JUDGMENT 1. - Tabbu @ Rajendra and Jeetu @ Jitendra, the appellants herein, were put to trial before the learned Additional Sessions judge (Fast Track), Jhunjhunu, who vide judgment dated January 25, 2002 convicted and sentenced them as under:-Tabbu 9 Rajendra :U/s: 302/120B Indian Penal Code :To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer one year simple imprisonment.under Section 3/25 Arms Act :To suffer rigorous imprisonment for one year and fine Rs. 100/-, in default to further suffer three months simple imprisonment.Jeetu @ Jitendra : under Section 302/120B Indian Penal Code.To suffer imprisonment for life and fine Rs. 500/-, in default to further suffer one year simple imprisonment. 2. On August 27, 1999 at 12.25 AM the SHO Police Station Khetri Nagar recorded parcha bayan (Ex.P-3) of injured Vishnu Kumar (since deceased) at KCC Hospital wherein he stated that on August 26, 1999 Jeetu and Tabbu met him in the night near Jagdamba market and took him to Gothda in a jeep. On breaching near the river they told him that they would not spare him. Around 11.15 PM Jeetu exhorted Tabbu to open fire and Tabbu fired a shot that hit on his shoulder and entered into chest. He caught hold of them but they pushed him down and fled away. He then some how managed to reach near the hutments and fell down from where he was removed to the hospital. On the basis of parcha bayan a case under Section 307 Indian Penal Code and 3/25 Arms Act was, registered and investigation commenced. In the course of investigation Vishnu Kumar succumbed to his injuries and case was converted into one under Section 302 Indian Penal Code. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Charge under Sections 302 alternatively ,302/120B Indian Penal Code and 3/25 Arms Act was framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Section 313 Criminal Procedure Code, the appellants claimed innocence. No witness in defence was however examined. Learned trail Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Section 313 Criminal Procedure Code, the appellants claimed innocence. No witness in defence was however examined. Learned trail Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. We have heard the learned counsel for the parties and scanned the "material on record. 4. A look at the record goes to show that death of Vishnu Kumar was homicidal in nature. As per post mortem report (Ex.P-9) he received following injuries:- (1) Fire arm wound 1 cm x 1 cm in 2nd intercostal region 4 cm lateral to left parasternal region going through internally piercing skin, subcutaneous tissues, intercostal muscles, lower lobe of left lung then exit through lower angle of left scapula piercing then cutting all the muscles in the way. (2) Exit wound 3 cm x 21/2cm oval in shape blakish ring around the wound present. No bullet found in the track or in the viscera. In the opinion of Dr.H.S.Gothwal (Pw.8) the cause of death was hemorrhage due to damage of vital organ left lung. In the cross examination Dr. Gothwal deposed thus:- HINDI MATTER 355311 A 5. Ranjeet Singh SHO (Pw.21) in his deposition stated that on August 26, 1999 11.30 PM Jagdish and Kailash Nath came to the police station and orally informed that at Gothda Bye-pass Vishnu Brahmin who was lying in a pool of blood, told them that Jeetu Saini and Tabbu Jat opened fire at him and injured him. Ranjeet Singh entered the information in Rojnamcha (Ex.P-26), proceeded to the spot and found Vishnu lying in an injured condition. He took Vishnu to the house, of Dr. Sumer Singh but he was on leave. He then took Vishnu to KCC Hospital Khetri Nagar and recorded parcha bayan (Ex. P-3) of Vishnu in the presence of doctor. In the cross examination Ranjeet Singh stated that he himself got the FIR registered and conducted the investigation. We was not informed by the doctor that some injured got admitted but he himself took the injured to the hospital. He did not ask the doctor to record the Parcha Bayan of the injured. Bed head ticket of injured was not prepared only treatment slip was issued, but he did not know as to where the treatment slip was. We was not informed by the doctor that some injured got admitted but he himself took the injured to the hospital. He did not ask the doctor to record the Parcha Bayan of the injured. Bed head ticket of injured was not prepared only treatment slip was issued, but he did not know as to where the treatment slip was. He further stated that no independent person, was present. He further stated that after 4-5 minutes of reaching the hospital he started recording the statement. He also admitted that from where the Katta (country made pistol) was recovered it was an open place. He further stated that he recorded the statement of deceased under Section 161 Criminal Procedure Code. He also stated that on receiving the information from Jagdish and Kailash Nath (Ex.P-26) he did not register the FIR because the treatment of injured was necessary. He also did not get the signatures of Jagdish, but Jagdish accompanied him to the spot. 6. Jagdish (Pw.7) in his deposition stated that he found an injured person in front of the house of Balla, thereafter he and Kailash had gone on cycle to police station and informed the police. Police came in a jeep and took that injured person to the hospital. Jagdish was declared hostile, Kailash (Pw.10) also did not support the prosecution case and he was also declared hostile. 7. Dr. Vinay Kumar. (Pw.2) in his deposition stated that he was on duty in Emergency Ward of KCC Hospital on August 26, 1999 from 8 PM till 8 AM August 27, 1999. The police came with a patient named Vishnu. He informed the police station Khetri Nagar. The SHO Police Station Khetri Nagar recorded the statement of Vishnu in his presence. Vishnu died at 12.45 in the night. When the statement of Vishnu was recorded he was conscious. In his cross examination Dr. Vinay Kumar deposed that the injured was given life saving treatment. The SHO came thereafter around 12.3. The SHO remained there for one hour. He also drew injury report at 12.20. He also recorded the statement of injured thereafter drew injury report. 10 minutes prior, i.e. 12.10, to drawing injury report he got the statement recorded. He handed over the report (Ex.P-2) at 12.5 to SHO Khetri Nagar in the hospital. The SHO came thereafter around 12.3. The SHO remained there for one hour. He also drew injury report at 12.20. He also recorded the statement of injured thereafter drew injury report. 10 minutes prior, i.e. 12.10, to drawing injury report he got the statement recorded. He handed over the report (Ex.P-2) at 12.5 to SHO Khetri Nagar in the hospital. He further stated that the injured was admitted in emergency ward and his clothes were stripped by Ward-boy Banwari. At the time of giving statement the injured informed him that he was not in a position to speak, therefore, the SHO recorded the parcha bayan in question answer form. 8. Banwari (Pw.1) did not support the prosecution case and was declared hostile. In his cross examination Banwari stated thus : HINDI MATTER B 9. There are certain broad incongruities staring at the prosecution version against the appellants, they can be narrated below : (i) According to Ranjeet Singh I.O. (Pw.21) Jagdish (Pw.7) and Kailash (Pw.10) came to the police station nd informed that Jeetu Saini Tabbu Jat fired a shot at Vishnu Brahmin and injured him, but Jagdish and Kailash did not corroborate the testimony of Ranjeet Singh. (ii) Ranjeet Singh rushed to the spot after recording the information in Rojnamcha at 11.30 p.m. and found Vishnu lying in the pool of blood. According to Ranjeet Singh Vishnu was conscious. Vishnu was taken by Ranjeet Singh to Dr. Sumer Singh but he was on leave. Thereafter Vishnu was taken to KCC Hospital and immediately after reaching to the Hospital Ranjeet Singh recorded the statement of Vishnu at 12.35 a.m. (iii) According to Dr. Vinay Kumar (Pw.2) Vishnu died at 12.45 p.m. (iv) Dr. H.S.Gothwal (Pw.8) who conducted autopsy on the dead body of Vishnu deposed that after sustaining the injury Vishnu was not in position to speak. (v) Banwari ward boy (Pw.1) who stripped the clothes of Vishnu in the Emergency ward, deposed that while Vishnu was brought to the Emergency ward, he was dead. (vi) According to Ranjeet Singh I.O. Bed head ticket of Vishnu was not prepared but treatment slip was drawn but that too is not available on record. (vii) Katta (country made gun) allegedly used in connection of offence got recovered from open place accessible to all. (vii) Dr. (vi) According to Ranjeet Singh I.O. Bed head ticket of Vishnu was not prepared but treatment slip was drawn but that too is not available on record. (vii) Katta (country made gun) allegedly used in connection of offence got recovered from open place accessible to all. (vii) Dr. Vinay Kumar also recorded the statement of Vishnu and thereafter drew injury report but neither the statement has been placed on record nor injury report is available. (ix) According to Dr. Vinay Kumar statement of Vishnu was recorded by Ranjeet Singh in question-answer form but statement that has been placed on record is not in question-answer form. (x) As per Ranjeet Singh the statement of Vishnu was recorded by him under Section 161 Criminal Procedure Code 10. Admittedly there is no eye witness of the occurrence and the case of the prosecution broadly rests on the allegedly dying declaration of Vishnu. It is well settled that for placing reliance on the dying declaration, a strict screening of the statement is required to be made because it is not a statement made on oath and its veracity can not be tested on cross examination. Before acting on the dying declaration it should therefore be ensured that the dying declaration made by the deceased should be of such a nature as to inspire confidence of the court regarding its correctness. In the instant case where the Autopsy Surgeon categorically deposed that the quick and excessive loss of blood might din the memory of injured and he was not in a position to speak after 10 minutes of the injury sustained by him and where Ward boy who was the first person to see the injured in Emergency ward and stripped his clothes deposed that injured was dead, it is difficult to believe the alleged dying declaration which was recorded by the Investigating Officer himself, There are many questions which have not been explained by the prosecution in the instant case. These are : (i) When the names of the accused and the deceased were known to the I.O. at the police station why the FIR was not registered? (ii) When the injured was brought to the Hospital, why he was not admitted in any ward? Where was his Bed Head Ticket? (iii) When the statement of injured was recorded by Dr. Vinay Kumar why it was withheld? (ii) When the injured was brought to the Hospital, why he was not admitted in any ward? Where was his Bed Head Ticket? (iii) When the statement of injured was recorded by Dr. Vinay Kumar why it was withheld? (iv) If the injured was conscious why he was not taken to the Magistrate? (v) Why the I.O. took the injured to Dr. Sumar Singh, a private doctor? Why the first aid was not given to him so that his life could be saved? It. The facts and circumstances noticed by us in the instant case caste doubt about the truth of the dying declaration and we are of the considered view that the prosecution has failed to establish the charge under Section 302/120B Indian Penal Code against the appellants beyond reasonable doubt. 12. That takes us to the charge under Section 3/25 Arms Act framed against appellants Tabbu. Ranjeet Singh I.O. deposed that on the basis of disclosure statement (Ex.P.29) of Tabbu, country made gun and one bullet got recovered by him vide recovery memo (Ex.P-15). A look at the recovery memo goes to show that country made gun got recovered from the open place accessible to all. In Krishna Mehar Singh Duggal Vs. State of Goa (1999) 8 SCC 552 the Hon'ble Supreme Court indicated that where place of concealment was the stem of a coconut tree at an open place it could not be said that article was put at that place only by the accused. In the instant case the recovery was effected under a "Keekar tree" therefore it can not be held that it was the appellant Tabbu who got the country made gun concealed. Thus charge under Section 3/25 Arms Act is not made out against the appellant Tabbu beyond reasonable doubt.13. For these reasons we allow the appeals and set aside the impugned finding of conviction and sentence. We acquit the appellants of the charges under Section 302 read with Section 120B of Indian Penal Code and Section 3/25 of Indian Arms Act. Appellant Jeetu @ Jitendra is on bail, he need not surrender and his bail bonds stand discharged. Appellant Tabbu @ Rajendra who is in jail shall be set at liberty forthwith if not required to be detained in any other case.Appeals allowed. *******