Judgment ( 1. ) APPELLANTS Vinod, Ballu alias Mohan and Pappu alias Ashok have been convicted under Section 302/34, Indian Penal Code and sentenced to imprisonment for life. ( 2. ) IT is no longer in dispute that Meena, aged about 16 years, sister of accused Vinod, had eloped with deceased Vijay a few days before the incident of the present case. Vijay was arrested for the offence punishable under Section 366, Indian Penal Code. ( 3. ) THE prosecution case is that on 28-10-1989 at 8. 25 A. M. there was grappling between deceased Vijay and accused Ballu and at that time accused Pappu dealt a lathi blow on the head of Vijay. Thereafter accused Vinod came on the spot with an axe and caused injuries to Vijay on his head with that axe. There was a repeated blow of the axe on the neck of the deceased by accused Vinod. The incident was witnessed by Prabhudayal (P. W. 1), Kamal (P. W. 2) and Vijay Singh (P. W. 9 ). The FIR (Ex. P-S) was lodged by Vijay Singh (P. W. 9) at 8. 45 A. M. at Bina Police Station. It is also the prosecution case that Kailash Arya (P. W. 7), Sub Inspector of Police, accompanied by Dev Singh (P. W. 8), Constable, hastened to the spot on a motor-cycle and reached there at 9. 05 A. M. . The Sub Inspector recorded the statement of Vijay and that is Ex. P-7. It is said to be his dying declaration. He took Vijay to the hospital. He was examined by Dr. Anil Kumar Gupta (P. W. 6 ). He found five injuries on his body including the two incised wounds which were the cause of death. Vijay died at 10. 15 A. M. in the hospital. Panchnama of the dead body was prepared and that is Ex. P-3. The autopsy was conducted by Dr. Anil Kumar Gupta (P. W. 6) and in his opinion the death of Vijay was homicidal. The investigation was taken up by R. K. Mishra (P. W. 10), Town Inspector. He interrogated accused Vinod and he gave the information as recorded in Ex. P-12 that he has kept an axe and a blood-stained shirt hidden in the tiles on the back side of his house. Accused took him to that place and produced these articles. The investigation was taken up by R. K. Mishra (P. W. 10), Town Inspector. He interrogated accused Vinod and he gave the information as recorded in Ex. P-12 that he has kept an axe and a blood-stained shirt hidden in the tiles on the back side of his house. Accused took him to that place and produced these articles. These were seized as per seizure memo (Ex. P-15), Similarly lathis were seized from the other two accused persons on the basis of the information given by them. The report of the Forensic Science Laboratory is Ex. P-19, according to which blood was found on the shirt and the axe. ( 4. ) THE accused persons pleaded not guilty. ( 5. ) THE Trial Court after appreciation of the evidence on record and primarily relying upon the dying declaration of the deceased marked as Ex. P-7 convicted and sentenced the three accused persons as stated above. ( 6. ) IN this appeal it has been argued that the dying declaration (Ex. P-7) is said to have been recorded by the police officer and it has not been done in the presence of any independent witness. It is also pointed out that the three persons who were cited as eye-witnesses have been declared hostile and the person who is said to have lodged the FIR (Ex. P-8) has also not supported the prosecution case and, therefore, the FIR loses its corroborative value. It has been argued that the dying declaration has not been proved to be true and voluntary and, therefore, it could not form the basis for conviction. It is contended that the deceased did not make any declaration to the police officer as he was not in a position to speak as he had become unconscious on the spot. ( 7. ) THE evidence on record has been scrutinized by us in light of the arguments raised by the learned Counsel for the appellants. Prabhudayal (P. W. 1), Kamal (P. W. 2) and Vijay Singh (P. W. 9) who were cited as eyewitnesses have been declared hostile. They have deposed that they have not seen the incident. Vijay Singh (P. W. 9) is said to have lodged the FIR (Ex. P-8) and he has disowned it. Therefore, the prosecution relies upon (a) dying declaration (Ex. They have deposed that they have not seen the incident. Vijay Singh (P. W. 9) is said to have lodged the FIR (Ex. P-8) and he has disowned it. Therefore, the prosecution relies upon (a) dying declaration (Ex. P-7) recorded by the Sub Inspector; (b) recovery of the axe and blood-stained shirt on the information given by accused Vinod and (c) the motive for commission of this crime. These points arc to be examined closely to find out if the prosecution has brought home the guilt to the accused persons. ( 8. ) KAILASH Arya (P. W. 7), Sub Inspector, has deposed that on 28-10-1989 Vijay Singh (P. W. 9) came to Bina Police Station to lodge the FIR and it was recorded by the Town Inspector and at the same time he himself (SIC) spot with Dev Singh, Constable (P. W. 8 ). He has further deposed that Vijay was lying near a hand pump in Shivaji Ward and his injuries were bleeding. He was speaking very slowly. His condition was very delicate. He recorded his statement (Ex. P-7) and it was attested by Dev Singh, Constable (P. W. 8 ). In cross-examination he has stated that there were some women standing around Vijay when he reached the spot but no male person was available there and nobody came when he called them. He put Vijay in a rickshaw after recording his declaration and at that time the father, mother and wife of Vijay came there. At that time Vijay was in semi-conscious condition and as soon as he took his thumb impression on Ex. P-7 he became unconscious. For this reasons he recorded his statement very briefly. He did not ask about the parentage of the accused persons. He has denied the suggestion that the deceased was unconscious when he reached the spot and he has concocted the dying declaration. Dev Singh (P. W. 8) has supported the Sub Inspector hut in cross-examination he has stated that the father, mother and wife of Vijay had reached the spot when the Sub Inspector was recording the dying declaration. He has also stated that the Sub Inspector had asked the parentage of the accused persons from Vijay and he had given the details of their parentage. Smt. Anita (P. W. 3) is wife of deceased Vijay. He has also stated that the Sub Inspector had asked the parentage of the accused persons from Vijay and he had given the details of their parentage. Smt. Anita (P. W. 3) is wife of deceased Vijay. She has stated that her husband Vijay was conscious when she reached the spot, but she docs not say that her husband disclosed the names of the assailants. She is silent on this point. So is the case with Pooranlal (P. W. 4), who is father of the deceased. He also docs not say that his son Vijay told the names of the assailants to him or to the police. The Trial Court has held that the discrepancies in the evidence of the Sub Inspector and the Constable do not amount to contradiction. After a close scrutiny of Ex. P-7 we are of the opinion that it does not inspire confidence. The dying declaration recorded by a police officer requires close scrutiny before it can be acted upon. According to the Sub Inspector and the Constable the wife, father and mother of Vijay had come to the place of occurrence but they do not say anything about any disclosure made by the deceased with regard to the assailants. In case the deceased had made any statement to the police officer it must have been heard by his wife and the parents. The declaration (Ex. P-7) has not been attested by any independent witness of the locality. It has been attested only by the Police Constable. There is an intriguing feature that Ex. P-7 which is said to be the dying declaration bears Crime No. 328/89 and the offence as under Section 307/34, IPC. In case this dying declaration had been recorded on the spot by the Police Officer, then, in the normal course crime number could not find place in this dying declaration. It does not appear on a perusal of Ex. P-7 that the crime number has been put on it at a later stage. The ink of the pen and the style of writing go to show that this crime number was put when the whole of Ex. P-7 was written. That raises a doubt whether this statement was recorded on the spot or it was done at the police station. The ink of the pen and the style of writing go to show that this crime number was put when the whole of Ex. P-7 was written. That raises a doubt whether this statement was recorded on the spot or it was done at the police station. The question number two in this statement relates to the name, of the father of the declarant and the answer is "in the Subhash Ward". That also furnishes a clue that the dying declaration is not genuine and at any rate there is no coherence in the statement. It is very hazardous to base conviction on the basis of a cryptic and vague statement (Ex. P-7 ). In this declaration the deceased does not assign specific role to the accused persons. He does not clarify who was armed with the axe and who had the lathi out of the three accused persons. ( 9. ) IN Laxmi v. Om Prakash, AIR 2001 SC 2383 , the Supreme Court has observed that a dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of conviction, A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof can not be subjected to cross-examination. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of Court, the same may be refused to be accepted as forming a safe basis for conviction. ( 10. ) AGAIN in Uka Ram v. State of Rajasthan, AIR 2001 SC 1814 , the Supreme Court has laid down that the admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a mans mind the same feeling as that of a conscientious and virtuous man under oath-nemo moriturus praesumitur mentire, i. e. , a man will not meet his Maker with a lie in his mouth. Such statements are admitted, upon consideration that their declarations are made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. It has always to be kept in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination it is essential for the Court to insist that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influence by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. Once the Court is satisfied that the dying declaration was true, voluntary and not influence by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. ( 11. ) SO far as the recovery of axe and blood stained shirt on the basis of information given by accused Vinod is concerned, the evidence in that respect is also not very satisfactory. R. K. Mishra (P. W. 10) is investigating officer. He has deposed that on 28-10-1989 he interrogated accused Vinod in the presence of Panch witnesses and he gave the information that he has kept an axe and a shirt hidden inside the tiles on the back side of his house. He recorded the memorandum under Section 27 of the Evidence Act and that is Ex. P-12. Panch witnesses mentioned in this memorandum are Ramzan Khan and Raju but none of these two witnesses has been examined to corroborate the evidence of Investigation Officer. The seizure memo of the axe and the shirt is Ex. P-15. In this seizure memo also Ramzan Khan and Raju have been shown as Panch witnesses but they have not been examined. No reason has been assigned by the prosecution for giving up these two materials witnesses. Therefore, he recovery of blood stained shirt and axe from the possession of accused Vinod is not proved beyond reasonable doubt. That can not be used as incriminating material against accused Vinod. ( 12. ) THE evidence against the remaining two accused persons is of a still weaker character. No doubt the accused persons had a strong motive to commit this crime as the sister of accused Vinod is said to have been kidnapped by deceased Vijay a few days before the incident. Motive is a piece of circumstantial evidence but that alone can not form the basis for conviction. There is no doubt a strong suspicion that the accused persons might have caused the death of deceased Vijay, but the suspicion alone can not take the place of proof in the absence of legal evidence. The gap between suspicion and certitude has to be bridged by the prosecution by legal evidence. That is lacking in the present case. ( 13. ) IN the result the appeal is allowed. The gap between suspicion and certitude has to be bridged by the prosecution by legal evidence. That is lacking in the present case. ( 13. ) IN the result the appeal is allowed. The conviction and sentence are set aside and the appellants are acquitted of the charge under Section 302/34, IPC.