Judgment ( 1. ) - This is State Appeal against the judgment of acquittal dated 30. 9. 1997 for the offences under Sections 147/302 and 149/302 passed by first Additional Sessions judge, Guna in S. T. No. 358/ 96. ( 2. ) AS per prosecution story on 2. 9. 1996 in the morning deceased Mathuralal was going along with his son Hardayal from his village to Guna. They had to get the bus at village Bhonra at about 7 a. m. When they both reached near culvert of river at village bhonra; Sitaram, who was carrying Farsi in his hand; Dataram, who was carrying iron object; Raghuveer, Jagdish and Pappu carrying lath is; Pothi, Radhyshyam and Giriraj carrying stones in their hands and Santosh, who was bare handed, came to them and said that; "aaj In Bap-Bete ki Peshi Kara do. " Seeing them Hardayal ran way from the spot and Mathuralal, who was an old aged person, could not run away. Santosh caught-hold the hand of Mathuralal, thereafter Sitaram gave Farsi blow on his head, which was obstructed by Mathuralal. On account of this his both the hands became injured. Rambabu gave iron blow from the blunt side on his both the legs, by which maturalal fell down on the earth. Pothi and jagdish assaulted by lathis. Mathuralal was carrying for help, at that time Narayanlal sahu came on the spot. Seeing him all the accused ran away. Injured Mathuralal himself lodged the report at Police Station dharnawada, which was registered as dehati Nalisi and thereafter the crime was registered at P. S. Chowki Jhagar. The injured was referred for medical examination and on the next day the statement of mathuralal was recorded. On 5. 9. 1996 at 12. 15 p. m. , Mathuralal died in the hospital. His dead body was referred for post-mortem and after completing the investigation charge-sheet was filed. ( 3. ) DURING trial, all the respondents abjured their guilt. Prosecution examined as many as 13 witnesses. Trial Court found that though the deceased received as many as 8 injuries, out of which injuries Nos, 4 and 5 are lacerated wounds, one was contusion and other were abrasion, but none of the witnesses has supported the prosecution story. ( 3. ) DURING trial, all the respondents abjured their guilt. Prosecution examined as many as 13 witnesses. Trial Court found that though the deceased received as many as 8 injuries, out of which injuries Nos, 4 and 5 are lacerated wounds, one was contusion and other were abrasion, but none of the witnesses has supported the prosecution story. Hardayal (P. W. 8) son of the deceased, has also not supported the prosecution story and the Court has found that though the F. I. R. was lodged by the deceased himself, his statement was also recorded under Section 161 Cr. P. C. and he survived for three days, but his dying declaration was not recorded neither by the Executive magistrate nor by the doctor and found that the evidence of the Investigating Officer rakesh Kumar Chhari (PW13), who had recorded the statement of the deceased, does not Inspire confidence, as he has stated that when he was recording the statement of the deceased his son Hardayal (P. W. 8) was present in the hospital and was crying. The deceased was speaking but in the intervening period also getting unconsciousness and son Hardayal (P. W. 8) was with his father. Considering the statement of Hardayal (P. W. 8), trial Court found that the statement of Investigating Officer (PW13) is not reliable at all and found that prosecution has failed to prove its case by producing the evidence beyond reasonable doubts and acquitted the respondents, against which the State has preferred this appeal after obtaining leave from this Court. ( 4. ) WE have heard the learned counsel for the parties and perused the findings recorded by the trial Court. ( 5. ) THERE is no dispute that all the four witnesses including Hardayal (P. W. 8), who is son of the deceased, have not supported the prosecution and they have turned hostile. Investigating Officer (P. W. 13) has also admitted in the cross-examination that though the deceased was not unconscious, but he was having trouble in speaking and his son was speaking that his father was beaten by the persons and Investigating officer was stopping his son not to intervene. There is no consistency in the evidence of his son Hardayal (PW8) and Investigating Officer. There is no consistency in the evidence of his son Hardayal (PW8) and Investigating Officer. Therefore, in the light of the aforesaid evidence Court has found that the evidence of the dying declaration recorded by Ghanshyam Sharma (PW9) and Rakesh kumar Chhari (PW13) is also not of clinching nature and is not sufficient to convict the respondents. It was also found that in the case diary statement (Ex. P. 26), which was considered as dying declaration, no time was mentioned. Trial Court has also placed reliance on the decision in the cases of State (Delhi Administration) v. Laxman Kumar and others1 and K. Ramchandra Reddy and another v. The Public Prosecutor2 on the point that if there is no certificate by doctor that the person giving statement was fully fit to give statement, the aforesaid statement cannot be considered as an evidence for convicting the accused. The Court has also considered this aspect of the matter in the light of the decision in the case of ramawati Devi v. State of Bihar3 and keshav Ganga Ram Navge and another v. The State of Maharashtra4 that the dying declaration recorded by the police officer can be considered as reliable but it is necessary that there must be endorsement by the investigating Officer on the dying declaration about the physical condition of the deceased, but in the present case it was found that the physical condition of the deceased was not mentioned by the Investigating Officer. On the contrary, according to Investigating officer, his condition was bad, he was suffering from severe pain and was feeling difficulty in speaking and his son was speaking on his behalf, who has not supported the prosecution. Under these circumstances, the only evidence of dying declaration recorded by the police officer cannot be held to be sufficient evidence for convicting the respondents in a case under Section 302 IPC. It was also considered by the trial Court that when there was three days time with the prosecution then why an attempt was not made to get the statement recorded by the executive Magistrate or by the doctor and why the statement was not recorded by the police officer in presence of doctor or after obtaining certificate from doctor. ( 6. ( 6. ) IN view of the aforesaid finding, were also of the view that the Investigating Officer, who recorded the statement, had not mentioned the physical condition, whether the deceased was fit to give statement and no valid reasons as to why the certificate was not obtained from the doctor about the fitness of the deceased and why the request was also not made by the Investigating Officer to the doctor to record his statement, has not been furnished by the prosecution. Thus, in the absence of such an evidence, the same cannot be held to be sufficient to reverse the finding of acquittal. ( 7. ) THE dying declaration given by the deceased was also not found corroborated by any other evidence on record. As per the medical report (Ex. P. 4), no injury was found in both the hands of the deceased which was received from the sharp edged weapon and severe injury hammered by iron rod was also not found in both the legs of the deceased. ( 8. ) AFTER considering the evidence and findings, we are also of the view that the trial Court has not committed any illegality in recording the finding or acquittal. Therefore, we affirm the same and dismiss the appeal as no ground is made out to interfere in the judgment of acquittal. ( 9. ) CONSEQUENTLY, this appeal is dismissed. Appeal dismissed.