JUDGMENT 1. - Ram Kishan, Dhanraj and Pappu, appellants herein, were put to trial before learned Special Judge, SC/ST (Prevention of Atrocities Cases) Kota, who vide judgment dated August 17, 2002 convicted and sentenced them under section 302/34 IPC to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for six months. 2. It is the prosecution's case that on August 12, 1992 at 2 PM informant Babu Lal (Pw.11) submitted a written report (Ex.P-13) at Police Station Sangpd to the effect that in the preceding night around 8 PM his brother-in-law Balram (since deceased) had gone to Hatai. Balram returned back at 9 PM in injured condition and told the informant that he was given beating by Ram Kishan, Dhanraj and Pappu. In the morning Balram was taken to Sangod hospital where he died. On that report a case was registered i under sections 302/34 IPC and Section 3 of SC/ST (PA) Act and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge, SC/ST (Prevention of Atrocities Cases) Kota. Charges under sections 302/34 IPC and Section 3 of SC/ST (PA) Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In the explanation under Section 313 CrPC, the appellants claimed innocence. One witness in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. Learned counsel for the appellants while assailing the impugned judgment took us through the material on record. 4. As per Post Mortem report (Ex.P-10) following ante mortem injuries were found on the dead body : 1. Lower end of Rt. radius & ulna (sic). 2. Bruise 7 x 1/2" Lt. lateral side & back of chest at level of 10th & 11th ribs. 3. Bruise 3 x 1" lateral side of left knee. In the opinion of Dr. Harsh Verdhan (Pw.8) the cause of death was shock as a result of rupture of spleen. 5. There is no eye witness of the incident and case of prosecution rests on circumstantial evidence. 3. Bruise 3 x 1" lateral side of left knee. In the opinion of Dr. Harsh Verdhan (Pw.8) the cause of death was shock as a result of rupture of spleen. 5. There is no eye witness of the incident and case of prosecution rests on circumstantial evidence. The first circumstance on which the trial court relied is the dying declaration made by deceased to informant Babu Lal. From the testimony of Babu Lal (Pw.11) we notice that there was no visible injury on the person of the deceased. It also appears that deceased came back to the house of informant at 9 PM on August 11, 1992 but no immediate treatment was provided to him. On returning to the house of Babu Lal, the deceased lay down on the cot and became unconscious, as is evident from the cross- examination of Babu Lal : " jkr dks 9 cts ekjihV ds ckn cyjke [kqn gh ckjka iMrk esjs ?kj ij vk;k FkkA ml le; eSa vkSj esjh vkSjr nksuksa gh ?kj ij Fks vkSj dksbZ ugha FkkA cyjke vkrs gh [kkV ij iM+ x;k FkkA [kkV ?kj ds vUnj iM+h FkhA cyjke rks [kkV ij iM+rs gh csgks'k gks x;k Fkk----- " We also notice that Babu Lal did not see any injury on the person of, deceased. Babu Lal admitted this fact in his cross-examination : " eSaus cyjke ds 'kjhj ij dgha ls [kwu fudyk gqvk ugha ns[kk FkkA 'kjhj ij mlds dksbZ jxM+ cxSjg Hkh ugha FkhA " As per the testimony of Babu Lal, Balram died around 11 PM on August 11, 1992. Babu Lal stated in his cross-examination thus : " 11&12 cts ds djhc esjs lkys ijljke dks ysdj vk;k rc rd eksgYys ds vkneh cyjke dh [kkV ds pkjksa vkSj cSBs Fks----- cyjke dks lkal Hkh ugha vk jgk FkkA " 6. Having scrutinised the testimony of Babu Lal from the point of view of trustworthiness we find him highly unreliable witness. The origin and genesis of the incident appears to have been withheld. Balram, who died around 11 PM on August 11, in the house of Babu Lal was taken to the hospital in the morning of next day. Despite this, the fact was not correctly stated in the written report. The origin and genesis of the incident appears to have been withheld. Balram, who died around 11 PM on August 11, in the house of Babu Lal was taken to the hospital in the morning of next day. Despite this, the fact was not correctly stated in the written report. The alleged dying declaration of deceased cannot be relied upon in view of the fact that the deceased after coming to the house of Babu Lal immediately became unconscious and he had no time to talk to Babu Lal as is evident from the cross-examination of Babu Lal. 7. At this juncture, we deem it appropriate to refer the principles governing acceptability of dying declaration, Lald down by the Apex Court in the various judgments : (i) 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 v. Public Prosecutor, (1976) 3 SCC 618 . (ii) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Rashid Beg v. State of MP, (1974) 4 SCC 264 . (iii) A dying declaration which suffers from infirmity cannot form the basis of conviction. Ram Manorath v. State (1981) 2 SCC 654 . 8. In so far as circumstance of recovery of sticks at the instance of appellant is concerned, we find that where the prosecution could not establish that stick blows were inflicted on the person of deceased, the alleged recovery is a farce. 9. The prosecution is not able to prove the charge under section 302/34 IPC beyond reasonable doubt. The findings arrived at by the learned trial court are based on surmises and conjectures. 10. For these reasons, we allow the appeals and set aside the impugned judgment dated August 17, 2002 of the learned Special Judge, SC/ST (Prevention of Atrocities) Kota. We acquit the appellants Ram Kishan, Dhanraj and Pappu of the charge under section 302/34 IPC. Appellants Pappu and Dhanraj are on bail, they need not surrender and their bail bonds stand discharged. Appellant Ram Kishan, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.Appeal Allowed. *******