JUDGMENT 1. - Jeet Singh S/o Jagga Singh lodged a first information report at 8.15 a.m. on 10.8.1990 with the Police Station Muklawa District Sriganganagar about an incident which took place at 6.00 a.m. on that day. He informed the police that he was residing at 9 NRD and was a share-cropper of Bhajanlal on 1/4 of his land. His father-in-law Amar Singh was a co-sharer with him in the 1/4 land of Bhajanlal which he was tilling. Amar Singh kept with him Dev Singh who was related to him. Amar Singh and Dev Singh were residents of 85 LNP. On 9.8.1990 Palobai daughter of Amar Singh and sister-in-law of Jeet Singh went to the fields from her residence at 85 LNP and stayed for the night at the place of Jeet Singh at 9 NRD. Jeet Singh further informed that Dev Singh who was also a co-sharer with Amar Singh and Jeet Singh also came in the night of 9.8.1990 and slept at Jeet Singh's place. In the morning at about 6.00 a.m. Dev Singh consumed "Spray" and assaulted Palobai with a Kassi and inflicted a blow on her head. Jeet Singh's wife Malkito who was sister of Palobai and Jeet Singh ran to her rescue. Palobai became instantly unconscious on the spot and fell down. Then Jeet Singh gave a call to Chandrapal and Avtar Singh. He also stated that Palobai was lying unconscious and Dev Singh had assaulted her as they were not pulling on well together. 2. On the aforesaid FIR being lodged investigation was undertaken and appellant Dev Singh was prosecuted. The defence of the accused was, Jeet Singh and others had deceitfully made him consume 'spray' and falsely implicated him after killing Palobai. After trial the learned Addl. Sessions Judge found the appellant guilty Under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment with Rs. 200/- as fine. This appeal challenges that conviction and sentence. 3. The prosecution has examined Malkito, the elder sister of the deceased Palobai as PW 2, Jeet Singh brother-in-law of the deceased who lodged the FIR as PW 3, Amar Singh the father of the deceased as PW 4, Avtar Singh PW 5 and Bhajan Singh PW 6 as the witnesses before whom Palobai was said to have given dying declaration. Apart from these PW 1 Dr. Apart from these PW 1 Dr. Man Mohan Singh, the Medical Officer who conducted the postmortem examination and PW 8 Dharma Ram, PW 9 Mohanlal who are the Police Officers connected with the investigation were also examined. 4. Let us first examine the testimony of PW 3 Jeet Singh who had lodged the first information report. In his examination-in-chief he stated that in Bhajanlal's land which was taken by him as share-cropper he and his father-in-law Amar Singh were carrying on agriculture. He did not state in Court that accused Dev Singh was also one of the co-sharers, when he had stated so in the first information report. He also stated that Palobai used to stay with her father at 85 LND and used to come for work to him. She had stayed with him on the fateful night. As regards accused Dev Singh he stated that he had come from Punjab and his father-in-law sent him to Jeet Singh as he was Amar Singh's sister's son. He deposed that accused Dev Singh was staying with him for the last 15,20 days prior to the incident. As regards the assault on Palobai he stated that at about 5.30 a.m. in the morning he had gone about 25 yards away from his house, his wife Malkito deceased Palobai and accused Dev Singh were in the house. When Malkito raised alarm he returned to the house and saw Dev Singh running away after throwing the Kassi there. Palobai was hit in the head by the Kassi which was hit by Dev Singh. He also deposed that he had seen Dev Singh hitting Palobai. Then he gave a call to Chandrapal and his father Bhajanlal. Both of them came on the spot. Avtar Singh also came on the spot on hearing the call. They asked Palobai as to who had hit her and she replied that Dev Singh had given the Kassi blow to her. Palobai was in her senses at that time and was sitting. Accused Dev Singh had consumed `spray' and was vomiting. Palobai became unconscious after 15 minutes. Then Palobai was taken in a jeep to the Police Station by Jeet Singh, Chandrapal, Bhajanlal, Avtar Singh and Malkito. According to Jeet Singh the report was lodged by Bhajanlal and he was accompanying Bhajanlal. Palobai was taken from Police Station to Raisinghnagar Hospital, where she died. Palobai became unconscious after 15 minutes. Then Palobai was taken in a jeep to the Police Station by Jeet Singh, Chandrapal, Bhajanlal, Avtar Singh and Malkito. According to Jeet Singh the report was lodged by Bhajanlal and he was accompanying Bhajanlal. Palobai was taken from Police Station to Raisinghnagar Hospital, where she died. Dev Singh was brought to the Police Station in a tractor trolley and then he was taken to Raisinghnagar hospital. Dev Singh was brought in the tractor by Bhajanlal. Malkito, Palobai, Chandrapal and Jeet Singh travelled in the jeep. Then the witness admitted having lodged the FIR himself. In his cross-examination he stated that Palobai had not taken meals at previous night as she was not feeling well. He further stated that when Malkito raised an alarm his attention was drawn and when he rushed back to his house Palobai had already received injury and Dev Singh had thrown away the Kassi. Bhajanlal and Chandrapal came and caught hold of Dev Singh and took him to Chandrapal's Dhani. He denied that Palobai had illicit relations with Dev Singh. He deposed that police had recorded his statement two days after the incident and Malkito's statements were also taken at the same time. He denied that Dev Singh had a share in Bhajanlal's land alongwith him and Amar Singh, he denied having told the police that Palobai had illicit relations with Dev Singh. To a Court question he replied that Kassi was pointed out by him to the police and not by the accused person. When on the next day of the incident police had reached the spot, accused was unconscious and was in hospital, therefore, the Kassi was shown to the police by him. He also stated that he had seen the accused person hitting Palobai with a Kassi from a distance of about 25 yards. He further stated that Palobai became unconscious after getting injured and breathed her last in the Raisinghnagar hospital. This witness had contradicted his FIR version on several points. In the FIR he had categorically stated that Palobai became instantly unconscious and till he came to lodge, the report she was unconscious. He mentions in the FIR that Chandrapal and Avtar Singh arrived on the spot, but he has not mentioned the important fact that Palobai gave any dying declaration before them. In the FIR he had categorically stated that Palobai became instantly unconscious and till he came to lodge, the report she was unconscious. He mentions in the FIR that Chandrapal and Avtar Singh arrived on the spot, but he has not mentioned the important fact that Palobai gave any dying declaration before them. He had also categorically stated that Dev Singh had a share in the 1/4 land of Bhajanlal - Jeet Singh and Amar Singh were tilling, but in his statement he flatly denied the proposition. 5. PW 2 Malkito deposed that when they were taking tea Dev Singh hit Palobai, but she did not know why he hit her. At that time Jeet Singh was going away to his field. Dev Singh brought something in a glass and told her that it was a liquor, but in fact it was `Spray'. He kept the glass there and then hit Palobai with a Kassi on her head. Malkito then raised alarm and Chandrapal and Jeet Singh came on the spot. Dev Singh did not run away, the spray had affected him. Palobai went away about 25-30 yards and fell down. She was then taken to Police Station Muklawa in a jeep and from there to Raisinghnagar hospital, Jeet Singh was with them. Palobai died in the hospital. Dev Singh was also admitted in the hospital. She categorically admitted in her cross-examination that when Chandrapal, his father and Avtar Singh had come Palobai had already become unconscious. She also stated that she herself, her husband Jeet Singh, Chandrapal and Avtar Singh had come in the jeep to Police Station alongwith Palobai. She denied that Palobai had any illicit relations with Dev Singh and she denied having given to the police such a statement. Statement of PW-4 Amar Singh, the father of the deceased is not very important in this case because he had not seen the incident. He also denied that Dev Singh was a co-sharer with him and Jeet Singh in the land and that Palobai had illicit relations with Dev Singh. He denied having given such statements to the police. Avtar Singh PW 5 deposed that he went to the spot after hearing the alarm raised by Jeet Singh. Bhajanlal and Chandrapal also had reached the spot. Palobai was sitting on a plat-form outside the Kotha and she was bleeding from her head. He denied having given such statements to the police. Avtar Singh PW 5 deposed that he went to the spot after hearing the alarm raised by Jeet Singh. Bhajanlal and Chandrapal also had reached the spot. Palobai was sitting on a plat-form outside the Kotha and she was bleeding from her head. Palobai told him that Dev Singh had hit her with a Kassi. Chandrpal and Bhajanlal took Palobai to Chandrapal's Dhani and gave her first aid. When she was so taken Palobai was conscious. Jeet Singh had also told them that Dev Singh had hit Palobai. PW 6 Bhajanlal also stated that he went to the spot after hearing the call given by Jeet Singh alongwith Chandrapal and Avtar Singh. According to him when they went there Palobai was lying in front of the Kotha with a head injury which was bleeding. She was alive and she was taken to their Dhani. Palobai was saying that Dev Singh had hit her with a Kassi. She was taken by hand to Bhajanlal's Dhani. Then Chandrapal, Avtar Singh, Jeet Singh and Malkito took her to Police Station. This witness further stated that when Palobai was taken to his Dhani she was alive and speaking. The witness also states that he had taken Dev Singh to the Police Station and from there to the Raisinghnagar hospital and he was admitted in the hospital. In his cross-examination the witness stated that Palobai's head was broken and brain matter had come out. Then he stated that when he reached the place Palobai had become unconscious, but against stated that she was speaking and had become unconscious on the way. PW 9 the Investigating Officer had stated that on 17.8.1990 accused Dev Singh gave him an information about the Kassi and it was recovered at his instance. This statement is directly contrary to the evidence of Jeet Singh PW 3, who stated that the Kassi was not recovered at the instance of the accused. 6. Assessing the evidence of witnesses and the material on record what we find is that Palobai had not given a dying declaration before witnesses implicating the accused person. Actually she had become unconscious instantaneously and could not have given a dying declaration. The testimony of PW 5 Avtar Singh, PW 6 Bhajanlal and PW 3 Jeet Singh as regards the dying declaration is totally unreliable and deserves to be rejected. Actually she had become unconscious instantaneously and could not have given a dying declaration. The testimony of PW 5 Avtar Singh, PW 6 Bhajanlal and PW 3 Jeet Singh as regards the dying declaration is totally unreliable and deserves to be rejected. The view taken by the trial Court that it was not impossible for Palobai to talk to Bhajanlal and Avtar Singh when Jeet Singh was busy in overpowreing Dev Singh, is based on no evidence. Actually Jeet Singh in his statement in the Court has stated that Palobai was talking to Bhajanlal and Avtar Singh. If this was true, he could have mentioned the same thing in the FIR. In the circumstances of the case it was also not possible that any dying. declaration could be made by Palobai without knowledge of her elder sister Malkito and Jeet Singh. The conclusion drawn in this respect by the learned trial Court is clearly passed on conjectures and surmises. 7. As regards the Kassi as already pointed out PW 3 Jeet Singh has totally destroyed the testimony of PW 9 Mohanlal, the Investigating Officer in this respect. The recovery of Kassi at the instance of the appellant has not been proved and this corroborative piece of evidence also is not available against the appellant. 8. What remains is the statement of PW 3 Jeet Singh, PW 2 Malkito, PW 5 Avtar Singh and PW 6 Bhajan Lal about the assault on Palobai. It appears that Malkito was the only person who could have seen the assault as even Jeet Singh had gone some distance away and the other two witnesses had arrived on the spot later. Malkito had stated that at about 6.00 a.m. they were taking tea when the incident took place. She stated that Dev Singh brought something in a glass and told her that there is liquor in the glass and he was drinking that, but in fact it was `spray'. It is very strange that at 6 O'clock in the morning when it was tea time for the family, Dev Singh who was a guest staying for the last 15 days with the family would take liquor in the presence of all and none of them would consider it to be an unusual or abnormal conduct. She has denied that Dev Singh had any illicit relations with Palobai or he had any other grievance against her. She has denied that Dev Singh had any illicit relations with Palobai or he had any other grievance against her. It is, therefore, difficult to accept that the appellant without any reason hit Palobai in the presence of her elder sister and that too after consuming poison. None of the witnesses have accepted the suggestion that Dev Singh had illicit relations with Palobai. The motive for the crime has, therefore, not come on record. 9. The defence suggestion is that because of the suspicion that Palobai had illicit relations with Dev Singh she was killed by her relations during the night. This possibility cannot be ruled out, because accused has not been shown to have any reason to kill Palobai and if the near relatives of Palobai were suspicious about her having illicit relations with appellant Dev Singh the possibility of their having done away with Palobai cannot be ruled out. In any case, the evidence on record does not bring out the whole truth. The evidence of witnesses examined as eye-witnesses is not of sterling quality and is in fact shaky and unreliable. Hie prosecution's version about the recovery of the weapon of offence and about dying declaration of Palobai is patently false and in such circumstances a conviction cannot be based on such evidence. 10. We, therefore, allow this appeal, set aside the conviction and sentence, acquit the appellant and direct that he shall be set at liberty forthwith if his detention is not required under any other lawful order.Appeal Allowed. *******