Judgment H.S.Bhalla, J. 1. This Appeal is directed against the judgment dated 28.8.1997 passed by Additional Sessions Judge, Sirsa, vide which he convicted appellant Manphool (since deceased) and Jagan (appellant herein) under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life. However, during the pendency of the appeal, appellant Manphool died on 16.5.2002 and proceedings qua him stand abated. 2. The prosecution case, in brief, is that on 26.9.1995 on receipt of a ruqa from Police Hospital, Hisar, in Police Station Nathusari Chopta regarding the admission of injured Chander Pal son of Het Ram. Police machinery was set into motion and ASI Rameshwar Dayal along with Constables Krishan Kumar and others rushed to the hospital. After seeking opinion from the doctor, he recorded the statement of Chander Pal (now deceased), who stated that he is a resident of village Ghursal, Police Station Adampur and he is working as a driver on the vehicle TATA-407 belonging to Bhup Singh son of Dallu Ram for the last 1-1/2 years and he used to stay with owner Bhup Singh even during night time. On 25.9.1995 at about 8.00 P.M. he and Lillu Ram who used to remain with him on the aforesaid vehicle, consumed liquor together and after taking meals, Lillu Ram went to his house, whereas he slept in the Nohra of Bhup Singh, where the vehicle `TATA No. 407 was lying parked. At about 12.30/1.00 (mid night), accused Jagan came and awakened him and said that he had to hire the vehicle. At this, he asked him to contact Bhup Singh to which accused Jagan replied that Bhoop Singh is already present in their house. Thereafter, he accompanied accused Jagan to his house and on reaching his house, accused Jagan caused him injuries on his both feet with a Danda. When he inquired about it from Jagan, he said that he had illicit relations with their ladies, which he denied but the accused did not listen to him. Then he brought a bottle of spray and put the same in his mouth twice forcibly. Thereafter accused Jagan and his father Manphool caused him injuries with a hot iron chimta on his back. He raised an alarm. Then he brought a bottle of spray and put the same in his mouth twice forcibly. Thereafter accused Jagan and his father Manphool caused him injuries with a hot iron chimta on his back. He raised an alarm. On hearing it, Ranjit and Bhoop Singh sons of Dallu Ram and Aad Ram Sahu reached the spot and they rescued him from the clutches of the accused. Thereafter, many people of the village collected at the spot. On receiving message, his brothers Inder Jeet and Tara Chand reached there and they took him to Civil Hospital Adampur from where he was referred to General Hospital, Hisar, where he was got admitted. On the basis of the aforesaid statement made by the complainant, a case was registered against the accused. 3. During the course of investigation, the police visited the spot, prepared rough site plan of the place of occurrence and recorded statements of the witnesses. On 27.9.1995, a wireless message was received in the Police Station regarding the death of Chander Pal and then the offence under section 302 of the Indian Penal Code was added. Thereafter, a special report was prepared and a copy thereof was sent to the Ilaqa Magistrate. Then the SI/SHO Sher Singh along with ASI Rameshwar Dayal and other police officials reached Civil Hospital, Hisar and completed the inquest report. 4. On 28.9.1995 SI/SHO Sher Singh along with other police officials reached the place of occurrence, inspected the spot, recorded the statements of the witnesses and when the police party was on the way to the place of occurrence, HC Raj Singh met them at the chowk of Nathusari Chopta and he handed over to SI Sher Singh a parcel containing viscera relating to Chander Pal (deceased) and another sealed parcel. These articles were taken into possession vide recovery memo and on return to police station, the same were deposited with the MHC with seals intact. On 29.9.1995 Shri Ram Phal Sharma, DSP Headquarters, Sirsa, inspected the place of occurrence and verified the investigations. On 1.10.1995, both the accused were arrested in this case and at the time of arrest, one bottle of spray (poison) and a danda were recovered from the possession of accused Jagan, whereas one iron chimta was recovered from the possession of accused Manphool. On 1.10.1995, both the accused were arrested in this case and at the time of arrest, one bottle of spray (poison) and a danda were recovered from the possession of accused Jagan, whereas one iron chimta was recovered from the possession of accused Manphool. All these articles were converted into separate parcels and were sealed with the seal bearing impression "SS" and were taken into police possession vide separate memo. After completion of other necessary formalities, accused were challaned and sent up for trial. 5. Accused were charge sheeted under Section 302 read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial. 6. The prosecution, in order to prove its case, examined as many as 14 witnesses, namely, Dr. Saroj Bhukal (PW-1), Subhash Chander (PW-2), Bhoop Singh, SI (PW-3), Gaje Singh, Constable (PW-4), Dalbir Singh, MHC (PW-5), Ranjit Singh (PW-6), Aad Ram (PW-7), Bhoop Singh (PW-8), Inderjeet (PW-9), Tara Chand (PW-10), Dr. Daya Nand (PW-11), Dr. Himani Gupta (PW-12), Rameshwar Dayal, ASI (PW-13) and Sher Singh, SI (PW-14). In their statements recorded under Section 313 of the Code of Criminal Procedure, both the accused have denied the allegations levelled against them by the prosecution. They pleaded that the wife of Hardayal and wife of Brij Lal contested the elections for the post of Sarpanch wherein the wife of Brij Lal was declared successful, while their family members were supporting the wife of Hardayal and on account of this, Brij Lal got them implicated in this case. They had no dispute with Chander Pal (now deceased). Chander Pal along with Lillu took liquor at night and then went to the house of Ranjit Singh, where his employer asked about what he (Chander Pal) was to do on the next morning. While coming back, there was a bottle of insecticide lying on a wall. Chander Pal, now deceased, believing it to be a liquor consumed and fell on a hot iron chulha in the house of Ranjit Singh in the village. They further pleaded that they have been falsely implicated in this case. They never caused any injury to Chander Pal and they also did not force him to take pesticides. The accused opted to lead evidence in defence. They got examined Lillu Ram as DW-1 and thereafter closed their defence evidence. 7. They further pleaded that they have been falsely implicated in this case. They never caused any injury to Chander Pal and they also did not force him to take pesticides. The accused opted to lead evidence in defence. They got examined Lillu Ram as DW-1 and thereafter closed their defence evidence. 7. We have heard the learned counsel for the parties and have also gone through the record of the case carefully. 8. The entire case of the prosecution revolves around on the platform of statement/dying declaration, Ex. PR, suffered by deceased Chander Pal, which was recorded by Rameshwar Dayal, Assistant Sub Inspector (PW-13), the Investigating Officer of the case. 9. Before we proceed further, we would like to observe that dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction, which resulted in his death. It is again settled law that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principal of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to scrutinize all the relevant circumstances. In order to pass the test of reliability, a dying declaration has to be accepted to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination and once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances to the death, then there is no question of further corroboration, but if the court after examining the dying declaration, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity then, without corroboration it cannot form the basis of a conviction. The corroboration is not required on account of any inherent weakness of a dying declaration but from the fact that in a given case, a particular dying declaration was not free from doubt and every case is to be decided on the basis of its peculiar facts, particularly when in the instant case as per the opinion of the doctor, who examined the patient at the first instance found him in serious condition and on account of his seriousness, he was referred to the General Hospital. He was examined by the doctor and found him unconscious. However, later on, he was declared fit by Dr. Daya Nand (PW-11) and on the basis of his declaration with regard to his fitness, the statement of Chander Pal deceased was recorded by the Investigating Officer, which was later on, labelled as dying declaration after his death, which took place on 27.9.1995 at 10.00 A.M. as per endorsement available on the Bed Head Ticket, Ex. DA. At this stage, we would also like to find out whether the Investigating Officer was conscious of the fact that on account of serious condition of Chander Pal, he can meet his edge of doom any time. The bed head ticket clearly spells out that at 4.00 P.M. on 26.9.1995, he was found drowsy by the doctor, who attended to him and there is an endorsement to that effect, but another doctor at 8.40 P.M. declared him fit to suffer a statement on the request made by the police in writing, that is after a lapse of 4-1/2 hours. There is no entry on the bed head ticket by the doctor, which could show that the doctor, who has declared the patient fit to make a statement, had declared the patient as such after examining him. Chander Pal died at about 10.A.M. on 27.9.1995, that is after about nine to ten hours of suffering his statement, meaning thereby that his condition deteriorated and that is why, he breathed his last after few hours. All this circumstance do spell out that the Investigating Officer was conscious of the fact that the condition of Chander Pal could be deteriorated at any time, therefore, while recording the statement, he was required to follow the procedure of recording a dying declaration. All this circumstance do spell out that the Investigating Officer was conscious of the fact that the condition of Chander Pal could be deteriorated at any time, therefore, while recording the statement, he was required to follow the procedure of recording a dying declaration. There is nothing on the record to show that before the patient is declared fit to make a statement, he had examined him medically. During the course of cross-examination, Dr. Daya Nand (PW-11) has categorically admitted that he treated the patient medically on 27.9.1995 as per bed head ticket on the file and he gave treatment at 12.30 A.M. during the night. He has further admitted that the patient remained under treatment of Dr. B.L. Bagri and some other doctors, who were specialists, but he cannot make out their names on the bed head ticket. He has further disclosed that he declared the patient fit after satisfying himself fully that the patient was conscious and was physically and mentally fit to make a statement. He made this endorsement at the spot where the patient was examined, but his this statement is against the record. Since bed head ticket, Ex. DA, clearly spells out that there is no endorsement by this doctor Daya Nand (PW-11) with regard to the examination of the patient at 8.40 P.M. when he was declared fit to make a statement and moreover, it is admitted by this doctor that the patient was under the treatment of another doctor, namely, B.L. Bagri and no explanation has come forward as to why the opinion of Dr. B.L. Bagri, who was treating Chander Pal, was not obtained with regard to his fitness. We are conscious of the fact that police can obtain opinion of a doctor on duty at hospital and is not required to wait for second opinion of that doctor, who was treating the patient regularly, but in that case the medical record must spell out that the doctor whose opinion has been sought, has examined the patient, but in the instant case, Dr. Daya Nand (PW-11), had himself categorically admitted that he treated the patient medically on 27.9.1995 as per the bed head ticket and there is no endorsement of this doctor on the bed head ticket or of any medical doctor, which could show that before declaring him fit to make a statement, he examined the patient. Daya Nand (PW-11), had himself categorically admitted that he treated the patient medically on 27.9.1995 as per the bed head ticket and there is no endorsement of this doctor on the bed head ticket or of any medical doctor, which could show that before declaring him fit to make a statement, he examined the patient. This doctor has further admitted that he cannot say as to what was the exact position of the patient when his statement was being recorded and this fact alone has raised another finger of doubt towards the opinion of the doctor. On one hand, he has stated that the patient was fit to make a statement and on the other breath, he has stated that he cannot say as to what was the exact position of the patient when his statement was recorded. Moreover, if prosecution is beating the drum of conviction on the basis of this dying declaration, then it must be proved by the prosecution that this statement/dying declaration has passed the test of reliability. We are conscious of the fact that dying declaration recorded by the police officer can be looked into by the Court and it is not the mandate of law that a police officer would not record a dying declaration, but at the same time, keeping in view the facts and circumstances of this case and also considering the serious condition of the patient, sufficient time was available for the statement to be recorded by a Magistrate, but if it was felt by the Investigating Officer not to lose any time in recording the statement of the deceased, then in that event, he was required to follow the procedure for recording a dying declaration by himself. The absence of a doctor is required to be explained if prosecution wants the Court to place reliance on the dying declaration recorded by the police officer. The doctor was available, but even then he has not attested the statement, Ex. PR of deceased Chander Pal. To say a word about the fairness of the investigation, it may be pointed out here that the investigator did not opt to press the service of the doctor when the statement of Chander Pal was actually recorded. Further, it would be seen that statement, Ex. PR of deceased Chander Pal. To say a word about the fairness of the investigation, it may be pointed out here that the investigator did not opt to press the service of the doctor when the statement of Chander Pal was actually recorded. Further, it would be seen that statement, Ex. PR, was recorded merely by Sher Singh SI/SHO (PW-14), the Investigating Officer and it is pertinent to mention here that he did not care to have any witness to his recording it. It has come in his evidence that the doctor was available at the time when dying declaration was being recorded, but without the witness being cited, it is contrary to the provisions of Rule 25.21 of the Punjab Police Rules (Vol.III), which is reproduced as under :- "(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 reason 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 Code of Criminal Procedure, be signed by the person making it." According to the above quoted rule, the Investigating Officer should have, in the first instance, approached the Magistrate for recording such a statement. Sub-rule (3) next enjoins that in case the dying declaration is not recorded by a Magistrate or by a Gazetted Police Officer, two or more reliable witnesses not connected with the police department should be present at the time of examination and the said witnesses should attest the statement. In the instant case, the witnesses were available in the hospital, but the police officer did not join them nor he requested the doctor to attest the same or append a note with regard to the fitness of the deceased while the statement was being recorded. In the instant case, the witnesses were available in the hospital, but the police officer did not join them nor he requested the doctor to attest the same or append a note with regard to the fitness of the deceased while the statement was being recorded. There is no explanation regarding this on the part of Rameshwar Dayal, ASI (PW-13) and this circumstance by itself would be sufficient to doubt the genuineness of this so called dying declaration available on the record as Ex. PR. Moreover, the dying declaration Ex. PR is surrounded by the circumstance that does not inspire confidence. In this situation, the evidence regarding oral dying declaration said to have been made by Chander Pal deceased to his brothers is liable to be accepted. That apart, dying declaration, Ex. PR, clearly proves on record that the brothers of deceased Chander Pal, namely, Inderjit (PW-9) and Tara Chand (PW-10) also came there and they got him admitted in General Hospital, meaning thereby that the presence of the brothers of the deceased immediately after the occurrence is proved through this document and as per the statements of these two witnesses, Ranjit Singh was also got examined as PW-6. According to the brother of the deceased Inderjit Singh son of Het Ram (PW-9), Ranjit Singh (PW-6) told him at his village that Chander Pal had consumed spray thinking it to be a liquor and was vomitting and therefore, he and his brother Tara Chand and uncle Sher Singh accompanied him to his village and there, he inquired Chander Pal as to what had happened. Chander Pal told him that he had consumed spray thinking the same to be liquor. Since he was declared as a hostile witness, during the course of cross-examination by the learned defence counsel, he categorically admitted that Chander Pal told that after consuming spray, he fell down on a hot iron chulha. It is further admitted by him that they remained in Hospital in village Adampur till his death. This witness has further categorically deposed that Chander Pal never became conscious in hospitals at Adampur and Hisar. Chander Pal never made any statement either at Adampur hospital or Hisar hospital because he was unfit and unconscious throughout. 10. It is further admitted by him that they remained in Hospital in village Adampur till his death. This witness has further categorically deposed that Chander Pal never became conscious in hospitals at Adampur and Hisar. Chander Pal never made any statement either at Adampur hospital or Hisar hospital because he was unfit and unconscious throughout. 10. We are conscious of the fact that a dying declaration made to a police officer is admissible in evidence, but the practice of a dying declaration being recorded by an Investigating Officer has been discouraged and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the Police Officer. In Munnu Raja v. State of M.P., AIR 1976 SC 2199, it has been laid down by the Apex Court, which runs as under :- "Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to be encouraged." 11. Of course, dying declaration recorded by the Investigating Officer in the presence of the doctor could be relied upon if it was proved that Chander Pal was in such a precarious condition and there was no other alternative to avail the services of a Magistrate, but in the instant case, neither the doctor was present when the statement/declaration of the patient was recorded by the Investigating Officer nor any witness was joined to attest the same. The prosecution has not been able to explain the above position. Its failure to requisition of the service of a Magistrate for recording a declaration and in case there was no time to requisition the Magistrate, then why procedure laid down in the Police Rules was not followed. 12. Indisputably, conviction of the appellant recorded on the basis of dying declaration, the same must be wholly reliable. In the instant case where the suspicion has been raised as regards the correctness of alleged dying declaration, Ex. PR, the Court, before convicting of an accused on the basis thereof, should also take into consideration this aspect of the matter whether declaration is corroborated by some other evidence since suspicion is not substitute for proof. In the instant case where the suspicion has been raised as regards the correctness of alleged dying declaration, Ex. PR, the Court, before convicting of an accused on the basis thereof, should also take into consideration this aspect of the matter whether declaration is corroborated by some other evidence since suspicion is not substitute for proof. Tara Chand (PW-10), the other brother of the deceased, has also deposed in a similar fashion with regard to the consumption of spray taking it to be a liquor and he has also disclosed that in his presence Chander Pal did not make any statement to the police and he along with Inderjit and Sher Singh remained throughout by the side of Chander Pal till his death. Ranjit Singh (PW-6) when stepped into the witness box has disclosed that he owns a Mini truck on which Chander Pal deceased was a driver and Lillu Ram was a cleaner. On 25.9.1995 both of them consumed liquor together and slept in the room. Later on at about 10/11.00 P.M. they came to him and asked if they were to go somewhere next morning or not. He told that he would inform them if they were to be sent somewhere. A bottle of spray was lying in the door of his Nohra. While going, Chander Pal consumed that spray thinking it to be liquor and then slept with Lilu Ram, but later on, he started vomitting. He has further disclosed that Chander Pal had told him that he had consumed spray in the garb of liquor and that he then fell down on his hot iron chulha. Later on, leaving Chander Pal in the care of Lilu Ram and his brother Bhoop Singh, he went in his Mini Truck to village Ghurshal of Chander Pal and brought from there his brothers Inderjit and Tara Chand and uncle Sher Singh and then Inderjit and others took Chander Pal to Adampur. Chander Pal was speaking till he was taken to Adampur and he narrated to them the same version as told to him. The statements of these witnesses who are close relations of the deceased clearly spell out that the occurrence has not taken place in the manner suggested by the prosecution and moreover, they have no reason to falsely implicate the innocent persons in a murder case and would let the real culprit go scot free. The statements of these witnesses who are close relations of the deceased clearly spell out that the occurrence has not taken place in the manner suggested by the prosecution and moreover, they have no reason to falsely implicate the innocent persons in a murder case and would let the real culprit go scot free. Moreover, two brothers of the deceased, namely, Inderjit (PW-9) and Tara Chand (PW-10) have testified to the factum of the deceased having disclosed to them that he had consumed poison by mistake and this disclosure amounts to two dying declarations though oral but made under natural circumstances and much ahead of the so called dying declaration, Ex. PR. At the cost of repetition, as already discussed above, we would like to observe that as per testimony of Dr. Saroj, deceased, was unfit to make a statement at the time of admission on 26.9.1995 at 11.00 A.M. according to Ex. PA and was immediately referred to Civil Hospital, Hisar and no medico-legal report was made nor any sedative was administered as patient was already unconscious. There is no medical evidence to show that how all of a sudden patient rose from his unconsciousness at 8.00 P.M. to make a statement without any explanation with regard to the absence of any note on the bed head ticket by the Medical Officer, who declared him fit at 8.40 P.M. Moreover, Dr. Daya Nand (PW-11), who has certified to the deceased to be fit, has categorically disclosed that he does not remember whether the patient was in causality or some other Ward and if police officer met him again for the recording of the statement of the patient, then again he does not remember whether police officer had met him again for recording the statement of the patient and then again, he was unable to disclose as to whether he was standing by the side of the patient when the statement was recorded and in fact, rather disclosed that he could not say as to what was the exact position when the statement of the patient was recorded. All this clearly spells out that unanswered vital questions by the doctor create a ring of doubt around the fitness of the deceased when his statement was recorded particularly when there is no endorsement either on the statement or on the bed head ticket. All this clearly spells out that unanswered vital questions by the doctor create a ring of doubt around the fitness of the deceased when his statement was recorded particularly when there is no endorsement either on the statement or on the bed head ticket. The bed head ticket clearly spells out that he was not examined by the Medical Officer after 4.00 P.M. on 26.9.1995 and it was only on 27.9.1995 that he was attended by the Medical Officer and died after few hours. 13. Seeing from other angle, the case of the prosecution is again unnatural and doubtful. It is highly improbable that a well built person like the deceased would allow administration of liquid poison into his mouth as being alleged by the prosecution. In the normal circumstances, he would make struggle to save himself and without forcibly opening the mouth, spray could not be administered and in this manner, some struggle marks were bound to appear on the face and neck of the accused, but no such marks were found by the Medical Officer. Meaning thereby that, as per the case of the prosecution, no resistance was offered and this appears to be highly unnatural. In view of the above discussion, we have no hesitation in holding that prosecution has miserably failed to prove the physical and mental condition of the deceased when the statement was suffered by the deceased and if this document, Ex. PR, is ignored, there is no other evidence on the record to bring home the guilt against the accused. In such like circumstances, we are of the firm opinion that it is a fit case where appellant is entitled to benefit of doubt. He shall be released forthwith, if not required in any other case. Impugned judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Sirsa is set aside. Appeal is, accordingly, allowed.