A. L. DAVE, J. ( 1 ) THIS Criminal Appeal arises out of a judgment and order rendered by Sessions Court, Bhavnagar in Sessions Case No. 124 of 1999 on 30th September, 2003 convicting the appellants for the offence of murder of Bahadurbhai Chakurbhai Solanki allegedly committed on 06th May, 1999 at about 20:30 hours opposite Shitala Mata Temple, Mafatnagar area of Bhavnagar. ( 2 ) THE prosecution case, in brief, is that the appellant no. 2 - Mohanbhai Narshibhai Koli caught hold of the victim Bahadurbhai Chakurbhai Solanki and appellant no. 1 - Himmat @ Kishore Mohanbhai Koli inflicted two knife blows on the person of the victim as a result of which, the victim died on 13th May, 1999 while under treatment. Both are, therefore, convicted for offences punishable under Section 302 read with Section 114 of the Indian Penal Code and are sentenced to undergo imprisonment for life with a fine of Rs. 200/-, in default, Rigorous Imprisonment for 20 days and Rs. 100/-, in default, Rigorous Imprisonment for 10 days respectively. Appellant no. 1 is also convicted for offence punishable under Section 294 of the Indian Penal Code and is fined with Rs. 100/-, in default, to undergo Simple Imprisonment for 10 days. ( 3 ) IT is the case of the prosecution that after the incident occurred, the victim was taken to the hospital. Police was informed and after the police arrived, victim Bahadurbhai Chakurbhai lodged his F. I. R. On basis of that F. I. R. , offence was registered and offence investigated. During the course of treatment, the deceased expired on 13th May, 1999 because of Septicaemia. The investigating agency filed chargesheet in the Court of Chief Judicial Magistrate, Bhavnagar who, in turn, committed the case to the Court of Sessions and Sessions Case No. 124 of 1999 came to be registered. ( 4 ) WE have heard learned advocate Ms. Sancheti for the appellants and learned Additional Public Prosecutor Mr. Nanavati for the respondent State. ( 5 ) MS. Sancheti submitted that in the instant case, though as per the prosecution case, the incident was witnessed by eye-witnesses, during the trial, they had not supported the prosecution case. Similarly, the panch witnesses have also not supported the prosecution case. As such, there is no direct evidence to connect the appellants with the offence. ( 5 ) MS. Sancheti submitted that in the instant case, though as per the prosecution case, the incident was witnessed by eye-witnesses, during the trial, they had not supported the prosecution case. Similarly, the panch witnesses have also not supported the prosecution case. As such, there is no direct evidence to connect the appellants with the offence. The Trial Court has convicted the appellants on the basis of the First Information Report given by the deceased while treating the same as his dying declaration which is at Exh. 56. 5. 1 Ms. Sancheti submitted that the Trial Court committed an error in treating the First Information Report as the dying declaration for the reason that the prosecution has failed to prove that the injuries suffered by the deceased were the cause of death of the deceased and, therefore, the First Information Report could not have been treated as dying declaration. She submitted further that it has come in evidence that the First Information Report was dictated by P. W. 3 - Govindbhai. She submitted that it has also come in evidence that when the police arrived at the hospital, the victim had already become unconscious and, therefore, he could not have given the First Information Report. With these defects in the First Information Report, conviction could not have been recorded by the Trial Court on the sole basis of the First Information Report treating the same as dying declaration. 5. 2 Ms. Sancheti submitted that there is one more circumstance which is indicated in the judgment by the Trial Court in the form of find of blood of the deceased on the clothes of the appellants but she submitted that if the evidence is seen, the sample of the blood of the deceased collected was of 5 cc whereas what has reached to the F. S. L. contained only 2 cc of blood. No explanation is coming as to what happened to the 3 cc of blood which was collected. Ms. Sancheti also submitted that the treating doctor has not been examined and the medical case papers are not placed on record and lastly it was indicated that while recording statement under Section 313 of Cr. No explanation is coming as to what happened to the 3 cc of blood which was collected. Ms. Sancheti also submitted that the treating doctor has not been examined and the medical case papers are not placed on record and lastly it was indicated that while recording statement under Section 313 of Cr. P. C. , the circumstances in form of contents of the First Information Report were not put to the appellants which has caused prejudice to the defence and, therefore, also the conviction may be set aside. ( 6 ) BY way of an alternative submission, it was submitted that in any event, conviction could not have been recorded for an offence of murder. At the best, it could be an offence of simple hurt. The appellants are in jail for nearly 3 years and have suffered sufficiently and, therefore, if the Court is not inclined to accept the first set of submissions, the alternative plea may be accepted. ( 7 ) LEARNED Additional Public Prosecutor Mr. Nanavati has opposed this appeal. ( 8 ) ON examining the record and proceedings in context of rival side submissions, we find that as per the prosecution case, the incident was witnessed by two eye-witnesses namely, Govindbhai Gabhabhai (Exh. 20) and Pravinsinh Sarvaiya (Exh. 21 ). Both of them have not supported the prosecution case and have been declared hostile to the prosecution. Ms. Sancheti is, therefore, right when she says that there is no direct ocular evidence to connect the appellants with the offence. What now remains is the First Information Report which is given by the victim - Bahadurbhai Chakurbhai Solanki which is at Exh. 56. The same has been treated as dying declaration by the Trial Court. A reading of the First Information Report would go to show that A-1 flung abuses at the victim and then inflicted the knife blows while A-2 caught hold of the victim. This document is proved by the prosecution through the Recording Officer Mr. Ishwarbhai Dudabhai Vaniya (Exh. 55) and he supports the prosecution but before acting upon this First Information Report treating the same as the dying declaration, it would be prudent to examine the genuineness and correctness of the First Information Report. In this context, if evidence of Bachuben, wife of Chakurbhai i. e. the mother of the victim at Exh. Ishwarbhai Dudabhai Vaniya (Exh. 55) and he supports the prosecution but before acting upon this First Information Report treating the same as the dying declaration, it would be prudent to examine the genuineness and correctness of the First Information Report. In this context, if evidence of Bachuben, wife of Chakurbhai i. e. the mother of the victim at Exh. 17 is seen, she says that she does not know as to who assaulted the victim. In cross-examination, she has admitted that when she went to the hospital, the victim was unconscious. She also says that the appellants came thereafter. She also admits that she and her son had no dialogue as he was unconscious. Evidence of Gordhanbhai Chakurbhai Koli (Exh. 22) would go to show that the First Information Report was recorded by the police as given by Govindbhai Gabhabhai and evidence of Chakurbhai Gabhabhai Koli (Exh. 23) would go to show that when he reached the hospital, victim Bahadurbhai had become unconscious. The police arrived thereafter and recorded the First Information Report as given by Govindbhai Gabhabhai. The witness pleads total ignorance as to who assaulted the victim. He also states that victim Bahadurbhai never came to senses till he died. 8. 1 With above pieces of evidence relating to the First Information Report which is the sole piece of evidence, it is too risky to convict a person. The possibility of Govindbhai having given the First Information Report cannot be ruled out. The possibility of victim having become unconscious before arrival of police also cannot be ruled out and, therefore, the First Information Report, by itself, becomes susceptible to doubt both on its truthfulness and genuineness. The prosecution evidence as a whole minus the First Information Report would be a case of nil evidence except of course the find of blood on the clothes of the accused but that by itself will not carry the case any further. In the above set of circumstances, we are of the view that the conviction recorded by the Trial Court cannot be sustained. The appeal merits acceptance. ( 9 ) THE appeal is allowed. The conviction and sentence of the appellants recorded by the learned Additional Sessions Judge, Fast Track Court No. 3, Bhavnagar vide judgment and order dated 30th September, 2003 in Sessions Case No. 124 of 1999 is hereby set aside. The appellant no. The appeal merits acceptance. ( 9 ) THE appeal is allowed. The conviction and sentence of the appellants recorded by the learned Additional Sessions Judge, Fast Track Court No. 3, Bhavnagar vide judgment and order dated 30th September, 2003 in Sessions Case No. 124 of 1999 is hereby set aside. The appellant no. 1 be set at liberty forthwith, if not required in any other case. Fine, if paid, be refunded to him. The bail bond of appellant no. 2 shall stand cancelled. Fine, if paid, be refunded to him.