JUDGMENT T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 20/1/2006 passed by Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 438/2005 whereby and where under after holding the Appellant guilty for the commission of offence of culpable homicide amounting to murder of Kishnu convicted the Appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the Appellant, Court below has convicted and sentenced the Appellant as aforementioned and thereby committed an illegality. 3. As per case of the prosecution, on fateful evening of 3/9/2005 at about 7:00 P.M. Kishnu (since deceased) was standing near his house, Appellant who was hiding himself behind the tree standing on the field of Manglu shot arrow upon Kishnu and caused fatal injury, Kishnu walked up to the house of PW2 Sukhdai whom he made dying declaration. He also shouted to his mother that Appellant has shot arrow thereafter he died. On second day marg intimation was recorded vide Ex. P-l. First Information Report was lodged by PW1 Chaitibai vide Ex. P-2. Spot map was prepared vide Ex. P-3. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-5, Inquest over the dead body of Kishnu was prepared vide Ex. P-4. Blood stained and plain soil were recovered from the spot vide Ex. P-8. Arrow removed from the body of deceased Kishnu was seized vide Ex. P-9. Dead body of Kishnu was sent for autopsy to Primary Health Center, Chhotedongar vide Ex. P-13 where PW6 Dr. Prabhakar Dhote conducted autopsy vide Ex. P-16 and found one stab wound over chest near nipple of 3 x 0.5 cm. with considerable depth and penetrated injury was found over stomach. Mode of death was shock and death was homicidal in nature. During course of investigation, accused/Appellant was taken into custody, he made discloser statement of bow vide Ex. P-6., same was recovered at his instance vide Ex. P-7. Sealed cloths of deceased Kishnu was seized vide Ex. P-10. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). During course of investigation, accused/Appellant was taken into custody, he made discloser statement of bow vide Ex. P-6., same was recovered at his instance vide Ex. P-7. Sealed cloths of deceased Kishnu was seized vide Ex. P-10. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Jagdalpur who in turn committed the case to the Court of Sessions, Jagdalpur. 5. In order to prove the guilt of the Appellant/accused prosecution examined as many as 6 witnesses. Accused/Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is claimed. 6. After affording an opportunity of hearing to the parties learned Sessions Judge, Bastar at Jagdalpur has convicted and sentenced the Appellant as aforementioned. 7. Mr. Ranbir Singh Marhas, learned Counsel for the Appellant and Ms. Madhu Nisha Singh, P.L. for the State/Respondent are heard. Judgment impugned and record of Court below perused. 8. Learned Counsel for the Appellant vehemently argued that considering the fact that PW1 Chaitibai & PW2 Sukhdai, witnesses of alleged dying declaration are rustic villagers and resident of remote area i.e. forest area, he is not disputing truthfulness of their evidence and submitted that they have deposed before the Court what was stated by injured Kishnu (since deceased) to them it can be safely presumed the dying declaration made by deceased Kishnu. 9. Learned Counsel for the Appellant further argued that as per evidence of both the witnesses, incident took place at night. After taking his night meal when deceased Kishnu came out from his house then incident took place. Prosecution has prepared spot map Ex. P-3 which reveal that Appellant was in hidden position behind the tree having considerable distance from the deceased Kishnu. In these circumstances, in absence of any source of light it was not possible for the deceased Kishnu to see that who shot arrow from which place therefore, the factum of dying declaration made by him to witnesses does not inspire confidence & trustworthy and same is not safe to rely for the conviction of heinous offence i.e. murder. 10. In these circumstances, in absence of any source of light it was not possible for the deceased Kishnu to see that who shot arrow from which place therefore, the factum of dying declaration made by him to witnesses does not inspire confidence & trustworthy and same is not safe to rely for the conviction of heinous offence i.e. murder. 10. On the other hand, learned P.L. for the Respondent/State opposed the appeal and argued that evidence of PW1 Chaitibai & PW2 Sukhdai whom deceased Kishnu made dying declaration are sufficient for drawing an inference that present Appellant has committed homicidal death of Kishnu. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injury found over the body of deceased Kishnu has not been substantially disputed on behalf of the Appellant on the other hand, otherwise also established by the evidence of PW6 Dr. Prabhakar Dhote and autopsy report Ex. P-16 and death was homicidal in nature. 13. As regard the complicity of the Appellant in crime in question, the conviction of the Appellant is based on the factum of dying declaration made by deceased Kishnu to PW1 Chaitibai (mother of deceased Kishnu) & PW2 Sukhdai. As per evidence of both the witnesses, deceased Kishnu shouted and made dying declaration that Dhansingh has shot arrow upon him, they have also seen the arrow upon the body of injured Kishnu who subsequently died. PW1 Chaitibai has removed arrow from the body of Kishnu. She has lodged marg intimation and First Information Report Exs. P-l & P-2. Definitely, they are rustic villagers and resident of remote forest area there is some discrepancy in their evidence but on the ground of aforesaid discrepancy, their evidence cannot be discarded. Evidence of PW1 Chaitibai & PW2 Sukhdai are sufficient for drawing an inference that injured Kishnu has made dying declaration before his death that present Appellant has shot arrow to him. 14. As regard the truthfulness of dying declaration and factum of dying declaration is concerned, as per evidence of PW1, Chaitibai, after taking night meal deceased Kishnu went from his house at night thereafter he shouted that Appellant has shot arrow to him. PW2 Sukhdai has also corroborated the same fact that incident took place at night. 14. As regard the truthfulness of dying declaration and factum of dying declaration is concerned, as per evidence of PW1, Chaitibai, after taking night meal deceased Kishnu went from his house at night thereafter he shouted that Appellant has shot arrow to him. PW2 Sukhdai has also corroborated the same fact that incident took place at night. As per evidence of PW3 Mirgeen, incident took place at night, this is incident of forest village. As per spot map Ex. P-3, does not reveal the availability of source of light, Appellant was also hidden near tree standing on the field of one Manglu, deceased Kishnu was standing another side of road. Incident took place at night and in absence of any source of light facility and the fact that Appellant was hiding himself behind the tree and has shot arrow it was difficult for any person to see that who has shot arrow and that too from which place. This is not a case in which after causing such injury, Appellant came out from-the place where he was hidden and exposed himself before deceased or any other person or witnesses had caught red-handed the Appellant or has chased the Appellant. In these circumstances, it is difficult to hold that deceased Kishnu has seen the Appellant while he received injury by arrow shot and has made truthful dying declaration to PW 1 Chaitibai & PW2 Sukhdai. 15. In the aforesaid circumstances there may be mistaken identity therefore in absence of corroboration such uncorroborated dying declaration would not be safe to rely, while dealing with the question of reliability of dying declaration in aforesaid circumstances in case of Pyarelal v. State of M.P. 1994 Cr.L.J. 958 (Para l0)(M.P.) High Court of M.P. has observed that where the deceased was sleeping when he was fired on his abdomen at night and was crying in agony, he could not have correctly identified the assailant and calling out the name of accused as assailant to his relatives could be a case of mistaken identity and such uncorroborated dying declaration could not be relied upon. 16. Prosecution has not collected any other evidence to connect the Appellant with crime in question. Evidence adduced on behalf of the prosecution is not sufficient for conviction of the Appellant for commission of murder of Kishnu punishable under Section 302 of the Indian Penal Code. 16. Prosecution has not collected any other evidence to connect the Appellant with crime in question. Evidence adduced on behalf of the prosecution is not sufficient for conviction of the Appellant for commission of murder of Kishnu punishable under Section 302 of the Indian Penal Code. While convicting the Appellant under Section 302 of the Indian Penal Code Court below has not considered the aforesaid evidence and provability possibility of truthfulness of dying declaration made by deceased Kishnu thereby committed an illegality. Consequently, conviction and sentence imposed upon the Appellant by trial Court is not sustainable under the law. 17. For the foregoing reasons, criminal appeal deserves to be allowed and is hereby allowed. Conviction and sentence of the Appellant Dhansingh under Section 302 of the Indian Penal Code is hereby set-aside. He be set at liberty at once. He be released forthwith, if not required in any other case.