Honble SHARMA, J.–This a case where the basis of conviction of the appellants (herein after described as the `accused) is the dying declaration. The admissibility of dying declaration rests on 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. Truth sits on the lips of dying man. Dying situation is considered so solemn and so awful by the law as creating an obligation equal to that which is imposed by a positive oath administered in the Court. (2). The accused, six in number, were indicted in Sessions Case No. 28/1998 before the learned Additional Sessions Judge No. 2, Bundi for having committed murder of Kailash. Learned Judge vide judgment dated May 24, 2000 convicted and sentenced each of the accused under Section 302 IPC to suffer Imprisonment for life and fine of Rs. 2500/-, in default to further suffer six months simple Imprisonment. (3). As per the prosecution case Kailash was brought to the General Hospital Bundi on February 24, 1990 from village Bada Naya Gaon in the injured condition. He was admitted to the Hospital at 12.15 PM. Since it was a medico legal case, Hospital authorities informed Police Station Kotwali Bundi over telephone Shaikh Nawab, ASI (PW. 8) recorded the said information in Rojnamcha and reached Hospital within 10-15 minutes and noted the statements of Kailash in `Parcha Bayan at 12.30 PM. In the Parcha Bayan Kailash stated that around 7-8 AM on the said day he found 10-15 Gujars including RamNath, Prabhu, Nand Kishore and Prakash standing near his field. When he asked them not to cut ``Neem-tree, Ram Nath inflicted axe blow whereas others gave beating with lathis. Radha Kishan was also amongst the assailants. This incident had been witnessed by Durga. Kailash put his thumb impression on `Parcha Bayan, Shaikh Nawab at the end of `Parcha Bayan made endorsement registering a case under Sections 147, 148, 149, 324, 323 and 307 IPC and noted that since the incident occurred within the jurisdiction of Police Station Hindoli. Parcha Bayan shall be forwarded to Police Station Hindoli. During the pendency of investigation Kailash died and the case was converted under Section 302 IPC. After usual investigation charge sheet was filed and the case came up for trial before the learned Additional Sessions Judge No.2, Bundi. Parcha Bayan shall be forwarded to Police Station Hindoli. During the pendency of investigation Kailash died and the case was converted under Section 302 IPC. After usual investigation charge sheet was filed and the case came up for trial before the learned Additional Sessions Judge No.2, Bundi. Charge under Section 302 IPC was framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 22 witnesses. In the explanation under Sec. 313 Cr.P.C., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the accused as indicated herein above. (4). The evidence adduced at the trial by the prosecution may be divided into four categories:- (i) Dying declaration recorded by Shaikh Nawab, ASI (PW. 8); (ii) Testimony of Chhotu Lal (PW. 20), Mohan Lal (PW. 21) and Ghansi (PW. 22) who met the deceased immediately after the incident; (iii) Testimony of Dr. Kamlesh Kumar who examined the injuries of the deceased and performed autopsy on the dead body; (iv) Testimony of Udai Lal ASI (PW. 14) and Navneet Mehrishi Crime Assistant (PW. 15), who effected recovery of blood stained weapons at the instance of the accused. (5). We have heard the arguments canvassed before us on behalf of the accused, State and the complainant. (6). Before adverting to the submissions advanced at the Bar. We deem it necessary to narrate the principles governing dying declaration, laid down by the Supreme Court in the various judgments. They are as under:- (i) There is neither rule of law nor of prudence that dying declaration can be acted upon without corroboration (Munnu Raja vs. State of M.P. ( 1976 (3) SCC 104 ); (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. vs. Ram Sagar Yadav ( 1985 (1) SCC 552 ); (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. (K. Ramchandra Reddy vs. Public Prosecution ( 1976 (3) SCC 618 ); (iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence (Rasheed Beg vs. State of M.P. ( 1974 (4) SCC 264 ); (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected (Kake Singh vs. State of M.P. (1981 Supp. SCC 25); (vi) A dying declaration which suffers from infirmity can not form the basis of conviction (Ram Manorath vs. State of U.P. ( 1981 (2) SCC 654 ). (7). In Paparambaka Rosamma vs. State of A.P. ( 1999 (7) SCC 695 ), Bench of three Honble Judges of Supreme Court held that ``when the doctor failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration, it would not be safe to accept the dying declaration as true and genuine. In the said case certificate of the doctor only stated that ``patient is conscious while recording the statement. It was observed that, ``In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. (8). Another Bench of three Honble Judges of the Supreme Court in Koli Chunilal Savji vs. State of Gujrat ( 1999 (9) SCC 562 ) held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased thus recorded cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the statement in question. (9). Since the two aforesaid decisions were somewhat contradictory, the matter was referred to the Constitution Bench. (9). Since the two aforesaid decisions were somewhat contradictory, the matter was referred to the Constitution Bench. In Laxman vs. State of Maharashtra ( 2002 (6) SCC 710 ), the Constitution Bench of the Supreme Court answered the reference as under:-(Para 5) ``For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma vs. State of A.P. (at SCC P. 701, Para 8) to the effect that- ``in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma vs. State of A.P. (supra) must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji vs. State of Gujrat (supra). (10). It is in view of the above parameters that we have to adjudge the acceptability of the alleged dying declaration. Coming to the testimony of Shaikh Nawab, ASI (PW. 8) we notice that as soon as he received information on telephone that Kailash was admitted in the hospital, he after recording the information in Rojnamcha, rushed to the hospital and reached there within 10- 15 minutes and within two minutes thereafter he started recording the statement of Kailash. When he went near the bed of Kailash, he found there many other persons including the doctors. Before recording the statement, he directed all of them to go out. Shaikh Nawab deposed that in the hospital he first made contact with Dr. Kamlesh and then went to the injured along with Dr. Kamlesh. When he went near the bed of Kailash, he found there many other persons including the doctors. Before recording the statement, he directed all of them to go out. Shaikh Nawab deposed that in the hospital he first made contact with Dr. Kamlesh and then went to the injured along with Dr. Kamlesh. When he was recording the statement Dr. Kamlesh was standing on his right side. Although he did not procure the certificate of doctor in writing about the mental state of injured, he orally asked doctor but did not make any endorsement in this regard in ``Parcha Bayan. On `Parcha Bayan (Ex. P-23) injured put his thumb impression and near the thumb impression, doctor in his handwriting, wrote Kailash. Dr. Kamlesh Kumar (PW. 6) in his deposition stated that on February 24, 1990 he was posted as Medical Jurist in the Government Hospital Bundi. On that day at 1 PM he examined the injuries of Kailash on the request of Police Station Kotwali Bundi. At that time the injured was admitted in the Hospital and his general condition was poor. His blood pressure was 60 and he was conscious. Injured was admitted to the Hospital by him at 12.15 vide Bed Head Ticket (Ex.P-36). He was speaking and was in a fit state of mind. The statement of injured was recorded by the police at 12.30 PM in his presence. He wrote `LTI of Kailash on the parcha bayan and put his signatures. Kailash became unconscious at 5 PM and died on February 26,1990. He then performed autopsy on the dead body. In the cross examination Dr. Kamlesh deposed thus:- ``I myself called the police to the bed of the patient to record his statement. The requisition was not sent by me but I informed telephonically. Police arrived within 15-20 minutes. I do not know as to how many persons were standing near the injured when the police arrived but it is true that I was very much there. (11). Durga Lal (PW.1) in his deposition stated that Kailash named 7-8 persons who made assault on him but he did not remember their names. In the cross examination Durga Lal stated that when he had a talk with Kailash he was in a state of unconsciousness. Durga Lal further deposited that police never recorded his statements. (11). Durga Lal (PW.1) in his deposition stated that Kailash named 7-8 persons who made assault on him but he did not remember their names. In the cross examination Durga Lal stated that when he had a talk with Kailash he was in a state of unconsciousness. Durga Lal further deposited that police never recorded his statements. Durga Lal was not declared hostile by the prosecution, Ram Rai Sharma (PW. 2) deposed that Kailash was brought to the hospital in jeep. He saw Kailash while he was lying on the bed in the hospital. According to Ram Rai, at that time Kailash was not able to speak and Dr. Jitendra and Dr. Suresh were treating him. (12). The prosecution also examined three near relatives of the deceased viz. Chhotu Lal (PW. 20), Mohan Lal (PW. 21) and Ghansi (PW. 22). Having closely scrutinsied their statements we notice that all of them had seen Kailash just after the incident and according to them Kailash disclosed the names of accused to them. Chhotu Lal was not examined by the police and the prosecution produced him for the first time in the trial Court for examination on october 20, 19978 i.e. after seven years and eight months. Mohan Lal too was not examined by the police and he narrated the incident for the first time in the trial Court on December, 20, 1997. Ghansi, who is the real brother of the deceased, deposed that his brother Kailash told him the names of the accused and he had gone to police station Hindoli to lodge the report but the police refused to accept the report. He however did not make any complaint to S.P. and his statement was recorded by the police after about two months of the incident. Mohan Lal in his deposition stated that he worked on the post of Patwari from 1956 and he had knowledge that village Bada Naya Gaon came under the jurisdiction of P.S. Hindoli that is why he had sent Ghansi to P.S. Hindoli to lodge the report and this fact was revealed by him to the police in the Hospital at Bundi. On the other hand Ghansi deposed that has uncles Mohan Lal and Chhotu Lal did not now that he had gone to P.S. Hindoli to lodge the report. On the other hand Ghansi deposed that has uncles Mohan Lal and Chhotu Lal did not now that he had gone to P.S. Hindoli to lodge the report. Be that as it may the fact remains that report of the incident was not lodged with the Police Station Hindoli. (13). So far as the recovery of weapons at the instance of the accused is concerned Udai Lal ASI (PW. 14) deposed that the information communicated by the accused to him under Section 27 Evidence Act was recorded by him in the memos Ex. P.31 to Ex.P.35. A look at the memo Ex. P.31 reveals that accused Ram Nath gave information at 7.15 AM on February 26, 1990. Similarly accused Radha Kishan Gopal, Nand Kishore and Prabhu vide memos Ex. P.32, Ex.P-33, Ex.P.34 and Ex.P-35 gave information to Udai Lal ASI respectively at 7.30 AM, 7.45 AM, 8 AM and 8.15 AM on February 26, 1990. From the statement of Udai Lal, ASI it is established that he was in the Police Station Hindoli in February 26, 1990 from 7.15 AM till 8.15 AM and he drew the memos Ex.P-31 to Ex.P-35. But from the documents `challan of the dead body for inspection (Ex.P.22) it appears that Udailal ASI was very much present at 8.30 AM on February 26, 1990 at the General Hospital Bundi and he identified the dead body of Kailash. Ex. P-22 got exhibited by Dr. Kamlesh who deposed that he put his signatures on it. In the post mortem report (Ex.P.25) it was mentioned that ``body brought by Shri Udai Lal ASI PS Hindoli. It also appears that the post mortem on the dead body was performed by Dr. Maklesh at 9.20 AM on February 28, 1990 at Post Mortem Room General Hospital Bundi. It is inexplicable that when Udailal ASI was at Hindoli till 8.15 AM on February 26, 1990, how could he cover distance between Hindoli and Bundi and reach Bundi at 8.30 AM. (14). On a close scrutiny of the materials on record we notice that on the basis of alleged parcha bayan of Kailash, SHO Police Station Hindoli on February 24, 1990 registered FIR No. 30/90 under Sections 147, 148, 149, 323, 324 and 307 IPC and handed over investigation to Udailal ASI but there is nothing on record to show that FIR was ever sent to the Ilaqua Magistrate. It has been provided under section 157 Cr.P.C. that the FIR should be sent forthwith to the Ilaqua Magistrate. This provision of law is to safeguard against any embellishment and concoction that may be subsequently made in the FIR. It is an obligation on the part of the police under Section 157 Cr.P.C. to sent a copy of the FIR immediately to the Ilaqua Magistrate. A failure to discharge this duty must always be accompanied by valid reasons. But in the instant case neither copy of the FIR was sent to the Magistrate nor the reasons for not sending the copy were assigned. (15). The Criminal law in India and the police organisation, which is based upon it, are both founded on the principle that public order depends essentially upon the responsibility of every member of the community within the law to present offences and to arrest offenders. The magisterial and police organisation is set up to enforce, control and assist the general responsibility. This fundamental principle must be thoroughly understood and borne constantly in in by police officers of all ranks. The State of Rajasthan in exercise of the powers conferred by sections 45 and 46 of the Police Act, 1861 enacted the Rajasthan Police Rules, 1965 (for short `Police Rules). This court had occasion to consider Police Rules in Ram Kishan vs. State of Rajasthan (1985 Rajasthan Law, Report 65) and it was indicated that ``in a criminal case, much less a murder case, the investigation should be conducted in such a manner that there is no room for entertaining a doubt about the fair investigation of the case. These Rules are quite elaborate in laying down the procedure for recording the first informations and the consequent investigations. Chapter V onward of these rules lay down detail procedure of taking a written report and further investigation. Most of the provisions are mandatory in character. (16). Rule 6.22 of the Police Rules which relates to dying declaration, provides as under:- `6.22. Dying declarations- (1) A dying declaration shall, whenever, possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reasons to make a lucid statement. Dying declarations- (1) A dying declaration shall, whenever, possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reasons to make a lucid statement. (3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4) If no such witness can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (5) A dying declaration made to a police officer should, under section 162 Cr.P.C., be signed by the person making it. (17). This court in Bashir vs. State (1994 (2) Rajasthan Law Reporter 30) held that Rule 6.22 of the Police Rules, contain full procedure which is to be followed by all investigating officers while recording the dying declaration. Whenever the dying declaration is taken to be the sole basis of conviction and sentence, strict compliance of Rule 6.22 in letter and spirit must be ensured. (18). Let us now consider as to whether in the instant case, procedure as permitted by Rule 6.22 was followed or not? The peculiarities of the case already noticed by us may be summed up thus:- (i) The Bed Head Ticket (Ex.P.036) of Kailash is not in the hand writing of Dr. Kamlesh. (ii) Dr. Suresh and Dr. Jitendra who were the treating doctors of Kailash were not examined by the prosecution. (iii) Evidence of Dr. Kamlesh reveals that he took undue interest in the matter at 12.15 AM he became `DUTY DOCTOR and admitted injured Kailash. Dr. Kamlesh himself telephonically called Shaikh Nawab ASI from Kotwali Bundi, knowing fully well that incident had occurred within the jurisdiction of police station Hindoli, when Shaikh Nawab ASI arrived, Doctor Kamlesh himself took him to the bed of Kailash. Shaikh Nawab ASI only allowed Dr. Kamlesh to remain near injured Kailash and asked other person including the treating doctors to go out. At 12.30 PM Dr. Kamlesh became `TREATING DOCTOR and certified orally that Kailash was in a fit state of mind to give the statement. At 1 PM Dr. Shaikh Nawab ASI only allowed Dr. Kamlesh to remain near injured Kailash and asked other person including the treating doctors to go out. At 12.30 PM Dr. Kamlesh became `TREATING DOCTOR and certified orally that Kailash was in a fit state of mind to give the statement. At 1 PM Dr. Kamlesh became MEDICAL JURIST and examined the injuries of Kailash. (iv) According to Dr. Kamlesh, Kailash became unconscious at 5 PM and there was enough time for calling the Magistrate to record the statement of Kailash, but Magistrate was not approached. Even statement of Kailash was not attested by two independent witnesses. (v) Shaikh Nawab ASI recorded the telephonic message in the Rojnamcha but Rojnamcha was not placed on record. (vi) Copy of FIR was not forwarded to Ilaqua Magistrate by PS Hindoli. (vii) Information supplied by the accused under Section 27 Evidence Act was allegedly recorded in the memos Ex. P-31 to Ex. P-35 on February 26, 1990 from 7.15 AM till 8.15 AM by Udai Lal ASI in the police station Bundi but at 8.30 AM on February 26, 1990, Udailal ASI was present in the General Hospital Bundi and he not only identified the dead body, but took it to the Post Mortem Room where autopsy was performed at 9.20 AM. (viii) Udailal handed over the investigation for the purpose of recovering weapons to Navneet Mehrishi, Crime Assistant, who got the weapons recovered on February 28, 1990. No explanation was given by the investigating officer as to why recovery of weapons was not effected immediately after the information was supplied by the accused. (ix) Shaikh Nawab ASI, Police Station Kotwali Bundi although knew that he had no jurisdiction and authority to record the statement of Kailash, still he responded the call of Dr. Kamlesh. (x) Durga Lal (PW. 1) the only witness named in the statement of Kailash did not support the prosecution case but he was not declared hostile. Durga Lal deposed that kailash was in the state of unconsciousness. (xi) Ram Rai Sharma (PW. 2) stated that in the hospital Kailash was not able to speak. (19). The question that require answer are these:- (a) Why the incident which occurred in the village Bada Naya Gaon, was not reported to Police Station Hindoli? (b) Why Dr. Suresh and Dr. (xi) Ram Rai Sharma (PW. 2) stated that in the hospital Kailash was not able to speak. (19). The question that require answer are these:- (a) Why the incident which occurred in the village Bada Naya Gaon, was not reported to Police Station Hindoli? (b) Why Dr. Suresh and Dr. Jitendra who were treating Kailash were not allowed to remain present near the bed of Kailash, when his statement was recorded by Shaikh Nawab ASI? (c) Why Dr. Kamlesh gave a phone call to the police station Kotwali Bundi, when the incident did not occur in its jurisdiction? (d) Why Dr. Kamlesh, a Medical Jurist, took to much interest in the matter, that he himself escorted Shaikh Nawab ASI of Police Station Kotwali Bundi to the bed of Kailash and remained near the bed till the statement was recorded? (e) When according to Durga Lal (PW. 1) Kailash was in the state of unconsciousness just after the incident, how did he regain consciousness in the Hospital? According to Ram Rai Sharma, Kailash was not able to speak even in the Hospital, then how did Dr. Kamlesh testify that Kailash was in a fit state to give statement? (f) When Kailash was in a fit state of mind to give the statement why the Magistrate was not called? Why did Shaikh Nawab himself record the statement of Kailash? (g) Why the copy of FIR was transmitted to the Ilaqua Magistrate? (h) How could Udai Lal ASI of PS Hindoli, remain present at two different places on February 26, 1990 at 8.30 AM? (20). The mysterious circumstances under which alleged dying declaration was recorded by Shaikh Nawab, ASI create doubt about its genuineness. The dying declaration, in our opinion, is a highly suspicious document and suffers from infirmities. It could not form the basis of conviction. Learned trial Court committed illegality in placing reliance on it. (21). Having analysed the evidence of Shaikh Nawab ASI, Dr. Kamlesh, Mohan Lal, Chhotu Lal, Ghansi and Udai Lal ASI from the point of view of trustworthiness, we find them highly unreliable. The information memos Ex. P-31 to Ex.P-35 drawn by Udai Lal ASI do not inspire confidence in view of the document Ex. P.22 and recoveries effected on the basis of said information memos unable to connect the accused with the offence charged. The information memos Ex. P-31 to Ex.P-35 drawn by Udai Lal ASI do not inspire confidence in view of the document Ex. P.22 and recoveries effected on the basis of said information memos unable to connect the accused with the offence charged. The prosecution thus failed to establish charge under Section 302 IPC against the accused beyond reasonable doubt. (22). For these reasons we allow the appeal and set aside the impugned finding of conviction and sentence arrived at by the learned trial Court. We acquit the accused appellants Ram Nath, Radha Kishan, Nand Kishore, Gopal, Prabhu and Prakash @ Foriya @ Chaturbhuj of the charge under Section 302 IPC. Accused appellant Prakash @ Foriya @ Chaturbhuj is on bail, he need not surrender and his bail bonds stand discharged. Accused appellants Ram Nath, Radha Kishan, Nand Kishore, Gopal and Prabhu, who are in jail, shall be set at at liberty forthwith, if not required to be detained in any other case.