Judgment ANIL KUMAR SINHA and BAL KRISHNA JHA JJ. 1. This appeal has been directed against the order of conviction and sentence passed by IInd Additional Sessions Judge, Saharsa. in S.T. No. 114/90 whereby he convicted the sole appellant, namely, Subhash Yadav, under Section 302/34 of the IPC and also under Section 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for life for the offence under 302/34 of the IPC besides a fine of Rs.10,000/- (ten thousand) to be paid to the kins of the deceased and he further sentenced him to undergo rigorous imprisonment for seven years for the offence under Section 27 of the Arms Act. The sentences were, however, ordered to run concurrently. In default of payment of fine the appellant was directed to suffer rigorous imprisonment for two years. 2. The fardbeyan (Ext-3) of the deceased was recorded by S.I., Sudishtha Kumar Singh, Officer Incharge of Bakhtiarpur Police Station on 11.1.1989 at 8.45 hours in Bakhtiarpur hospital. The prosecution story as disclosed in the fardbeyan is that on 11.1.1989 at about 3 a.m. the informant along with Balram Yadav was sitting near a ghura in front of their house and were warming up. In the meantime. four persons came suddenly from the southern side being armed with guns. No sooner they came, the appellant fired upon the informant, the shot hit on his chest and another shot was fired by Rama Nand Yadav which caused injury on the right arm of the informant. One of the accused, namely, Kiro Yadav, fired upon Balram Yadav. An alarm was raised by which Buchho Yadav (PW 6}, Chhote Lal Yadav (PW 7) and Bilo Yadav (PW 9) came and witnessed the occurrence. The motive behind the occurrence as alleged in the fardbeyan is that the accused Ram Nandan Yadav and Lalo Yadav had committed theft of a she buffalo of Debo Yadav and the informant got back the buffalo to the owner on account of which they were annoyed. Initially a case under Section 307/34 of the IPC read with Section 27 of the Arms Act was registered against the appellant and Ram Nandan Yadav, Lal Yadav and Kiro Yadav but after the death of the informant Section 302 of the IPC was added. 3. Initially a case under Section 307/34 of the IPC read with Section 27 of the Arms Act was registered against the appellant and Ram Nandan Yadav, Lal Yadav and Kiro Yadav but after the death of the informant Section 302 of the IPC was added. 3. The fardbeyan was handed over to the I.O., namely, Jaidayal Singh, (PW 13) who sent the fardbeyan to the Police Station for lodging FIR and took up the investigation in the case PW 13 has proved the fardbeyan (Ext.-3) as also the formal FIR (Ext.-5) which was lodged on the basis of the fardbeyan. After completing the investigation the I.O. submitted charge-sheet in the case under Section 302/34 of the IPC read with Section 27 of the Arms Act on the basis of which the Magistrate took cognizance it he case and the case was committed to the Court of Session for trial. 4. In order to prove its case the prosecution examined as many as 14 witnesses out of whom PW 7, Chhote Lal Yadav was tendered. PW 1, Daya Rani, is the wife of the deceased, PW 2, Sanjala Devi, is the daughter, PW 3, Meena Devi, is the niece, PW 4, Devendra Yadav, is the brother and PW 5, Chhota Lal Yadav, is nephew of the deceased. PW 8 Laxmi Yadav, is a witness on inquest report (Ext.-4). PW 10, Sunil Kumar Yadav. is a scizure list witness who has proved his signature as well as the signature of Tarni Prasad Yadav(Ext.-2) and 2/1). On the seizure list. He has deposed that he had seen two empty cartridges, one plastic cork and blood stained earth which were seized near the house of the deceased. He has also testified to the effect that the I.O. had prepared a production list of clothes produced by the daughter of the deceased and he had signed on the production list. He has proved his own signature as well as the signature of another witness. There is nothing worth comment in the testimony of PW 8 and PW 10. PW 9, Bilo Yadav, is a witness who has been named in the fardbeyan. PW 12, Dr. Jagdish Chandra, held post-mortem examination on the dead body of the deceased. PW 11, Munshi Yadav, is the brother of the deceased claiming to be an eye-witness to the occurrence and PW 14. Dr. PW 9, Bilo Yadav, is a witness who has been named in the fardbeyan. PW 12, Dr. Jagdish Chandra, held post-mortem examination on the dead body of the deceased. PW 11, Munshi Yadav, is the brother of the deceased claiming to be an eye-witness to the occurrence and PW 14. Dr. Ghanshyam Singh, is the Doctor of Primary Health Centre of Simri Bakhtiarpur who examined the injury of the deceased first in point of time. 5. PW 14, Dr. Ghanshyam Singh (PW 14) has deposed that on 11.1.1989 at 9.30 a.m. he had examined the injuries of Parmeshwar Yadav (informant) and found the following injuries on his person : (i) Gun shot injury on upper part of right side of chest wall. It was wound of entry 1/4" in diametre. Wound of exit measuring 1/2" in diametre and was on right deltoid muscle. (ii) Bruise, red in colour, measuring 1" x 1/4" on left arm on teltoid muscle. It was a simple injury caused by hard and blunt substance. (iii) Lacerated wound with ragged margine 2" x 1/2" x 1/4" on the right lateral and back portion of the arm. All injures were caused by gun shot. 6. PW 14 has further deposed that one metallic substance rimulating fire arm pellet found indulged at 3" above injury No. (iii) He has stated that the nature of injury Nos. 1 and 3 could be confirmed from the surgeons report as the patient was referred to Sadar Hospital. Saharsa for further treatment. The age of the injuries was within 24 hours. 7. PW 14 also examined another injured, namely, Balram Yadav at 9.40 a.m. and found the following injuries on his person : (i) Lacerated wound with suspected compound fracture, easiromg 4" x 1-1/2" x 1" on right radius and ulna on their middle. In his opinion, injury was caused by hard and blunt substance which may be gunshot injury. He referred the patient to the Sadar Hospital, Saharsa. for further treatment and it appeared that the injury was grievous in nature. PW 14 has proved his reports (Ext.-7 and 7/1). In cross-examination PW 14 has stated that he was not definite with regard to the nature of weapon by which the injuries were caused to the injured and he had not removed the metallic pellet. There is nothing else in his cross-examination. 8. PW 14 has proved his reports (Ext.-7 and 7/1). In cross-examination PW 14 has stated that he was not definite with regard to the nature of weapon by which the injuries were caused to the injured and he had not removed the metallic pellet. There is nothing else in his cross-examination. 8. It is evident from the inquest report that the informant died at Saharsa Sadar Hospital as the I.O. prepared the inquest report (Ext.-1) at 8.15 p.m. The dead body was sent by the I.O. for post-mortem examination and PW 12 Dr. Jagdish Chandra performed the post-mortem examination on the dead body of the deceased. He found the following ante-mortem injuries on the dead body of the deceased : (i) Gunshot injury on right arm at the site of shoulder in the back about 3/4" in diametre and outlet of 2" oval on the medial side of the right arm in the middle. He found one plastic cap and one ring in the wound but no fracture of the bone. (ii) A ,gunshot injury on the right side of the right nipple of about 1/2" diameter. On dissection there was tear of the right plura. lung at the point of injury, left plura and left lung at the right lower corner, was found. He further found a hole in the diphrgem and the intestine cut at three places of different sizes, i.e.. of 1/2". 1-1/2" and 2", the cuts were oval in shapes. He found both the lung cavity and abdomen full of blood and also found bullet in the posterior wall of the left side of abdomen. 9. In the opinion of PW 12 death was due to heamorrhage and shock on account of the above injuries which were caused by firearm and the time elapsed since death till the time of post mortem was within 12 to 36 hours. PW 12 has proved the post mortem examination report and on being questioned by the Court PW 12 replied that. injury No. 2 was dangerous to cause death in the ordinary course of nature. In his cross-examination PW 12 stated that the injuries found were the result of two different shots but were caused by the same kind of weapon. There is nothing else in his cross-examination. 10. It is manifest from the evidence of PW 12 that the deceased died as a result of gunshot injuries. In his cross-examination PW 12 stated that the injuries found were the result of two different shots but were caused by the same kind of weapon. There is nothing else in his cross-examination. 10. It is manifest from the evidence of PW 12 that the deceased died as a result of gunshot injuries. The defence does not dispute this fact. The crucial question is that whether the prosecution has been able to prove that the appellant was responsible for causing gunshot injury to the deceased. 11. The prosecution case is based upon the fardbeyan (Ext.-3) of the deceased which was recorded at 8.45 a.m. at Bakhtiarpur Primary Health Centre on the alleged date of occurrence itself. This fardbeyan was treated as the dying declaration of the deceased. It may be pointed out at this stage that the informant deceased categorically stated that four persons including this appellant came with guns in their hands. Besides the appellant he has named accused Ramnandan Yadav. Laloo Yadav and Kero Yadav who did not face the trial. So far Laloo Yadav is concerned the police did not send him up for trial because on the alleged date of occurrence he was lodged in jail in another case. This fact has been admitted by the I.O. in his evidence. It can therefore, be said that Laloo Yadav was falsely implicated by the informant and he could not have been present at the time of the alleged occurrence as he was in jail on that date. 12. The learned counsel for the appellant seriously challenged the fardbeyan-cum-dying declaration of the informant and submitted that the alleged occurrence took place at about 3 a.m. and the, fardbeyan was recorded by S.I.S.K. Singh at 8.45 a.m., i.e.. after 5 hours 45 minutes of the occurrence. The medical evidence shows that the Doctor who conducted autopsy on the dead body of the deceased found tear of the right and left plura and lung and intestine was cut at three places of different dimensions i.e., 1/2" to 2". He also found that the lung cavity and the abdomen was full of blood and a bullet was also lodged in the posterior wall of the left side of abdomen. The submission was that having received such injuries it was impossible for the informant to make a coherent statement as set forth in the fardbeyan. He also found that the lung cavity and the abdomen was full of blood and a bullet was also lodged in the posterior wall of the left side of abdomen. The submission was that having received such injuries it was impossible for the informant to make a coherent statement as set forth in the fardbeyan. In support of his contention he also placed reliance on a decision in the case of Darshan Singh V/s. State of Punjab, 1983 Cr LJ 1985, where the Apex Court held that : "When from the medical evidence on record it was found that the vital organs of the deceased, like peritoneum, stomach and spleen were completely smashed, he could not be said to be 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. Therefore, his dying declaration could not be relied upon for any purpose and had to be excluded from consideration." 13. Relying upon the aforesaid decision it was strongly argued that the deceased had also suffered seriously injury as plura and lung were torn and the intestine was cut at three places of sizes 1/2", 1-1/2" and 2" with profuse bleeding. Therefore, having received such serious injuries it was impossible for the deceased to make coherent statements as to the circumstance under which he was injured after 5.45 hours of the alleged occurrence. It was submitted that in all probability the deceased must have become unconscious and this fact has been admitted by the I.O. who went to the Saharsa Hospital at about 9.35 a.m. and found the deceased in unconscious condition. Attacking the fardbeyan-cum-dying declaration (Ext.-3) the learned counsel submitted that in order to place reliance upon the fardbeyan it was incumbent upon the prosecution to first prove that the informant was in a fit state of mind to make statement which the prosecution has miserably failed to prove and the important evidence in this regard was also deliberately suppressed inasmuch as the writer of the fardbeyan, namely, S.I.S.D. Singh who recorded the fardbeyan has been purposely not examined by the prosecution and he was the best witness to say that whether the informant was in a fit state of mind to make statement or not. The non-examination of S.D. Singh is a serious lacuna in the prosecution and the defence was highly prejudiced on account of his non-examination. No plausible explanation whatsoever has been given by the prosecution as to why S.D. Singh who was very important witness in this case was not examined. 14. That apart, it was pointed out that the deceased was first taken to Bakhtiarpur Primary Health Centre where PW 14 examined him at 9.30 a.m. who found the injuries which have been referred to above. In his evidence PW 14 has not whispered as to whether the deceased informant was in a fit state of mind to make statement or he was conscious. So, this is another circumstance which goes to show that the prosecution has not proved the essential fact that after receiving the gunshot injuries, as referred to above, the deceased was in a fit state of mind to make any statement. No doubt, PW 14 put his signature on the fardbeyan but his signature has not been proved. It appears to us that the signature of PW 14 appearing on the fardbeyan is similar to that of his signature of appearing on the deposition. So, even assuming that PW 14 had put his signature on the fardbeyan there is no endorsement or certification of PW 14 to the effect that the fardbeyan was recorded in his presence and the informant was in a fit state of mind to make statement. It appears that the PW 14 has given the time when he put his signature which is 9.20 a.m. whereas the fardbeyan was recorded at 8.45 a.m. This circumstance would go to show that PW 14 was not present when the fardbeyan of the deceased was recorded and later on he was asked to sign at 9.20 a.m. which he did. He may have put his signature at the instance of the writer of the fardbeyan. In any view, the fact remains that the fardbeyan was not recorded in presence of PW 14. There is no dispute regarding the fact that there is no statutory form to record the dying declaration of a man. It may be in writing, oral or even by signs or gesture. In any view, the fact remains that the fardbeyan was not recorded in presence of PW 14. There is no dispute regarding the fact that there is no statutory form to record the dying declaration of a man. It may be in writing, oral or even by signs or gesture. But, as a rule of caution it is a general practice that whenever a dying declaration is recorded the police officer takes steps to requisition the services of a magistrate in order to make the statement authentic. In variably the police officer also tries to record the dying declaration in presence of the doctor, if available, and in such situation obtains a certificate from the doctor. In the present case nothing was done, inasmuch, as neither any magistrate recorded the statement of the informant nor any certificate was obtained from the Doctor, although the doctor was very much present in the hospital. The writer of the fardbeyan-cum-dying declaration also did not give any certificate to the effect that the deceased was in a fit state of mind to make the statement. 15. PW 11, Munshi Yadav, who is a witness of fardbeyan and is the own brother of the deceased, has admitted in his cross-examination that the deceased had not put his signature on any paper before the police. The learned trial Court did not believe the statement of PW 11, as contained in paragraph 16 to 18 of his cross-examination saying that in course of investigation he was gained over. But for coming to such a conclusion there appears no basis. It was proper for the prosecution to recall the witness and suggest that he was gained over by the defence of the prosecution could have drawn his attention to the statement which he gave before the I.O. under Section 161, Cr PC but prosecution failed in his duty either to invite his attention to the previous statement made by him under Section 161, Cr PC or to suggest that the was gained over. So, without any basis the Court below cannot come to the definite conclusion that the witness had actually been gained over. If the evidence of PW 11 is believed then fardbeyan must he held to be a fabricated document. 16. So, without any basis the Court below cannot come to the definite conclusion that the witness had actually been gained over. If the evidence of PW 11 is believed then fardbeyan must he held to be a fabricated document. 16. Having considered the facts and circumstances, as enumerated above, we are also of the view that the fardbeyan-cum-dying declaration of the informant does not inspire confidence to believe inasmuch as it was not possible for the informant to make a coherent statement after 5.45 hours of the occurrence having received serious injuries affecting vital organs. In our view, therefore, decision referred to above fully applies in the facts and circumstances of the present case. 17. Having reached to the aforesaid conclusions we advert ourselves to consider the oral dying declaration of the deceased which is said to have been made by him immediately after the occurrence. From the evidence of PW 1 to PW 5 it appears that the deceased was shot at while he was warming up near the ghura situated outside the house. He ran towards angan and ultimately fell down near a ditch situated in the west of the house of the informant. On hearing the sound of firing PW 1 and PW 2 reached near the deceased who disclosed that he was shot at by Subhash Yadav and accused Ram Nandan who did not face the trial. Thereafter PW 4 and PW 5 also went near the deceased and they also claim that the deceased had made such statement before them also. All these witnesses have suppressed the name of Laloo Yadav and stated that the deceased had disclosed the names of only three accused persons, namely Subhash Yadav, Ram Nandan Yadav and Kero Yadav. Although, in the fardbeyan (Ext-3) the informant specifically stated the name of Laloo Yadav as one of the assailants. Be that as it may, question remains before us that how far the statements of these five witnesses who are closely related to each other inspire confidence to believe. The first thing which strikes our mind is that the deceased could have made statement about his assailants only when he would have seen the assailants. If he had himself not seen the assailants it was not be possible for him to disclose the names of his assailants to PW 1 to PW 5. The first thing which strikes our mind is that the deceased could have made statement about his assailants only when he would have seen the assailants. If he had himself not seen the assailants it was not be possible for him to disclose the names of his assailants to PW 1 to PW 5. The evidence of PW 1 to PW 5 will be rendered doubtful the moment a conclusion is arrived at that it was not possible for the informant to identify the accused In this context it is worth mentioning that the alleged occurrence tGok place at 3 a.m. in the dark foggy night when the deceased and Balram Yadav were warming up near the ghura situated near the house of the informant. It has come in the evidence that it was a foggy night. The I.O. did not find any lantern of dhibri in the vicinity of the place of occurrence. The witnesses had also not disclosed that what was the source of light in which the informant identified the appellant and other accused. The informant has also not stated in his fardbeyan as to what was the source of light in which he identified the assailants. 18. PW 4 Devendra Yadav has stated that while the assailants were fleeing away he saw them from the hole of tat in the flash of torch light of the accused. His evidence does not inspire confidence to believe that he can identify the assailants from the hole of tatti that too in the flash of torch light of accused. In such view of the matter, we are of the view that in the dark winter night at 3 a.m. when the weather was foggy it was not possible for the witness to identify the appellant or other accused in the absence of any light. There is no case to the effect that the assailants were making any announcement so that the witness could have identified them by their voice. The own witness of the prosecution PW 11. Munshi Yadav, clearly admitted that the alleged night of the occurrence was a dark night and nothing was visible beyond a cubit. Therefore, the evidence of PW 4 on the point of identification of the appellant becomes highly doubtful. 19. The own witness of the prosecution PW 11. Munshi Yadav, clearly admitted that the alleged night of the occurrence was a dark night and nothing was visible beyond a cubit. Therefore, the evidence of PW 4 on the point of identification of the appellant becomes highly doubtful. 19. So far the oral dying declaration of the informant is concerned, learned counsel for the appellant pointed out that it is nothing but embellishment which is evidence from the fact that there is nothing in the fardbeyan (Ext.-3) to show that the informant had disclosed the names of the assailants to PW 1 to PW 5. In fact, there is no whisper of the names of PW 1 to PW 5 in the fardbeyan. It is submitted that the statement of PW 1 to PW 5 was recorded after lapse of so many hours and a false story was cooked up and after due deliberation PW 1 to PW 5 stated that the deceased had disclosed the names of the assailants and they had identified the appellant and other accused at the time of occurrence, although, there is no such story in the fardbeyan (Ext.-3). 20. Learned counsel submitted that the circumstances of the case are such that the deceased himself could not have identified his assailants in the absence of any source of light so the question of his making statement before PW 1 to PW 5 that he was shot at by Subhash Yadav and Ram Nandan Yadav would not arise at all. Similarly PW 1 to PW 5 could not have identified the appellant or other accused in the absence of any light whatsoever. We find force in the submission and we are also of the view that the statements of the witnesses on the point of identification of the appellant and other accused is not worthy of placing credence to and it is highly doubtful that PW 1 to PW 5 could have identified the assailants in the absence of any light. Likewise the informant also could not have identified his assailants in the absence of any light. As such, he could not have named the appellant or other accused who were assailants before PW 1 to PW 5 while making oral dying declaration before them. 21. Likewise the informant also could not have identified his assailants in the absence of any light. As such, he could not have named the appellant or other accused who were assailants before PW 1 to PW 5 while making oral dying declaration before them. 21. It may be pointed out that although PW 1 to PW 5 have made statements to the effect that after receiving gunshot injuries the deceased ran towards his house and fell down near the ditch situated towards west of his house but there is no such story in the fardbeyan of the informant. In other words, the witnesses state about a different story that the story described in the fardbeyan. As per the fardbeyan Budho Yadav (PW 6), Chhote Yadav (PW 5) and Bilo Yadav (PW 9) came on hulla and had seen the occurrence. 22. PW 6 Buchho Yadav claims that on the alleged night of the occurrence he was sleeping at the darwaza of PW 11 although he has got his own house in the near vicinity and he had not stated any special reason for his sleeping at darwaza of another person. He has also made prototype statement like PW 1 to PW 5. It has come in the evidence of PW 5 that due to fear he and his father Munshi Yadav hid themselves in the room of the Post Office. So, PW 6 also must have taken the same precaution as PW 5 and PW 11 had taken and it was not possible for him to identify the assailants in the absence of any source of light. As such, his claim of identification does not deserve to be relied upon. PW 9 Belo Yadav is another witness named in the fardbeyan who had seen the alleged occurrence. PW 9 Belo Yadav has admitted that he had gone to tend buffalo at 4 a.m. and saw the appellant going fastly along-with accused Ram Nandan Yadav at about 5 a.m. The occurrence took place at 3 a.m. and soon after the occurrence the assailants fled away and this witness saw them at 5.15 a.m. while going away from the place of occurrence. The evidence of PW 9 looks absurd and it appears that he has deposed falsely. 23. The evidence of PW 9 looks absurd and it appears that he has deposed falsely. 23. Learned counsel pointed out certain discrepancies occurring the evidence of PWs to show that the witnesses have given contradictory statements on the manner of the occurrence as also the place of occurrence. According to PW 1, 2 and 11 the deceased fell down near the ditch where as PW 5 has stated that on hearing hall when he went in angan he saw the deceased lying in a pool of blood. PW 6 has also stated that on hearing the cry of female members when he went to the angan he saw many persons in the back of the house of the informant and he also heard the sound of firing coming from the angan. He has no where stated that he saw the deceased lying near the ditch. It was pointed out that PW 2. Sanjala Devi, has stated that the two rounds of firing took place in the angan where she found empty cartridge which suggests that the firing was done in the angan. PW 1 stated that this appellant fired upon her husband in course of chase but the Doctor found only two injuries on the person of the deceased and those two injuries were admittedly caused near the ghura. So. the evidence of PW 1 that she had seen this appellant firing in course of chasing has not been established. PW 2 took out the clothes of deceased with tear on the back and she handed over the same to the I.O. and the marks of firing were present on the clothes but the clothes were not produced in the trial. The I.O. seized the empty cartridges and blood-stained earth etc. from the P.O. but those cartridges or the blood-stained earth were not produced in the trial, nor there is any report of the chemical examiner.. The prosecution also failed to bring on the record any injury register, bed head ticket of hospital where the deceased was treated first. Similarly, no paper of Saharsa Hospital has been brought on record to show that what was the condition of the patient. These are some of the lacunae in this case. 24. The prosecution also failed to bring on the record any injury register, bed head ticket of hospital where the deceased was treated first. Similarly, no paper of Saharsa Hospital has been brought on record to show that what was the condition of the patient. These are some of the lacunae in this case. 24. We have evidence of PW 11, Munshi Yadav, the brother of the deceased who supported the prosecution case in the first part of his evidence but in his cross-examination he has given a complete go-by to the prosecution story and stated that the deceased had not put his signature on any paper and had not stated before the I.O. that the appellant had fired upon the deceased. 25. Considering the evidence, facts and circumstances of the case as also the materials on record we are of the definite view that the prosecution had not proved the charges against the appellant beyond all reasonable doubt and at any rate he deserves the benefit of doubt on account of the doubtful circumstances emerging in the case. We, therefore, hold the appellant not guilty to the charges and acquit him of the same. The order of conviction and sentence recorded by the learned trial Court is accordingly set aside. 26. In the result, this appeal is allowed and the appellant who is in custody is directed to be released forth with, if not wanted in any other case. Appeal allowed.