JUDGMENT S.K. Kulshrestha, J. -- 1. The appellant has preferred this appeal against the judgment dated 27.3.1987 of the learned First Addl. Sessions Judge, Chhatarpur, passed in Sessions Trial No. 124 of 1986 by which the appellant has been convicted for an offence punishable U/s 302 of the IPC and sentenced to imprisonment for life. 2. Prosecution story in brief is that on 14.8.1986 at Rajnagar at about 7.00 a.m. complainant Om Prakash Soni and Suresh Soni were questioning Lalxmi Soni of village Maharajpur on the suspicion that he had committed the theft of money belonging to Munna Lal Soni, the brother-in-law of the complaint. Laxmi Soni had resented the interrogation and had started abusing the interrogators and just at this point of time, Neelkanth Soni came there and protested which led to some altercation. At this juncture, it is alleged, the accused came with his licensed gun and fired at the complainant but as complainant ducked down, the gun shot struck Neelkanth Soni on the left side of the abdomen. Neelkanth Soni was rushed to the Government Hospital, Rajnagar, where he was examined by Dr. Brij Mohan Chourasiya (PW-5). 3. Report of the incident was lodged by Om Prakash Soni, PW-8 and FIR (Ex.P/14) was recorded on that very day at 7.15 a.m. at police-station Rajnagar and Crime No. 54/86 U/s 307 of the IPC was registered. The FIR was recorded by PW-12, B.L. Shrivastava, SHO of police-station, Rajnagar, who immediately took up the investigation. Investigating Officer sent requisition for the medical examination of the injured vide Ex.P/8 and also for recording dying declaration vide Ex.P/10. On receipt of the requisition (Ex.P/10) and on finding that the condition of patient was steeply deteriorating but the patient was in a fit condition to give the statement, doctor recorded the dying declaration (Ex.P/11) and obtained the signature of the patient. In pursuance of the requisition (Ex.P/8), doctor gave injury certificate (Ex.P/9). The doctor noticed a bullet injury in the lower abdominal region of Neelkanth Soni and the fact of having recorded the dying declaration was also mentioned in the injury certificate. On these allegations, the petitioner was indicted for offence U/s 307 for attempting the murder of complaint, am Prakash Soni and U/s 302 for committing murder of Neelkanth Soni, his father, who succumbed to the said injury. 4. On these allegations, the petitioner was indicted for offence U/s 307 for attempting the murder of complaint, am Prakash Soni and U/s 302 for committing murder of Neelkanth Soni, his father, who succumbed to the said injury. 4. The accused abjured his guilt but on trial, the learned Additional Sessions Judge, found the accused guilty of an offence U/s 302 of the IPC and sentenced him to imprisonment for life. The accused, however acquitted of the charge U/s 307. 5. The prosecution examined 12 witnesses in support of its case and amongst them, am Prakash Soniwas examined as PW-8, who, however, did not support the prosecution. In this deposition, am Prakash Soni while confirming the fact that he and Suresh were interrogating Laxmi and his uncle Gajadhar Soni had arrived and further, deceased Neelkanth Soni had also come there, he merely says that some one fired a shot causing injury to Neelkanth. He was declared hostile and cross-examined by the prosecution. Laxmi Chand Soni was examined by the prosecution as PW-3. He also did not support the prosecution and merely stated that some one fired a gun with the result, injury was caused to deceased Neelkanth. He was also cross-examined by the prosecution and confronted with his statement (Ex.P/4) made to the police from which he resiled. PW-10, Vinod Soni has also pleaded ignorance as to how deceased Neelkanth received bullet injury and has been declared hostile by the prosecution and cross-examined. He has also resiled from his police statement Ex.P/10. PW-8, am Prakash Soni; PW-3, Laxmichand Soni and Vinod Soni are closely related to the accused and the accused being the son of the deceased, they have not unfolded the truth and have prevaricated to help the accused. Thus, eye-witness account of the incident has been suppressed by prosecution witnesses on account of their interest in the accused. Thus, the case of the prosecution is left with the medical evidence and the dying declaration made by the deceased and recorded by PW-5, Dr. Brij Mohan Chourasiya. 6. Dr. Brij Mohan Chourasiya (PW-5) has deposed that on 14.8.1986, he was posted as Assistant Surgeon at Rajnagar Primary Health Centre. He had received two requisitions from the SHO of police-station, Rajnagar. He had examined Neelkanth, son of Chinku Soni at 7.30 a.m. who had been brought to the PHC by constable, Mohar Khan, PW-2. Brij Mohan Chourasiya. 6. Dr. Brij Mohan Chourasiya (PW-5) has deposed that on 14.8.1986, he was posted as Assistant Surgeon at Rajnagar Primary Health Centre. He had received two requisitions from the SHO of police-station, Rajnagar. He had examined Neelkanth, son of Chinku Soni at 7.30 a.m. who had been brought to the PHC by constable, Mohar Khan, PW-2. The general condition of the patient was not good, his pulse rate was 90 per minute and blood pressure 100/50. On examination, Dr. Chourasiya found an injury in the lower portion of the abdomen which was a bullet injury. According to PW-5 Dr. Chourasiya, along with the treatment, he also recorded the statement of patient as he had received requisition for recording of the dying declaration of the victim and to confirm whether or not, the victim was in a fit condition to make a statement. In this statement, the deceased clearly mentioned that his son Gajadhar Soni, the present accused had fired his gun at him. The doctor has confirmed that he obtained the signatures of the deceased on this dying declaration which are contained in portion 'A' to 'A'. He also obtained signature of the two witnesses, namely, Budha Singh in portion 'B' to 'B' and Vinod Soni in portion 'e' to 'e', while he subscribed his signatures in portion 'D' to 'D' of Ex.P/11. 7. Dr. Chorasiya (PW-5) has though stated that he had recorded the Dying Declaration of Neelkanth in response to the requisition of the police, he has completely surrendered to the defence in his cross-examination to make the said Dying Declaration unreliable. He has readily obliged the defence in admitting the suggestion that a number of people had gathered outside and were shouting to prompt the deceased to involve the accused Gajadhar Soni. Even examined from another perspective, the Dying Declaration does not bear certificate of the doctor about the fit mental state of the deceased before recording of the Dying Declaration. It has been recorded in the narrative and it is difficult to gather as to what querry the deceased had given the said answer, as the Doctor has admitted that he had put certain questions to the deceased while recording his dying declaration but the questions were not recorded by him. Added to this is the admission of PW-5 Dr. It has been recorded in the narrative and it is difficult to gather as to what querry the deceased had given the said answer, as the Doctor has admitted that he had put certain questions to the deceased while recording his dying declaration but the questions were not recorded by him. Added to this is the admission of PW-5 Dr. Chorasiya that people were prompting the deceased from outside to mention the name of the accused which appears to be a story deliberately introduced by the doctor. Be that as it may, the Dying Declaration having lost its sanctity due to the flaws noticed above, it cannot be made the foundation for conviction in absence of corroboration from other independent sources. 8. The Investigating Officer (PW-12), B.L. Shrivastava seized a licensed gun from the accused along with an empty cartridge under memorandum (Ex.P/19). Two live cartridges were also seized from the pocket of the accused under memorandum (Ex.P/20). The seized gun and cartridges were forwarded by the Superintendent of Police under his memorandum (Ex.P/22) to the Director, Forensic Science Laboratory, Sagar for examination, Ex.P/23-A is the report of the Director certifying that the gun seized from the accused was in a perfect working order and its barrel indicated signs of discharge. Test cartridges were fired for comparison of the empty cartridges recovered from the accused which indicated positive results and thus, the empty cartridges had been fired only from the gun recovered from the accused. The shirt and Dhoti of the deceased were also forwarded for examination and the Expert has opened that the holes in the shirt and Dhoti were gun shot holes caused by lead projectiles. The evidence about the seizure of the gun and the cartridges from the accused, as also the finding contained in the report (Ex.P/23-A) has in no way been discredited by the accused. As a matter of fact, not even a suggestion has been made in the cross-examination of PW-12, B.L. Shrivastava to dispute the seizure of the gun and cartridges from the accused and the correctness of the report. 9. As a matter of fact, not even a suggestion has been made in the cross-examination of PW-12, B.L. Shrivastava to dispute the seizure of the gun and cartridges from the accused and the correctness of the report. 9. In the opinion Ex.P/23-A, the Assistant Director (Ballistics) and Assistant Chemical Examiner, Forensic Science Laboratory, Sagar, while confirming that the gun recovered from the accused showed signs of discharge, the report categorically states that it could not be predicted with any scientific accuracy as to the time when the gun had been fired last. From this report, what at the most can be inferred is that the gun belonging to the accused had been fired at some point of time but that point of time cannot with any exactitude, be related to time of the incident. It is not uncommon that fire arm barrels are not cleaned after every discharge and may be that the gun had been fired long before its seizure from the accused. There is no evidence, as the prosecution witnesses have not supported the prosecution, to show that the accused had fired the gun. Under these circumstances, no corroboration is available even from the seizure of the gun from the accused for which he had a valid licence, to the statement made by the deceased in the Dying Declaration. Thus, there are no circumstances of any conclusive nature to sustain the conviction of the appellant. 10. In the result, this appeal is allowed and the conviction of the appellant for offence U/s 302 of the IPC and the sentence of imprisonment for life passed against him, is set aside and he is acquitted of the said charge. The appellant is under-going sentence in jail. He shall be released forthwith, if not required in connection with any other matter.