JUDGMENT : NAVANITI PRASAD SINGH, J.:–The four appellants have filed this appeal against the judgment of conviction and sentence of life imprisonment as passed by the IVth Additional Sessions Judge, Arrah, in Sessions Trial No. 186 of 1988. The judgment and sentence were passed on 03.05.1988. The appellants have been convicted under section 396 of the Indian Penal Code and, as noted above, have been sentenced imprisonment for life. Let it be noted that two of the accused persons, who were also put on trial, have been acquitted. 2. On the date of judgment i.e. 03.05.1988, the trial court assessed the age of the four appellants as 60 years, 70 years, 60 years and 55 years, respectively. That would make the eldest to be 96 years and the youngest to be 81 years and as such the court has serious doubts whether any one of them is still surviving. 3. Unfortunately, learned counsel for the appellants is also not present and, accordingly, we requested and appointed Shri Kumar Dhirendra Pratap Singh, Advocate, as Amicus Curiae to help us in this hearing. Learned counsel for the State is present. Heard the parties and perused the records. 4. As per the statement of the informant Sheonath Yadav (not examined), the brother of the deceased Radha Yadav, the first information report was registered, which is Ext.2. The informant states that in the night of 05.06.1981 at about 2A.M. he heard sudden hulla and got up. He went out of his house and found in a field nearby his brother Radha Yadav lying in a pool of blood. He had apparently been shot. His intestines were all protruding and he was heavily bleeding. He tied the abdomen in an effort to stop the bleeding and then tried to carry the body to the Police Station, in course whereof Radha Yadav his brother died. The fardbeyan is witnessed by Sheo Pujan Yadav (P.W.4)- the third brother and Sadhu Shankar Yadav (P.W.1)- the son of the deceased. In the F.I.R. it is stated that in the injured state Radha Yadav- the deceased told the informant Sheonath Yadav that it was appellant no.1 Ghura Ahir, who, on being recognized while committing dacoity, had shot at the deceased. Ramprit Ahir, Mukhdeo Ahir and Hardwar Ahir were amongst the dacoits apart from 20 other unknown persons. In the F.I.R. it is stated that in the injured state Radha Yadav- the deceased told the informant Sheonath Yadav that it was appellant no.1 Ghura Ahir, who, on being recognized while committing dacoity, had shot at the deceased. Ramprit Ahir, Mukhdeo Ahir and Hardwar Ahir were amongst the dacoits apart from 20 other unknown persons. Upon this F.I.R. being lodged and the dead body being produced at the Police Station, inquest report was prepared, which is Ext.3. The body was, thereafter, sent for post-mortem and the post-mortem report is Ext.1. Let it be noted that the Doctor, who performed the post-mortem, has not been examined as he had gone abroad and was not available in India. This fact is not in dispute. 5. In course of trial, eight witnesses were examined by the prosecution. P.W. 1, as noted above, is son of the deceased, who has signed the inquest report as well. In his deposition, he stated that he was sleeping in his house with his wife when dacoits came, one of whom hit him on his head, as a result of which he fell down. He then heard a gun shot and when he came out he found his father grievously injured lying in a field. His father was muttering and crying in pain and had taken the names of the appellants. P.W. 2 Ganga Yadav is a neighbour. He is also supposed to be present when the deceased named the appellants. P.W. 3 Laldeo Yadav is tendered. P.W.4 is Sheo Pujan Yadav- the brother of the deceased and a witness to the F.I.R. He states that having heard the gun-shot he had come out and found his brother lying grievously injured and he was telling his brother Sheonath Yadav (informant) the name of the person, who had shot at the deceased. He further states that the deceased died before they reached the Police Station. 6. P.W. 5 is Ram Kishun Yadav, who is again a neighbour.P.W.6 is Tung Nath Prasad, who identified the post-mortem report and the handwriting of the Doctor. P.W. 7 is Nand Lal Tiwari, who was tendered to give explanation as to why the Doctor was absent and could not be examined. P.W. 8 is Murat Ram, who explains the absence of the Investigation Officer, who retired and was not traceable. 7. P.W. 7 is Nand Lal Tiwari, who was tendered to give explanation as to why the Doctor was absent and could not be examined. P.W. 8 is Murat Ram, who explains the absence of the Investigation Officer, who retired and was not traceable. 7. From the above, it would be seen that the informant Sheonath Yadav, the brother of the deceased, who carried the deceased to the Police Station, has not been examined. There is no explanation whatsoever as to why he was not examined. This is of some significance because it is his statement as recorded and registered as F.I.R., in which he states that the deceased had given out the names of the accused persons scribing the role of shooting the deceased to appellant no.1 Ghura Ahir. The Investigating Officer, who prepared the inquest report and who recorded the statements of various witnesses, has not been examined merely on the pretext that he had retired and was not traceable. 8. On behalf of the defence, the Amicus Curiae rightly points out that if one looks to the injury report, it is wholly unlikely that the deceased was in a position to make any statement. From the F.I.R. first it is pointed out that when the informant reached the place of occurrence, he found his brother lying in a pool of blood profusely bleeding with his abdomen open and entire intestines spilled over. The post mortem report clearly corroborates this injury and adds that both stomach and liver were smashed to pieces. This was the injury when the informant and others reached the place of occurrence. In our view, the injury being of such a nature, it is difficult to believe that the deceased was not only in a physical shape but also in a mental shape to make a clear statement as to what had happened. This is corroborated from the fact that the evidence of witnesses are there, which clearly state that the deceased was not only crying in pain and incoherently speaking to himself. He had died and as such even no attempt was made to take him to a hospital first, rather he was taken to Police Station straightway. 9. Learned counsel Amicus Curiae further pointed out that it is P.Ws. 1, 2 and 3 i.e. the son of the deceased, P.W.1 and P.W.4 the brother of the deceased and two neighbours P.Ws. He had died and as such even no attempt was made to take him to a hospital first, rather he was taken to Police Station straightway. 9. Learned counsel Amicus Curiae further pointed out that it is P.Ws. 1, 2 and 3 i.e. the son of the deceased, P.W.1 and P.W.4 the brother of the deceased and two neighbours P.Ws. 2 and 3, who all stated that the deceased had made his statement and given the names of the assailants and the dacoits to the informant in their presence, but it is curious to note that neither P.Ws. 1, 2, 3 or 4 are mentioned or named in the F.I.R. as being present or being present when the statement was made by the deceased before he died. It may also be noted here that P.W.1 and P.W. 4 have signed the inquest report, but the informant, who, as noted above, had not been examined, was not a party to the same. 10. In our view, what is to be noted here is that, in fact, there is no eye witness to the occurrence. All witnesses say that they had heard gun shot and then they found the deceased lying grievously injured in the field. Thus, the entire prosecution case is based on the alleged dying declaration. We, therefore, have to scrutinize whether it is safe to rely upon this solitary piece of evidence. We have noted the extent of injuries on the deceased. His liver and stomach had been smashed in pieces. His entire intestines had spilled out. He was profusely bleeding and in that state he was found lying in the field. If he had been surviving, then the entire course of event would have been to try and rush him to a Primary Health Centre, but the evidence suggests that he died and was taken straight way to the Police Station. The informant, who made the statement about the dying declaration, which is recorded in the F.I.R., is his own brother, but even he has not been examined. The others then tried to corroborate the allegation made in the F.I.R. Those persons are not named in the F.I.R. as being present when the alleged dying declaration was made. In our view, these facts create ample doubt about the correctness of the said dying declaration. It is surely a statement recorded after deliberation and after the deceased had died. The others then tried to corroborate the allegation made in the F.I.R. Those persons are not named in the F.I.R. as being present when the alleged dying declaration was made. In our view, these facts create ample doubt about the correctness of the said dying declaration. It is surely a statement recorded after deliberation and after the deceased had died. It would not, in our view, be safe to rely on this solitary evidence for upholding the conviction of the appellants. We, therefore, of the opinion that the prosecution has failed to prove the guilt of the convicted persons beyond all reasonable doubts. 11. In that view of the matter, we allow this appeal and set aside the impugned judgment of conviction and sentence. All the four appellants are acquitted of the charges levelled against them and they are they are discharged from the liability of their bail bonds. ?