JUDGMENT 1. - Accused appellant by this appeal seeks to challenge the conviction and sentence awarded by learned Additional Sessions Judge, Bail vide judgment dated 20.08.87 in Sessions Case No. 37/86 convicting the appellant for the offence of Section 302 IPC and sentencing him to imprisonment for life. 2. The necessary facts are that one Hajiya, brother of deceased Meera lodged an oral report at the Police station, Sumerpur on 07.01.85 at 11:45 AM, alleging inter alia that the deceased was married 20 years ago with one Lachha in village Bharunda. Lachha had died some 4-5 years ago and the deceased along with two children was living in the in-law's house separately, and her three brothers-in-law Meethiya, Pukhiya and Machiya were all living in one "Gawadi" separately. It was alleged that after remaining at Takhatgarh for 10-12 days, she had gone to Bharunda. He has then alleged that last evening before sunset, he alongwith brother Ratiya and Saviya, wives of three brothers, and their mother were at the house, at which time, a jeep came from Bharunda carrying Chhoga, Than Singh, Daya uncle-in-law, sister-in-law of deceased (Devrani) and children of deceased. At that time, deceased was having injuries on the head, forehead, feet and on different parts of the body and she was bleeding. On questioning, it was told that last night, her brother-in-law Pakiya has given beating and the victim told to carry her 'o parental home, therefore, they brought her, to get treated and that action should be initiated in the Police station, Sumerpur. It is alleged that at that time, the victim was shrieking with pain, and on our asking she gave out, that accused Pakiya has beaten her in the night. After sitting for a while, people coming from Bharunda went away. The victim was administered tea and was made to sleep. However, in the night, she became unconscious and in the early morning, she has collapsed. It was also given out that son of the deceased, being Kheta also told that accused Pakiya has killed her. 3. This was entered in the Roznamcha as Ex.P/18 and F.I.R. was registered as Ex.P/19. Postmortem of the deceased was conducted, report of which is Ex.P/21 and after completing investigation, challan was filed. 4. Learned trial court framed charges against the accused under Section 302 IPC. 3. This was entered in the Roznamcha as Ex.P/18 and F.I.R. was registered as Ex.P/19. Postmortem of the deceased was conducted, report of which is Ex.P/21 and after completing investigation, challan was filed. 4. Learned trial court framed charges against the accused under Section 302 IPC. During trial, the prosecution examined 22 witnesses, while defence did not lead any evidence. Prosecution also tendered in evidence 23 documents, while defence tendered in evidence the police statements of Than Singh Ex.D/1 and those of Daya Ex.D/2. 5. Learned trial court relying upon the evidence of PW/5 Than Singh and PW/7 Chhoga, who deposed about the deceased having told them that she has been beaten by accused appellant, has found the accused guilty of the charge framed against him, and has convicted and sentenced as above. 6. Assailing the impugned judgment, it is contended by learned counsel for the appellant that evidence of 9 prosecution is thoroughly discrepant. Prosecution has tried produce all types of evidence, but then, the witnesses have not supported the prosecution, practically all witnesses have gone hostile except PW/5 and PW/7, who too only depose about the deceased having fold them that the accused has beaten her and thus, an oral dying declaration is sought to be spelt out, which has been erroneously believed by the learned trial court. Since apart from this, there is no other evidence available on record, or relied upon by the trial court, even dying declaration itself being a very weak type of evidence, more so, when it is an oral dying declaration, the accused could not have been held guilty for the capital offence. It was also submitted that in strict sense of the term, evidence of PW/5 and PW/7 does not disclose even any.dying declaration to have been made by the deceased. 7. On the other hand, learned Public Prosecutor supported the impugned judgment. 8. We have heard learned counsel for the appellant, learned Public Prosecutor, and gone through the record carefully. 9. It was also submitted that in strict sense of the term, evidence of PW/5 and PW/7 does not disclose even any.dying declaration to have been made by the deceased. 7. On the other hand, learned Public Prosecutor supported the impugned judgment. 8. We have heard learned counsel for the appellant, learned Public Prosecutor, and gone through the record carefully. 9. Since the conviction has been recorded by the learned trial court, relying upon the evidence of PW/5 and PW/7 only, we need not detain ourselves in appreciation of evidence of other witnesses; and we come straightway to the evidence of these two witnesses, and for proper appreciation of these two witnesses, we also examine the post mortem report Ex.P/21, and evidence of doctor conducting the post mortem examination, being Dr. Pareshwar, PW/20. 10. A look at the statement of PW/5 Than Singh shows, that he has deposed that Khetia (son of deceased) was living with him, and at that time, at 11 in the noon, Bhomiya came and told Khetia, that Meera has been beaten by the accused Pakia, therefore, he has been called. Thereupon, Khetia went and returned, and told to the witness, that the witness has been called by his mother, whereupon the witness went and found, that victim was under veil who with olded hands told that Pakiya has given beating to her " ifd;k us eq>s ekjihV dh gSA " and, therefore, she should be reached to Takhatgarh. The witness offered to take her to the hospital or police station, but she wanted only to go her parental home at Takhatgarh, whereupon the witness brought a motor, wherein, the victim, her sister-in-law Pankhu were made to sit, and were carried to Takhatgarh. The Jeep was being driven by Jor Singh and Nema, Chhota and Daya were also in the jeep. They reached Takhatgarh at 3 PM. All family members of the victim were available there and the victim told to her brothers also that Pakiya has given beating to her. Then these persons returneq, and next day they went to Police Station by which time, Meera had died. He has also deposed, that when the witness went to Meera, he found blood in the house and on the ground, he did not see injury as she was under veil. Then these persons returneq, and next day they went to Police Station by which time, Meera had died. He has also deposed, that when the witness went to Meera, he found blood in the house and on the ground, he did not see injury as she was under veil. In cross-examination, he has stated that Khetia is living at his field for last two years and eats at his house. When Bhomia came, the witness was on the field, the village is at the distance of three Araths. He had no dialogue with Bhomia. He also stated that when he went to Meera, wife of Meethiya and wife of Daya were also there. Then he was confronted with the police statement Ex.D/1 about omission to mention this and he maintained that he did depose this. He maintains that except reaching her to Takhatgarh, Meera did not tell him anything more. He has also stated that when they carried Meera to Takhatgarh, he was given tea to drink. He had admitted that accused Pakiya drives the tractor of Bhaboot Ji. This is the whole statement of PW/5 Than Singh. 11. Then so far as PW/7 Chhoga is concerned, he is stated to be knowing the accused, so also the victim, and he is stated to be unaware as to how Meera died. However, he has stated that the incident relates to some 4-5-6 months back. He did not go to Meera's house. The vehicle was standing outside Meera's house, he does not know as to who were there in the house. He had only seen Meera sitting in the vehicle outside, and at that time Meera had told to have been beaten by Pakiya. He did not see any injuries on her person as she was under veil. Now Meera is no more. He also went to Takhatgarh alongwith Thanji and Daya to reach Meera at Takhatgarh. Pankhu was also with them. Driver was Jor Singh. Meera was left at her parental house. Then in cross-examination he has stated that when he saw Meera in the vehicle, some 20-25 persons had collected. However, he had gone straightaway to the vehicle. He also went to Takhatgarh alongwith Thanji and Daya to reach Meera at Takhatgarh. Pankhu was also with them. Driver was Jor Singh. Meera was left at her parental house. Then in cross-examination he has stated that when he saw Meera in the vehicle, some 20-25 persons had collected. However, he had gone straightaway to the vehicle. Thanji and Daya were also there and at the instructions of Thanji, he boarded the vehicle, then he tried to corroborate Thanji by deposing, that Thanji offered to Meera to be carried to hospital but she insisted to be carried to her parental house, so that her brother can carry her to hospital. He has stated that since her health was in a bad shape, therefore, he had gone to reach her to Takhatgarh. He has denied the suggestion about giving wrong statements. 12. This is the entire evidence on which the learned trial court has placed reliance, as if the victim has made oral dying declaration before them, about the appellant having murdered her. 13. A look at the statement of PW/1 1 Battu, who is the wife of informant, obviously sister-in-law of the deceased, who has not been declared hostile, would also show, that according to her, when the vehicle came at Takhatgarh, some 200-300 people had collected, and Meera was brought in the house and made to lie on the ground by the persons who had brought her from Bharunda. She was covered with a quilt, her eyes were less open, she was unconscious completely, so much so, that even on shaking she was not speaking. When tea was attempted to be given to her, she could not drink it, and tea was coming out. Her breath was staggering. She could not speak. She has maintained that there could not be any dialogue with her. This coupled with postmortem report shows, that victim had in all 19 injuries on her person, including four on the head; and all the four are incised wounds with fractures of right parietal bone, near mid line, corresponding to injury no.1, membrane was congested having huge haemotoma under the dura, brain was congested and haemotoma on the right parietal and occipital region. Injury no.1 corresponding to X-ray is 1¼ x ¼ "skull deep incised wound on the right parietal region near the midline, then there is incised wound on the frontal region, then there is L shaped incised wound and the angle of the right eye, then there is 1" x ¼" skull deep incised wound on the right side occipital region. There is also one abrasion on the right side of the frontal region, remaining 14 injuries are on the other parts of the body, including one contusion 2" x 1¼" At. Supra clavicular region, also there is 2" x 1½" contusion on the top of right shoulder. There are multiple fractures of the shaft of Lt Tibia and Fibula alongwith contusion 4" x 1¾" middle of Lt leg. 14. Then a look at Ex.P/9, statement of Panku, sister-in-law of the deceased who has not supported the prosecution, as recorded under Section 164 Cr.P.C. shows, that when the accused came out of the house, he was having a stick in the hand the disposed ignorance about the accused carrying any knife. 15. With this, proper comprehension of the above material shows, that the story, as the two witnesses want the Court to believe, about the victim being available outside the house, folding hands, and speaking to have been given beating by Pakiya, is very difficult to swallow. The prosecution has tried to lead evidence in line with the evidence collected during investigation, as if the victim was talking all through and she narrated same things to all the persons in the jeep, on the way from Bharunda to Takhatgarh, and also told this to the family members available at Takhatgarh. This obviously appears to have been done in an attempt to project a picture, as if the victim was in full senses, all through. As against this as deposed by Battu PW/1 1, that at the time when the jeep came, the victim was completely un-conscious, and even on shaking, was not speaking. She was covered by quilt, and at the time, when the jeep reached, some 200-300 people had collected. This state of affairs does indicate, that before the jeep reached at Takhatgarh, some information, about some untoward incident, was conveyed to Takhatgarh, and that information must have spread in the village, so as to make such huge number of persons collected waiting for the jeep. This state of affairs does indicate, that before the jeep reached at Takhatgarh, some information, about some untoward incident, was conveyed to Takhatgarh, and that information must have spread in the village, so as to make such huge number of persons collected waiting for the jeep. It is also required to comprehend, that if the victim was in such a reasonable state of health, so as to moving and speaking, in all probability, such a serious message would not have been sent to Takhatgarh, so as to make such huge number of people collect at the parental house of the victim. In this background, we are constrained to comprehend, that looking to number of injuries on the head and face, being five internal injuries, corresponding injury no.1 being fracture of right parietal bone, the membrane being congested, having huge haemotoma underneath, and brain also being congested and having haemotoma on the right parietal and occipital region, it is too much to expect, that the victim would be in a position to speak, much less make a dying declaration. This clearly appears to be a mere imagination on the part of somebody, for the reasons best known to him, and not known to the court. 16. The conduct of the two witnesses is also significant, in as much as admittedly, the victim was having bleeding injuries. The blood is alleged to have been seen in the house and on the ground, in such circumstances, it cannot be expected, that the two witnesses would rest contented, with simply listening the couple of words from the victim that accused has given beating to her, without being inquisitive about seriousness. and magnitude of injuries, and would simply run away with saying to have not seen injuries, in view of the fact that she was under veil. 17. Thus, the evidence of PW/5 and PW/7, in view of above circumstances, does not at all inspire confidence to the Court. This is one aspect of the matter. 18. The other aspect of the matter is, that even if the Court were to believe the statement of PW/5 and PW/7 on the face value, still all that was given out to them was " ifd;k us eq>s ekjihV dh gSA " and as appears from Ex.P/9, that the accused was having lathi, which has not been found to be stained with blood. In Ex.P/1 Dr. In Ex.P/1 Dr. PW/20 has clearly stated, that except Injuries on the head, the other injuries, either individually or collectively could not cause death. Thus, it is clear that the injuries on the vital part of the body being head and face, even according to statement of PW/5 and PW/7 is not established to have been caused by appellant, and therefore, though not believing, but even if these two witnesses were to believe, the offence to be made out against the appellant, would not have traveled beyond Section 325 IPC, in view of fracture of Tibia and Fibula caused by lathi. 19. The net result of the aforesaid discussion is, that we are not at all inclined to believe the theory propounded by PW/5 and PW/7, about the victim having made any dying declaration to them, and since that is the only evidence relied upon by learned trial court, for convicting the accused, we are constrained to set aside the impugned judgment. 20. Accordingly, the appeal is allowed. The impugned judgment passed by learned Additional Sessions Judge is set aside. The appellant is acquitted. He is on bail. He need not surrender to his bail bonds. His bail bonds stand cancelled.Appeal Allowed. *******