JUDGMENT 1. - This appeal is directed by the accused appellant Ashfaq Ahmed son of Abdul Shakoor at present in District Jail, Kota, against the judgment of conviction and order of sentence dated 13.12.1996 of the Addl. Sessions Judge No. 3, Kota in Sessions Case No. 76/1995. Under this judgment and order the accused appellant has been convicted by the learned Addl. Sessions Judge for the offence punishable under section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- , in default of payment of fine to further undergo one year rigorous imprisonment. 2. On the Parcha Bayan (Ex.R 1) of deceased recorded by Shri Rajendra Prasad Sharma PW-23, on 1.7.1995 at 9.15 p.m. an FIR was registered at Police Station Sangod District Kota under section 307 IPC against the accused appellant. 3. The case of the prosecution is that the deceased Hanif son of Rashid Beg gave this Parcha Bayan to the Investigating Officer PW-23 Shri Rajendra Prasad Sharma at 8.30 p.m. on 1.7.1995 in the Government Hospital, Sangod. As per this Parcha Bayan the deceased Hanif after closing his shop at about 8.00 p.m. on that day was going to his house in Barbhujon Ki Gali near the house of Patwari Prabhu Lal, he was intercepted by the accused appellant who was carrying a knife in his hand and with an intention to kill him inflicted 3 - 4 blows by it on the right side of his abdomen. From the injuries the blood started oozing out and he fell down. In the Parcha Bayan it is stated that the injured Hanif stopped talking and his thumb impression was taken. The injured Hanif was shifted to Government Hospital, Kota where he died on 3.7.1995. His post mortem was conducted on 3.7.1995 at 10.10 a.m. After the death of Hanif, case was converted under section 302 IPC. The accused appellant was arrested and two investigating officers after completing the investigation in the matter, submitted the charge - sheet in the court of Judicial Magistrate, Kota, who committed the case for trial to the Court of Sessions. 4. Learned trial court framed charge against the accused appellant for committing the murder of deceased Hanif. The accused appellant denied the charge and prayed for trial of the case. 5. 4. Learned trial court framed charge against the accused appellant for committing the murder of deceased Hanif. The accused appellant denied the charge and prayed for trial of the case. 5. In the trial of the case from the side of the prosecution, statements of PW-1 Dr. Laxmi Nath Meena who verified the Parcha Bayan Ex.P-1, PW-2 Shri Mohd. Hussain (declared hostile) and PW-3 Shri Jaffar Mohd. eye witnesses of the incidence, PW-4 Sattar Khan Motbir of site plan with description Ex.P4 and seizure memo of soil Ex.P5, PW-5 Shri Rashid Khan, father of accused, PW-6 Shri Mohd. Usmanmotbir of Ex.R7 inquest report of deceased, Ex.P.8 receipt of delivery of dead body and Ex.P.9 seizure memo of cloths, PW-7 Shri Sarfraz Khan, PW-8 Jagannath, PW-9 Shri Mohan Lal, PW-10 Shri Abdul Hanif @ Munif, PW-12 Shri Kalam were declared hostile, PW-11 Shri Mohd. Moinuddin motbir of Ex.P-7, PW-13 Shri Fariyad Ahmad is motbir of document Ex.P-11 Fard Baramadgi of Alay and Ex.P-12 site plan of recovery of alay. PW-14 Shri Mohd. Salim is motbir of Ex.P-11 and Ex.P-12, PW-15 Shri Siraj Ahmad, motbir of Ex.P-7, PW-16 Dharamveer, police constable of Police Station Sangod, witness of deposit of articles (four packets) in Malkhana, Ex.P 13, PW-17 Mohan Singh Head Constable, Police Station Sangod (Malkhana Incharge) is witness of Ex.P-15 and Ex.P-16, PW-18 Shri Ajij, PW-19 Shri Hanish supporting witnesses of the incident, PW-20 Dr. YK. Sharma and PW-21 Dr. G.S. Bishnar members of the medical board which conducted the post-mortem of the deceased, PW-22 Shri Bhagwat Singh and PW-23 Shri Rajendra Prasad Sharma, Investigation Officers of the case were recorded. 6. The statements of the accused were recorded under section 313 Cr.P.C. on 23.10.1996. He pleaded not guilty. He has not produced any evidence in defence. Under the impugned judgment and order as stated earlier, the accused appellant was convicted and sentenced, hence this appeal. 7. Shri A.K. Gupta, learned counsel for the accused appellant submitted that the document Ex.R 1 legally can not to be taken to be dying declaration of the deceased. He contended that reliance placed for conviction of the accused appellant on the document Ex.P. 1 Parcha bayan by the trial court is wholly arbitrary. He pointed out several suspicious circumstances surrounding to this document and urged that it is a highly suspicious document on which no reliance could have been placed. He contended that reliance placed for conviction of the accused appellant on the document Ex.P. 1 Parcha bayan by the trial court is wholly arbitrary. He pointed out several suspicious circumstances surrounding to this document and urged that it is a highly suspicious document on which no reliance could have been placed. It is submitted that as per the first Investigating Officer, there was only one eye - witness of the incidence, but second Investigating Officer has introduced three more eye witnesses. Out of these four eye witnesses, two have been declared hostile and so far as remaining two are concerned, their statements are not reliable. He has given out many grounds and reasons to show that their statements are not reliable. To rely upon recovery of knife to connect the accused to the offence and for this he has made reference to many circumstances. In support of his contention she placed reliance on several decisions of the Apex Court as well of this court. Reference has also been made to the Rajasthan Police Rules, 1969 and more particularly rule 6.22 thereof. 8. Shri S.S. Rathore, in contra supported the judgment and order of conviction and sentence of the accused appellant. It is urged that a Parcha Bayan of the deceased is not only evidence but two independent eye witness are there and learned trial court has not committed any illegality in convicting and sentencing the accused appellant Under section 302 IPC. 9. We have given our thoughtful consideration to the rival contentions raised by the learned counsel for the parties and perused the document Ex.P-1 and closely and carefully read and scrutinised of Ex.P-1 and statements of witnesses PW-1, PW-5, PW-18, PW-19, PW-20, PW-21, PW-22 and PW-23. 10. The document Ex.P-1 is the Parcha Bayan of the deceased recorded on 1.7.1995 at 8.30 p.m. at Community Health Center, Sangod. This has been recorded by the Sub - Inspector Shri Rajendra Prasad Sharma. Shri A.K. Gupta, learned counsel for the accused appellant contended that on this document the certificate of the doctor that the deceased was in a fit mental and physical condition to give his statement is not there and could not have been taken to be a dying declaration and that too to the extent to convict and sentence the accused appellant for the offence punishable under section 302 IPC. It is urged that it is the duty of the prosecution which have relied upon this document to prove that the deceased was in fit mental & physical condition to give his statements. 11. From the statements of Dr. Y.K. Sharma PW-20, we find that on the body of the deceased as many as 11 ante-mortem injuries were there. All the 11 injuries found were by sharp object. Those are : 1. Stitched up wound Rt. para medical region 8" long 2" below umblicus vertical. 2. Stitched wound 3/4" upper part of Rt. side chest and Axillary fold. 3. Stitched wound 1/2" vertical 6" below Rt. Axilla. 4. Stitched would vertical 3/4" Rt. costal region 14" below ant. fold of Rt. Axilla. 5. Stitched wound vertical 3/4" vertical lat part rt. scapular region. 6. Stitched wound 3/4" vertical lower part of Rt. Scapula. 7. Stitched wound 3/4" vertical 8" below lower end of Rt. scapula. 8. Stab wound 1/4" x ⅛" x 1/2" trans upper part of Rt. scapula. 9. Stitched wound 3/4" vertical on It. iliac fossa. 10. Stitched wound 3/4" trans. lower 1 /3rd and shoulder area of Rt. upper arm. 11. Stitched wound 3/4" trans. lat. about Rt. elbow. 12. In the opinion of the doctor the cause of death of the deceased was due to shock as a result of ante-mortem injuries to Colon and Liver. Looking to the injuries we are satisfied that same were serious in nature. PW-1 Dr. Laxminath Meena stated that the intestines were came out from the stomach and blood was oozing out. The Police Officer PW-23 who recorded the Parcha Bayan of the deceased stated same was recorded in the presence of the doctor and the doctor has verified the same. In cross examination it is stated that the doctor has come after he reached to the hospital. He showed total ignorance whether the doctor has examined the pulse and blood pressure of the deceased or not. However he admitted that before him the doctor has not made any examination of deceased. He further admitted that before taking this Parcha Bayan of the deceased he has not taken any written certificate of the doctor that the deceased is in fit mental and physical condition to give his statements. He himself then stated that the doctor has given oral permission on which the statements of the deceased were recorded. He further admitted that before taking this Parcha Bayan of the deceased he has not taken any written certificate of the doctor that the deceased is in fit mental and physical condition to give his statements. He himself then stated that the doctor has given oral permission on which the statements of the deceased were recorded. He admitted that 20 - 25 persons belonging to the Samaj of the deceased collected there. What he stated in his cross examination is originally reproduced hereunder: " eq>s rks MkWDVj us ;gh dgk fd et:Q dh gkyr fpUrktud gksus ls dksVk jsQj fd;kA " 13. In the examination-in-chief he stated that the condition of the deceased was serious and he was referred to Kota Hospital and there he got him admitted. Having gone through each and every line of his statements, was find that he has nowhere stated that the deceased was in fit mental condition to give his statements. The doctor has come after reaching of PW-23 in the hospital and he has even not cared to clinically examine the deceased or even to touch the hand to know the pulse and to record the blood pressure of the deceased. Dr. Laxmi Nath Meena stated that the police officer asked orally to give his opinion re condition of the deceased to give his statements. PW-23 in his statement nowhere stated that he has orally taken a certificate from the doctor that the deceased is in fit mental and physical condition to give his statements. What he stated that the doctor has given orally permission for recording the statement of the deceased. There from it cannot be taken that the doctor has certified, may be orally, that the deceased was in fit mental and physical condition to give his statements. 14. The father of the deceased was examined as PW-5. He was there with the deceased in the hospital. He categorically stated that deceased was unable to speak. The injuries were on his abdomen and intestines were projecting out. In his cross examination he stated that the doctor has come after he reached to the hospital. 14. The father of the deceased was examined as PW-5. He was there with the deceased in the hospital. He categorically stated that deceased was unable to speak. The injuries were on his abdomen and intestines were projecting out. In his cross examination he stated that the doctor has come after he reached to the hospital. No other witness has been produced by the prosecution corroborating the document Ex.P-1, except PW-18 Ajij, leaving apart the question whether this witness is reliable or not, he though has shown his presence in the hospital, but not a word the condition of the deceased to give statements. 15. The document Ex.P-1 ended in 12 lines. Upto 12 lines the words written are of big size. After incriminating the accused appellant, the deceased stopped, speaking that what it is stated in the document. Dr. Laxmi Nath Meena PW-1 has written thereon `verified'. This endorsement made on the document Ex.P-1 and statement made in court it is for verification of these alleged statements made by the deceased. This verification cannot be read and taken a verification of the condition of the deceased to give his statements. The doctor has written `verified' on this document Ex.P-1 and not mentioned the re condition of the deceased therein creates serious suspicion. Taking into consideration the aspect closely and carefully examining and appreciating the evidence come on record, we are satisfied that the prosecution has utterly failed to prove that the deceased was in fit condition to give statements at the time when his alleged Parcha Bayan was recorded. 16. This document Ex.P-1 on being examined with reference to another suspicious circumstance it becomes highly suspicious document. PW-5, the father of the deceased in his cross examination admitted that his son had studied upto 3rd or 4th class. He knew to sign. Relevant portion of the cross examination of the witness is as under: " guhQ nLr[kr djuk tkurk Fkk exj mlus vius c;kuksa ij nLr[kr ugha fd;s FksA vaxwBk fd;k Fkk D;ksafd mldk vaxwBk djok;k x;k FkkA " 17. Doctor PW-1 Laxminath Meena stated in his cross examination. " ftl izdkj dh mlds pksVsa Fkh mu pksVksa ds gksrs gq, Hkh dksbZ nLr[r djuk tkuus okyk O;fDr nLr[r dj ldrk gSA " 18. Doctor PW-1 Laxminath Meena stated in his cross examination. " ftl izdkj dh mlds pksVsa Fkh mu pksVksa ds gksrs gq, Hkh dksbZ nLr[r djuk tkuus okyk O;fDr nLr[r dj ldrk gSA " 18. Doctor further stated in the cross examination that when the thumb impression of the deceased was taken on this document Ex.P-1, he was in lying position. 19. As per these statements of the doctor, the deceased would have been in a position despite of those injuries to put his signatures. But thumb impression is there on the document and the possibility of preparing of this document by the police cannot be over - ruled. 20. A look at this renders it to be a highly suspicious document. At the left of this document there is a thumb impression, at the bottom of this document at `X', the thumb impression of the deceased is there, as per the prosecution case. From the minute scrutiny of this thumb impression we find that there are three thumb impressions in addition to the thumb impression marked `X', one towards left, another towards right and the third is at its bottom these four thumb impressions on this document create serious doubt on the prosecution case and may bring it out from the purview of genuine document. The thumb impression `X' as what it is visible from its close scrutiny which we did by using a magnifying glass we noticed that the first thumb impression is super - imposed by second thumb impression and it is bald. Thus this thumb impression is highly doubtful and renders it as a whole totally suspicious. 21. Yet there is another important aspect and concerned of this document. We find that he scriber of this document started to use the large words and left also sufficient space in between two lines, at later stage the size of the words as well as space between two lines has been reduced, which is clearly visible even by naked eyes, last six lines of this document and preceding other line thereof. Taking into consideration totality of facts of this case and on close and clearful appreciation of the evidence come on record, the document Ex.P-1 is highly suspicious one and it is not safe to place reliance on it to the extent of convicting and sentencing the accused appellant for the offence punishable under section 302 IPC. 22. Taking into consideration totality of facts of this case and on close and clearful appreciation of the evidence come on record, the document Ex.P-1 is highly suspicious one and it is not safe to place reliance on it to the extent of convicting and sentencing the accused appellant for the offence punishable under section 302 IPC. 22. The prosecution cited four eye witnesses to this incident, out of which two - PW-2 Mohd. Hussain and PW-3 Jaffar Mohd. have been declared hostile. 23. Now we advert to the other two eye witnesses namely, PW-18 Aziz and PW-19 Hanish. 24. Mr. A.K. Gupta, learned counsel for the accused appellant submitted that all the four eye witnesses are manufactured. For this he made reference to the statements of Shri Rajendra Prasad Sharma PW-20. He admitted in his cross examination that in accordance with his investigation only one eye witness of the incidence was Hussain Mohd. 25. We do not find any merit in this contention for the reason that Mr. Rajendra Prasad Sharma on his transfer has to leave the investigation incomplete. Bhagwat Singh was taken over this investigation. In the investigation he found that there are other eye witnesses so only on this ground what it is contended statements of these eye witnesses cannot be discarded. 26. It has next been contended that these two days witnesses are highly interested persons as are being close relation of the deceased and reliance on the statement of these witnesses to convict and sentence the accused appellant for the offence punishable under section 302 IPC is not safe. 27. The witnesses are interested in the prosecution case only on this ground their testimony cannot be disbelieved or discarded or rejected. Reference here may have to the decision of Apex Court in the case of Mukum Singh and Ors. v. State of Raj., 2000 Cr.L.R. (SC) 759 . Where the witnesses are interested in the prosecution case, court is to closely, minutely and carefully examine the same. PW-18 and PW-19 are not close relation of the deceased. The defence could have spell out by their cross examination that they belong to the same caste of the deceased. 28. v. State of Raj., 2000 Cr.L.R. (SC) 759 . Where the witnesses are interested in the prosecution case, court is to closely, minutely and carefully examine the same. PW-18 and PW-19 are not close relation of the deceased. The defence could have spell out by their cross examination that they belong to the same caste of the deceased. 28. Shri Gupta, learned counsel for the accused appellant submitted that looking to the conduct of these witnesses i.e. there is total silence and mum on their part for this incidence for 7-8 days, renders their statements wholly unreliable. In support of this contention Mr. Gupta placed reliance on the following decisions: AIR 1971 SC 1554 , Chanan Singh v. The State of Haryana , 1989 Supp. (2) SCC 21, Surinder Singh v. State of Punjab AIR 1999 SC 537 , Din Dayal v. Raj Kumar @ Raju & Ors. , JT 2000 (4) SC 12, Suresh Rai & Ors. v. State of Bihar . 29. PW-18 Aziz in his cross examination stated that he has not gone to the Police Station and said that he has witnessed the incident. Further stated that he has not talked about this incident to anybody else. He was called by the police after four days of the incident. Police has not called him for 7-8 days. He has not talked to Hussain or his brother for this incident. He has also not stated that he is witness of this incident to the parents of the deceased Hanif. His statement under section 161 Cr.P.C. were recorded by the police on 5.7.1995 (See document Ex.D - 1) i.e. after 7 days of the incident. 30. Hanif PW-19 stated in his cross examination that after 7 days of the incident, police has recorded his statement. He further stated prior to recording of his statements by the police he has not talked about this incident to anybody. This conduct of these two eyes witnesses that they have not reported this matter to the police or to the parents of the deceased or to anybody else for this period of 7 - 8 days, in the case of PW-19 Hanif and 4 - 5 days in the case of PW-18 Aziz renders them to be wholly unreliable witnesses. In case they would have really been witnessed the incident, should not have sat silent. In case they would have really been witnessed the incident, should not have sat silent. From their this conduct it is highly doubtful that they would have witnessed the incident. Thus they cannot be taken to be wholly truth worthy witnesses. 31. So far as to the recovery of knife is concerned, it is only a corroborative evidence. Where reliance on the statements of eye witnesses can not placed, it is not necessary to make any discussion with reference to recovery of knife and relevance thereof to the matter. 32. As a result of the aforesaid discussion, we are satisfied that the prosecution had utterly failed to proved that the accused appellant has caused the death of the deceased Hanif son of Rashid Baig by inflicting knife blow on his abdomen beyond reasonable doubt. 33. Accordingly, this appeal succeeds and the same is allowed. The judgment and order of conviction and sentence of the accused appellant under section 302 IPC dated 13.12.1996 of the Addl. Sessions Judge No. 3, Kota in Sessions Case No. 76/1995 is quashed and setaside. The accused appellant is acquitted of the offence under section 302 IPC. The accused appellant is in jail. Be is directed to be set at liberty forthwith if he is not required in any other case.Appeal allowed. *******