Judgment ( 1. ) THE appellant has preferred this appeal against the Judgment and order dated 29/3/2005 passed in S. T No. 97/2004 by learned III Addl. Sessions Judge, Ratlam whereby convicted the appellant U/s. 302 of the IPC and sentenced to life imprisonment and to pay fine of Rs. 1000/-; in default of payment of fine to further undergo six months RI. ( 2. ) ACCORDING to the prosecution case, complainant Iswarlal (PW. 4), brother of deceased Santosh was informed on 27/1/2004 in the noon at 2. 00 pm by his brother-in-law Bherulal (PW. 7) that Santosh was lying unconscious in a field situated by the side of triangle of the road. On this information, Iswar lal, Bheru lal and son of Bherulal, Rajesh (PW. 5) reached on the spot. They found Santosh in unconscious condition. Bherulal had gone to bring Tempo Trax Jeep as directed by Iswarlal. Deceased was having injuries on his both the hands and legs and same were bleeding. Iswarlal asked Santosh as to who assaulted him on which santosh disclosed that he was called by his brother-in-law for some work at triangle of road where appellant and his three companions were present. They all called him for taking tea. After taking tea, he was taken in a field through Lasudia Road and he was caught by two persons and other two caused him injury by knife and appellant caused him injury by knife and also administered medicine, after mixing some tablet. After disclosing these facts, again he became unconscious. Deceased was taken in Tempo Trax to police station where FIR was lodged by iswarlal (PW. 4 ). On the basis of report, Crime No. 33/2004 for the offence u/ss. 307, 323/34 and 328 of the IPC vide Ex. P. 6 was registered. Spot map (Ex. P. 12) -was also prepared and Santosh was sent to Primary Health Centre, taal where from he was referred for further treatment to Jaora Civil Hospital. In Jaora hospital Santosh died. Before death of Santosh, his dying declaration (Ex. P. 21) was recorded by Naib Tehsildar Anil Bhana (PW. 20 ). On receiving information of death of deceased. Jaora police registered inquest report (Ex. P-25) as per provision U/s. 174 of the Cr. P. C and sent information to this effect to ps. Taal. In Jaora hospital Santosh died. Before death of Santosh, his dying declaration (Ex. P. 21) was recorded by Naib Tehsildar Anil Bhana (PW. 20 ). On receiving information of death of deceased. Jaora police registered inquest report (Ex. P-25) as per provision U/s. 174 of the Cr. P. C and sent information to this effect to ps. Taal. Before death of Santosh, his statement was also recorded by police along with statements of other witnesses. On search of Santosh, a search memorandum (Ex. P. 15) was prepared and from his pocket, a notebook containing letter and other things were seized. The seizure memo is Ex. P. 7. From the house of deceased Santosh, two pocket diaries and one piece of paper were seized through seizure memo (Ex. P. 2 ). Iswarlal and Urmila, the wife of deceased Santosh identified the handwriting of deceased on seized letters. The identification memo (Ex. P. 3) of handwriting of deceased by these witnesses was prepared. The letter and other sealed packets containing clothes and viscera of deceased were also seized through seizure memo (Ex. P. 5. ). Appellant was arrested vide arrest memo (Ex. P. 26 ). Seized articles were sent to FSL and its report is Ex. P. 28. According to FSL report, viscera of the deceased was containing pesticides (Aluminium Phosphate) i. e Sulfas. After receiving report, charge sheet was filed against the appellant U/ss. 302, 306 and 328/34 of the IPC. ( 3. ) THE appellant denied the charges and pleaded his innocence as well as false implication on account of dispute over a shop between him, deceased and his brother. The appellant has not examined any witness in defence. Learned trial court, after recording statements of the prosecution witnesses and hearing both the parties, convicted and sentenced the appellant as shown herein above. ( 4. ) LEARNED counsel for appellant has submitted that conviction of the appellant is based on written dying declaration (Ex. P. 21) recorded by Naib Tehsildar Anil bhane (PW. 2) and evidence of oral dying declaration of Iswar (PW. 4), Rajesh (PW. 5) and Bherulal (PW. 7) but according to Rajesh (PW. 5), deceased was unconscious and this witness Rajesh has not deposed anything about oral dying declaration or disclosure of anything to him by deceased against the appellant and for his cause of death. This witness was declared hostile. 4), Rajesh (PW. 5) and Bherulal (PW. 7) but according to Rajesh (PW. 5), deceased was unconscious and this witness Rajesh has not deposed anything about oral dying declaration or disclosure of anything to him by deceased against the appellant and for his cause of death. This witness was declared hostile. Learned counsel has also submitted that through seizure memo (Ex. P. 7) a letter was seized from the pocket of deceased wherein he mentioned that he committed suicide by consuming poison because appellant was having illicit relation with his wife and harassed him by this act, but the original letter along with the diary and other piece of papers seized from the house of deceased in presence of his wife and witnesses were not produced in the Court which all were sent to handwriting expert. According to learned counsel, all these documents were withheld deliberately by the prosecution because contents of letter was contrary to the dying declaration (Ex. P. 21) and evidence of Iswar (PW. 4) and Bherulal (PW. 7)regarding oral dying declaration. ( 5. ) ON the other hand, learned counsel for State has supported the impugned judgment and finding given by the learned trial Court. ( 6. ) HAVING heard the learned counsel for parties and after perusing the entire record carefully, we are of the opinion that conviction of the appellant is not sustainable on the basis of dying declaration (Ex. P. 21) and evidence of Iswar (PW. 4) and Bherulal (PW. 7), brother and brother-in-law respectively of the deceased. ( 7. ) DR. Arivind Kumar Verma (PW. 1) proved the postmortem report of deceased (Ex. P. 1) and he found superficial skin deep incised injuries on both hands, legs and toe and deceased died because of cardio respiratory failure. He preserved viscera for examination by FSL and in FSL report (Ex. P. 28) pesticide Aluminium phosphate was found. ( 8. ) THE Investigating Officer Sub Inspector M. K. Tripathi (PW. 25) has deposed that on 8/2/2004 he seized two pocket diary and piece of paper containing handwriting of deceased Santosh submitted by his wife Urmila vide seizure memo (Ex. P. 2) carrying signature of Smt. Urmila. He also prepared memorandum (Ex. P. 3) to tally the handwriting of documents seized through seizure memo (Ex. P. 7 ). Through seizure memo (Ex. P. 2) carrying signature of Smt. Urmila. He also prepared memorandum (Ex. P. 3) to tally the handwriting of documents seized through seizure memo (Ex. P. 7 ). Through seizure memo (Ex. P. 7) he seized letter written by deceased found in the pocket of clothes worn by deceased at the time of incident. He also stated in para seven that seized letter through seizure memo (Ex. P. 7) was sent along with standard handwriting of deceased, on two pocket diary and piece of papers produced by his wife Smt. Urmila. It is clear from the record that report of handwriting expert and seized letter were not produced in the Court. In cross examination para 8 Shri Tripathi has admitted that the seized letter through seizure memo (Ex. P. 7) was sent separately with letter of S. P. The further say of this witness is that after investigation, he was of the opinion that offence U/s. 302 of the IPC was not made out on the basis of contradictory evidence found during the course of investigation regarding dying declaration of deceased. It is also stated by him that when case diary was received by him for investigation, the dying declaration recorded by Naib Tehsildar, Jaora was in the case diary but he could not come to the final conclusion whether deceased consumed poison or administered poison by somebody because of contradictory evidence. The statement of Shri Tripathi is duly corroborated by the contents of seizure memo (Ex. P. 7) wherein in column No. 12 the contents of letter were, verbatim reproduced and substance is that deceased committed suicide because appellant was having closeness with his wife and whenever he was coming to his house his wife was obeying his command and because of appellant he was having unhappy married life. In the letter, it is not mentioned clearly that appellant was having any illicit relation with wife of the deceased but it is clear that he was perturbed because of conduct of appellant with his wife and visit at his house. It is mentioned by the deceased that all the property papers were lying with his sister Chanda and house and land must be mutated in the name of his children. The seizure memo is bearing signature at "a to A" portion of Iswarlal (PW. 4) who admitted his signature on this document. ( 9. ) URMILA (PW. It is mentioned by the deceased that all the property papers were lying with his sister Chanda and house and land must be mutated in the name of his children. The seizure memo is bearing signature at "a to A" portion of Iswarlal (PW. 4) who admitted his signature on this document. ( 9. ) URMILA (PW. 2), wife of deceased has deposed in para three of her statement that the dispute was going on between her brother-in-law Iswarlal (PW. 4) and husband of sister-in-law named Bherulal (PW. 7) for a big plot. In cross examination, she has stated that her brother-in-law Iswarlal (PW. 4) was having dispute with her husband and he wanted to grab their land. In her whole statement, she has not stated anything about the appellant and she denied about any kind of relation with him, on the contrary she stated that Iswarlal (PW. 4) was defaming her and assassinating her character by saying that she was having illicit relation with appellant Mukesh. According to her, she was defamed by Iswarlal so that he may take possession of all ancestral property. This witness Urmila was declared hostile by the prosecution. ( 10. ) ISWARLAL (PW. 4) has deposed that on 27/1 /2004 in the noon between 1. 30 and 1. 45 her brother-in-law Bherulal (PW. 7) came to him and disclosed about lying of deceased Santosh in injured condition in a field situated near triangle of the road and he along with his brother-in-law Bherulal (PW. 7) and nephew Rajesh (PW. 5) reached in the field and found Santosh in injured condition. On enquiry, he disclosed that he was called by Bherulal (PW. 7) for some work and when he reached at triangle of the road, appellant met him accompanied with three persons, they asked him to take tea and after taking tea he was taken about 300 feet away from the road in a field where a poisonous substance was administered to him. This version of Iswarlal is not corroborated by Rajesh (PW. 5 ). ( 11. ) ACCORDING to Rajesh when they reached in the field near Santosh, he was unconscious. He has no where stated about any kind of disclosure by deceased. ( 12. ) BHERULAL (PW. 7) has stated that when he reached in the field, Santosh was unconscious and also trying to stand but fell down on the ground. 5 ). ( 11. ) ACCORDING to Rajesh when they reached in the field near Santosh, he was unconscious. He has no where stated about any kind of disclosure by deceased. ( 12. ) BHERULAL (PW. 7) has stated that when he reached in the field, Santosh was unconscious and also trying to stand but fell down on the ground. Under this condition, he stated that appellant and other three persons compelled him to drink something thereafter he fell down on the ground. After this, he approached iswarlal and they all three reached again on the spot. At that time deceased did not disclose anything and they took deceased to hospital where one officer recorded his statement, thereafter deceased died. Rajesh (PW. 5) and Bherulal (PW. 7)have been declared hostile by the prosecution. Both have given contradictory statements about oral dying declaration of deceased before Iswarlal. ( 13. ) LOOKING to the contradictory statements of all the three witnesses, no reliance can be placed on their testimony about oral disclosure by deceased to them against the appellant. ( 14. ) THE dying declaration (Ex. P. 21) recorded by Naib Tehsildar is also doubtful in view of the written letter found by the police from the person of deceased wherein he had mentioned regarding commission of suicide by consuming poisonous substance and he held appellant responsible for his suicide because his wife was under influence of appellant. The prosecution has not filed this letter and other documents seized from the house of the deceased which were sent for comparison of handwriting to handwriting expert. The prosecution has not assigned any reason as to why these documents and handwriting expert report could not be filed along with the charge sheet or even during the course of trial till Final judgment. We presume as per provision U/s. 114 (g) of the Evidence Act that the seized letter and handwriting expert report has not bee produced by the prosecution because it must be unfavourable to the prosecution case because of which same has been withheld. It is obvious that contents of letter were contradictory to the prosecution case based on oral statement of Iswarlal and dying declaration (Ex. P. 21 ). The Investigating Officer M. K. Tripathi (PW. 25) was also not relying upon dying declaration because during investigation, two contradictory story and evidence found by him. Bherulal (PW. It is obvious that contents of letter were contradictory to the prosecution case based on oral statement of Iswarlal and dying declaration (Ex. P. 21 ). The Investigating Officer M. K. Tripathi (PW. 25) was also not relying upon dying declaration because during investigation, two contradictory story and evidence found by him. Bherulal (PW. 7) was confronted with his case diary statement (Ex. P. 13) wherein it is not mentioned that somebody administered tablet or liquid to deceased. Shri Tripathi also admitted that other three persons could not be traced out and there is nothing mentioned in the case diary for those three persons. ( 15. ) RESULTANTLY, in the wake of aforesaid discussion, it is clear that during investigation, investigating agency found two sets of evidence, each one of which contradicts the other regarding death of deceased. It is trite law that when there are two sets of evidence or interpretation, one in favour of the prosecution, another in favour of the accused, then the evidence or interpretation favouring the accused must be relied upon. ( 16. ) FOLLOWING this principle and Supreme Court judgment passed in case of harchand Singh and another Vs. State of Haryana air 1974 SC 344 , we allow this appeal. The conviction and sentence passed by the learned trial Court are hereby set aside. Learned trial Court is directed to release the appellant forthwith if not wanted in any other criminal case. Office is directed to send copy of this judgment along with the record to the trial Court. Appeal allowed.