JUDGMENT S.L. Kochar, J. Being dissatisfied with the judgment dated 20th September 1994, rendered in Sessions Trial No. 67/1992 by the learned Addl. Sessions Judge, Jaora, thereby convicted the appellant for the offence u/s 394 Indian Penal Code and sentenced to suffer imprisonment for life with fine of Rs. 5000/-; in default of payment of fine further six months R.I. the appellant has preferred this appeal. The prosecution case MULTUM IN PURVO (much in little) before the trial Court was that deceased Sagarbai was going to her village on 28-11-1991 in the evening at 6.00 p.m. When she reached near the hillock of forest situated near village Richa Gujar she was attacked by the appellant who was her nephew (son of Devar). He robbed of her one pair of silver anglets (Avla), one silver Kandhora, one golden Nuth and 600-700 Rupees cash. He also pressed the neck of deceased Sagarbai by his both the thumbs with an intend to kill her because of this she fell unconscious. She was also assaulted by the appellant. She sustained injuries on her neck, stomach and scapular region. She dragged herself upto the field of one Dulaji and fell there. On the next day, in the morning, she was taken in a Jeep to the P.S. Ringnod by Pyarji (PW. 1) and one Bapulal Gujar where she lodged the FIR vide Ex. P. 8. Thereafter she was taken to the Ringnod hospital. In Ringnod hospital, on 29-11-1991 her dying declaration was recorded by Naib Tehsildar S.K. Rawal (PW. 11) vide Ex. P. 13. Thereafter on 29-11-1991 she was shifted to Civil Hospital, Jaora where her statement was also recorded by Bholanath Singh, Head Constable (PW. 5) vide Ex. P. 6. Dr. J.C. Shrivastava (PW. 6) attended her first in time in hospital and according to the M.L.C. report (Ex. P. 7), he found two incised injury, one at stomach and another at neck. She was also complaining of pain on right scapular region and left hand. She succumbed to the injuries in Civil Hospital, Jaora on 6-12-1991 because of coma due to head injury. Her postmortem report is Ex. P. 5 prepared by Dr. I.L. Chandelkar (PW. 4). The appellant was arrested on 12-12-1991 and it is said that at his instance, property of robbery was seized. She succumbed to the injuries in Civil Hospital, Jaora on 6-12-1991 because of coma due to head injury. Her postmortem report is Ex. P. 5 prepared by Dr. I.L. Chandelkar (PW. 4). The appellant was arrested on 12-12-1991 and it is said that at his instance, property of robbery was seized. One melted piece of gold was also seized at the instance of acquitted co-accused Krishna @ Ramkishan who sold the same to Surendra Kumar (PW 7). No Test Identification Parade of recovery of articles was held by the police. After investigation, chargesheet was filed under sections 394, 302 and 411 of the Indian Penal Code. The appellant denied the charges and submitted that he was falsely implicated because of ill-will with his aunt, deceased Sagarbai, due to dispute over the agricultural land. He has not examined any witness in his defence. The prosecution has examined as many as 12 witnesses to prove its case. The learned trial Court, after hearing both the parties, while acquitting the appellant from the offence u/s 302, Indian Penal Code, convicted him only u/s 394 of the Indian Penal Code. We have heard the learned Senior Counsel Shri Jaisingh, instructed by Shri Vikas Yadav, Advocate for the appellant, Shri G. Desai, learned Dy. A.G. for respondent State and also perused the record. The conviction of the appellant is mainly based on three dying declarations i.e. Ex.P. 8 (FIR lodged by the deceased), Ex. P. 6 (Statement recorded u/s 161 of Criminal Procedure Code by Head Constable Bholanath Singh, PW. 5) and Ex. P. 13 (reduced into writing by Naib Tehsildar P.W. 11, S.K. Rawal). All these three documents were of dated 29-11-1991. The learned counsel for appellant has vehemently put forth his submission attacking upon the three dying declarations. According to him, all the three dying declarations are contradictory to each other and also at variance with the medical report. He has also argued that when the deceased was attended in hospital by Dr. J.C. Shrivastava (PW. 6), nothing was disclosed by deceased before him and this Doctor did not record her any statement or dying declaration. This was the first occasion for the prosecution agency as well as for the deceased to disclose about the incident before an independent authority like doctor. J.C. Shrivastava (PW. 6), nothing was disclosed by deceased before him and this Doctor did not record her any statement or dying declaration. This was the first occasion for the prosecution agency as well as for the deceased to disclose about the incident before an independent authority like doctor. He further submitted that in all three statements of the deceased, she had not disclosed about use of any sharp edged weapon. On the contrary, she had stated that her neck was pressed by thumb by the appellant but in medical examination, no external or internal injury was found at her neck. He also submitted that for the whole night of 28-11-1991 she remained in the forest and on the next day she was taken to the P.S. by Pyarji (PW. 1) and Bapulal Gujar. Pyarji has been examined as PW. 1 and Pyarji is not supporting her version about taking her the hospital. On the contrary, he has deposed in paragraph two that the police party reached in the village and he along with the villagers reached on the well of Dulla Gujar where Sagarbai was lying. She was speaking slowly slowly. She was interrogated by the police. This witness has not been declared hostile by the prosecution. Therefore, according to the learned counsel, the FIR (Ex. P. 8) is a concocted piece of evidence and brought into existence in ante date and time. The learned counsel has also pointed out contradictions and ambiguity in the medical evidence of Dr. I.L. Chandelkar (P.W.4) and Dr. J.C. Shrivastava (PW.6). As against this, the learned Dy. A.G. Shri Desai has supported the judgment of conviction and submitted that deceased was having no reason to implead the appellant falsely. We have perused the entire record. The learned trial Court, while acquitting the appellant from the offence u/s 302 Indian Penal Code, convicted him only u/s 394 of Indian Penal Code on the basis of FIR (Ex.P. 8), Case diary statement (Ex. P. 6) and dying declaration recorded by Naib Tehsildar S.K. Rawal (PW. 11) vide Ex. P. 13. Legally there is no dispute that the FIR (Ex. P. 8) and Statement (Ex. P. 6) could be considered as dying declarations. Learned counsel has also not disputed the homicidal death of deceased. Even otherwise, looking to the medical evidence of Dr. I.L. Chandelkar (PW. 4) and his postmortem report (Ex. 11) vide Ex. P. 13. Legally there is no dispute that the FIR (Ex. P. 8) and Statement (Ex. P. 6) could be considered as dying declarations. Learned counsel has also not disputed the homicidal death of deceased. Even otherwise, looking to the medical evidence of Dr. I.L. Chandelkar (PW. 4) and his postmortem report (Ex. P. 5), the deceased died because of head injury; so her death was homicidal. Now the crucial question before us is whether all these three dying declarations could be relied upon for holding the appellant guilty for the offence u/s 394 of the Indian Penal Code. Firstly we would like to deal with the dying declaration recorded by Naib Tehsildar, S.K. Rawal (PW. 11) vide Ex. P. 13. This dying declaration was recorded in the hospital but no certificate of fitness of the deceased was obtained by the Naib Tehsildar and on the document (Ex. P. 13) Naib Tehsildar has nowhere mentioned as to why he had not called the Doctor for obtaining certificate of fitness of the deceased. In the dying declaration, he himself has also not mentioned about consciousness and fit state of mind of the deceased for giving statement. According to this dying declaration, deceased was 70 years of age. At the time of recording of dying declaration, he secured the presence of two panch witnesses out of these two witnesses Pyarji (PW. 1) has been examined by the prosecution and Pyarji has nowhere deposed in the Court about recording of dying declaration by Naib Tehsildar. He has given altogether a different version i.e. reaching of police party in the village and thereafter he along with all the villagers went to the well of Dulla Gujar where deceased was present and police party asked the deceased about the incident. Even in Court, prosecution did not care to prove his signature on dying declaration (Ex. P. 13). The another witness of the dying declaration, Babulal has not been examined by the prosecution. In this dying declaration, place and time of recording of the dying declaration has not been mentioned and for this material omission, no explanation has been given by this witness in Court. On the contrary, Naib Tehsildar, S.K. Rawal (PW. 11) has stated that he received letter from the Investigating Agency for recording dying declaration dated 10-12-1991 whereas deceased had already died on 6-12-1991 in the Civil Hospital, Jaora. On the contrary, Naib Tehsildar, S.K. Rawal (PW. 11) has stated that he received letter from the Investigating Agency for recording dying declaration dated 10-12-1991 whereas deceased had already died on 6-12-1991 in the Civil Hospital, Jaora. Defence has also put a specific question to Naib Tehsildar pointing out about overwriting at the place of month. On perusal of this dying declaration, this fact is crystal clear that at the initial stage, the date was written as 29-12-1991. Thereafter in the place of month, at the place of "two", by overwriting "one" is mentioned. All these facts are mentioned in paragraph four of the statement of Naib Tehsildar (PW. 11) S.K. Rawal and these material ambiguity is throwing ample amount of doubt over the genuineness of the dying declaration (Ex.P. 13). In all the three dying declarations deceased has nowhere mentioned that she was assaulted with any sharp edged weapon whereas doctors have found two injuries caused by sharp edged weapon on her person. If deceased was conscious and given dying declaration she would have not failed to mention this fact that she was assaulted by sharp edged weapon especially when she has given all the details of the incident. The statement of the deceased in dying declarations is also at variance with the statement of Pyarji (PW. 1). The deceased has stated in the FIR (Ex.P. 8) that by dragging she reached in the field of Dulaji and remained there for whole night. Thereafter on the next day, in the morning, village Patel and Babulal Gujar brought her in a jeep to the P.S. This version is contradicted by the witness Pyarji (PW. 1) and Pyarji has not been declared hostile. Therefore, the prosecution is bound by his statement and this statement of Pyarji is clearly indicating that FIR was not recorded in the manner as stated by the prosecution/deceased in the FIR. Ex. P. 6 is again the third dying declaration of the deceased recorded on the same day. This statement was also recorded in the hospital by Head Constable Bholanath Singh (PW. 5). But he has also not secured the presence of any doctor, nurse or employee of the hospital or any independent witness. It is a matter to be seen that in one day police got recorded two statements Ex. P. 6 and Ex. P. 13. This statement was also recorded in the hospital by Head Constable Bholanath Singh (PW. 5). But he has also not secured the presence of any doctor, nurse or employee of the hospital or any independent witness. It is a matter to be seen that in one day police got recorded two statements Ex. P. 6 and Ex. P. 13. But while recording both the statements they did not secure the presence of any doctor or any responsible employee of the hospital to witness the recording of the statement of the deceased. This lacuna in the prosecution case, again throws ample amount of doubt regarding genuineness of the dying declarations; F.I.R. (Ex. P. 8), Statement (Ex. P. 6) and dying declaration (Ex. P. 13). Again there is one more noticeable feature of the case. The deceased had died because of head injury but in all the three dying declarations deceased nowhere has mentioned causing of any injury on her head by the appellant. Dr. J.C. Shrivastav (PW. 6) who had examined the deceased first in time, has not found any injury on the head of the deceased. If deceased was having injury on the head and if she was conscious and she could complain about pain on scapular region and left hand, she could have also pointed out or disclose about injury on her head. In view of all these facts and feature of the case, there are tail tale circumstances to discard all the three dying declarations. The law of placing reliance on uncorroborated dying declaration is well settled that if the dying declaration is wholly reliable and stand on all required legal test, then the same can be relied upon for the purposes of conviction. But in the case in hand, as pointed out above, there are ample discrepancy in all the three dying declarations. Therefore, we are unable to place reliance on all these three dying declarations and unable to record our concurrence with the judgment and finding of conviction passed by the trial Court. In the result, the appeal is allowed. The conviction and sentence of the appellant u/s 394 of the Indian Penal Code is hereby set aside. The appellant is on bail. His bail bond and surety bond stand discharged. Final Result : Allowed