Judgment : A. R. Joshi, J. 1. These appeals are arising out of and challenging the same judgment and order passed by Additional Sessions Judge-2, Chandrapur dated 04/01/2010 passed in Sessions Case No. 91 of 2008 in which total four accused faced the trial for the offence of murder of one Suresh Jakku. These appeals are disposed of by this common judgment. 2. The appellants in criminal Appeal No. 83/10 were accused Nos. 1 and 2 and those in criminal Appeal No. 68/10 was accused No. 3. Accused No. 4 Kailash was acquitted. The State of Maharashtra did not prefer appeal against his acquittal. 3. By the impugned judgment and order, original accused Nos. 1 to 3 were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and were sentenced to life imprisonment each and to pay fine of Rs. 1,000/- each, in default, rigorous imprisonment for three months each. 4. Case of the prosecution can be narrated in nutshell as under: (a) On 08/4/2008 in the night time the incident of deadly assault on victim Suresh Jakku occurred in front of house of one Deva Yadao (P.W.-2). At that time victim Suresh Jakku and his other friends had assembled near one liquor shop in the vicinity of the house of P.W. No.2 after consuming the liquor. One Niraj Dhotekar, a friend of victim Suresh, started searching for his motorcycle and came near the house of P.W. No.2. The quarrel ensued when accused nos. 1 to 3 were accosted by him on the allegation that they had concealed his motorcycle. That time scuffle took place and accused Nos. 1 to 3 assaulted victim Suresh. (b) Accused Nos. 1 and 3 allegedly used knife to assault Suresh on his abdomen, chest and other parts of the body. Accused No. 2 Akash caught hold of victim Suresh. At that time P.W. No. 2 Deva Yadao, P. W. No. 3 Balu Gedam, who were present there, tried to rescue the victim, but in vain. All the three accused, then ran away. (c) Due to severe bleeding injuries on the abdomen, chest and back, victim Suresh fell on the ground in a pool of blood. Due to such severe assault intestine of the victim had protruded from the abdomen and apparently there was severe blood loss. P.W. No.2 Deva Yadav called Auto rickshaw. All the three accused, then ran away. (c) Due to severe bleeding injuries on the abdomen, chest and back, victim Suresh fell on the ground in a pool of blood. Due to such severe assault intestine of the victim had protruded from the abdomen and apparently there was severe blood loss. P.W. No.2 Deva Yadav called Auto rickshaw. (d) Injured Suresh was taken to the Government Hospital at Ballarasha. Relatives and brother of Suresh reached the hospital after getting intimation. Initially, treatment was given at Ballarasha Hospital and then injured was referred to the Hospital at Chandrapur. 5. On the intimation to Police Station, Chandrapur, P.W. No.7 Naim Khan, Police Constable arrived at the Hospital. He gave requisition to the doctor and obtained certificate from him regarding condition of the injured being fit for giving statement. Statement of the victim was recorded by P.W. No.7 at Exh. 59, endorsement of Dr. Nagrale (P.W.-9) was obtained on the same. 6. According to the prosecution, in the said statement, dying declaration of the victim, he disclosed names of accused Nos. 1 to 3 and their 7 to 8 other associates. 7. After recording of dying declaration, sensing the condition of the injured very serious, he was referred to the hospital at Nagpur and accordingly was taken from Chandrapur Hospital. While on the way to Nagpur the victim succumbed to the injuries. It is also the case of the prosecution that while the victim was at Ballarasha hospital, one Raju Jakku-brother of the victim narrated the incident to one Mogli Kondawar (P. W. No.4). Said Mogli visited the hospital and observed condition of the victim and immediately lodged the report to police around 2345 hours against three named accused as their names were revealed through Raju Jakku. On the strength of said complaint offence was registered against accused Nos. 1 to 3 and their other associate for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. After the death of the victim, offence punishable under Section 302 of the Indian Penal Code was applied. 8. During investigation, spot panchanama was prepared, blood stained mud, mud sample, one plastic chappal, pair of slippers, etc. were seized. On receiving the intimation of the death of victim, inquest panchanama was drawn and postmortem was conducted. After finding whereabouts of accused Nos. 1 to 3, they were arrested on 09/4/2008. 8. During investigation, spot panchanama was prepared, blood stained mud, mud sample, one plastic chappal, pair of slippers, etc. were seized. On receiving the intimation of the death of victim, inquest panchanama was drawn and postmortem was conducted. After finding whereabouts of accused Nos. 1 to 3, they were arrested on 09/4/2008. Their clothes were seized under the panchanamas and statement of witnesses were recorded. 9. According to the case of prosecution, there was recovery of knives at the instance of accused Nos. 1 & 3. These recoveries were done respectively on 11/4/2008 and 16/4/2008. According to the prosecution, at the time of arrest, accused No. 1 Rahul was found having sustained some injuries and hence he was referred to the hospital and after the treatment, medico legal certificate was obtained. 10. During investigation, name of accused No. 4 Kailash was revealed. He was arrested on 17/4/2008 and his clothes were seized. Seized articles were sent for chemical analysis and C. A. Reports were obtained. After completion of investigation, chargesheet was filed before the Court of Chief Judicial Magistrate at Chandrapur. The case was, then committed to the Court of Sessions being Sessions Case No. 91/08. 11. During the trial total 15 witnesses were examined by the prosecution. Two defence witnesses were examined on behalf of the accused persons. 12. In order to bring down the scope of the present appeals, so far as the rival arguments are concerned, certain admitted position is narrated as under:- .(i) Death of victim Suresh is homicidal. .(ii) Victim Suresh was of bad character and having criminal cases against him. (iii) Alleged eye witnesses P.W. Nos. 2, 3 and 10 did not support the case of prosecution and turned hostile, as such; there is no eye witness in the matter to support the case of prosecution. (iv) First information report/complaint is lodged by P.W. No. 4 Mogli who is not an eye witness. (v) P. W. No. 4 Mogli revealed names of accused Nos. 1 to 3 from the brother of the victim i.e. one Raju. (vi) Said Raju, brother of the victim is not examined during the trial. 13. With the above admitted position the rival arguments are scrutinized. We have gone through the substantive evidence of the prosecution witnesses namely :- (a) The evidence of P.W. Nos. 7 and 9 on the aspect of written dying declaration (Exh.59). (vi) Said Raju, brother of the victim is not examined during the trial. 13. With the above admitted position the rival arguments are scrutinized. We have gone through the substantive evidence of the prosecution witnesses namely :- (a) The evidence of P.W. Nos. 7 and 9 on the aspect of written dying declaration (Exh.59). (b) The substantive evidence of P.W. Nos.5, 6 and 8 who are alleged witnesses on the oral dying declaration of the victim. (c) The substantive evidence of P.W. No. 15 Dr. Shailendra Dhawane, who along with his colleague Dr. Mohd. Khalil conducted the postmortem on the dead body of the victim. (d) The substantive evidence of P.W. No. 11 Dr. Kumbhare; and; (e) D. W. No. 2 Dr. Potddar on the aspect of injuries sustained by the victim, his deteriorating condition while under treatment at Ballarasha and also at Chandrapur Hospital and as to said patient being referred to Nagpur Hospital at early hours of 09/4/2008. 14. The main gravamen of the arguments advanced on behalf of the appellants in both the appeals is that P.W. Nos. 5, 6 and 8 are untrustworthy for various reasons. P.W. No. 7 Police Constable is also untrustworthy in as much as there was no possibility of victim being conscious to give oral dying declaration (Exh.59) and evidence of P.W.No.9-Dr. Nagrale also cannot be accepted on the aspect of consciousness of the victim and his fit condition to give statement, more so, when the evidence of the attending doctor P.W. No.11 Dr. Kumbhare and D.W. No. 2 Dr. Potddar is overwhelming pointing towards the sinking condition of the victim. 15. In order to appreciate the above arguments, certain facts are produced hereunder:- I) P.W. No.5 Ramesh Jakku, who is brother of the deceased, is not eye witness and his statement was recorded by the police on 15/4/2008, much belatedly after the incident of 08/4/2008. Said P.W. No.5 was all along available to the police till his recording of statement. According to him, victim Suresh disclosed the names of accused Nos. 1 to 3 as assailants and allegedly told that they repeatedly assaulted the deceased. An omission is brought on record on behalf of defence regarding the fact of “repeated” assault. II) P.W. No. 6 Santosh has alleged that victim Suresh made dying declaration before him taking the names of accused Nos. 1 to 3 as assailants and allegedly told that they repeatedly assaulted the deceased. An omission is brought on record on behalf of defence regarding the fact of “repeated” assault. II) P.W. No. 6 Santosh has alleged that victim Suresh made dying declaration before him taking the names of accused Nos. 1 to 3 as assailants, he gave statement to the police on 25/4/2008 i.e. much belatedly after about 16 days after the incident, though he was all along available to the police. III) P.W. No. 8 Munna Khedkar gave his statement immediately on the next day of the incident i.e. on 09/4/2008 as to the victim disclosing names of accused Nos. 1 to 3 as assailants. However, it is brought on record on behalf of the defence as to the names of the assailants not mentioned in the statement recorded by the police though the same was recorded on the next day of the incident. IV) The injuries sustained by the victim are of much significance which are detailed in column No. 17 of the postmortem report i.e. injuries No. 1 to 11 as below:- (i) Incise wound present over left side of chest on left 4th rib and intercostal space 4 cm. Left of midline vertically oblique failing towards left of size 3 cm. X 0.5 cm. Muscle deep. Blood oozing present. (ii) Incise wound present over left side of chest at left 6th intercostal space in anterior axillary line, vertically oblique tailing towards left, of size 1 cm. X 0.5 cm. Muscle deep. Blood oozing present. (iii)Incise wound present over right side of chest at right 6th intercostals space 3 cm. Right of midline, vertically oblique, failing towards right of size 1 cm. X 0.5 cm. Muscle deep. Blood oozing present. (iv) Incise wound present over right side of chest 9 cm. Right of midline at 6th rib at intercostal space, vertically oblique, failing towards right of size 3 cm. X 0.5 cm. Muscle, blood oozing present. (v) Incise wound present over right side of chest at right 8th rib and intercostal space in mid-axillary line of size 3 cm. X 0.5 cm. Muscle deep, blood oozing present. (vi) Stab wound present over right side of chest in right 8th intercostal space in mid clavicular line, vertically oblique going towards right of size of 3 cm. X 2 cm. Cavity deep, elliptical in shape. X 0.5 cm. Muscle deep, blood oozing present. (vi) Stab wound present over right side of chest in right 8th intercostal space in mid clavicular line, vertically oblique going towards right of size of 3 cm. X 2 cm. Cavity deep, elliptical in shape. One edge is bevelled and another edge is sharp. Both angles are pointed. (vii) Stab wound present over right side of chest in right 7th intercostal space 3 cm. Right of midline of size 3 cm. X 1 cm. Cavity deep, vertically place, elliptical in shape, both angles are pointed. (viii) Stab wound present in right lumber region of abdomen 5 cm. Right of midline of size 3 cm. X 2 cm. Cavity deep with exposing the coils of intestine. Transversely oblique wedge shape one angle in sharp another is blunt. (ix) Stab wound present in right lumber region of abdomen 2 cm. Right of injury no. 8 of size 3 cm. X 3 cm. Cavity deep, coils of intestine oozing out transversely oblique wedge shape one edge is bevelled other is slightly rounded. One angle is sharp other is blunt. (x) Incise wound present over right side of back at the level of T 12 vertebra of size 8 cm. X 2 cm. Muscle deep transversely placed. With tailing towards left blood oozing present. xi) Incise wound present over right thigh in middle 1/3rd region on outer aspect of size 3 cm. X 1cm. X muscle deep, transversely placed tailing towards right blood oozing present. (a) Stab wound present on right lobe of liver of size 4 cm. X 5 cm. Going through and through the liver, corresponding to the injury no. 6 in column no. 17; and (b) Stab wound present on left lobe of liver of size3 cm. X 0.5 cm. Internal injuries as mentioned in column No. 21 of the postmortem report are as under: V) Blood group of the victim was ascertained as 'A' whereas blood groups of the accused persons could not be ascertained. The knives recovered at the instance of accused Nos. 1 & 3 were having human blood, however, results were inconclusive so far as the blood group is concerned. VI) Panch witness (P.W. No. 12) did not support the case of the prosecution. Said pancha was used by the prosecution for the recovery of knives at the instance of accused Nos. The knives recovered at the instance of accused Nos. 1 & 3 were having human blood, however, results were inconclusive so far as the blood group is concerned. VI) Panch witness (P.W. No. 12) did not support the case of the prosecution. Said pancha was used by the prosecution for the recovery of knives at the instance of accused Nos. 1 and 3 on respective dates 11/4/2008 and 16/4/2008. Moreover, admittedly, said panch witness (P.W. No. 12) had worked for police for many years and was stock panch. 16. In view of the above circumstances which are gathered from the substantive evidence of P. W. Nos. 5, 6 and 8 and also the evidence of P.W. No. 12, in our opinion, the theory of oral dying declaration given by the victim cannot be accepted mainly on the ground of delayed recording of statements of P.W. Nos. 5 and 6 and material omission regarding the names of the assailants from the statement of P.W. No.8. 17. Moreover, the recovery of respective knives cannot be held to be trustworthy mainly due to the conduct of the panch witness P.W. No. 12. 18. Even otherwise also for want of clinching material in view of findings in the chemical analyzer's report as to determination of blood grouping, such alleged recovery of knives cannot be treated as incriminating circumstance so as to link the accused persons with the offence of murder. 19. On the aspect of acceptance of evidence of the Investigating Officer and accepting the recoveries at the instance of accused Nos. 1 and 3, following authorities are cited before us on behalf of the State.: (1) AIR 1978 SC 1511 (Mohan Singh Vs. State of Rajasthan) (2) AIR 1978 SC 1571 (State of Kerala Vs. M.M. Mathew & another) 20. After going through the ratios, as laid down in above authorities, it is clear that on the aspect of appreciation of evidence under Section 3 of the Indian Evidence Act, merit of each case is to be determined on the facts available in the particular case. Considering the circumstances regarding recovery of knives and blood stained clothes from accused Nos. 1 and 3, it can hardly be said that the evidence of the Investigating Officer can be accepted in spite of hostility of P.W. No.12 and in spite of no clinching evidence by way of C. A. Reports. 21. Considering the circumstances regarding recovery of knives and blood stained clothes from accused Nos. 1 and 3, it can hardly be said that the evidence of the Investigating Officer can be accepted in spite of hostility of P.W. No.12 and in spite of no clinching evidence by way of C. A. Reports. 21. In view of the above discussion, now only point to be considered is regarding authenticity or otherwise of the written dying declaration (Exh. 59). On this aspect following authorities are cited before us on behalf of the appellants. (1) AIR 1983 SC 554 (Darshan Singh & others Vs. State of Punjab) (2) 2007 ALL M R (Cri) 847 (S.C.) (Mohan Lal & others Vs. State of Haryana) (3) 2000(2) Mh. L.J. 3 (Manohar Dadarao Landge Vs. State of Maharashtra) 22. By pointing the ratios as laid down in the above authorities and mainly the principles given in the authority Mohan Lal Vs. State of Haryana (supra)it is strongly submitted that the authenticity of Exh. 59 in the present matter is very much doubtful. 23. To support the said arguments about dying declaration being doubtful, following points were raised:- (1) P. W. 7 Police Constable Naim Khan Pathan allegedly wrote down written dying declaration (Exh.59). It has not been recorded by the Investigating Officer. (2) Below the thumb impression appearing on Exh. 59, purported to be that of the victim, there is no certificate of P.W.No.9 Dr. Nagrale. (3) Relatives and friends of the victim were present at the time of recording of said dying declaration. (4) As per the exhibited documents i.e. medical case papers and evidence of D.W. No.2 Dr. A. S. Potddar, the victim was referred to the Nagpur Hospital at 2.00 a.m. On 09/4/2008 whereas alleged dying declaration (Exh.59) is recorded from 2.15 a.m. to 2.45 a.m. as there appears to be an endorsement of P.W.No.9 Dr. Nagrale at the conclusion of the writing. (5) There is no record brought by the prosecution by way of production of any Station Diary Entry as to deputation of P. W. No.7 P.C. Naim Khan Pathan for recording such dying declaration and attendance at the hospital. (6) Investigating Officers P.W.-13 and P.w.-14 did not specifically mention as to from whom the alleged dying declaration (Exh.59) was received. (5) There is no record brought by the prosecution by way of production of any Station Diary Entry as to deputation of P. W. No.7 P.C. Naim Khan Pathan for recording such dying declaration and attendance at the hospital. (6) Investigating Officers P.W.-13 and P.w.-14 did not specifically mention as to from whom the alleged dying declaration (Exh.59) was received. (7) The condition of the victim was very serious and there was loss of blood and in fact blood was transfused to him and by midnight of 09/4/2008 the victim was unconscious and not able to give any statement. (8) Admittedly, P.W. No.9 Dr. Nagrale had not attended the victim and had not treated him and he was called upon only for giving the endorsement on Exh. 58 and requisition prepared by P.W.-7 P. C. Naim Khan Pathan. 24. While analyzing the above points raised on behalf of the defence, it must be mentioned that definitely the condition of the victim was very serious. This is more so in view of the injuries sustained by him and detailed in the postmortem report as reproduced earlier. Definitely loss of blood was voluminous and there was blood transfusion. At no point of time the P.W.-9 Dr. Nagrale does not state that he had seen the case papers where state of health of patient was recorded namely “Pulse not palpable, Respiratory Rate was 18, etc.” yet he states that the patient was fit to give dying declaration. Bearing in mind this factual position, in our view, the learned Additional Sessions Judge had erred in placing reliance on the said written dying declaration (Exh. 59). In other words, it must be said that there are suspicious circumstances shrouded around Exh. 59 and as such it is not prudent to act on the same without corroboration. Such corroboration is lacking in the present matter as discussed earlier. 25. In view of the above discussion sole foundation of conviction i.e. the dying declaration Exh.59 collapses and there is every ground to interfere with the judgment and order of conviction of accused Nos. 1 to 3. Consequently both the criminal appeals are disposed of as per following order.: ORDER 1. Criminal appeal No. 83 of 2010 and Criminal appeal No. 68 of 2010 are allowed. 2. Concerned appellants/accused persons shall be released from the jail custody, if not required in any other matter. 3. 1 to 3. Consequently both the criminal appeals are disposed of as per following order.: ORDER 1. Criminal appeal No. 83 of 2010 and Criminal appeal No. 68 of 2010 are allowed. 2. Concerned appellants/accused persons shall be released from the jail custody, if not required in any other matter. 3. The fine amount, if any, paid by them shall be returned back to them.