JUDGMENT 1. - These two appeals arise out of the judgment dated 15.7.81 passed by the learned Sessions Judge, Sri Ganganagar in Session Case No. 98/80. By this judgment, accused Banwarilal and Brijlal were convicted under Section 326 read with Section 34 Indian Penal Code and sentenced to three years rigorous imprisonment and a fine of Rs. 500. Accused Manoharlal and Vijaypal were convicted under Section 302 Indian Penal Code and sentenced to imprisonment for life land a fine of Rs. 200. Accused Banwarilal, Manoharlal and Vijaypal have filed Appeal No. 431/81 whereas Brijlal has filed Appeal No. 443/81. Both the appeals have been heard together and they are being disposed of by this common judgment. 2. The unfortunate incident happened on 16.8.80 at about 10 a.m. in village Delwa in which Ramjas (50) lost his life. The case was registered in Police station Padampur on the basis of the statement of deceased Ramjas recorded by Dulichand, Head Constable at 2 p.m. in which it was stated that when Ramjas was at the bus-stand Delwa, Brijlal, Banwari, Manoharlal and Vijaypal came there. Brijlal caught hold of him and other three accused inflicted `Gandasi' and `Kassi' blows to him and they left him only when his wife and son Jagdish reached the place of occurrence. On the basis of this statement, a case was registered under Section 307 Indian Penal Code. However, when the Ramjas was being taken to the hospital, he died and therefore Section 302 Indian Penal Code was added. The police interrogated the witnesses, inspected the site, arrested the accused and recovered some weapons at their instance. The autopsy was held by Dr. Iqbal Singh who prepared the post mortem report P/20 at 5.15 p.m. After, the completion of the investigation all the 4 accused were challaned. 3. Charges under Section 302 Indian Penal Code were framed against accused Brijlal and Manoharlal. The other two accused were charged under Section 302 Indian Penal Code with the aid of Section 34 Indian Penal Code. All of them pleaded not guilty. The prosecution examined witnesses. Out of them PW 9 Dulichand HC is the police officer who had recorded the dying declaration Ex.P/21. PW 1 Padma is the wife of the deceased and PW 2 Jagdish is his son who are said to have witnessed the occurrence. All of them pleaded not guilty. The prosecution examined witnesses. Out of them PW 9 Dulichand HC is the police officer who had recorded the dying declaration Ex.P/21. PW 1 Padma is the wife of the deceased and PW 2 Jagdish is his son who are said to have witnessed the occurrence. PW 3 Hanuman and PW 4 Ram Narain have been examined to prove the dying declaration. PW 5 Ram Rakh was associated as a Motbir in the investigation. PW 6 Narendra Singh, FC had taken the articles of the case to the Forensic Science Laboratory, Jaipur. PW 8 Dr. Iqbal Singh, as already stated, had performed the autopsy on the body of Ramjas. PW 7 Ramjilal and PW 10 Babulal are the police officials who had taken part in the investigation of the case. In their statements under Section 313, Criminal Procedure Code the accused denied the recovery of any weapon at their instance. They did not examine any witness in defence. The learned Sessions Judge held that Ramjas met homicidal death. He further held that accused were the persons who had caused multiple injuries to Ramjas. He, therefore, convicted the two accused Vijay Pal and Manoharlal under Section 302 Indian Penal Code. He, however, acquitted the remaining two accused Banwarilal and Brijlal under Section 302 Indian Penal Code but convicted them under Section 326/34 Indian Penal Code. 4. Arguments of learned counsel for the appellants and the learned Public Prosecutor appearing for the State respondent have been heard and record perused. 5. Mr. Garg vehemently contended that the trial Court has erred in believing the dying declaration Ex. P/21 on the basis of the statement of PW 9 Dulichand. According to him Ramjas had suffered multiple injuries by sharp edged weapon and therefore, there was bound to be excessive bleeding and he could not remain in senses for 4 hours. He took us through the impugned judgment and contended that the trial Court has convicted the appellants on the basis of conjectures and surmises. According to him, the dying declaration was not got attested by the wife and son of the deceased or by the persons who were present there and, therefore, it should not be believed. He placed reliance on the case of Mohar Singh v. State of Punjab, 1981 SCC (Cr.) 638 . 6. According to him, the dying declaration was not got attested by the wife and son of the deceased or by the persons who were present there and, therefore, it should not be believed. He placed reliance on the case of Mohar Singh v. State of Punjab, 1981 SCC (Cr.) 638 . 6. On the other hand, the learned Public Prosecutor tried to support the judgment of the trial Court. 7. We have given the matter our thoughtful consideration. The only stock with the prosecution is the dying declaration Ex. P/21. There is no denying the legal position that dying declaration, if proved to be voluntary and true, can be made basis of conviction and no corroboration is required. However, the crucial question for determination is whether Ramjas had given the statement Ex. P/21 to Dulichand, Head Constable. 8. A reading of the statement Ex. P/21 indicates that when deceased was being beaten by the accused, his wife Bidami and son Jagdish had reached the place of occurrence and seeing them the accused had fled away. Thus, as per this dying declaration, Bidami and Jagdish were the eye witnesses to the occurrence. However, both these witnesses have not deposed that they had seen any of the accused causing injuries to Ramjas. They have not even stated that they had seen the accused persons going from the side where Ramjas was lying. According to them, when they reached the place of occurrence, Ramjas was lying unconscious. They have been declared hostile by the prosecution and have been confronted with their police statements. They have denied the police statements Ex P/1 and P/2 in which it was stated that the witnesses had seen the accused causing injuries to Ramjas. Both these witnesses are the nearest relations of the deceased. It cannot be believed in the ordinary course of human conduct and experience that nearest relations like wife and son of the deceased would give false statements to help the accused. They could not have any interest in the accused persons. Both these witnesses have denied that they have entered into compromise with the accused persons. There is no material on record to hold that the witnesses have been influenced by the accused persons. The observation of the trial Court that both these witnesses have suppressed the truth is not based on any evidence. Both these witnesses have denied that they have entered into compromise with the accused persons. There is no material on record to hold that the witnesses have been influenced by the accused persons. The observation of the trial Court that both these witnesses have suppressed the truth is not based on any evidence. It may be that near relations sometimes involve innocent persons but they seldom leave the real culprit. Had both these witness seen the accused causing blows to Ramjas, they would have definitely deposed against them. 9. PW 3 Hanuman was also examined to prove the dying declaration but he has also deposed that when he reached the place of occurrence, Ramjas was lying unconscious. In his police statement Ex. P/3 it was written that Ramjas was in his senses and he had given statement to the police official. However, the witness has denied the correctness of these facts. It has been suggested in the cross examination of this witness by the learned Public Prosecutor that because of the compromise he was telling lie but he denied the suggestion. There could not be any reason for the witness to have come to the rescue of the accused. It is not suggested that Hanuman is related tc any accused. PW 9 Ram Narain was also examined to prove the tact of dying declaration. He has also deposed that Ramjas was lying unconscious and when he asked nis wife as to who had given the beatings, she replied that she was not present at that time. This witness has also been declared hostile and cross examined by the P.P. but nothing could be elicited from his statement. 10. Thus, all the 4 witnesses, who were examined to prove the facts of the dying declaration, have not deposed in favour of the prosecution. Now remains the statement of Dulichand (PW 9) Head Constable, who has deposed to have recorded the statement of Ramjas at 2 p.m. 11. The crucial question for determination is whether at 2 p.m. Ramjas could be in a position to give any statement after having sustained injuries at 10 a.m. Dr. Iqbal Singh (PW 8) has been asked questions on this point. His statement is that having sustained the injuries, found on the person of Ramjas, be must have gone in shock immediately. The crucial question for determination is whether at 2 p.m. Ramjas could be in a position to give any statement after having sustained injuries at 10 a.m. Dr. Iqbal Singh (PW 8) has been asked questions on this point. His statement is that having sustained the injuries, found on the person of Ramjas, be must have gone in shock immediately. According to him, his arteries and veins of the lower extremities had been cut leading to excessive bleeding and the deceased must have become unconscious within 3 hours if treatment was not given to him. 12. The learned Sessions Judge has given emphasis on the two facts appearing in the statement of Dr. Iqbal Singh : First, the deceased was not given treatment, second, there was continuous bleeding for three hours. There is no evidence on record that any sort of treatment was given to Ram jas between 10 a.m. to 2 p.m. There is also clear evidence on record that there was excessive bleeding from the injuries suffered by him. Dr. Iqbal Singh has deposed that if 1 /5th quantity of the blood goes out of the body, there are many chances of the injured becoming unconscious. He has also admitted that if the earth in the area of 4'x4 was soaked with blood where the deceased was lying, it would mean that ⅕th of the blood had gone out of the body. There is evidence to this effect in the statement of Ramjilal (PW 7) I.O., who had inspected the site on the very day the occurrence took place, that there was blood scattered on the land in the area of 4x4 and the sand was soaked with blood. It is, thus, obvious that there was excessive bleeding from the injuries of Ramjas and he was not given first aid upto 2 p.m. Keeping in view the opinion of Dr. Iqbal Singh, it can definitely be said that Ramjas must have become unconscious by the time Dulichand approached him at 2 p.m. and he could not be in a position to give statement. It may be noticed that according to the medical officer at 2.40 p.m. pulse and BP of Ramjas were not recordable. In our opinion, in these circumstances, Ramjas could not be in a condition to give statement Ex. P/21 to Dulichand. 13. It is significant to point out that the statement Ex. It may be noticed that according to the medical officer at 2.40 p.m. pulse and BP of Ramjas were not recordable. In our opinion, in these circumstances, Ramjas could not be in a condition to give statement Ex. P/21 to Dulichand. 13. It is significant to point out that the statement Ex. P/21 is not only to this effect that particular persons gave beatings to Ramjas. The statement indicates that Ramjas narrated full particulars, stating where he was going and what was the parentage and residence of each accused. He even stated that particular accused was having particular weapon and particular accused inflicted particular blow. He also stated that his wife and son had seen the occurrence. It cannot be believed that a person who had suffered multiple incised wounds which had resulted into excessive bleeding, could be in such a state of mind to remember and narrate the minute details of the incident. In such a condition, there could not be coherent statement as has been recorded by Dulichand. We have already seen that this part of the dying declaration is incorrect that wife of Ramjas and his son Jagdish had seen the occurrence. 14. The observations of the learned Sessions Judge that it could not be believed that Ramjas had not be given first aid in three hours and blood would be allowed to flow out even when his wife, son and many villagers had reached there. We do not understand on what basis the learned Sessions Judge has made such observations. There is no evidence worth the name on record that first aid was given to Ramjas or that any attempt was made by anyone to check the flow of the blood. Obviously, the judgment of the trial Court is based on surmises and conjectures. 15. It is also to be noticed that the dying declaration does not bear the attestation of any person. According to Dulichand, many persons including Bidami and Jagdish were present there when he recorded the dying declaration. His this explanation cannot be believed that the persons who were 50-60 in number refused to put the signatures on the dying declaration. It is relevant to state that there is no note appended to the dying declaration that the persons present referred to put their signatures on the statement. His this explanation cannot be believed that the persons who were 50-60 in number refused to put the signatures on the dying declaration. It is relevant to state that there is no note appended to the dying declaration that the persons present referred to put their signatures on the statement. Shri Dulichand admits that he did not tell Bidami, and Jagdish to put their signatures on the dying declaration. No satisfactory explanation has been given as to why they were not asked to put their, signatures. According to him, even there were 3 constables with him when he recorded the dying declaration S.P/21. The signatures of those constables are also not taken. They have also not been examined in the Court to depose whether Ramjas had given any statement in their presence to Dulichand. Of course, that it is not the requirement of law that the dying declaration should bear attestation of some person but while appreciating the evidence of dying declaration all the facts, including the one as to in whose presence it was recorded and in what manner it was recorded, are relevant. 16. Dulichand admits that Ramjas did not give statement in Hindustani but he spoke in `Bagri'. If the dying declarations recorded in the words of the deceased, it is desirable that a certificate is recorded thereon that the deceased gave statement in a particular language which was translated by the person who recorded the statement. It is to be noticed that Dulichand has not deposed that he knew `Bagri' language very well. In our opinion, looking to the various circumstances appearing on record, it is difficult to believe that Ramjas had given any statement in which he had named that the accused had caused injuries to him. Dulichand being a police official, w^s certainly interested in showing his performance that the culprit of murder could be brought to book. Looking to the evidence on record, the only inference that can be drawn is that Shri Dulichand has fabricated this dying declaration. In the case of Mohar Singh (supra) the Apex Court did not believe the dying declaration which was in detail and was extremely coherent and it was not got attested by the wife of the deceased. 17. There is no other evidence on record on which the conviction of the appellants can be sustained. In the case of Mohar Singh (supra) the Apex Court did not believe the dying declaration which was in detail and was extremely coherent and it was not got attested by the wife of the deceased. 17. There is no other evidence on record on which the conviction of the appellants can be sustained. The recovery of weapons does not connect the accused with the crime because the origin of the blood on `Gandasi' could not be determined by the serologist. 18. In our opinion, the trial Court has committed grave error in convicting the appellants in this case. The appellants are entitled to acquittal. 19. Consequently, this appeal succeeds. The judgment of the trial Court convicting the appellants under Section 302 and 326/34 Indian Penal Code is set aside and they are acquitted. The appellants are on bail. They shall not surrender to the bail bonds which stand cancelled. observations. There is no evidence worth the name on record that first aid was given to Ramjas or that any attempt was made by anyone to check the flow of the blood. Obviously, the judgment of the trial Court is based on surmises and conjectures.Appeal Allowed. *******