SHAMBHOO SINGH, J. ( 1 ) THIS appeal is directed by the accused persons against the judgment and order dated 8-8-95 passed by IInd Additional Sessions Judge, Shajapur, in S. T. No. 242/93 whereby the appellants Gokulsingh, Bhavarlal and Babulal were convicted for the offence punishable under Section 302/34 of the IPC and sentenced to life imprisonment and to pay fine of Rupees 1,000/- each, in default of payment of fine, further six months' S. I. for having committed murder of Gokulsingh s/o Nirbhaysingh. ( 2 ) THE prosecution case, in brief, was that on 14-4-93 in the morning, the deceased Gokulsingh who was a practising advocate and his son Meharbansingh (P. W. 3) aged about 12 years, went to their well in village Narval, District Shajapur. The deceased went to answer call of nature in the field of Babulal Teli. All of a sudden, the appellants Gokulsingh, Bhavarlal and Babulal armed with sword, farsi and dhariya and co-accused Lalsingh s/o Heeralal with knife and Chander Singh, Mansingh, Kalusingh, Dhannalal and Lalsingh s/o Pannalal armed with lathis, came on the spot and surrounded the deceased and assaulted him with their respective weapons. Meharbanshingh seeing this, ran to his house and told his grand-father Nirbhaysingh (P. W. 6) at flour mill and his uncle Heeralal (P. W. 2) at his house that his father Gokulsingh was being assaulted. Heeralal (P. W. 2) and Devsingh (P. W. 4) went to the spot. They saw the accused persons assaulting the deceased. Nirbhaysingh (P. W. 6) also went there. He saw the accused persons running from the spot with their respective weapons. Gokulsingh was badly injured. He was put in a tractor and was taken to P. S. Agar where Heerala Yadav (P. W. 2) lodged FIR Ex. P. 4 which was recorded by A. S. I. S. R. Parihar (P. W. 12 ). The injured was referred to civil hospital Agar where Dr. A. S. Khan (P. W. 1) examined him and found the following injuries :1. Incised wound on the central part of forehead, 2" x 1/4" x 1/4". 2. Incised wound on the middle side of left orbital, 3" x 1/2" x 1/2". 3. Incised wound on the upper part of left eye-lid, 1" x 1/4" x 1/4". 4. Incised wound on middle part of right leg, 3" x 1/2" x 1/2". 5. Incised wound on the central part of forehead, 2" x 1/4" x 1/4". 2. Incised wound on the middle side of left orbital, 3" x 1/2" x 1/2". 3. Incised wound on the upper part of left eye-lid, 1" x 1/4" x 1/4". 4. Incised wound on middle part of right leg, 3" x 1/2" x 1/2". 5. Incised wound, 1" below injury No. 4, 4" x 1/2" x 1/2". 6. Incised wound, 1" below injury No. 5, 4" x 1/2" x 1/2". 7. INCISED wound on the upper 1/3rd part of right leg, 1" x 1/2" x 1/2". 8. Incised wound on the middle part of left leg, 2" x 1/2" x 1/2". 9. Incised wound, 2" below injury No. 8, 3" x 1/2" x 1/2". 10. Incised wound on the lower 1/3rd part of left leg, 3" x 1/2" x 1/2". 11. Incised wound on the lower 1/3rd part of left leg, 3" x 1" x 1/2"12. Incised wound on the middle part of left forearm, 2" x 1/2" x 1/2". 13. Incised wound 1" middle from the injury No. 12, 2" x 1/2" x 1/2". 14. Incised wound on the lower 1/3rd part of right forearm, 3" x 1" x 1/2". 15. INCISED wound on the metacarpal bones of all fingers and thumb of right hand, 11" x 3" x 11/2". 16. BRUISE on the middle part of left thigh, 5" x 1/2". 17. Incised wound on right parietal bone, 2" x 1/2" x 1/2". 18. Bruise on left parietal bone, 5" x 1/2" x 1/2". S. R. Parihar, A. S. I. requested Dr. Khan to record dying-declaration of the deceased as Executive Magistrate was not available. Dr. Khan at about 10-30 a. m. recorded dying-declaration Ex. P. 2 of the deceased. S. R. Parihar recorded the statement of Gokulsingh vide Ex. P. 38. The deceased was serious, therefore, he was referred to District Hospital, Ujjain, where he succumbed to his injuries. Head Constable Rameshwar Tiwari (P. W. 9) conducted inquest on the dead body of the deceased and prepared inquest report Ex. P. 9. Thereafter Dr. Pramod Kaushik performed post-mortem examination on the dead-body and found fifteen incised wounds as were found by Dr. Khan. Dr. Kaushik opined that the cause of death was shock and haemorrhage, as a result of various injuries found on the body vide post-mortem report Ex. P. 11. P. 9. Thereafter Dr. Pramod Kaushik performed post-mortem examination on the dead-body and found fifteen incised wounds as were found by Dr. Khan. Dr. Kaushik opined that the cause of death was shock and haemorrhage, as a result of various injuries found on the body vide post-mortem report Ex. P. 11. S. R. Parihar, A. S. I. started investigation. He visited the place of occurrence and prepared spotmap Ex. P. 36. He seized stained and unstained earth, iron part of dhariya, iron 'dibba' used for going to latrine, a pair of old shoes, piece of thumb vide seizure memo Ex. P. 37. Accused persons Lalsingh s/o Heeralal, Lalsingh s/o Pannalal, Dhannalal were arrested on 14-4-93 and Kalusingh and Mansingh were arrested on 19-4-93. These acquitted co-accused recovered lathis and knife while Lalsingh s/o Heeralal recovered knife. The appellants Bhavarlal, Gokulsingh and Babulal were arrested on 25-4-93. They gave information to Mahendra Singh Shaktawat (P. W. 11), S. H. O. Agar u/s. 27 of the Evidence Act on 26-4-93 about concealing farsi, sword and dhariya vide Exs. P. 18, 19 and 20 respectively. On 26-4-93 these appellants produced farsi, sword and lathi part of dhariya to A. S. I. Bhaizan Khan (P. W. 13) who seized them vide seizure memo Exs. P. 39, 40 and 38 respectively. The clothes of the deceased, articles seized from the place of occurrence and the weapons seized at the instance of the appellants and co-accused were sent to F. S. L. Sagar for chemical examination. The Chemical Examiner opined vide report Ex. P. 35 that the stained earth, iron part of dhariya, farsi, sword and lathi recovered at the instance of the appellants were found having blood stains vide report Ex. P. 35. After completion of investigation, challan was filed. The appellants and co-accused pleaded not guilty and false implication. The learned Trial Judge after appreciation of evidence convicted the appellants Gokul-singh, Bhavarlal and Babulal under S. 302/34 of the IPC, and acquitted the remaining accused persons. Hence, this appeal by the appellants. ( 3 ) ). Shri H. S. Oberai, learned Senior Counsel for the appellant No. 1, submitted that the learned Trial Jude committed error in putting reliance on the testimony of the prosecution witnesses. They are close relatives of the deceased and their evidence is full of contradictions and omissions. The dying-declaration of the deceased recorded by Dr. ( 3 ) ). Shri H. S. Oberai, learned Senior Counsel for the appellant No. 1, submitted that the learned Trial Jude committed error in putting reliance on the testimony of the prosecution witnesses. They are close relatives of the deceased and their evidence is full of contradictions and omissions. The dying-declaration of the deceased recorded by Dr. Khan and his statement recorded by Sub-Inspector Bhaizan Khan (P. W. 13) u/s. 161 of the Cr. P. C. cannot be relied. The deceased was not in a position even to speak. He submitted that someone had killed the deceased in the darkness of the night and the appellants have been falsely implicated due to enmity. Shri Warsi L/c for the Appellants Nos. 2 and 3 adopted the arguments advanced by Shri Oberai. Shri Desai, G. A. , supported the impugned judgment and submitted that the statements of the prosecution witnesses have been corroborated by medical evidence and other material on record. ( 4 ) ). We have gone through the evidence on record. It is not disputed before us that the deceased Gokulsingh died homicidal death and rightly so as it is amply proved from the medical evidence of P. W. 1 Dr. A. S. Khan who initially examined the deceased. P. W. 10, Dr. Pramod Kaushik who conducted autopsy on the dead body of the deceased and inquest report Ex. P/9 prepared by P. W. 9 Rameshwar Prasad Tiwari. ( 5 ) ). Now the question that arises for consideration is whether the appellants caused the death of the deceased. It has come in the evidence of Meharban Singh that he along with his father Gokul Singh had gone to their well in the morning at about 8 a. m. At about 8-30 a. m. his father Gokul Singh went from his well to the field of Babulal Teli for answering call of nature when he had eased himself and stood up and walked 4-5 paces, all of a sudden appellants appeared there and started beating his father Gokulsingh. He stated that appellant Gokulsingh was armed with sword, Bhanwarlal and Babulal were armed with farsi and lathi respectively. He immediately ran to his village Narwar and told Nirbhay Singh (P. W. 6) who was present at flour mill that his father was being assaulted. He stated that appellant Gokulsingh was armed with sword, Bhanwarlal and Babulal were armed with farsi and lathi respectively. He immediately ran to his village Narwar and told Nirbhay Singh (P. W. 6) who was present at flour mill that his father was being assaulted. Thereafter he went to his house and narrated the incident to Heeralal (P. W. 2), his uncle. They immediately rushed to the spot. Heeralal (P. W. 2) deposed that after receiving information from his cousin Meharbansingh, he immediately rushed to the place of occurrence. He saw that the appellants Gokulsingh, Bhavarlal and Babulal were armed with sword, farsi and Dhariya respectively and Lalsingh s/o Heeralal with knife and other co-accused with lathis and were assaulting the deceased Gokulsingh with their respective weapons. The appellants seeing them, ran away from the spot. Nirbhay Singh (P. W. 6), the father of the deceased, stated that when he reached his well he saw the appellants assaulting Gokulsingh. Same is the statement of Deosingh (P. W. 4 ). ( 6 ) ). It is worth mentioning here that though Deosingh (P. W. 4), is an independent witness, but he is not reliable witness. According to his police statement Ex. D. 1, he did not see the appellants assaulting the deceased, but he improved his statement and deposed that he saw the incident. ( 7 ) ). In appreciating the evidence of these witnesses, it has to be borne in mind that admittedly there was enmity between the deceased and the appellants. It has come in the evidence of P. W. 2 Heeralal that on the festival of 'holi' all the accused persons had come to assault the deceased on their flour mill, about which the deceased Gokulsing had lodged report against them at police station. As stated earlier, alleged eye-witnesses Meharbansingh, Heeralal and Nirbhy-singh are sons, real brothers and father of the deceased respectively. Under such circumstances, though the evidence of near relations cannot be brushed aside on the ground of relationship but where there is enmity and the witnesses are near relations, their evidence has to be scrutinized with great care and caution. When we examine the evidence of the prosecution witnesses, keeping in view the above principle their evidence does not appear to be reliable. ( 8 ) ). First and the foremost thing is that in the dying-declaration Ex. When we examine the evidence of the prosecution witnesses, keeping in view the above principle their evidence does not appear to be reliable. ( 8 ) ). First and the foremost thing is that in the dying-declaration Ex. P. 2 of the deceased recorded by Dr. Khan (P. W. 1) and police statement Ex. P. 38 recorded by Sub-Inspector S. R. Parihar (P. W. 12) which became dying-declaration after his death, the deceased did not mention that he had gone with his son Meharbansingh to his well and Meharbansingh was present at the time of incident. The non-mentioning of the name of this witness in dying-declaration and police statement which are recorded in detail creates great suspicion about the presence of this witness on the spot. His conduct also appears to be abnormal. He saw his father Gokulsingh being assaulted by the accused persons with sword, farsi and Dhariya, he went running to his grand-father Nirbhay-singh and uncle Heeralal and told them that his father was being beaten. But it is surprising that he did not mention the names of the assailants nor these witnesses asked their names. Had this witness seen the occurrence, he would have mentioned the names of the assailants. After giving information, he did not go to the spot to see as to what had happened to his father. A normal man, in the above circumstances, would not stay at home, but immediately would run to see his father. We may assume that he was panicky and in a confused state of mind, when he came from the spot and narrated the incident to these witnesses, but thereafter, when he stayed at home, he must have composed and regained normalcy, even then he did not mention the names of the assailants to the house ladies. ( 9 ) ). Heeralal deposed that his flour mill is 100 feet away from his house and the house of Gangaram is 400 feet away from the flour mill and from the house of Gangaram, his well is 400-500 feet away and from there the place of incident is 300-400 feet away. According to this witness, the distance of the spot from his house comes round about 1400 feet. But the Investigating Officer S. R. Parihar (P. W. 12) admitted in cross-examination that the distance of the place of occurrence is about 1 km. from the village. According to this witness, the distance of the spot from his house comes round about 1400 feet. But the Investigating Officer S. R. Parihar (P. W. 12) admitted in cross-examination that the distance of the place of occurrence is about 1 km. from the village. Meharbansingh (P. W. 3) stated in cross-examination in para 15 that his uncle and these persons would have taken 10-12 minutes in reaching the place of incident. According to Nirbhaysingh (P. W. 6), he took 7-8 minutes in reaching the spot. If we accept these statements to be correct, Meharban Singh must have taken at least 10 minutes to reach his house and after receiving information Heeralal, Nirbhaysingh and Devisingh, immediately started, and ran for the spot, they must have also taken at least 10-12 minutes looking to their age. In this way, these witnesses reached the spot 20-22 minutes after starting of the initial quarrel. It appears unnatural that the accused persons would stay for 20-22 minutes on the spot. According to the prosecution the assailants were seven in number. 18 injuries were found on the dead-body. In our opinion, the causing of 18 injuries to a person who was all alone and unarmed, would not have taken more than 2-3 minutes. It appears unnatural that the assailants would stay after causing injuries for 18-20 minutes. Normally no culprit would stay on the spot after committing offence lest he may be identified. Nobody would like to be caught red handed on the spot in serious case like murder. All these circumstances lead to the inference that these witnesses did not see the incident. The argument of learned defence counsel Shri Oberai that the deceased went to his well all alone and later on was found seriously injured in the field of Mangilal, oilman. As there was enmity between the deceased and appellants, it was imagined that the appellants must be the assailants and FIR was lodged against all the appellants. ( 10 ) ). FIR Ex. P. 4 also appears to be doubtful. Heeralal (P. W. 2) deposed in para 10 that he went to police station Agar and lodged FIR Ex. P. 4 and thereafter his brother was sent to hospital but he admitted in cross-examination that his report was not written in police station, it was written in hospital. FIR Ex. P. 4 also appears to be doubtful. Heeralal (P. W. 2) deposed in para 10 that he went to police station Agar and lodged FIR Ex. P. 4 and thereafter his brother was sent to hospital but he admitted in cross-examination that his report was not written in police station, it was written in hospital. Had it been so, it would have been recorded in the form of 'dehati-nalishi'. It means FIR Ex. P. 4 was recorded, after investigation had started and under such circumstances, it is hit by S. 162 of the Cr. P. C. ( 11 ) ). Now we shall consider the dying-declarations recorded by A. W. 1 Dr. A. S. Khan and I. O. P. W. 12 S. R. Parihar, A. S. I. police station, Agar. It is settled law that conviction can be based on dying-declaration without any further corroboration if it was made voluntarily without tutoring or prompting. Normally a man on the verge of death is not likely to implicate innocent persons falsely but at the same time this statement is not made before the Court on oath and the maker is not subjected to cross-examination, the Court is, therefore, required to scrutinize it carefully and if it is found truthful, it can be acted upon. ( 12 ) ). Dr. A. Khan on the request of Investigating Officer admitted that when the deceased was brought to hospital, he was in semi-conscious condition. His blood pressure had gone down to 90/60. He stated that he must have gone in shock on the place of incident but he recovered consciousness as he was given glucose saline and medicines. Dr. Pramod Kaushik (P. W. 10) who conducted autopsy on the dead-body, admitted that due to excessive haemorrhage the deceased must have gone in shock within half an hour after the incident, blood could not be given as blood transfusion facility was not available at Agar. P. W. 2 Heeralal admitted that the deceased was serious. He was gasping and was not in a position to speak. He remained conscious only for the period when his statement was recorded by the Doctor. P. W. 3 Meharbansingh also stated that his father was conscious but could not speak. According to P. W. 6 Nirbhaysingh, the deceased could give names of only three assailants and became unconscious and died in the same position. He remained conscious only for the period when his statement was recorded by the Doctor. P. W. 3 Meharbansingh also stated that his father was conscious but could not speak. According to P. W. 6 Nirbhaysingh, the deceased could give names of only three assailants and became unconscious and died in the same position. In view of above, it appears that the deceased was not in a position to speak. Dr. Khan did not state that the deceased was in a fit mental condition to give dying-declaration and throughout remained conscious when his statement was recorded. Under such circumstances, the dying-declaration Ex. P. 2 has become doubtful and unreliable. ( 13 ) ). Police statement Ex. P. 38 of the deceased Gokul Singh was recorded by Asstt. Sub-Inspector P. W. 12, S. R. Parihar which became dying-declaration after his death. He did not obtain certificate from the Doctor that the deceased was in fit mental condition before recording his statement. Neither A. S. I. Parihar stated nor the Dr. A. S. Khan deposed that the latter certified that the deceased was in a fit mental condition to make declaration. He did not obtain Doctor's certificate on Ex. P. 38. As stated earlier, Nirbhay Singh (P. W. 6) stated that the deceased became unconscious when his statement was being recorded by the Dr. A. S. Khan and thereafter he never regained consciousness and died in the same condition. The same is the statement of other witnesses. Under these circumstances, dying-declaration Ex. P. 38 is not reliable. ( 14 ) ). The prosecution withheld the dying-declaration recorded by Executive Magistrate (S. D. M. ). P. W. 12 A. S. I. S. R. Parihar admitted in para 7 in his cross-examination that after five minutes of his recording Ex. P. 38, statement of the deceased, he sent a letter to S. D. M. for recording dying-declaration of the deceased and the S. D. M. came there and went inside the room of the deceased. At that time he (Parihar) was outside the room, therefore, he could not say as to what statement was made by Gokulsingh to the S. D. M. From this evidence, it is clear that the S. D. M. recorded dying-declaration of the deceased but it has not been produced in the Court and, therefore, adverse inference against the prosecution that this dying-declaration was not supporting prosecution case is drawn. Therefore, the dying-declaration Exs. P2 and P. 38 lose their evidentiary value on this ground also. For non-filing of this dying-declaration no explanation has been offered. ( 15 ) ). Even otherwise, if we assume that the deceased was in fit mental condition and made dying-declaration Ex. P. 2, even then no reliance could be placed on it. Dr. Khan admitted in para 12 of his cross-examination that when he was recording dying-declaration of the deceased, Sub-Inspector of Police was present there. He stated that the relatives of the deceased were not present there. But P. W. 2 Heeralal stated in paragraph 21 of his cross-examination that when Dr. Khan recorded statement of his brother, he was standing nearby him. The same is the statement of Nirbhay Singh (P. W. 6) in para 7 of his deposition. He clearly admitted that the statement of the deceased was recorded in his presence. It is, thus, clear that before recording dying-declaration, the brother Heeralal and father Nirbhaysingh were present with the deceased and in their presence he made statement. The family of the deceased had enmity with the accused persons. Under such circumstances, the possibility of tutoring cannot be excluded and, therefore, reliance cannot be placed and conviction cannot be based on such infirm dying-declaration. ( 16 ) ). Mahendra Singh Shekhawat, S. H. O. Agar (P. W. 11) deposed that he arrested the appellants and appellant Gokulsingh gave him information that he had kept his sword in a 'kothi' in his house. The appellant Babulal also gave information that he had hidden the part of Dhariya in a heap of grass vide memo Ex. P. 27 and Bhavarlal also gave information that he had concealed Farsi in his house. Sub-Inspector Bhaizan Khan (P. W. 13) stated that the appellant Gokulsingh, Bhavarlal and Babulal produced sword, farsi and dhariya respectively and they were seized vide seizure memo Exs. P. 40, P. 39 and P. 38 respectively. This statement does not appear to be reliable. In examination-in-chief he stated that these appellants produced their weapons before him. But in cross-examination he stated that these articles were given by the appellants from their houses. But Babulal had given information that he had concealed farsi in heap of grass and not in his house. It appears that the Investigating Officer completed formality of recovery of these weapons at police station itself. But in cross-examination he stated that these articles were given by the appellants from their houses. But Babulal had given information that he had concealed farsi in heap of grass and not in his house. It appears that the Investigating Officer completed formality of recovery of these weapons at police station itself. Even if it is assumed that these articles were recovered at the instance of the appellants, no human blood was found on these articles, therefore, the recovery of these articles carries no weight. ( 17 ) ). From overall consideration of the evidence on record, in our opinion, the prosecution failed to prove beyond reasonable doubt that the appellants were the assailants of the deceased-Gokulsingh. The learned trial Judge did not consider the prosecution evidence carefully as was expected of him in view of the fact that the eye-witnesses were close relatives of the deceased and there was enmity between the appellants and the deceased. ( 18 ) ). In view of above, the accused persons deserve benefit of doubt and we allow the appeal and set-aside the conviction and sentence awarded to the appellants for offence u/s. 302/34 of the IPC. The appellants are in jail, they be released forthwith, if not wanted in any other case. Appeal allowed. .