Honble SHARMA, J.–In order to extract truth from the lips of dying man, a procedure has been laid down in Rule 6.22 of the Rajasthan Police Rules, 1965. But Prahlad Singh ASI of Police Station Mangrol conducted himself in such a manner as if he was above the law. Ignoring the procedure, he himself shouldered the responsibility of recording last statement of Raghunath (deceased) and nabbed the appellants, five in number, who were indicted before the learned Additional Sessions Judge (Fast Track) Baran. Learned Judge vide judgment dated September 28, 2002 convicted and sentenced the appellants as under:- Shiv Narayan, Chaturbhuj, Bhawani Shankar, Janki Lal and Nathu Lal: u/S. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for six months. u/S. 447 IPC: Each to suffer simple imprisonment for one month and fine of Rs. 100/-, in default to further suffer simple imprisonment for seven days. u/S. 148 IPC: Each to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months. Sentences were ordered to run concurrently. (2). It is the prosecution case that on June 25, 2001 Prahlad Singh, ASI (PW. 8) reached at Mangrol hospital and recorded Parcha Bayan (Ex. P. 10) of injured Raghunath, according to which on the said day around 9-10 AM while Raghunath was going to field he was belaboured by Shiv Narayan, Dhanraj, Bhawani Shankar, Chaturbhuj, Nathu s/o Dhanna Lal, Nathu s/o Gordhan Mali, who were armed with lathis, Gandasis and Dharias. All of them caused injuries on the head, hands and other parts of the body of Raghunath and fled away. On that parcha bayan a case under Sections 147, 148, 149, 307 and 323 IPC was registered and investigation commenced. During the course of investigation injured Raghunath succumbed to his injuries and Section 302 IPC was added. Autopsy on the dead body was performed, necessary memos were drawn, statement of witnesses were recorded, appellants of arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Baran. Charges under Sections 147, 148, 447, 302, 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Baran. Charges under Sections 147, 148, 447, 302, 302/149 IPC were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. In the explanation under Sec. 313 CrPC, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. (3). We have reflected over the rival submissions and with the help of learned counsel, weighed the material on record. (4). As per injury report (Ex. P.49) Raghunath had sustained following injuries:- 1. lacerated wound 4 cm x 2 cm x 2 cm middle scalp mid line 2. Lacerated wound 2 cm x 2 cm x 2 cm above & lateral right side face. 3. Swelling no exact measure encircling right arm. 4. Swelling no exact measure encircling right forearm & hand. 5. Bruise 4 cm x 2 cm x right thigh 6. Swelling no exact measure right leg lower 2/3 7. Swelling no exact measure left arm hand 8. Swelling no exact measure left thigh. (5). Autopsy on the dead body was performed by Dr. Pratap Singh Yadav (PW. 7), who drew postmortem report (Ex. P. 9) according to which the cause of death was shock due to head injury associated with fracture with formatic & hemorrhage. (6). At the outset we deem it necessary to narrate the principles governing admissibility of dying declaration, laid down by the Apex Court in the various judgments. They are as under:- (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 vs. Public Prosecutor (1976) 3 SCC 618 ). (ii) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (Rashid Beg vs. State of MP (1974) 4 SCC 264 ). (iii) A dying declaration which suffer from infirmity cannot form the basis of conviction. (Ram Manorath vs. State (1981) 2 SCC 654 ). (7). A Police Officer is required to follow Rule 6.22 of the Rajasthan Police Rules, 1965 in letter and spirit. Rule 6.22 provides as under:- "6.22 Dying declaration (1) A dying declaration shall, whenever possible, be recorded by a Magistrate. (Ram Manorath vs. State (1981) 2 SCC 654 ). (7). A Police Officer is required to follow Rule 6.22 of the Rajasthan Police Rules, 1965 in letter and spirit. Rule 6.22 provides as under:- "6.22 Dying declaration (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 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. (8). It is in view of the above parameters that we have to adjudge the acceptability of the alleged dying declaration recorded by Prahlad Singh ASI (PW. 8) who was posted as ASI at Police Station Mangrol. In his statement Prahlad Singh deposed that on receiving telephonic message that persons of Mali community had a quarrel and one injured person was taken to the hospital, he rushed to the Hospital and recorded Parcha Bayan (Ex. P. 10) of injured Raghunath. In his cross examination Prahlad Singh stated thus:- ^^ekaxjksy esa U;kf;d eftLVsªV lkgc jgrs gSaA eSaus eftLVsªV lkgc ls ipkZ c;ku ysus ds fy, fuosnu ugha fd;kA** (Judicial Magistrate Sahib reside in Mangrol. I did not make request to Magistrate Sahib to record Parcha Bayan). ^^eSaus MkDVj lkgc ls ipkZ c;ku ysus ds fy, fuosnu ugha fd;kA** (I did not make request to Doctor Sahib to record Parcha Bayan) ^^eSaus ipkZ c;ku dks MkDVj ls vVsLV ugha djk;kA ipkZ c;ku dks ysdj lh/kk Fkkus esa pyk x;kA** (I did not get Parcha Bayan attested by Doctor. I straightway went to Police Station). ^^;g lgh gS fd j?kqukFk vLirky esa fdl le; HkrhZ gqvk o fdl csM uEcj ij HkrhZ Fkk o fdl izdkj dk bZykt gqvk Fkk bl ckcr eSaus dksbZ fjdkWMZ isk ugha fd;kA** (It is true that I did not produce any record of Raghunath as to at what time and on which Bed number Raghunath got admitted and what was the nature of his treatment). ^^;g lgh gS fd ipkZ c;ku esa et:c us mldh ekjihV ds fo"k; esa ;g dFku fd;k Fkk fd xokg us eqyfteku dks Hkkxrs gq, ns[kk gS] ekjihV djrs gq, ugha ns[kkA** (It is true that in the Parcha Bayan injured stated that the witnesses did not see the accused inflicting injuries but they had seen them running). (9). A bare look at the testimony of Prahlad Singh demonstrates that he did not care to follow the procedure mandated in Rule 6.22 of the police Rules. He did not offer any explanation as to why he did not call the Magistrate, who was present in town? Why he did not get the certificate of doctor about the mental and physical state of injured? Whether he was in a fit state to give statement? In Bashir vs. State 1994 (2) RLR 30, this court held that whenever the dying declaration is taken to be the sole basis of conviction and sentence, strict compliance of Rule 6.22 of the Police Rules in letter and spirit must be ensured. (10). At this juncture consideration of testimony of Dhan Raj (PW. 1) appears necessary. In his cross examination Dhan Raj deposed thus:- ^^xkao esa j?kqukFkth dks eSa ysdj vk;k Fkk esjs lkFk vkSj Hkh vk;s FksA j?kqukFk th ekSds ij csgks-k esa Fks vkSj csgksk Fks ftudks ysdj eSa xkao ij vk;k Fkk vkSj csgkskh gkyr esa gh vLirky ekaxjksy ys x;s Fks vkSj ekaxjksy vLirky esa Hkh csgksk FksaA ckajk yk;s tgka rd csgksk FksA ckajk vLirky esa mudh e`R;q gks xbZA** (I along with others took Raghunath ji to the village. Raghunath ji became unconscious on the spot and remained unconscious throughout, at Mangrol Hospital as well as at Baran Hospital. He died at Baran Hospital). Dhan Raj named only two accused Bhawani Shankar and Dhan Raj who gave beating to Raghunath. He did not name appellants and was declared hostile. Law regarding hostile witness is well settled that hostile witness is not necessarily a false witness. Merely describing a person as hostile witness does not completely efface his evidence. The testimony of such a witness is to be assessed for whatever value it is. If the Court finds something is there in the evidence worth placing the reliance it will be free to do so. (11). Merely describing a person as hostile witness does not completely efface his evidence. The testimony of such a witness is to be assessed for whatever value it is. If the Court finds something is there in the evidence worth placing the reliance it will be free to do so. (11). Proper appreciation of evidence is a matter of experience, common sense and knowledge of human affairs. BIRCh J. in R. vs. Madhub (21 WR Cr 13) indicated thus:- "For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and common sense and shrewdness must be brought to bear upon the facts elicited in every case which a judge of facts in this country discharging the functions of a jury in England, has to weigh and decide." (12). Although efforts have been made by mathematical writers to formulate rules for determining moral certainty it is obvious that no satisfactory system can be devised for weighing evidence and drawing conclusions. In Ram Chandra vs. Champa Bai (AIR 1965 SC 354) the Apex Court held that in order to judge the credibility of witnesses the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses but it is open to it to look into the surrounding circumstances as well as the probabilities. (13). The evidence of Dhan Raj in the instant case cannot be discarded in toto. He is the son-in-law of deceased and we see no reason as to why would he tell lie. Testimony of Dhan Raj gets corroboration from the statement of Jagannath (PW. 13) who deposed as under:- ^^j?kqukFk vLirky esa c;ku fn, tc csgkskh gkyr esa FkkA j?kqukFk dh vkokt esa [kM+[kM+kgV dh vkokt vk jgh FkhA** (In the Hospital when the statements were recorded, Raghunath was in the state of unconsciousness and his voice was not clear). (14). Coming to the testimony of Kailash Bai (PW. 20) we notice that she is the wife of deceased Raghunath. In her cross examination she stated that police did not record her statement (Ex. D. 2) and she was giving the statement for the first time in the court:- ^^iqfyl esa esjs c;ku ugha gq,A ,Dth- Mh-2 c;ku iqfyl us esjs ls ugha fy;k--- vkt eSa vnkyr esa igyh ckj c;ku ns jgh gwaA** (15). Chandra Kala (PW. In her cross examination she stated that police did not record her statement (Ex. D. 2) and she was giving the statement for the first time in the court:- ^^iqfyl esa esjs c;ku ugha gq,A ,Dth- Mh-2 c;ku iqfyl us esjs ls ugha fy;k--- vkt eSa vnkyr esa igyh ckj c;ku ns jgh gwaA** (15). Chandra Kala (PW. 16), daughter of deceased, deposed in her cross examination that although police came in the village ion the day of the incident, she did not tell anything about the incident and her statement was recorded by the police two days after the incident. (16). Factual situation emerges from the testimony of witnesses may be summarised thus:- (i) Dhan Raj (PW. 1) named two assailants, who stood acquitted by the trial Court. According to Dhan Raj, the appellants, were not present at the time of incident. (ii) As per the testimony of Dhan Raj, his father-in-law Raghunath became unconscious after receiving the injuries and he remained unconscious throughout till his death. (iii) Jagannath (PW. 13), brother of deceased, also stated that when police was recording the statement, Raghunath was in the state of unconsciousness and his voice was not clear. (iv) According to Parcha Bayan Chandrakala (PW. 16) and Kailash Bai (PW. 20) were not present at the time of incident. Dhan Raj also deposed that they came after the incident occurred. (v) Prahalad Singh ASI (PW. 8) deliberately withheld Daily Rojnamcha wherein telephonic information about the incident was recorded. (vi) Prahlad Singh did not follow the mandate of Rule 6.22 of the Police Rules. (17). The mysterious circumstances under which alleged dying declaration of Raghunath was recorded, create doubt about its genuineness. The alleged dying declaration suffers from infirmities and it could not have been made the basis of conviction of appellants. The possibility that the alleged dying declaration was concocted by Prahlad Singh ASI cannot be ruled out. We also find that Chandrakala and Kailash Bai were not the eye witnesses and no reliance could be placed on their evidence. Since learned trial Court, did not consider the evidence in right perspective, the impugned finding deserves to be set aside. (18). For these reasons, we allow the appeal and set aside the impugned judgment dated September 28, 2002 of learned Additional Sessions Judge (Fast Track) Baran. We acquit the appellants of the charges under Sections 148, 447 and 302/149 IPC. Since learned trial Court, did not consider the evidence in right perspective, the impugned finding deserves to be set aside. (18). For these reasons, we allow the appeal and set aside the impugned judgment dated September 28, 2002 of learned Additional Sessions Judge (Fast Track) Baran. We acquit the appellants of the charges under Sections 148, 447 and 302/149 IPC. Appellants Shiv Narayan, Chaturbhuj, Bhawani Shankar, Janki Lal and Nathu Lal, who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case.