M. C. JAIN, J. Four persons, namely, Chhatrapal, Binda, Vijai Singh and Mohan Lal were charge-sheeted in Case Crime No. 151 of 1980, Police Station Baberu, District Banda to face trial under Section 302 I. P. C. However, Chhatrapal came to be murdered and only the remaining three were tried under Section 302 I. P. C. read with Section 34 I. P. C. for the murder of one Raja Bhaiya son of Indrajeet Singh PW 1 in S. T. No. 17 of 1980 before the Ist Additional Sessions Judge, Banda. Out of them, Vijai Singh and Mohan Lal were acquitted as no role was assigned to them. The accused-appellant Binda was convicted under Section 302 I. P. C. read with Section 34 I. P. C. and sentenced to life imprisonment by judgment dated 11-9-1981 which is impugned in this appeal. 2. The accused-appellant absconded and non-bailable warrant was issued against him by this Appellate Court. Consequently, he came to be produced before this Court on 1-4-2004 and directed to be lodged in jail. 3. We have heard Sri L. K. Pathak, learned counsel for the accused-appellant Binda and Sri A. K. Bhatt, learned A. G. A. from the side of the State in opposition of the appeal. 4. The incident took place on 23-9-1977 at about 7. 00 a. m. in village Tarayan, Police Station Baberu, District Banda and the F. I. R. was lodged the same day at 10. 30 a. m. at the concerned Police Station by Indrajeet Singh PW 1 (father of the deceased ). The distance of the Police Station from the place of occurrence was about 8 miles. The prosecution case was that the appellant Binda along with three others, namely, Vijai Singh, Mohan Lal and Chhatrapal Singh armed with guns reached the baithaka where the deceased Raja Bhaiya was sleeping. At the exhortation of Vijai Singh and Mohan Lal, the accused-appellant Binda and late Chhatrapal fired shots. Raja Bhaiya was seriously injured. He was taken to the Police Station Baberu where written report of the incident was lodged by this father Indrajeet Singh. The chick F. I. R. was prepared by Head Constable Siddheshwar Awasthi PW 5 and the case was registered. The injured Raja Bhaiya was sent to the Primary Health Centre, Baberu through constable Jan Mohammad whereafter he was sent for treatment to District hospital Banda. At P. H. C. Baberu, Dr. The chick F. I. R. was prepared by Head Constable Siddheshwar Awasthi PW 5 and the case was registered. The injured Raja Bhaiya was sent to the Primary Health Centre, Baberu through constable Jan Mohammad whereafter he was sent for treatment to District hospital Banda. At P. H. C. Baberu, Dr. D. N. Dwivedi PW 3 examined his injuries on 23-9-1977 at 11. 50 a. m. , preparing injury report Ext. Ka-2. His dying declaration was also recorded in District Hospital Banda, the same day i. e. 23-9-1977 at 5. 45 p. m. by H. D. Dubey PW 7, the then S. D. M. , Banda. He, thereafter, died on 5-10-1977 itself and autopsy of his dead body was performed on 6-10-1977 at 4. 20 p. m. in District Hospital Banda by Dr. K. L. Pillay PW 6. Initially, the case was registered under Section 307 I. P. C. , but was subsequently converted under Section 302 I. P. C. consequent upon the death of the victim. 5. Investigation was conducted by Sher Singh PW 4, S. O. , Police Station Baberu in whose presence the F. I. R. was lodged and the case was registered. He even professed to record the statement of the victim under Section 161 Cr. P. C. before dispatching him to P. H. C. It was Dr. R. K. Mehrotra PW 8 who had certified the fit mental condition of the victim at the time of his dying declaration. It wound be relevant to note down below the ante- mortem injuries found on the person of the deceased : (1) Gunshot injury of entry 3 cm x 2 cm x full thickness of right forearm, 10 cm below the elbow. Margins lacerated and inverted. Direction forward. Granulation tissue present over the wound base. (2) Gunshot Injury of exit 10 cm x 5 cm on the middle third of the front of right forearm. Injuries No. 1 and 2 communicated freely. (3) Eight gunshot injuries of entry each measuring 1 cm x 1 cm x abdomen cavity deep over an areas of 11 cm x 10 cm on the right side wall of abdomen upper half, 24 cm below the right axilla. Margins lacerated, infected and inverted. Direction backward from right to the left. Wound bases covered with slough. (4) Abrasion 2 cm x 7. 5 cm on the side back above the right iliac crest. Margins lacerated, infected and inverted. Direction backward from right to the left. Wound bases covered with slough. (4) Abrasion 2 cm x 7. 5 cm on the side back above the right iliac crest. (5) Five gunshot injuries of exit each measuring 1. 5 cm x 1. 5 cm over an area of 10 cm x 10 cm on the right side back lumber region. Wound edges inverted. Wound covered with slough. (6) Two incised wounds each measuring 1. 5 cm x 1 cm x muscle deep at 0. 25 cm apart on the left side back outer to 2nd and 3rd lumber vertebrae. (7) Incised wound 1. 5 cm x 1 cm x muscle deep on the right side back on the renal angle. Injury No. 3 communicated with injuries 5, 6 and 7. (8) Linear opened wound stitched 21 cm in length on the right front of abdomen-paramedial region. 6. He was aged about 22 years and about one had passed since he died. The cause of death was shock, haemorrhage and toximia resulting from ante mortem injuries. The defence was of denial. 7. Indrajeet Singh PW 1-father of the deceased and Lal Ji PW 2- brother of the deceased were produced as alleged eye-witnesses of the incident. As mentioned above, the Investigating Officer also claimed to have recorded the statement of the victim at the Police Station Baberu before he was dispatched to P. H. C. It was in tune of the statements of the eye-witnesses. There was a dying declaration of the deceased recorded by S. D. M. also whereupon there was certificate of Doctor about his fit mental condition as we have indicated above. 8. The trial Judge, on scrutiny, rejected the oral testimony of so-called eye-witnesses as also the statement of the victim claimed to have been recorded by the Investigating Officer under Section 161 Cr. P. C. , but relying upon the dying declaration of the deceased recorded by the S. D. M. , he convicted the accused- appellant Binda while acquitting the other two Vijai Singh and Mohan Lal. Naturally, Binda is aggrieved by the impugned judgment and has come up in the appeal. 9. The argument of learned counsel for the accused-appellant is that there being conflict between the testimony of so-called eye-witnesses taken together with the statement of the victim purportedly recorded by the Investigating Officer under Section 161 Cr. Naturally, Binda is aggrieved by the impugned judgment and has come up in the appeal. 9. The argument of learned counsel for the accused-appellant is that there being conflict between the testimony of so-called eye-witnesses taken together with the statement of the victim purportedly recorded by the Investigating Officer under Section 161 Cr. P. C. on the one hand and the dying declaration recorded by the Magistrate on the other, the latter could not safely be accepted to be sufficient to warrant the conviction of the accused-appellant Binda. He further stressed that the dying declaration of the deceased, relied upon by the Court below, could not be accepted for this reason too that there were incised wounds also on the person of the deceased which went unexplained completely. On going through the evidence carefully and examining the dying declaration as also the post mortem report, we find substantial force in the submission of the learned counsel for the accused-appellant. 10. Obviously, there came on record two versions of the prosecution as to the place of occurrence. According to the F. I. R. , and the eye-witness account of Indrajeet PW 1 and Lalji PW 2, the fire was made while deceased Raja Bhaiya was sleeping in the baithaka. The same was the statement purported to have been made by the deceased under Section 161 Cr. P. C. to the Investigating Officer at the Police Station. It was clearly at variance from the dying declaration of the deceased recorded by the Magistrate on 23-9-1977 at 5. 45 p. m. in District Hospital Banda. Therein the victim stated that the incident took place at the roof of his house where he was sleeping. The time of the incident was also given by him as about 4. 00 Oclock in the morning whereas according to the F. I. R. and eye witness account the incident had taken place at about 7. 00 a. m. The lower Court concluded that the place of incident was concocted by Indrajeet PW 1 and Lalji PW 2 in order to prove themselves to be the eye-witnesses of the incident and that the Investigating Officer also became party to their design, toeing the line suggested by them. It was for this reason that the statement of the deceased purported to have been recorded under Section 161 Cr. It was for this reason that the statement of the deceased purported to have been recorded under Section 161 Cr. P. C. also carried the same story as given out in the F. I. R by Indrajeet. 11. Anyway, the point of the matter is that the version of the F. I. R. and the eye-witness account given by Indrajeet PW 1 and Lalji PW 2 did not reconcile with the dying declaration of the deceased recorded by the Magistrate. It enjoined a duty to analyse the dying declaration with utmost care to arrive at a conclusion whether the same alone could be accepted as the basis for recording conviction. True, great sanctity is attached to a dying declaration because it is a statement of a dying person. It is expected that a dying man would not meet his maker with a lie in his mouth. It also does not brook any debate that dying declaration alone can form basis of conviction provided the surrounding circumstances do not make a dent in it. Each case must be determined on its own facts keeping in view all the circumstances in which the dying declaration was made. 12. Supreme Court in the case of Kaushal Rao v. State of Bombay, AIR 1958 Supreme Court 22, held that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. 13. In the instant case, even on ignoring the conflict between the F. I. R. version taken together with eye- witness account on the one hand and the dying declaration of the deceased recorded by the Magistrate on the other, it (dying declaration) recorded by the Magistrate suffers from another serious infirmity. That infirmity is that as per the post mortem report, the deceased had sustained incised wounds also being ante-mortem injuries No. 6 and 7 : (6) Two incised wounds each measuring 1. 5 cm x 1 cm x muscle deep at 0. 25 cm apart on the left side back outer to 2nd and 3rd lumber vertebrae. (7) Incised wound 1. 5 cm x 1 cm x muscle deep at 0. 25 cm apart on the left side back outer to 2nd and 3rd lumber vertebrae. (7) Incised wound 1. 5 cm x 1 cm x muscle deep on the right side back on the renal angle. Injuries No. 3 communicated with injuries 5, 6 and 7. 14. Dr. K. L. Pillay, who conducted the autopsy on the dead body of the deceased categorically stated that the ante-mortem injury No. 7 had been caused by some sharp edged weapon. Obviously, there is no explanation for sharp edged injuries sustained by the deceased. The deceased himself also did not say anything in this regard in his dying declaration. This aspect of the matter was completely ignored and not examined by the trial Court. In his dying declaration recorded by the Magistrate, the deceased stated that he awoke on receiving the shot and raised shout. He saw Chhatrapal and Binda accused- appellants running on a turn with their faces towards him. He saw both of them scaling down the roof. He got up and saw Mohan Lal son of Ram Lal and Vijai Singh son of Jaddu standing down the roof in the street and they joined Chhatrapal and Binda in running after they (Chhatrapal and Binda) had scaled down the roof. According to him, Chhatrapal had a double barrel gun in his hand whereas Binda had a single barrel gun with him. They were adjusting their guns when he first saw them. They refilled the guns and scaled down the roof. They had no enmity with them, but they were outlaws. He fell down on the roof and became unconscious. What we wish to emphasise is that there is not even a whisper about the use of any sharp edged weapon and it is wholly unexplained as to how did he sustain the incised wounds. As per his own statement in the dying declaration, he awoke on receiving the shot, meaning thereby that he did not see the actual shooting. It is doubtful that in a moment of crisis, awaking from his slumber abruptly on receiving the shot, he could correctly identify the persons whom he named. The dying declaration of the deceased recorded by the Magistrate thus suffers from serious infirmity even with regard to the nature of injuries sustained by him. It is doubtful that in a moment of crisis, awaking from his slumber abruptly on receiving the shot, he could correctly identify the persons whom he named. The dying declaration of the deceased recorded by the Magistrate thus suffers from serious infirmity even with regard to the nature of injuries sustained by him. It would, therefore, not be safe to sustain the conviction of the accused-appellant Binda on the basis of uncorroborated dying declaration of the deceased which as we have found, itself suffers from serious infirmities. 15. In view of the above discussion, we allow this appeal and set aside the conviction and sentence recorded against accused-appellant Binda by the Court below. The appellant is in jail consequent upon issuance of non-bailable warrant by this Court. He shall be set at liberty forthwith, if not wanted in any other connection. 16. Let a copy of this judgement alongwith record of the case be immediately sent to Court below for necessary entries in the relevant register under intimation of compliance to this Court within two months. Appeal allowed. .