Judgment BRAJ NANDAN PRASAD SINGH, J. 1. While Sk. Nayeem and Sk. Maksood suffered conviction under Section 302 of the Indian Penal Code for which they were sentenced to suffer imprisonment for life, Sk. Sajjad, Sk. Sajid, Md. Wahab, Md. Sobhan alias Subhani, Md. Arsad and Sk. Amunuddin alias Amin too were sentenced to same terms of imprisonment on having suffered conviction under Section 302 with the aid of Section 149 of the Indian Penal Code. All the appellants suffered conviction also under Section 148 of the Indian Penal Code for which they were sentenced to suffer rigorous imprisonment for a term of three years. Sk. Nayeem and Sk. Maksood suffered conviction also under Section 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for a term of one year. All the sentences were however directed to run concurrently. 2. The factual matrix as appealing from the fardbeyan of deceased Md. Afaque Alam was that at about 5 p.m. on 16th December, 1988 while he along with his brother Ashfaque Alam (Pw 8) was coming to his house after getting paddy crops harvested from the field, they were encircled by the appellants namely, Sk. Nayeem, Sk. Makshood, Sk. Sajid, Sk. Amin, Sk. Aski Sk. Asad All, Sk. Sajjad, Sk. Wahab, Sk. Subhani and Sk. Arshad near tea shop of Md. Afzal (PW 1), pursuant to which on exhortation made by Sk. Sajid for shoot out, Sk. Nayeem fired two successive shots on the scapular region followed by another shot by Sk. Maksood, below the abdominal region. It was alleged by witnesses during trial that after Afaque was carried to hospital for medical aid, he succumbed to the injuries. The fardbeyan of Md. Afaque Alam was shown to have been recorded by Sri R.C. Prasad, ASI in Bhagalpur Medical College hospital (Emergency Ward) at 22 hours on 16th December, 1988. As usual, investigation followed during which Hirday Narain Singh, PW 11, Sub-Inspector of police who carried out investigation, visited place of occurrence, recorded statement of witnesses, received inquest report prepared over the dead body of the deceased, made seizure of incriminating objects from the place of occurrence, and on receipt of post mortem report, having concluded investigation, submitted chargesheet before the Court. After trial had commenced, the State examined altogether 11 witnesses who were brother and father of the deceased, other kith and keen, the Police Officer and also the doctor. 3. The defence of the appellants had been that of innocence and they ascribed their false implication due to persisting animosity with the family of the deceased. However, the trial Court on having negatived the plea of innocence of the appellants, recorded finding of guilt and sentenced the appellants in the manner indicated above. 4. Since evidence of the witnesses have been fairly spelt out in the judgment of the Court below, we do not wish to burden this judgment with multiplying them over again. However, a brief resume of the essence of their evidences can be recapitulated. Those who claimed to be ocular witnesses to the killing of Md. Afaque Alam were Md. Geyas (PW 5), Sk. Kalimuldin (PW 7) and Md. Ashfaque (PW 8). The narrations almost in similar terms were made by these three witnesses about appellants reaching place of occurrence, pursuant to which on exhortation made by Sk. Sajid both Sk. Nayeem and Sk. Maksood fired shots on him when Afaque Alam dropped injured, and after injured was taken to the hospital, he succumbed to the injuries. Though Md. Afzal, PW 1, did not claim to be an ocular witness, he stated to have found Afaque Alam lying injured when he came out of his house and there he noticed Maksood and Nayeem. The police had collected reminiscence of explosion of bomb from the place of occurrence during his presence. Sk. Samsool, PW 3, too was not an eye-witness, as he too stated to have rushed to the place of occurrence where he noticed Afaque Alam lying injured in pool of blood, who on interrogation, disclosed complicity of the appellants stating, inter alia, Sk. Nayeem and Sk. Maksood to be the assailants, who had shot dead him with fire arms on behest of Sajid Sk. Juman, PW 6, too was not eye-witness but he claimed to have witnessed appellants making good their escape and two of them namely, Sk. Nayeem and Sk. Maksood had held fire arms with them. 5. Dr. Nayeem and Sk. Maksood to be the assailants, who had shot dead him with fire arms on behest of Sajid Sk. Juman, PW 6, too was not eye-witness but he claimed to have witnessed appellants making good their escape and two of them namely, Sk. Nayeem and Sk. Maksood had held fire arms with them. 5. Dr. S.N. Bhagat, PW 9, who held autopsy over the dead body of the deceased stated to have noticed multiple pellets injuries on posterior medical aspect of right arm and waist which were ante mortem in nature, caused by fire aims like gun shot. In a question put by the defence, the doctor was, however, emphatic that all the injuries except injury No. 1 were on vital part of the body, and in case of injuries on the vital part, a person becomes unconscious after loss of blood, in case rifle bullets were used. In substance, we have mentioned the findings of the Police Officer who had been the Investigating Officer of the case and we do not wish to repeat them. Wahab, PW 2, Sk. Irfan, PW 4, and Md. Nikhar, PW 10, were not on facts, as while PW 2 was hostile, PW 4 had been tendered by the State and PW 10 had simply brought First Information Report on the record. 6. Sri P.N. Pandey, learned Senior Counsel for the appellants who submit that though conclusion arrived at by Court below for recording verdict of guilt was also based on evidence of PW 3 about so called dying declaration made by the deceased to him, the facts and circumstances of the case did not conclusively establish about any dying declaration having been made by the deceased to his father. Learned counsel while referring to evidences of Md. Geyas, PW 5, Sk. Kalimuddin, PW 7. and Md. Ashfaque, PW 8. would urge that even these three witnesses who had claimed to be ocular witnesses to the killing of the deceased had not lent assurance to the assertion made by father of the deceased about Md. Afaque Alam having made any dying declaration to his father either at the place of occurrence or at any point of time before he succumbed to the injuries. Afaque Alam having made any dying declaration to his father either at the place of occurrence or at any point of time before he succumbed to the injuries. While accepting well recognised principle of law that conviction can be recorded solely on the dying declaration, the submission is made that it can form basis of conviction only when it was free from all blemishes and had the element of truth for its reliability, and in case of negative, the Court must look for corroboration. Since dying declaration is shown to have been recorded by Sri R.C. Prasad, Asst. Sub-Inspector of Police, learned counsel, while referring to the judgment of the Apex Court reported in (2001) 6 SCC 118 : 2001 (3) East Cr C 8 (SC), Laxmi (Mrs.) V/s. Om Prakash and others, contends that Supreme Court had generally discarded recording of dying declaration by the Police Officer instead of a Magistrate except in cases where condition of the deceased was so precarious that there remains no other alternative. Relying on the decision, contentions are raised that the main test of reliability of dying declaration is the mental and physical fitness and capability to make the statement at that point of time. We have given our due consideration to the submissions and find that the assertion made by father of the deceased about the later having made dying declaration to the former about complicity of the appellants was conspicuously wanting even in the evidence of the eye-witnesses. Even though, Md. Afzal, PW 1, who was shown to have reached near the injured, on hearing sound of shots of firing, did not state about any such dying declaration having been made by the deceased to his father, more so, when he too testifies presence of father of the deceased at the place of occurrence after the incident. We may hasten to add that even though the deceased had suffered serious injuries from gun shots and was admitted in Emergency Ward of Bhagalpur Medical College hospital, the statement of injured was chosen to be recorded by a Police Officer and not by any other competent authority, against whom possibly no eyebrow could have been raised. We may hasten to add that even though the deceased had suffered serious injuries from gun shots and was admitted in Emergency Ward of Bhagalpur Medical College hospital, the statement of injured was chosen to be recorded by a Police Officer and not by any other competent authority, against whom possibly no eyebrow could have been raised. Yet it is argued that since so called fardbeyan of the deceased recorded by Sri R.C. Prasad, ASI of Police happens to be a tainted document, it was all the more necessary for the State to examine Sri R.C. Prasad to enable the defence to impeach credibility of this document. The alleged fardbeyan of the deceased, with all graphic details about accused persons with their parentage and also the arms allegedly held by them, came for severe criticisn by the learned counsel for the appellants and it was submitted that the injured with serious injuries on his person was not expected to have rendered all the details in his dying declaration. We too are of the opinion that since Sri R.C. Prasad, ASI, who is shown to have recorded fardbeyan of the deceased was not examined by the State, many a good questions which could have been put to him to test reliability of this document remained unanswered. In the backdrop of the finding of the doctor too who held autopsy over the dead body, learned counsel would argue that since all the injuries except injury No. 1 were on the vital organs of the dead body of the deceased which were likely to render the injured unconscious on account of loss of blood, in that view of the matter also the possibility of the deceased rendering graphic account of the incident is ruled out and we find substance in the submission. 7. Though Md. Geyas, PW 5, 8k. Kalimuddin, PW 7 and Md. Ashfaque, PW 8 had claimed to be ocular witnesses to the killing of the deceased, Md. Afzal, PW 1 who claimed to have first reached the place of occurrence after hearing sound of gun shots had excluded presence of these eyewitnesses, as, if he is to be believed, Md. Samsool, Geyas, Kalimuddin, Ashfaque, Jumman, Mubarak, Wahab and Irfan happened to come there after 15 minutes of his arrival at the place of occurrence. This is not without significance that the occurrence took place near shop of Md. Samsool, Geyas, Kalimuddin, Ashfaque, Jumman, Mubarak, Wahab and Irfan happened to come there after 15 minutes of his arrival at the place of occurrence. This is not without significance that the occurrence took place near shop of Md. Afzal, PW 1, and hence there is no valid reason that narrations made by him can be discarded. Even Sk. Samsool, PW 3 who happens to be none else but the father of the deceased, while claiming himself not to be ocular witness to the killing of his son had excluded presence of even Md. Ashfaque, brother of the deceased, who in the fardbeyan was shown to have accompanied the deceased when he was shot dead. The narration made by father of the deceased appears to be most probable and it was not expected that he would be hostile to Md. Ashfaque who had claimed to be an ocular witness. We may also take notice of evidence of Md. Geyas, PW 5 who states that he raised alarm only when the accused persons had made good their escape after the incident, and only after alarm was raised by him, that Md. Kalimuddin, Md. Jurnman, Md. Mubarak, Irfan, Sk. Wahab and Sk. Samsooi had rushed to the place of occurrence. This witness too, who himself claimed to be ocular, had in no uncertain terms, excluded presence of Md. Kalimuddin who had claimed to be an ocular witness. Hence considering the evidence of these witnesses which we have just noticed, possibility of Md. Geyas, Sk. Kalimuddin and Md. Ashfaque becoming eye-witnesses to the killing of the deceased appear to be quite improbable and hence they did not deserve credence to be the eye-witnesses of the incident. 8. Yet evidence of these witnesses did not deserve credence for other reasons too. While Sk. Samsool, PW 3, happens to be the father, Md. Ashfaque, PW 8 was brother of the deceased. Sk. Kalimuddin PW 7, too ws not an independent witness, as he was brother of Sk. Samsool and also uncle of the deceased. As for Md. Geyas, PW 5, he too was none else but the brother of Sk. Samsool and also uncle of the deceased. Even Sk. Jumman, PW 6, who though did not claim to be an eye-witness and stated to have witnessed the appellants making good their escape, was none else but brother-in-law of Sk. Samsool, PW 3. 9. As for Md. Geyas, PW 5, he too was none else but the brother of Sk. Samsool and also uncle of the deceased. Even Sk. Jumman, PW 6, who though did not claim to be an eye-witness and stated to have witnessed the appellants making good their escape, was none else but brother-in-law of Sk. Samsool, PW 3. 9. Attention of the witnesses have been drawn by the defence to some material particulars of the case to impeach their credibility and Police Officer too affirmed them in his evidence. As has been evidence of PW 6, PW 7 and also other witnesses, that though there are cluster of houses around the place of occurrence, residents of none of these houses came to lend assurance to the prosecution allegation suggesting complicity of the appellants, and as we have noticed, only those have come, who are supposed to have been interested in the prosecution case. Though genesis of the incident in the First Information Report, was that two and half months preceding the incident, the deceased had not succumbed to the pressure of the appellants for withdrawal of a case instituted against them for assaulting his brother-in- law Sk. Reyas, the evidences on the record are otherwise which suggest that two cases had rather been instituted from appellants side. Md. Geyas, PW 5, had in no uncertain term acknowledged that appellant Sk. Maksood had instituted cases against him and his brother for which there was a counter case also. This witness was a life convict in a case and he had come to depose in the Court from jail. Sk. Jumman, PW 6 also acknowledges instituted of a murder case against him by Sk. Maksood in which Samsool, Ashfaque, Geyas and Kalimuddin too were accused. He acknowledged to be accused in a number of cases. Sk Kalimuddin, PW 7, too admits institution of a case against him by Maksood. Md. Ashfaque, PW 8, also admits institution of a case against him by Maksood. Maksood in which Samsool, Ashfaque, Geyas and Kalimuddin too were accused. He acknowledged to be accused in a number of cases. Sk Kalimuddin, PW 7, too admits institution of a case against him by Maksood. Md. Ashfaque, PW 8, also admits institution of a case against him by Maksood. Though no such principle can be laid down that when there are cross cases between the parties, witnesses should not be believed but in view of long drawn litigation between the parties, the witnesses being not only inimical but also interested, and also for the reason of their exclusion from the place of occurrence at the time of incident, we are of the view that it was quite hazardous to place reliance on them for recording verdict of guilt against the appellants. 10. In the circumstances, while we upset the finding of guilt recorded by the Court below, acquit appellants of the charges levelled against them. Since appellant Sk. Nayeem happens to be in custody, it is directed that he be set at liberty forthwith if not wanted in any other case. As rest seven appellants are on bail, they are discharged from liability of their bail bonds. All the three appeals bearing Cr. Appeal Nos. 339, 417 and 424 of 1999 are accordingly allowed. SACHCHIDANAND JHA, J. 11 I agree.