JUDGMENT M. L. VISA, J. - This appeal is directed against the judgment dated 19.7.1997 and order dated 21.7.1997 passed by Shri A. B. Shekhar, 1st Additional Sessions Judge, Buxer, in Sessions Trial No. 143 of 1994 Convicting and sentencing the sole appellant Nandji Sah to undergo RI for life under Section 302 of the Indian Penal Code (in short, IPC). 2. The case of prosecution, in short, is that on 6.5.1994 at about 8.30 - 9.00 - p.m. when informant Ijharo Devi (P.W. 2) was leaving her house for going to ease out her husband deceased Ranjan Prasad Sah at that time asked his daughter - in - law, wife of appellant, to serve meal to children and thereafter take them to bed on which his daughter - in - law started abusing him. Informant asked her husband and her daughter - in - law not to quarrel and went herself out of village for easing out and when she returned to her house after some time she found her husband lying at the door of the house and he was moaning and on being asked he told her that the appellant after taking side of his wife abused him and after assaulting him on right side of chest with a dagger had fled away. On "hulla' villagers assembled there and they took the husband of informant to Sonbarsa for treatment but husband of informant died in the way and his dead body was brought back to the house of informant. On the next day at about 12.15 hours the Police on receipt of information went to the house of informant and recorded her fardbeyan (Ext. 2). On the basis of fardbeyan of informant a case under Section 302, IPC was instituted and formal FIR (Ext. 3) was drawn and after investigation charge - sheet under Section 302, IPC was submitted. The case of appellant is totally denial of occurrence and his false implication in this case. 3. In order to prove its case, the prosecution has examined 8 witnesses. Ijharo Devi (P.W. 2) is formant Pramila Devi (PW. 3) is daughter - in - law of informant. Madan Sah (PW. 1) and Dhanjee Sah (PW. The case of appellant is totally denial of occurrence and his false implication in this case. 3. In order to prove its case, the prosecution has examined 8 witnesses. Ijharo Devi (P.W. 2) is formant Pramila Devi (PW. 3) is daughter - in - law of informant. Madan Sah (PW. 1) and Dhanjee Sah (PW. 4) both are sons of informant and they were not present in the house at the time of occurrence a d when they returned to their house they were informed by the informant and PW. 3 that appellant after assaulting his father with a dagger had fled away Nirmal Kumar Lal (PW. 7) and Satish Prasad Gupta (PW. 8) are tendered witnesses and they in their cross - examination have said that they know nothing about the occurrence. Upendra Nr. Sinha (PW. 6) is the doctor who held autopsy on the dead body of the deceased Ved Brat (PW. 5) is the 1.O. who has proved inquest report (Ext. 1), fardbeyan of informant (Ext. 2), formal FIR (Ext. 3) and Challan (Ext. 4) for sending the dead body of deceased for post mortem examination. 4. Upendra Nr. Sinha (P.W. 6) in his evidence has said that on 8.5.1994 when he was posted as Civil Assistant Surgeon at Buxer Sub - divisional Hospital he held post mortem examination on the dead body of the deceased at about 7.15 a.m. and found a penetrating wound over right side 6th inter coastal space and a penetrating wound on the right side of abdomen. According to him the age of both the injuries was about 48 hours and death was caused due to haemorrhage and shock from the aforesaid injuries caused by hard and sharp weapon like a dagger. He has proved his post mortem examination report which is marked Ext. 5. From his evidence it is established that death of deceased was homicidal. 5. He has proved his post mortem examination report which is marked Ext. 5. From his evidence it is established that death of deceased was homicidal. 5. Ijharo Devi (PW 2), the informant, in her evidence has said that on the date of occurrence in the night her husband asked the wife of appellant who happens to be his daughter - in - law, to serve meal to children and take them to bed on which she started abusing her husband and she herself then asked her husband and daughter - in - law not to quarrel and went for easing out and when she returned back to her house she found her husband lying injured by dagger and on being asked her husband told her that appellant had assaulted him with 'chhura'. She has further stated that she started weeping on which villagers came there and they took her husband to Sonbarsa for treatment but her husband died in the way and his dead - body was brought back to her house. She has further stated that on the next day when Police came to her house her statement was recorded. Pramila Devi (PW 3) is daughter - in - law of informant and wife of Dhanjee Sah, brother of appellant and she has said that at the time of occurrence she was in her house when deceased, her father - in - law, told the wife of appellant to take the children to bed and she then herself came down and appellant assaulted the deceased with dagger and she raised 'hulla' on which her mother - in - law, the informant, came and her father - in - law told her that appellant had assaulted him with dagger. She has further stated that this information by deceased was given to informant also. She has also said that villagers took her father - in - law for treatment but he died in the way and therefore, they returned back with dead body. About the appellant she has stated that after assaulting the deceased he along with his wife fled away. About her husband she has said that he came to his house on the next day, when she told him about the occurrence. In para 10 she has said that after pulling out the dagger from the body of deceased appellant fled away. 6. About her husband she has said that he came to his house on the next day, when she told him about the occurrence. In para 10 she has said that after pulling out the dagger from the body of deceased appellant fled away. 6. Although Pramila Devi (P.W. 3) in para 1 of her evidence has said that when she came down the appellant assaulted the deceased with 'chhura' and she raised 'hulla' and informant then came and this evidence of PW.3 gives an impression that she is an eyewitness to the occurrence but taking her evidence in entirety she does not appear to be eye - witness to the occurrence because she has further stated that when she raised 'hulla' and her mother - in - law came the deceased told her that appellant had assaulted him with dagger and this information was also given by the deceased to informant. The informant in para 7 of her evidence has said that when she returned this witness Pramila Devi (P.W. 3) told her that when she was giving milk to children there was a quarrel between the deceased and wife of appellant and deceased after falling on ground started crawling and she then came down. Had Pramila Devi (P.W. 3) seen the occurrence she must hale told the informant that she saw the occurrence and not that when she came down she saw the deceased lying on floor crawling. In the fardbeyan also the informant has no where stated that Pramila Devi (PW. 3) saw the occurrence. As discussed earlier Pramila Devi (PW. 3) in para 3 of her evidence has said that on the next day when her husband and 'Nandoi' returned back to house she told them about the occurrence and in para 6 she has stated that in her statement before the 1.O. she had stated that she told her husband about the occurrence but Ved Brat (PW. 5) who is 1.O. in his evidence has said that this witness had not stated before him that she had told about the occurrence to her husband. Perhaps for these reasons the Court below has observed that there is no eye -witness to the occurrence. 7. 5) who is 1.O. in his evidence has said that this witness had not stated before him that she had told about the occurrence to her husband. Perhaps for these reasons the Court below has observed that there is no eye -witness to the occurrence. 7. The Court below has convicted the appellant believing the evidence of informant and Pramila Devi (P.W. 3) that deceased before dying had told them that appellant had assaulted him with a dagger and on the basis of this evidence which has, been considered by the Court below as dying declaration the appellant has been convicted. The informant in para 2 of her evidence has said that villagers had come to her house and she told them about the occurrence but none of the villagers has come forward to depose that informant had told them about the dying declaration of deceased. Informant in cross - examination has admitted that appellant was separate from her husband since three years before the occurrence. 8. Upendra Nr. Sinha (PW. 6), the doctor, who held autopsy on the dead body of the deceased in para 5 of his evidence has said that in case of such type of injuries the death is expected within five minutes. The evidence of Pramila Devi (PW. 3) is that first of all deceased told her about the occurrence and thereafter he told the informant about it but evidence of informant is that when her husband told her about the assault on him by the appellant at that time no body else was present there. The Court below has taken note of this contradiction in the evidence of the informant and Pramila Devi (P.W. 3) but has observed that their evidence on this point leads to a logical conclusion that dying declaration of deceased was made to informant and Pramila Devi (PW 3) separately and when it was being made before the informant at that time Pramila Devi was not present there. I fail to agree with this finding of the Court below because Pramila Devi (P.W 3) in her evidence has clearly stated that deceased had told her that appellant had assaulted him with dagger and deceased told this fact to informant also. I fail to agree with this finding of the Court below because Pramila Devi (P.W 3) in her evidence has clearly stated that deceased had told her that appellant had assaulted him with dagger and deceased told this fact to informant also. She does not say that when deceased was giving information of assault by appellant to informant she was not present there and later on she came to know it either from informant or somebody else that deceased had told the informant about the occurrence. Besides this, Ved Brat (PW 5), the 1.O. in para 10 of his evidence has clearly stated that he did not find any blood at the place of occurrence. About this the Court below has observed that informant and others are illiterate persons and there may be reason to believe that before arrival of police some one removed the blood from the place of occurrence. This observation of the Court below is against the materials on record because it is not the case of prosecution that before arrival of police blood was removed from the place of occurrence. The absence of blood at the alleged place of occurrence makes the case of prosecution quite doubtful that deceased received dagger injuries on his chest at that place. It is true that the Court low has given much importance to the evidence of informant observing that informant happens to be the own mother of appellant and there was no reason for her to depose false against her own son but at the same time it is also an admitted fact that informant is not the eyewitness to the occurrence and she has claimed that her husband had told her that appellant had stabbed him but then this statement was given by the informant for the first time on 7.5.1994 at 13.15 hours whereas the occurrence is said to have taken place on 6.5.1994 at about 8.30 - 9.00 p.m. and formal FIR shows that the village of informant is hardly15 kms away from the Police Station. The fact ,hat appellant was separate since three years before the occurrence from the informant and her husband on account of quarrelsome nature of wife of appellant, wife of appellant and Pramila Devi (P.W. 3) being cousin sisters as well as 'Gotani' to each other were not on talking terms much before the date of occurrence as admitted by Dhanjee Sah (P.W. 4), the husband of Pramila Devi (P.W. 3) and informant is illiterate and a rustic lady as admitted by her in her evidence are other circumstances which create doubt and compel the Court to think that it will not be safe to rely on the evidence of informant that deceased made dying declaration before the informant , and uphold the conviction of appellant only on this ground. It is true that corroboration of dying declaration is not necessary but then evidence on record must be there to the effect that deceased made dying declaration and that evidence must be convincing and free from all reasonable doubts. As discussed, in the present case the evidence of informant does not inspire confidence that deceased made any dying declaration to her or anybody else. 9. Considering the entire evidence on record I find that prosecution has not been able to prove its case beyond all reasonable doubts. 10. Giving the benefit of doubt to the appellant this appeal is allowed and the conviction and sentence of appellant is set aside and the appellant is acquitted. The appellant is ordered to be released from jail custody forthwith if he is not required in any other case. BAL KRISHNA JHA, J. - I agree.