JUDGMENT (Per: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH) The present appeal has been filed by the sole appellant being aggrieved by the judgment of conviction and order of sentence dated 30.06.1992 passed by the Additional Sessions Judge XIII, Patna in Sessions Trial No 528 of 1991 convicting the sole appellant under Sections 302/34 of Indian Penal Code (IPC) and Section 27 of the Arms Act and sentenced him to rigorous imprisonment for life and three years respectively but both the sentences have been ordered to run concurrently. 2. When the appeal was called for final hearing, inspite of repeated calls, no one appeared for the appellant. We, accordingly, requested Mr Neeraj Kumar @ Sanidh to assist us as amicus curiae in the matter. We have heard him at length as well as learned Additional Public Prosecutor. We perused the records in detail. 3. The prosecution case is based upon the Fardbayan of one Rajendra Gope (not examined as he was murdered during the trial itself). His statement was recorded by Ramakant Lal (PW 6), Assistant Sub Inspector of Pataliputra Police Station (PS), District – Patna at the Emergency Ward of Patna Medical College Hospital (PMCH) at about 7.30 pm on 08.01.1990. The allegations are that the informant and PW 4 Radha Devi were in their house when they heard sound of gunshot. One neighbour Raj Kumar Yadav (not examined) allegedly came and informed them that their nephew Suresh had been shot. Upon this, the informant alongwith his brother Sukhu Rai (PW 3) and Radha Devi (PW 4) went out of the house and found several people surrounding Suresh who was lying in a pool of blood on the ground. He was in pain and he is said to have disclosed that the appellant of Mainpura and one Nunnu and Bhola had shot him. They carried him on a cot to Rajapur Pul from where, while being taken on an auto rickshaw to PMCH, he died. It is alleged that because of some old enmity, this incident had taken place. The statement having been recorded, an inquest report was prepared in respect of the body and the body was sent for post mortem. Though the doctor has not been examined, the post mortem report has been brought on record. 4. In order to establish the case, prosecution has examined six witnesses. The statement having been recorded, an inquest report was prepared in respect of the body and the body was sent for post mortem. Though the doctor has not been examined, the post mortem report has been brought on record. 4. In order to establish the case, prosecution has examined six witnesses. PWs 1 and 2 Anil Kumar and Ashok Kumar are formal witnesses who have just proved their signatures on the inquest report. PW 5 Madan Paswan is a hearsay witness so far as the incident is concerned but is a witness to the seizure of empty cartridges and blood-stained mud from the place of occurrence. That leaves us with three witnesses. PW 3 Sukhu Rai and PW 4 Radha Devi are the star witnesses, PW 6 Ramakant Lal is the Investigating Officer (IO) who had also recorded the Fardbayan. The trial Court has convicted the appellant solely on basis of an alleged oral dying declaration made by the deceased Suresh in front of PW 3 Sukhu Rai and PW 4 Radha Devi. PW 4 Radha Devi claims to be the mother of deceased. 5. We have already seen that the Fardbayan clearly states that Rajendra Prasad, the informant, Radha Devi (PW 4) and Sukhu Rai (PW 3) were in the house when they heard the gunshots. They were then informed in the house that Suresh, son of PW 4 Radha Devi had been killed. They went out near the Bajrangbali Temple where they found lot of people already there surrounding Suresh who was in a pool of blood on the ground. There must have been quite some time lag between the shots being fired and these two witnesses reaching there. We then see the evidence of PW 3. He states that when he reached there alongwith Rajendra Yadav, the informant and Radha Devi (PW 4), Suresh was still alive though crying in pain. He disclosed the names of the three assailants. We then come to the evidence of PW 4 Radha Devi. She has drastically tried to improve upon the whole evidence. She states that having heard the gunshots, she rushed out of the house. This is different from the Fardbayan where it is stated that upon being informed that Suresh had been shot, they all came out. She then states that while they were rushing out of the house, they heard another gunshot. She states that having heard the gunshots, she rushed out of the house. This is different from the Fardbayan where it is stated that upon being informed that Suresh had been shot, they all came out. She then states that while they were rushing out of the house, they heard another gunshot. Again, this is an improvement and contrary to the Fardbayan. Then she says that when she reached the spot, she found the three accused persons running away. There is no such averment either in the Fardbayan or in the evidence of PW 3 Sukhu Rai who accompanied her. She then states that the deceased stated that he had been shot by the three persons including the appellant. She is then confronted whether she had made any statement to the police or not. She states she had. 6. Now we may consider the remaining witness PW 6 Ramakant Lal, the IO. He is also not consistent with the prosecution story. The Fardbayan clearly states that while Suresh was being brought in the critically injured state from Rajapur Pul to PMCH on an auto rickshaw, he had died but the IO (PW 6) states that having heard on wireless that a shooting had taken place, he had gone to the place of occurrence and then on being told that the injured had been taken to Hospital, he came to PMCH where Suresh had been taken for operation and was in Operation Theatre. This is contrary to the Fardbayan wherein Suresh is said to have died even before he reached the Hospital. Be that as it may, he is then questioned about the statement recorded by PW 4 Radha Devi. He clearly denies that she had ever disclosed to him that she had heard another gunshot while coming out of the house or that she had seen anyone escape from the site. This is clearly a contradiction to the statement made in the Court for the first time and the statement recorded under Section 161 of Criminal Procedure Code (Cr P C) in course of investigation. It is clearly an improvement in Court. 7. This is clearly a contradiction to the statement made in the Court for the first time and the statement recorded under Section 161 of Criminal Procedure Code (Cr P C) in course of investigation. It is clearly an improvement in Court. 7. Thus, we are left with statement as stated in the Fardbayan that the deceased, before dying, had disclosed the name of the three assailants including the appellant as is to be found in the Fardbayan as also so stated by PW 3 Sukhu Rai and PW 4 Radha Devi both of whom are mentioned in the first information report (FIR). The trial Court found that these were consistent and corroborative and sufficient for conviction. A question has been raised as was raised in the trial Court that in view of the nature of injuries found on the person of the deceased, it is impossible that he was ever in a state to make any statement. Therefore, we need to look to the post mortem report which has been brought on record though not formally proved by the doctor who had drawn it up. It was submitted to the IO and he has, accordingly, proved it. It being a public document prepared by public officer in exercise of public duty, we intend to look into it. No one has disputed its correctness rather the defence has also relied on it about the nature of injuries. There are three bullet wounds. One bullet has been fired from very close range just above the left eye and has smashed the skull, pierced the brain and lodged therein. The second bullet was fired from the back of the head, just above the left ear which has again smashed through the skull, smashed the brain and lodged therein. The third bullet was fired again from a close range which pierced just above the left shoulder from the back passing through the rib cage, the lungs and exiting just above the left nipple. All the three shots were fired from a very close range because there was distinctive charring at the point of entry. The question is whether the injured would at all be in a state to make a rational statement. We think not. The trial Court has discussed injury of concussion in the head. This is not concussion. All the three shots were fired from a very close range because there was distinctive charring at the point of entry. The question is whether the injured would at all be in a state to make a rational statement. We think not. The trial Court has discussed injury of concussion in the head. This is not concussion. Here, the two bullets had smashed the skull and pierced the brain matters, lungs penetrated through and through. We are in no doubt that the death must have been instantaneous. Further, as noted earlier, there is a time lag as well. From the Fardbayan, it is evident that all the witnesses that is informant and the two witnesses PWs 3 and 4 were in their house when they heard the sounds. They were then informed that Suresh had been shot. They then went out of the house to Bajrangbali Asthan. They found people surrounding the deceased who was in a critically injured state fallen on the ground. Surely, there is a time lag which is enough for the deteriorating state of the deceased. He would not be in a position to make any statement much less a rational statement. Our finding is duly corroborated by reason of attempt made by PW 4 Radha Devi to make improvements. First by adding that one shot was heard when they were from the house rushing towards the place of occurrence. Then by adding for the first time in the Court that Radha Devi PW 4 had seen the three assailants escape and then by the IO adding as if the injured was alive on being brought to the Hospital and was being operated upon whereas in the Fardbayan itself, it was accepted that he died even before he was brought to the Hospital. All these improvements are to overcome the eventuality of being unable to make the statement. 8. In such a situation, we have no option but to hold that prosecution has not been able to conclusively prove beyond reasonable doubt that the appellant had committed the crime as charged and is found. The oral dying declaration cannot be accepted. The judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellant is freed from his liabilities of bail bonds. 9. The oral dying declaration cannot be accepted. The judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellant is freed from his liabilities of bail bonds. 9. In appreciation to the assistance given by the amicus curiae, in our view, he would be entitled to remuneration of Rs 5,000/- to be paid by the Patna High Court Legal Services Committee. Appeal Allowed.