Judgment A.K.Prasad, J. 1. This appeal, at the behest of the sole appellant (William Anthony alias Babu), is directed against the judgment and order dated 7-3-1990 in S.T. No. 30 of 1986 passed by Sri Tarkeshwar Prasad, the then 2nd Addl. Sessions Judge, Jamshedpur, whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment thereunder. Further, the appellant has been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years on that count. Both the sentences have been ordered to run concurrently. 2. Briefly stated, the prosecution case, as made out in the fardbeyan (Exhibit 1/1) is as under : The informant (Shyama Prasad Rai), PW-1 lodged an information that on 28-1-1983 around 10.20 p.m. he received a telephonic call from one Israil, a friend of his son (Pradeep Narain Rai @ Presidh), from Tata Main Hospital at Jamshedpur, conveying that Pradeep Narain Rai @ Presidh, his son, was seriously injured and was admitted to the hospital for treatment. On receipt of the telephonic message, the informant accompanied by his younger son (Anjani Kumar), PW-9, reached the hospital on a Scooter within 15 minutes. At that time, Pradeep Narain Rai, his son was admitted in the Main Surgical Ward and the doctor was giving him treatment. On Seeing the informant, Pradeep Narain Rai told "BABUA MAIN NAHIN BACHUNGA. WILLAM @ BABU JO TERESE KA BHAI HAI USNE MUJHE GOLI MAR DIYA. "Thereafter, the attending doctor forbade to talk more. On enquiry, the doctor told the informant that Pradeep Narain Rai had suffered firearm wound on his left chest. The doctor advised for blood transfusion, which was arranged. Wahil, Israil and some of other friends of Pradeep Narain Rai were present in the hospital. On enquiry, Wakil told the informant that in the evening, around 7-7.30 p.m., he, Israil and Pradeep Narain Rai with some friends had gone to Mango to a dinner party and they returned to Zama Masjid at Sakchi, where he (Wakil) and Israil were living in a room and the deceased again went out on a motor cycle of Akbar and returned after 10/15 minutes to the room of Wakil and Israil, whereafter he took out a letter from the pocket and read it. Again he went out of the room saying that he would return within 5/7 minutes. Again he went out of the room saying that he would return within 5/7 minutes. Three or four minutes after he had left, Wakil and Israil heard a sound of fire shot and thereafter, the deceased came and fell dowrt at the door of the room of Wakil and uttered that Babu had shot him and had succeeded. Thereafter, Wakil came out of the room to find that there was wound in the left chest of the deceased. Then, Israil and Wakil brought him on a auto-rickshaw to Tata Main Hospital, where he was admitted for treatment. Thereafter, Israil had given the message over telephone to the informant. The deceased in course of treatment succumbed to the wound in the hospital at about 1 a.m. on 29-1-1998. The informant was told by Wakil that the occurrence had taken place behind Quarter No. L3/3 on Babai Tirna Link Road within Sakchi Police Station. The distance between the place of occurrence and Sakchi Police Station is about 1/4 km. The appellant lived in Quarter No. 33/L/4 at Sindh Road within the same police station (Sakchi), Jamshedpur. Further prosecution case goes that on getting the telephonic message on 29-01-1983 at about 2 a.m. from Bistupur Police Station that the deceased had died in Tata Main Hospital, around 1 a.m., PW-7 Seocharan Das, the then Sub-Inspector of Police, attached to Sakchi Police station, had made an entry in the Station Diary of the Police station and proceeded to Tata Main Hospital and recorded the fardbeyan of the informant the same night at about 2.30 a.m. On its basis, the present case came to be instituted, formal First Information Report (Exhibit 3) was drawn up, PW-7 assumed investigation on the spot, he visited the place of occurrence, which is a culvert situated at about 15 yards to the South of Babai-Tirna Link Road, behind quarter No. L 3/3, effected seizure of blood-stained pitches and stones on the spot, held inquest on the body of the deceased, took charge of his blood-stained clothes and sent the dead body for post-mortem examination. On 31-1-1983, he seized a pistol loaded with empty shell on the disclosure made by the appellant from a drum kept in the kitchen of his house (vide Exhibit 4). On completion of investigation, charge-sheet was laid in Court against the appellant. 3. On 31-1-1983, he seized a pistol loaded with empty shell on the disclosure made by the appellant from a drum kept in the kitchen of his house (vide Exhibit 4). On completion of investigation, charge-sheet was laid in Court against the appellant. 3. The case was, ultimately, committed to the Court of Session by Sri O.P. Sinha, the then Additional Chief Judicial Magistrate, Jamshedpur, vide order dated 2-1-1986. 4. The main defence is of innocence and false implication. The further defence, as gathered from the suggestions given to P.Ws 1 and 9 and the evidence led by the defence, is that the deceased was unconscious throughout and he was not in fit state of health to make any oral dying declaration, implicating the appellant. 5. In support of its case, the prosecution has examined nine witnesses. Out of them, PW-4 (Latif Ahmad Boudi), is a hostile witness. PW-2 (Mahesh Prasad) PW-3 (Abdul Sattar) and PW-8 (Trilochan Singh) are the witnesses on seizure. The other PWs are : PW-1 (Shayma Pd. Rai), the informant, PW-5 (Md. Sakil), PW-9 (Anjani Kumar Rai), brother of the deceased, PW-6 (Dr. R.K. Sharma), who held autopsy on the body of the deceased and PW-7 (Seo Charan Das) the Investigation Officer. On the other hand, the defence examined two witnesses, namely, DW-1 (Waghi) and DW-2 (Dr. Binod Kumar Singh). 6. The point which falls for consideration is whether the prosecution has been able td substantiate the charge under Sections 302 of the Indian Penal Code and 27 of the Arms Act against the accused-appellant beyond shadow of reasonable doubt. 7. On consideration of the evidence and materials on record, the trial Court relying on the testimony of PWs 1 and 9 that the deceased had made oral dying declaration implicating the appellant to be his assailant, the recovery of pistol loaded with empty shell on the pointing of the accused and that there was motive for the murder of the deceased by the appellant, held the appellant guilty of the charge under Sections 302 of the Indian Penal Code and 27 of the Arms Act and convicted and sentenced him, as stated above. It may be mentioned that the trial Court acquitted the appellant of the charge under Sections 25(1)(a), 26(b) and 35 of the Arms Act by giving him benefit of doubt. 8. While assailing the impugned judgment and the order of conviction, Mr. It may be mentioned that the trial Court acquitted the appellant of the charge under Sections 25(1)(a), 26(b) and 35 of the Arms Act by giving him benefit of doubt. 8. While assailing the impugned judgment and the order of conviction, Mr. N.N. Sinha, learned Counsel for the appellant, has urged that the oral dying declaration is a weak evidence and considering the nature of injury, sustained by the deceased, his condition, the evidence of PWs 1 and 2 and in absence of the examination of the attending physician and the nurses, it is highly improbable that the appellant was in a fit condition to give his dying declaration implicating the appellant; that Israil, who gave the information over telephone to the informant and Wakil, the other companion of the deceased, have not been examined in this case and the facts known to the informant from them are inadmissible in evidence, being based on hearsay evidence and in fact no fire-arm was recovered from the person of the appellant. He further contended that there is no evidence indicating that with whom the allegedly seized fire-arm was kept after its seizure till it was sent to the expert and this renders it doubtful that it was seized on the pointing of the appellant. Mr. I.N. Gupta, learned A.P.P. appearing on behalf of the State, on the other hand has supported the impugned judgment. 9. The identity of the place of occurrence is not in dispute. It is a pitch road of the culvert behind Quarter No.L/3/3 on the south of Babai-Tirna Link Road. The identity of the place of occurrence is established by the objective evidence, found by the Investigating Officer on the spot, like presence of blood in large quantity and seizure of blood-stained pieces of pitch and stones, which on chemical analysis were found to contain human blood (vide Exhibit 5). The medical evidence on record establishes beyond doubt that the deceased died of fire-arm injury. PW-6 (Dr. R.K. Sharma) has testified to the effect that on 29-1-1983 at 11.45 a.m. he had held autopsy on the body of Pradeep Narain Rai alias Prasidh, the deceased, and he found the following ante-mortem wounds on his person : (i) One irregular oval hole on left side of chest on the left nipple destroying the shape of the nipple. The margins were lacerated, but not tattooed. The measurement was 4 cm. The margins were lacerated, but not tattooed. The measurement was 4 cm. X cavity deep. This hole was due to the bullet injury. The bullet fractured the 4th rib and the chips of the bone had travelled inside. The bullet further punctured the left lung on its lower part, both front and back and was lodged in the back about 2 cm. away from the vertebral column. The muscle of the chest and the thorax were bruised due to bullet. The bullet was lodged and recovered between 3rd and 4th thoracic vertebrae little away from mid-line. There were numerous superficial abrasions pinpoint surrounding the bullet entrance wound measuring 10 cm. x 8 cm. (ii) Small abrasion in the front of the left leg middle. Small abrasion on the left knee joint. The Injury was caused by fall. According to PW-6, the injury No. (i) was caused by fire-arm, like pistol and the death was due to shock caused by the bullet injury, which was sufficient in ordinary course of nature to cause death. He has proved the post-mortem report, which is Exhibit 2. Besides the medical evidence, the clothes on the person of the deceased, which were seized, had a hole and stains of human blood which was confirmed by the medical examiner, vide Exhibit 5. 10. There is no eye-witness to the alleged occurrence. The prosecution case hinges primarily on the oral dying declaration, alleged to have been made by the deceased to PWs 1 and 9, implicating the appellant. It is well settled that in a criminal case, the conviction can be based solely on mere dying declaration, provided it is free from doubt and inspires confidence. Keeping this cardinal principle in mind, one may now proceed to discuss the evidence in this regard. 11. PW-1 (Shyama Pd. Rai), the informant has testified to the effect that on getting telephonic communication around 10.20 p.m. from Israil that the deceased was injured and was admitted to the Tata Main Hospital, he in the company of his younger son, Anjani Kumar (PW-9) went to Tata Main Hospital on a scooter where the deceased was admitted to the Male Surgical Ward, and the deceased stated to him that now he would not survive and Babu alias William (the appellant), the brother of Terace, had shot him. This witness has further stated that he had seen Wakil, Israil and two to three other unknown friends near the deceased in the hospital. The facts preceding and following the incident testified to by PW-1, on the basis of the knowledge derived from Wakil, is the hearsay evidence and in absence of examination of Wakil, no significance is to be attached to this part of the evidence. 12. PW-9 Anjani Kumar, has stated in his chief-examination that after Wakil had telephoned on 28-1-1993 around 10.20 p.m. he had accompanied his father (PW-1) to the Tata Main Hospital, they visited the male surgical ward, in which the deceased was admitted and the deceased had stated to his father that he would not survive and William alias Babu (the appellant) had shot him, whereafter the doctor asked him to talk no more. It has come in the cross-examination of PW-1 (vide Paragraph 12 of the deposition) that a doctor and two nurses were attending on the deceased, a doctor was making arrangement for transfusion of saline water. He has made candid statement that at the time of his talk with the deceased, the doctor, nurses, Israil, Wakil and two-three unknown friends of the deceased were there, while another doctor, 4-5 away from the bed of the deceased, was making arrangement for taking X-ray. PW-9 too has stated that the doctor and nurses were present near the bed of the deceased and were attending on him. There is the similar statement of PW-5 (Md. Shakil). Wakil or Israil have not been examined by the prosecution. The attending doctor or the nurses too have not been examined by the prosecution to corroborate the testimony of PWs 1 and 9 that the deceased had made the oral dying declaration, implicating the appellant. PW-5 (Md. Shakil), who visited the ward in Which the deceased was admitted and was by his bed, has not stated that the deceased had made any oral dying declaration in his presence in the hospital. On the other hand, he has deposed that the deceased was unconscious. PW-6 (Dr. R.K. Sharma) has stated in his cross-examination that the fire-arm wound found on the person of the deceased was serious in nature and profuse bleeding is possible in such injury and the cerebral circulation may fail, which may cause unconsciousness. On the other hand, he has deposed that the deceased was unconscious. PW-6 (Dr. R.K. Sharma) has stated in his cross-examination that the fire-arm wound found on the person of the deceased was serious in nature and profuse bleeding is possible in such injury and the cerebral circulation may fail, which may cause unconsciousness. He has further stated that the doctor who attended the injured is the best person to say about the state of mind of the injured at that time. 13. DW-1 (Dr. R. Waghi) has proved the history-sheet of the deceased, prepared in the emergency ward of Tata Main Hospital by Dr. Binod Kumar Singh (Exhibit A). He has stated that a patient having injury and the conditions, stated in the history-sheet (Exhibit A) cannot be in a fit mental state to say any thing. He had not examined the patient himself, but had seen him at the time of admission. But, he has reiterated that in rare cases; the patient with the similar injuries may be in fit mental state. DW-2 (Dr. Binod Kumar Singh) has testified to the effect that on 28.1.1983 at 10.25 hours, he had examined the deceased (Pradeep Narain Rai) in Tata Main Hospital (Emergency), who had fire-arm injury on the left side of chest, site of injury on left nipple. According to him, the size of injury was 2 x 2 cm. perforating into chest wall skin around site of bullet entry having marks of pillet. There was profuse bleeding from the site. General condition was very low, pulse weak and rapid, blood pressure not recordable, the patient was cyanosed. There was air entry in the left lung. Extremity cold and calmy heart sound. He accepts that the history-sheet of the deceased, prepared in the emergency unit (Exhibit A) is in his pen. He has made a categorical statement that the condition of the patient was serious and he did not record the statement of the patient, because at that time he was not in fit state of mind to give statement. He has further stated that he had taken the patient to the ward and handed over to Dr. S.N. Gupta, a competent surgeon. He has fairly stated that in the history-sheet (Exhibit A), it was not written that the patient was unconscious. It has been noticed above that there is positive opinion of DW-2 (Dr. He has further stated that he had taken the patient to the ward and handed over to Dr. S.N. Gupta, a competent surgeon. He has fairly stated that in the history-sheet (Exhibit A), it was not written that the patient was unconscious. It has been noticed above that there is positive opinion of DW-2 (Dr. Binod Kumar Singh), who had the occasion to examine the deceased in the emergency unit, that at that time he was not in fit state of mind to give any statement. DW-1, the another doctor has opined on the basis of the record made in the history-sheet (Exhibit-A) that a normal patient with similar injuries could not be in a fit state of mind to state anything. The deceased had bled profusely on, sustaining the wounds. This fact finds corroboration from the large quantity of blood, found by the Investigating Officer (PW-7) on the spot. PW-6 who had held autopsy has in clear terms stated that the firearm wound sustained by the deceased was "very serious in nature". One may re-capitulate here that the bullet fractured the 4th rib and the chips of the bone had travelled inside and the left lung was punctured on its lower part, both front and back. PW-4 (Latif Ahmad) alias Boudi has stated that on the way at Sakchi, he had found that the deceased was lying unconscious, while he was being carried by Israil and Wakil in the tempo to the hospital. 14. The treating physician has not been examined by the prosecution to state whether the deceased was in a fit state of mind to make statement, while undergoing treatment in the ward. No doctor or nurse attending on him has come forward to say that the deceased was in senses or had made by dying declaration to PWs 1 and 9, implicating the appellant. The evidence of PW-1 shows that the blood transfusion was yet to be administered to the deceased before the oral dying declaration was made by the deceased to him. After transfusion of blood, the vital organs of the deceased could have been re-vitalised for a while, which would have enabled him to make coherent or credible statement. The evidence of PW-1 shows that the blood transfusion was yet to be administered to the deceased before the oral dying declaration was made by the deceased to him. After transfusion of blood, the vital organs of the deceased could have been re-vitalised for a while, which would have enabled him to make coherent or credible statement. Simply because, the heart was functioning properly, it cannot be concluded with certainty that in all probability he was able to make the statement about the cause of his death, after he was brought to the hospital. It has come in evidence that on the same night at 1 am. the deceased succumbed to the fire-arm injury in the hospital. The fardbeyan was recorded in the hospital after his death. Had the deceased made the alleged oral dying declaration to his father or brother, the natural conduct of the informant would have been to lodge the First Information Report with promptness with the nearby police station or convey it to the police station over telephone, when such facility was available in the hospital itself and not to. wait for the police officer to arrive and record his fardbeyan. 15. In the facts and circumstances stated above, it is difficult to believe that the deceased was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances, which resulted in his death or that he had made the alleged dying declaration to PW-1 or PW-9, implicating the appellant. 16. The other circumstances brought on record by the prosecution is that a pistol loaded with fired-shell, on pointing by the appellant, was seized by the police officer, kept hidden in the garbage within a drum inside his kitchen. PWs 7 and 8 have testified to this effect. Exhibit 4 is the seizure list. There is report of Forensic Expert (vide Exhibit 5) that it is not possible to opine whether the fired bullet recovered from the body of the deceased is part of the fired-shell of the cartridge which was found loaded in the seized fire-arm. The above circumstance, relied on by the prosecution does not help in substantiating the charge under Section 302 of the Indian Penal code. The other circumstance, relied on by the prosecution is that the deceased had motive to murder the deceased. The above circumstance, relied on by the prosecution does not help in substantiating the charge under Section 302 of the Indian Penal code. The other circumstance, relied on by the prosecution is that the deceased had motive to murder the deceased. PW-1 has stated that he could learn that the deceased had illicit relation with the sister of the appellant. In the cross-examination, he has stated that 5/6 months prior to the occurrence, he could know from his wife about the illicit relation between the deceased and the sister of the appellant. But he never had any talk with the parents of the appellant in this regard. He has further stated that he has come to know that the sister of the appellant has been married and she has left her parental home and he concluded that the affair between them had ended. PW-5 has simply stated that there was love affair between the deceased and the sister of the appellant. But, he is unable to say whether the appellant or his family members were happy or unhappy with him. There is no immaterial on record to suggest that the deceased persisted with the affairs, he had with the appellants sister, which could assume such a dimension as to impel the appellant to commit his murder. The motive alleged, in the circumstances, is not so strong to lead to irresistible conclusion that in all probability the appellant committed the murder of the deceased. It may at best give rise to some suspicion against the appellant. 17. The appellant has already been acquitted by the trial Court of the charge under Sections 25(1)(a) and 26(b) of the Arms Act. 18. In view of the discussions, made above, it is held that the prosecution has failed to substantiate the charge under Sections 302 of the Indian Penal Code and 27 of the Arms Act against the appellant beyond the shadow of reasonable doubt. 19. In the result, the appellant is given benefit of reasonable doubt and is acquitted of the charge under Sections 302 of the Indian Penal Code and 27 of the Arms Act. Accordingly, the appeal is allowed and the order of conviction and sentence passed against the appellant thereunder by the trial Court is set aside. The appellant who is on bail is released from his bail-bond.