JUDGMENT - V.K. BARDE, J.:---The two appellants are convicted in Sessions Case No. 80/95 of offence punishable under section 302 read with 34 of I.P.C. by the V Additional Sessions Judge, Jalgaon. Each of them is sentenced to R.I. for life and to pay fine of Rs. 1000/- in default of payment of fine R.I. for 6 months. Hence this appeal against the order of conviction and sentence. 2. The prosecution is relying only on the Assistant Police Inspector Shri Mohadikar who recorded statement of injured Deoram Shripat Dhangar on 4-12-1994 when the later was in the Rural Hospital, Edalabad. The A.P.I. in his deposition at Exhibit 22 has stated that he received information from the hospital that injured person was admitted in the hospital. Then he went to the hospital, he made queries with the Medical Officer whether the patient was in fit condition to make the statement and the Medical Officer told that the patient was in fit condition to give the statement. The A.P.I. then recorded statement of Deoram and he also obtained certificate regarding fitness of the patient to make the statement, from the Medical Officer. The statement was recorded between 12.50 p.m. to 1.10 p.m. on 4-12-1994 and the Crime No. 152/94 was then registered at the Police Station for offence punishable under section 307 read with 34 I.P.C. 3. The A.P.I. took up the investigation, recorded the statement of witnesses, prepared panchanama of the place of incident and he even arrested both the accused. On 7th December, 1994 Deoram expired while being given treatment in the hospital. So the crime of offence punishable under section 302 I.P.C. was added. On completion of investigation, charge-sheet was submitted before the J.M.F.C., Edalabad and then the J.M.F.C., Edalabad committed the case to the Court of Sessions, Jalgaon. 4. The learned Additional Sessions Judge framed charge against both the accused for offence punishable under section 302 r/w 34 I.P.C. The accused pleaded not guilty and their defence was that they were falsely implicated in this case. 5. As per the prosecution case on 4-12-1994, Deoram had gone to village Medsangvi to collect the fire wood which was to be loaded in a truck and to be transported to Edalabad. In the year 1979, when Deoram was residing at Medsangvi a quarrel had taken place between him and Rajdhar Laxman Koli and during that quarrel Rajdhar expired. 5. As per the prosecution case on 4-12-1994, Deoram had gone to village Medsangvi to collect the fire wood which was to be loaded in a truck and to be transported to Edalabad. In the year 1979, when Deoram was residing at Medsangvi a quarrel had taken place between him and Rajdhar Laxman Koli and during that quarrel Rajdhar expired. Deoram was prosecuted for death of Rajdhar but he was acquitted by the Court. The two accused are the sons of Rajdhar. 6. Deoram had gone to Medsangvi by the truck. There was the truck driver and 4 to 5 labourers for loading and unloading the truck. He took tea at the house of his friend Bhikari Shankar Bhoi and then he was proceeding towards the truck, the time was about 11 a.m. The accused Yuvraj came there alongwith his brother Rama. Rama caught Deoram from behind and then Yuvraj stabbed Deoram with knife on stomach and on chest. Deoram escaped from the clutches of Rama and then Yuvraj stabbed him again on back. Deoram snatched the knife from Yuvraj. Then Yuvraj and Rama ran away. The person who had come there alongwith Deoram and his friend Ashok Ukha Patil put Deoram in the truck and took him to the hospital at Edalabad. 7. The prosecution has examined Bhikari Shankar Bhoi witness No. 4. His deposition is at Exhibit 12 and he has not supported the prosecution case. So also Ashok Ukha Patil witness No. 3 has not supported the prosecution case. His deposition is at Exhibit 11. The prosecution has not examined the truck driver or any of the labourers who had gone to Medsangvi alongwith Deoram from Edalabad. So there is no eye-witnesses to the alleged incident. 8. When there were so many persons who according to the prosecution were present when the incident took place, it is very surprising that not a single person is coming forward to support the prosecution case. It may be that witnesses from village Medsangvi may not support prosecution case, but now the labourers and the driver who had gone from Edalabad to Medsangvi alongwith Deoram are not supporting prosecution case. This is really a circumstance which ought to have been explained by the prosecution but there is no sufficient explanation. 9. It may be that witnesses from village Medsangvi may not support prosecution case, but now the labourers and the driver who had gone from Edalabad to Medsangvi alongwith Deoram are not supporting prosecution case. This is really a circumstance which ought to have been explained by the prosecution but there is no sufficient explanation. 9. In such circumstances, the prosecution is relying on the evidence of the A.P.I. and evidence of Ravindra son of Deoram and Anusayabai wife of Deoram. No doubt the A.P.I. Mohadikar states that he went to the hospital, asked the doctor whether the patient was in condition to make statement and the doctor told that the patient was in position to give the statement and also states that the doctor made the endorsement to that effect below the statement recorded by him. This statement was treated as F.I.R. The same is at Exhibit 23. However, A.P.I. Mohadikar is not stating that he read over the statement to Deoram, Deoram admitted it to be correct and then he obtained signature of Deoram below the statement. It may be that in the statement it is so stated but it was necessary for A.P.I. to state specifically in his deposition that statement was read over to Deoram and he accepted it to be correct. 10. This is not the only defect with respect to the so-called dying declaration of Deoram. The Medical Officer who gave treatment to Deoram on 4-12-1994 is examined by prosecution. He is Dr. Patil witness No. 6, his deposition is at Exhibit 16 and nowhere in his deposition he states that the A.P.I. asked him whether the patient was in condition to make statement; that he again examined the patient and told that the patient was in fit condition to make the statement. He has not stated that he gave the certificate to that effect on the statement under his signature. So the doctor is nowhere corroborating the evidence of A.P.I. in this behalf. Doctor's evidence is very much important to find out whether the so-called statement of Deoram can be treated as a dying declaration to base the conviction of the accused. However, doctor has failed to corroborate the evidence of A.P.I. and therefore, the admissibility of the statement recorded by A.P.I. becomes doubtful. 11. Doctor's evidence is very much important to find out whether the so-called statement of Deoram can be treated as a dying declaration to base the conviction of the accused. However, doctor has failed to corroborate the evidence of A.P.I. and therefore, the admissibility of the statement recorded by A.P.I. becomes doubtful. 11. The learned Counsel for the appellant has pointed out various deficiencies in the deposition of the doctor and the two certificates which were issued by him and which are at Exhibits 17 and 18. Exhibit 17 indicates that the patient had gone to the hospital with police report, however, A.P.I. has stated that he received information from the hospital that the patient was admitted. Exhibit 18 which is also a certificate issued by the doctor indicates that the patient was admitted in the hospital and then the doctor gave intimation to the police. 12. On Exhibit 17 identification mark of the patient is written in the margin which is "black mole on left buttock". The entire certificate is in blue ink and this much identification mark is written in black ink. There is no explanation from the doctor as to why the identification mark was written in black ink when entire certificate is in blue ink. Further more, Exhibit 18 also gives identification mark "black mole on left seapular area of back and left side neck." How is it that altogether different identification mark is noted on Exhibit 18. The doctor is unable to explain it. All this shows that the doctor had not taken any care while preparing these two documents. So even if he has written certificate at Exhibit 23 that also becomes a doubtful piece of evidence. In such circumstances, merely because the A.P.I. states that the doctor issued the certificate, at Exhibit 23-statement of Deoram, no reliance can b e placed on his statement, when it is noted that the doctor himself was the most careless person. 13. It is in the evidence of A.P.I. that Executive Magistrate was informed to record dying declaration of Deoram. The charge-sheet submitted by the prosecution also gives the name of the Executive Magistrate as one of the witnesses to give the evidence regarding dying declaration recorded by Executive Magistrate. 13. It is in the evidence of A.P.I. that Executive Magistrate was informed to record dying declaration of Deoram. The charge-sheet submitted by the prosecution also gives the name of the Executive Magistrate as one of the witnesses to give the evidence regarding dying declaration recorded by Executive Magistrate. However, prosecution has not examined the Executive Magistrate and the dying declaration recorded by the Executive Magistrate is not brought on record for the reasons best known to the prosecution. If such vital document is kept back by the prosecution, then definitely adverse inference must be drawn against the prosecution. And on that ground also the statement recorded by A.P.I. Exhibit 23 loses its importance. It was necessary for the prosecution either to examine the Executive Magistrate and to produce on record the dying declaration recorded by him or to explain the circumstance which compelled the prosecution to keep back this evidence from the Court. Hence the so-called dying declaration recorded by Mohan Mohadikar, A.P.I. cannot be acted upon to hold the accused guilty. 14. There are some other circumstances also which are pointed out by the learned Counsel for the appellant to show that the dying declaration as it is not believable. Exhibit 23 statement of Deoram mentions that when he was passing from house of Bhikari Bhoi, he was assaulted. Panchanama of the place of incident is produced on record and the panch witness is also examined. The panchanama Exhibit 8 indicates that the incident took place infront of house of Namdeo Sakharam Ingle and it further mentions that from that place, the house of Bhikari Bhoi was at the distance of 280 feet. So it is not known whether the incident took place near the house of Bhikari Bhoi or infront of the house of Ingle. Further more, some serious injuries were caused to Deoram; those were caused by weapon like knife; all were bleeding injuries but no blood spots were found at the place of incident. So, how can it be stated that the place of incident indicated in panchanama Exhibit 8 was the real place where the incident took place. This circumstance therefore, does not support the statement of Deoram in Exhibit 23. 15. So, how can it be stated that the place of incident indicated in panchanama Exhibit 8 was the real place where the incident took place. This circumstance therefore, does not support the statement of Deoram in Exhibit 23. 15. No doubt Rama s/o Deoram and Anusayabai w/o Deoram prosecution witnesses No. 7 and 8 respectively have stated in their depositioned at Exhibits 19 and 20 respectively that Deoram told that Rama caught him and Yuvraj assaulted him with knife but it must be noted that both these witnesses are highly interested. Their statements were recorded by the police on 21-12-1994. There is no explanation from the prosecution as to why there was such delay in recording statements of those 2 important witnesses. By the time 2 witnesses gave statements before the police, they must have known what statement of Deoram was recorded by the police and in such circumstance, if they have come forward to support the prosecution case in this manner then their evidence does not become reliable. The delay in recording their statements by the Investigating Officer is definitely fatal in this case. 16. Now this brings us to the medical evidence to ascertain the cause of death. Dr. Girish Patil in his deposition at Exhibit 16 has described the injuries seen on the person of Deoram; those are as follows: 1. Plain incised wound on right antero lateral area of abdomen, 5" x 1", muscle deep. 2. Plain incised wound on right anterolateral area o f chest, 1¾" x 1", depth communicating with pleural cavity. 3. Plain incised wound on left anterolateral side of abdomen, 2" x 1" depth communicating peritoneal cavity, omentum protruding out to the wound. 4. Plain incised wound on left side of lower back, 2½" x 1" muscle deep. All the four injuries are shown as incised injuries and he has stated that the injuries were possible by knife. However, in certificate Exhibit 18, the doctor has mentioned that the injuries were caused by hard and blunt object. It is really surprising that the doctor has described the injuries as incised wounds states that the injuries were caused by blunt object. Either the doctor had not examined the patient properly or he did not apply his mind as to which weapon was used for causing the injuries. 17. It is really surprising that the doctor has described the injuries as incised wounds states that the injuries were caused by blunt object. Either the doctor had not examined the patient properly or he did not apply his mind as to which weapon was used for causing the injuries. 17. The prosecution has not examined the doctor who performed the post mortem examination, however, the post mortem report is at Exhibit 21 and there also the injuries seen on the body are mentioned. The cause of death is given septicemia due to multiple wounds. Deoram was in hospital from 4-12-1994 till his death on 7-12-1994. It appears that his wounds were sutured in the hospital as indicated in Column No. 17 of the post mortem examination report Exhibit 21. Thereafter septicemia had developed. Can it be said that death was due to injuries caused by accused or the death was due to septicemia which developed in the hospital for not taking proper care at the time of giving treatment to the injured person. If cause of death is septicemia, then how far it can be stated that statement made by Deoram before the police can be treated as a statement under section 32(1) of the Evidence Act. Prosecution is not able to establish the link between the injuries caused as alleged by the prosecution and the cause of death of Deoram as given in the post mortem examination report. 18. Thus it will be seen that prosecution has no reliable evidence to prove the case against either of the accused. Exhibit 23 which is treated as F.I.R. cannot be relied upon as the true and genuine dying declaration of Deoram. Circumstance do not corborate any of the statements made in the Exhibit 23. The vital document dying declaration recorded by Executive Magistrate is not brought before the Court. Therefore, we hold that the prosecution has failed to make out the case against accused. Appeal is allowed. The order of conviction and sentence passed by the V Additional Sessions Judge, Jalgaon on 28th July, 1995 in Sessions Case No. 80/95 is set aside. Both the accused are acquitted of offence punishable under section 302 read with 34 I.P.C. They be released forthwith if not required in any other case. Fine if paid be refunded to the appellant. Appeal is allowed. -----