli further stated that in the hospital she had again told the deceased that appellant Ram Karan had fired the gun. This fact also reflects that Karanpuri had not seen the appellant firing gun shots towards him and that it was Smt. Keli, who had informed him that appellant Ramkaran had fired the gun shot. Thus, it is abundantly apparent that the contents of "Parcha Bayan" Ex.P1 are not based on the personal knowledge of Karanpuri, but were gathered by the deceased on the information of Smt. Keli and other persons, who had ample opportunity to prompt and tutor him ^bout the assailants before Parcha Bayan Ex.P.1 was recorded. 15. As mentioned earlier, Smt. Ken clearly stated that till she remained with Karanpuri in the hospital, his statement was not recorded by any person. If the statement of Keli is to be believed then she remained in the hospital with Karanpuri atleast till 8.00 A.M. on 22.11.93, whereas as per statement of PW-1 Hazari Lal, Head Constable, he had recorded the `Parcha Bayan' ^x.RI of Karanpuri in the hospital on that day at 6.00 A.M. 16. As per statement of PW2 Smt. Keli the gun shot was fired by inserting the barrel of the gun in the chain hole of the door of the room, because the chain (kundi) of that door was fixed at another place of that door. She stated that the said hole was of the size, wherein two thumbs could be inserted at a time. She categorically denied that there was any crevice between the two doors of that room and insisted that the gun shot was fired by inserting the gun barrel through that hole and that those doors were still fixed in that room, and that due to firing of the gun a black mark of burning around that hole was caused which was still visible and that the police did not cease that door. If Smt. Keli is to be believed then the said door containing the hole and black marks around it was one of the most material article which the Investigation Officer ought to be seized produced in the court, but admittedly no such door was seized nor produced before the trial court. Therefore, with-holding of such an important and material evidence raises a strong suspicious & adverse inference against the prosecution case. Therefore, with-holding of such an important and material evidence raises a strong suspicious & adverse inference against the prosecution case. The story of inconsistency does not end here. A bare look to the Parcha Bayan Ex.P1 reveals that Karanpuri had informed that the gun shot was fired from the cravises of the door of the room, which does not find corroboration by any oral or circumstantial evidence. Smt. Keli also stated that the Investigation Officer had taken away her torch, but again that torch has not been produced in the court. Smt. Keli has also dis-owned portions A to B, C to D & E to F of her police statement Ex.D.1 recorded Under section 161 Criminal Procedure Code, wherein she had given a different version about the alleged incident. Smt. Keli has thus given different versions at different stages. Her conduct has been most un-natural and against natural human conduct. Her statement has also not been corroborated by any other witness. She has unsuccessfully tried to improve upon her previous statement and invented a new story. A close and careful scrutiny of her statement, therefore, leads to an irresistible conclusion that she is not at all a truthful witness. Hence her testimony does not inspire any confidence and the learned trial Judge has committed grave error in placing reliance on her testimony. 17. Morpal could not be examined by the prosecution, as he was allegedly murdered during trial. The prosecution has not cared to examine Smt. Tulsa the sister-in-law of PW 1 Smt. Keli. Her non-production also raises an adverse inference against the prosecution. 18. PW 8 Smt. Kesar aged 60 years, who was the disciple of deceased Karanpuri and also `Samdhan' of Morpal and who was sleeping in the same room where the deceased was sleeping has not supported the prosecution case. She told that she had heard the sound of gun shot but since she was sleeping, she did not know as to who had fired. She told that Mahatmaji (Karanpuri) had sustained gun shot injuries, who was taken to the hospital. She was declared hostile. She categorically denied the portion A to B, C to D and E to F of her police statement Ex.P 16, she admitted that her daughter has been married to Babu the son of Morpal. Nothing has been elicited to discredit or shatter her testimony. She was declared hostile. She categorically denied the portion A to B, C to D and E to F of her police statement Ex.P 16, she admitted that her daughter has been married to Babu the son of Morpal. Nothing has been elicited to discredit or shatter her testimony. Smt. Kesar therefore, does not help the prosecution at all. 19. PW 3 Suresh is the another son of Morpal. He told that on the ill-fated night he was sleeping in his house situated at a distance of about 1/2 km. from his father's house, that after hearing the bangs of gun shots he came to the place of occurrence, where his sister Smt. Keli and father were shouting that Ramkaran, Badri, Ramkesh, Rameshwar and Kalu had fired and caused gun shot injuries to Karanpuri. He told that Baba Karanpuri had sustained gun shot injuries on his adbomen and that blood was dozing out. He thereafter went to the market and hired a jeep, wherein he took Baba Karanpuri first of all to the Police Station, Sawai Madhopur, where the SHO asked him to take Karanpuri to the hospital. In his cross examination this witness has categorically deposed that he himself had gone inside the police station and informed the police that Ramkaran, Badri, Kalu and Rameshwar had fired gun shots and caused injuries to Karanpuri. He then corrected himself and told that he had informed the police that appellant Ramkaran fired the gun and that other co-accused persons had accompanied him. If this statement of Suresh is taken to be true, then he had informed the police about the details of incident immediately after the occurrence and positively before 4 00 A.M on 22.11.92 because as per statement of PW 7 Dr. PC. Gupta, he had examined the injuries of Karanpuri on that day at 4.00 A.M. on'the police request. Even in MLR Ex.P 13 it has been specifically mention id by the Dr. PC. Gupta that he had examined Karanpuri at 4.00 A.M. on police request. Thus it is crystal clear that the SHO, Police Station, Mantown, Sawai Madhopur did not register a case despite the specific information given by PW 3 Suresh about the incident and deliberately withheld/suppressed the initial version of the incident. PC. Gupta that he had examined Karanpuri at 4.00 A.M. on police request. Thus it is crystal clear that the SHO, Police Station, Mantown, Sawai Madhopur did not register a case despite the specific information given by PW 3 Suresh about the incident and deliberately withheld/suppressed the initial version of the incident. On the other hand, he registered the case on the basis of Parcha Beyan Ex.P 1 of Karanpuri, which was recorded by DW 1 Hazari Lal, Head Constable as late as at 6.00 A.M. on that day. The learned trial Judge has conveniently ignored this material fact, which makes the prosecution story highly doubtful. 20. PW 3 Suresh further stated that the police recorded the statement of Karanpuri in the hospital in his presence and that at that time his father Morpal and two other persons of their village were also standing there. Therefore, this possibility cannot be ruled out that Karanpuri was prompted and tutored by Morpal, Suresh an others before his parcha Beyan Ex.P 1 was recorded. 21. PW 4 Ram Sahai deposed that the police had inspected the place of occurrence in his presence but the site plan has not been proved by the prosecution. Even Rameshwar Tiwari, SHO, who investigated the case has not been examined. Therefore, PW 4 Ram Sahai does not throw any light about the black mark around the hole of the door of the room where the deceased was sleeping on the ill fated night or whether there existed any crevices in the doors of that room. Thus,this witness also does not render any assistance to the prosecution. 22. PW 5 Vijendra Singh Foot Constable stated that on 1.2.93 he had taken three packets to State Forensic Science Laboratory. He proved F.S.L. report Ex.P 5. The prosecution has failed to file the Chemical Examination Report of the FSL, as such the statement of this witness does not help the prosecution. 23. PW 6 Kishore Singh L.C. deposed that on 18.1.93 he was posed as L.C. at Police Station Mantown and that in his presence appellant Ramkaran was arrested vide arrest memo Ex.P. 6, who got recovered a Double Barrel Muzzle Loading gun from the trees standing in his agricultural field vide recovery memo Ex.P. 11. He showed his ignorance as to whether the appellant had the licence of the said gun or not ? He showed his ignorance as to whether the appellant had the licence of the said gun or not ? He however, admitted that the appellant had told the S.H.O. that he possessed the appellant had told that he had the licence of the said DBML. Since the said DBML was not sent by the SHO to the Ballistic Expert, its alleged recovery is meaningless and the same does not correct the appellant with the crime. Moreover, the information memo of the appellant in this behalf has also not been got prove by the prosecution. 24. PW 7 Dr. PC. Gupta prepared the MLR Ex.P 14 as also the Post-mortem Examination Report Ex.P 15 and stated that Karanpuri died due to haemorrhagic shock resulting from internal and external bleeding caused due to fire arm injuries over his abdomen. Those injuries were sufficient in the ordinary course of nature to cause death. It may be again mentioned here that Dr.RC. Gupta has not altered (sic) a single word as to whether Parcha Bayan Ex.P. 1 of Karanpuri was recorded in his presence by DW 1 Hazari Lal HC or that at the time of giving such statement Karanpuri was in a fit mental state or not. He was also not asked to prove his signatures appearing on Parcha Bayan Ex.P 1. A perusal of Parcha Bayan Ex.P 1 further discloses that Dr. P.C. Gupta did not give certificate to the effect that Karanpuri was in a fit state of mind to give statement. On the other hand, Dr. PC. Gupta has deposed that when he examined Karanpuri his general condition was very poor and his intestinal sounds were also absent. In such circumstances, the statement of PW 1 Hazari Lal does not find due corroboration from the statement of Dr. PC. Gupta. Thus, it cannot be conclusively held that Karanpuri was in a fit mental state to give his statement, when Parcha Bayan Ex.P. 1 was recorded. 25. PW 9 Kalu is another son of Morpal. He had not supported the prosecution case and has been declared hostile. He stated that the police had sealed 12-14 pellets, that three of them were embedded in the wall while the remaining pellets were lying scattered on the wooden plank and that not a single pellet was found underneath the wooden plank. He had not supported the prosecution case and has been declared hostile. He stated that the police had sealed 12-14 pellets, that three of them were embedded in the wall while the remaining pellets were lying scattered on the wooden plank and that not a single pellet was found underneath the wooden plank. However, the prosecution had not cared to prove the seizure memo of those pellets. There is no other prosecution evidence. 26. Thus the prosecution has neither examined Smt. Tulsa nor Shri Rameshwar Tiwari Investigation Officer nor has filed and proved the FSL Report, information memo of the appellant recorded Under section 27 Evidence Act pertaining to the recovery of the gun nor proved the site-plan and the seizure memo of the pellets recovered from the place of incident. In other words the prosecution evidence is vague, incomplete, inconsistent, irrelevant and unworthy of credence. The contents of Parcha Bayan Ex.P 1 have not been corroborated by any oral or circumstantial evidence. 27. In Bashir Shah v. State of Rajasthan, 1994 RCC 553 , in a case Under section 302 Indian Penal Code of conviction was recorded by the trial court solely on the basis of dying declaration under shock. The victim was known to the doctor, but no dying declaration was recorded by the doctor. The dying declaration was recorded by the head Constable. There was total lack of evidence to corroborate the dying declaration. This court set aside the conviction and sentence and laid down following tests for determining the illegality and falsity of a dying declaration. (i) ordinarily whenever an injured is in a precarious condition, the Investigation Officer should requisition the services of a Magistrate for recording dying declaration. There was total lack of evidence to corroborate the dying declaration. This court set aside the conviction and sentence and laid down following tests for determining the illegality and falsity of a dying declaration. (i) ordinarily whenever an injured is in a precarious condition, the Investigation Officer should requisition the services of a Magistrate for recording dying declaration. Infact, the Investigation Officers are natural interested in the success of the investigation and the practice of the investigation officer himself recording a dying declaration during the course of investigation should not be encouraged; (ii) there is neither rule of law nor a prudence that the dying declaration cannot be acted upon without corroboration; (iii) if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration; (iv) for this purpose, the court has to apply strictest (sic) scrutiny and has to be on guard to ensure that the dying declaration is not the result of tutoring, prompting or imagination and that the deceased has opportunity to observe and identify the assailant and was in a fit state of mind to make declaration; (iv) where the dying declaration is suspicious, it should not be acted upon without corroborative evidence; (vi) suspicion about the truthfulness should never be substituted as evidence in a case based on dying declaration keeping in view the fact -that the statement of the deceased made in the precarious condition of his health, is made in the absence of the accused, who had no opportunity of testing the veracity of the statement called in the legal terminology as "dying declaration by cross-examination"; - (vii) while making the dying declaration the sole basis of conviction and sentence by the courts of law, it must be kept in view that the prosecution story may not only be true but it must be true and between may be true and must be true, there is a large gap, which is to be travelled by the prosecution agency by adducing unimpeachable and reliable evidence." 28. In the instant case, the Parcha Bayan Ex.P 1 was also not recorded in consonance with the provision of Rajasthan Police Rules 1965 in general and rule 6.22 in particular. 29. In the instant case, the Parcha Bayan Ex.P 1 was also not recorded in consonance with the provision of Rajasthan Police Rules 1965 in general and rule 6.22 in particular. 29. In Parcha Bayan Ex.P. 1 Karanpuri did not state that at the time of the alleged incident, the lamp (chimney) was burning inside the room but during trial PW 1 Smt. Keli has tried to unsuccessfully improve the prosecution story and stated that the lamp was burning in the room. Karanpuri was sleeping on the wooden plank. He was awakened after sustaining the fire arm injury on his abdomen. Thus, in ordinary course, it was not at all possible for him or any other person to have seen the assailant either from the crevices of the doors of the room or the hole of the door in the dead hour of night especially when there was no light outside the room. Karanpuri stated that after the gun shot was fired Morpal opened the door of the room and he saw appellant Ramkaran standing there, but as per statement of PW 1 Smt. Keli Devi the doors of that room were opened only when assailants had already run (sic) away and after she had raised alarm. Thus in such circumstances, Karanpuri could not have seen the assailants. From the statement of Keli PW 1 and Suresh PW 3, it is amply borne out that Parcha Bayan Ex.P. 1 Karanpuri was recorded much after and that prior to that Morpal, Smt. Keli, Suresh, Ram feahai and others had remained with him. Thus the possibility that Karanpuri was tutored or prompted by them regarding the identity of the assailants cannot be ruled out. 30. In our considered opinion, even for arguments sake, if it is held that Parcha Bayan Ex.P 1 is not hit by the provisions of Section 162 Criminal Procedure Code and is admissible in evidence as a dying declaration still then it does not appear to be voluntary, truthful and worthy of credence because its contents have not been corroborated by any oral, documentary and circumstantial evidence. The learned trial Judge has, therefore, committed patent illegality in relying on Parcha Bayan Ex.R1 and recording conviction of the appellant on the basis of such suspicious document. 31. The alleged oral dying declaration of Karanpuri has also not been well proved. The learned trial Judge has, therefore, committed patent illegality in relying on Parcha Bayan Ex.R1 and recording conviction of the appellant on the basis of such suspicious document. 31. The alleged oral dying declaration of Karanpuri has also not been well proved. As per statement of PW 1 Smt. Keli she was the first, who informed Karanpuri and Morpal that the appellant had fired gun through the hole of the door and caused injuries to Karanpuri. In such circumstances, there was no occasion for Karanpuri to make any oral dying declaration to her. Smt. Keli has also not stated that Karanpuri had made any dying declaration to Suresh. 32. PW 3 Suresh deposed that on hearing the bangs of gun shots he ran away from the house of his father where his sister (Smt. Keli Devi) and father (Morpal) were shouting that appellant Ramkaran, Badri, Rameshwar and Kalu had caused gun shot injuries to Karanpuri. Therefore, in such circumstances, it cannot be believed that Karanpuri had made an oral dying declaration to him that appellant Ram Karan had fired gun shots and caused injuries to him. PW 3 Suresh has also invented a new story and deposed that Karanpuri had told the appellant not to fire towards him. But, this faqt neither finds mention in the Parcha Bayan Ex.P 1 nor has been corroborated by any other witness. Apparently Suresh has un-successfully tried to improve the prosecution story on this count, which is totally false. Thus, the alleged oral dying declaration made by Karanpuri has also not been satisfactorily proved by the prosecution witness. 33. The motive for committing murder of Karanpuri has also not been proved by the prosecution. 34. The learned trial Judge on appraisal of prosecution evidence did not rely on the testimony of PW 2 Smt. Keli Devi and acquitted co-accused persons but on the self-same evidence has found the appellant guilty for the offence Under section 302 Indian Penal Code. In our considered opinion, the learned trial Judge has applied double standards and not discussed analysed, assessed and appreciated the evidence recorded in this case in correct perspective and has committed grave error and patent illegality of law as also of fact in convicting the appellant. On the basis of such a lame and life-less evidence the prosecution has miserably failed to bring home offence Under section 302 against the appellant beyond reasonable doubt. 35. On the basis of such a lame and life-less evidence the prosecution has miserably failed to bring home offence Under section 302 against the appellant beyond reasonable doubt. 35. In the result, this appeal succeeds and is allowed. The conviction and sentence passed by the learned Sessions Judge, Sawai Madhopur against appellant Ram Karan is hereby set-aside and he is acquitted of the offence Under section 30 Indian Penal Code. The appellant is at present lodged in Central Jail, Jaipur. He be set at liberty forthwith, if not required in any other case. The jail authorities be informed accordingly.Appeal Allowed. *******