ORDER Appellants viz., (i) Sandeep Sharma s/o. Shudhodan Sharma, (ii) Mahaveer Sharma s/o. Gulab Chand, (iii) Mukesh Gautam s/o. Kailash Chand, (iv) Anil Kumar Vijay s/o. Surya Prakash and (v) Meghraj Mali s/o. Lodki Lal, all five in number, have preferred instant appeal under Section 374 of the Code of Criminal Procedure aggrieved against the judgment of conviction and order of sentence rendered by the District & Sessions Judge, Baran. The District & Sessions Judge, Baran, vide its impugned judgment dated 19.11.2004 held all the appellants guilty for offences punishable under Sections 148, 302/149, 364/149 of Indian Penal Code. However, he recorded acquittal of the appellants for commission of offence punishable under Section 302/120-B of Indian Penal Code. Having convicted the appellants for the above said offence, the trial Court, vide a separate order of even date, sentenced them as under:- “For offence under Section 302/149 I.P.C., appellants were sentenced to undergo life imprisonment and to pay a fine of Rs. 100/- each, in default of payment of fine to further undergo ten days' rigorous imprisonment. For offence under Section 364/149 I.P.C. appellants were sentenced to undergo rigorous imprisonment for ten-years and to pay a fine of Rs. 100/- each, in default of payment of fine to further undergo ten days; rigorous imprisonment. For offence under Section 148 I.P.C. the appellants were sentenced to undergo six months' rigorous imprisonment. For offence under Section 4/25 of the Arms Act, appellant – Mukesh was sentenced to undergo three months' rigorous imprisonment.” All the substantive sentences have been ordered to run concurrently. Before we proceed to decide the appeal, it is to be noted here that two of the appellants, namely Mukesh Gautam (appellant No.3) and Anil Kumar Vijay (appellant No.4) after they were released on emergent parole had not surrendered before the jail authorities and are absconding. On 22nd September, 2014, a Coordinate Bench of this Court taking into consideration the fact that Mahaveer Sharma (appellant No.2) had undergone eleven-years & eight months of sentence in jail, ordered “listing of appeal”. However, it left to the discretion of the Bench whether the appeal preferred by Mukesh Gautam (appellant No.3) and Anil Kumar Vijay (appellant No.4) should be segregated or not? We would have considered segregation of the appeal of two appellants, viz., Mukesh Gautam and Anil Kumar Vijay, but since the entire case is very ably argued by Mr. However, it left to the discretion of the Bench whether the appeal preferred by Mukesh Gautam (appellant No.3) and Anil Kumar Vijay (appellant No.4) should be segregated or not? We would have considered segregation of the appeal of two appellants, viz., Mukesh Gautam and Anil Kumar Vijay, but since the entire case is very ably argued by Mr. Arvind Kumar Gupta and Mr. Suresh Sahni, the learned counsel appearing on behalf of the appellants, two leading criminal lawyers of the bar, we shall proceed to decide the entire appeal. Our observation is duly fortified by the law laid down in the case of K.S. Panduranga vs. State of Karnataka, (2013) 3 SCC 721 , wherein Their Lordships have held that the Court is not bound to adjourn the matter and it can dispose of the appeal, after perusing the record and the judgment of the trial Court. We are otherwise convinced that for the absence of two appellants, the appellant who is suffering incarceration should not be penalized. Furthermore, the law abiding citizen must get preference over those who have become outlaws. Thus, we shall proceed to decide the appeal by perusing the record, especially when the Counsel appearing on behalf of appellants, namely Sandeep Sharma, Meghraj Mali and Mahaveer Sharma have advanced all possible arguments to assail the conviction and sentence of the appellants, Mukesh Gautam and Anil Kumar Vijay, who are not before us. Having noted that the entire appeal is to be decided, we will proceed to take note of brief facts of the case. It is to be highlighted that it is not a case of eyewitness account. The entire prosecution case rests upon statement (Exhibit P/19) made by deceased - Naresh Sharma, which lateron, has been termed as dying declaration due to death of Naresh Sharma. Criminal proceedings were set into motion, after statement of Naresh Sharma (deceased) was purportedly recorded by Shivraj (PW-16), who at the relevant time was posted as Station House Officer, Police Station, Kishanganj. The statement made by Naresh Sharma (Exhibit P/19), when translated into English reads as under:- “I am doing work of Contractor. Today on 05.01.2003, I had gone to “Side Banjari Ghat” whereby I am carrying on with Contractual work of “anicate work”. The statement made by Naresh Sharma (Exhibit P/19), when translated into English reads as under:- “I am doing work of Contractor. Today on 05.01.2003, I had gone to “Side Banjari Ghat” whereby I am carrying on with Contractual work of “anicate work”. At around 04:15 P.M., I was returning from Banjari-Ghat, after taking motorcycle on hire from Rampuria and there I met Sandeep Sharma, resident of Baran, presently residing at Digod. He was coming from the side of Kishanganj in his Indica Car. In the said Car, Mahaveer, journalist, Anil Mahajan, Mukesh Gautam and Driver – Meghraj and Sandeep Sharma were present. On seeing me, they stopped the Car. Sandeep told me that you should accompany us in his Car, then I parked my motorcycle, and told Sandeep that I shall accompany him, then Sandeep Sharma sat on the front seat of Indica Car and I handed over my motorcycle to another person, who was in the Car of Sandeep Sharma. Along with Sandeep Sharma, I came to the Farm of Sandeep Sharma, which is in Village Digod. On reaching there, Sandeep Sharma told me that now a days you have become big Contractor and consider yourself to be “Dada”. Saying so, Sandeep gave me five/seven slaps and exhorted his companions to break my feet. He further stated that he will call my family members and the Police. After Sandeep had left, Anil, Mukesh and Mahaveer gave me injuries with lathisbelow the knee. I suffered injuries on both my feet and my both feet were fractured. Mukesh gave knife blow on my left hand. When I had accompanied accused from Rampuri, Mansingh Jat, resident of Pantenda had seen me. When I was leaving Rampuria, one another person was present with Mansingh whose name is not known to me. Y” They have kidnapped me in order to kill me” Z. Signature Naresh Sharma. Dated 05.01.2003, S.H.O.” It is to be noted here that the above statement, which has been later-on termed as dying declaration, has not been recorded by the Magistrate. Though below the statement Doctor has appended his signatures, he has not certified that statement was recorded in his presence. However, attending Doctor H.K. Meena (PW-12), vide Exhibit P/18 had opined that the injured was fit to make statement. Having noted the above statement, we will briefly notice the prosecution evidence. Gurudeep Singh (PW-1) was examined to prove “Panchnama/Inquest (Exhibit-P/1). Though below the statement Doctor has appended his signatures, he has not certified that statement was recorded in his presence. However, attending Doctor H.K. Meena (PW-12), vide Exhibit P/18 had opined that the injured was fit to make statement. Having noted the above statement, we will briefly notice the prosecution evidence. Gurudeep Singh (PW-1) was examined to prove “Panchnama/Inquest (Exhibit-P/1). This witness has not supported the prosecution case and has been declared hostile. Jayesh Galav (PW-2) has proved his signature on Inquest/ Panchnama (Exhibit-P/1). He stated that the same was prepared at the mortuary and vide Exhibit-P/2 (Supardginama) dead-body was handed over to the family of the deceased. Gopal (PW-3) has also made statement to a similar effect. Tulsiram (PW-4) had attested various memos regarding recoveries effected from the spot, which include recovery of blood smeared soil, simple soil and blanket and motor-cycle of deceased. Hussain Bux (PW-5) has proved Exhibit-P/7 (arrest memo) of accused – Meghraj, and recovery memo (Exhibit-P/8), whereby Indica Car was taken into possession. Mansingh (PW-6), in whose presence allegedly Naresh Sharma had travelled in the Car of accused – Sandeep Sharma, has not supported the prosecution case and has been declared hostile. Lokesh Yadav (PW-7) has also stated that no proceedings were carried out by the Police in his presence. This witness was also declared hostile having not supported the prosecution case. Sobhagmal (PW-8) had also attested various memos regarding the recoveries effected from the spot. Bhuvnesh Jain (PW-9) had prepared site-plan of the spot (Exhibit-P/10). Ravi Kulshestra (PW-10) was examined to prove recovery of lathi from accused Mahaveer Sharma (Exhibit-P/13) and recovery of knife from accused – Mukesh (Exhibit-P/14). Shafi Mohammad (PW-11) has stated that at the relevant time he was posted as S.I. (MTO) in Police Line, Baran. He had given Certificate regarding mechanical fitness of Indica Car recovered by the Police. Dr. H.K. Meena (PW-12), as stated earlier, had Medico-Legally examined the deceased and also proved Exhibit P/18, whereby he had declared deceased to be fit to make the statement. Dr. Pratap Singh Yadav (PW-13) had conducted autopsy on the dead-body of deceased - Naresh Sharma (Exhibit-P/22). Ummaid Singh (PW-14) has stated that he was posted as Head Constable and was In-charge of the Malhana. He kproved the deposit of the sealed packets with him and sending of the same through Constable Babu Lal. Dr. Pratap Singh Yadav (PW-13) had conducted autopsy on the dead-body of deceased - Naresh Sharma (Exhibit-P/22). Ummaid Singh (PW-14) has stated that he was posted as Head Constable and was In-charge of the Malhana. He kproved the deposit of the sealed packets with him and sending of the same through Constable Babu Lal. Babu Lal (PW-15) had carried samples to the State Forensic Science Laboratory, Jaipur. As stated earlier, Shivraj (PW-16) had proved various facets of investigation, including recording of statement (Exhibit-P/19). Jeetu @ Charanjeet (PW-17) has also not supported the prosecution case and he was declared hostile. This witness was examined to say that he was standing along with Man Singh (PW-6) when Naresh Sharma had gone with the accused. This witness specifically stated that he had not seen Naresh Sharma on the day of occurrence. Manohar Lal (PW-17) was also declared hostile and has not proved Exhibit P/37, whereby motorcycle was given on “supardgi”. Similarly, Chandra Prakash (PW-18) has not proved Exhibit-P/37, whereby motorcycle was given on “Supardagi”. Bharat Singh (PW-19) had proved various recoveries of weapon from the accused. Gitesh Sharma (PW-20), brother of deceased – Naresh Sharma vide Exhibit P/2 had taken dead-body on “Supardagi” from the Police. From noticing of above evidence, it is evident that the entire case of the prosecution rests upon statement (Exhibit-P/19), which after death of deceased - Naresh Sharma has been treated as dying declaration. Two-fold arguments have been raised before us. Mr. Arvind Kumar Gupta, the learned counsel appearing on behalf of accused Nos. 1 and 5, namely Sandeep Sharma and Meghraj Mali, questioning the veracity and authenticity of the dying declaration, has submitted that the same is a fabricated piece of evidence. It is further submitted by Mr. Gupta, learned counsel that the statement (Exhibit-P/19) is crude-padding by the Police, after death of Naresh Sharma, deceased. Whereas, Mr. Suresh Sahni, the learned counsel appearing for the appellant No.2, namely Mahaveer Sharma, has submitted that since Mahaveer Sharma has undergone more than eleven-years, he will urge before this Court that considering the injuries on the person of deceased – Naresh Sharma, offence will not travel beyond Section 304 Part-I of Indian Penal Code. It is further submitted by Mr. Sahni, learned counsel that while adopting the argument advanced by Mr. It is further submitted by Mr. Sahni, learned counsel that while adopting the argument advanced by Mr. Gupta, Advocate, he shall further urge that since there is an interpolation in the First Information Report visible to the naked eye, we should discard statement (Exhibit P/19), which is the dying declaration. Furthermore, while assessing documents, which are solemn, such as dying declaration, this Court should be on guard to ensure that any such document is beyond any criticism and shadow of doubt. It is contended that we should be circumspect in accepting such statement, termed as dying declaration as life of five accused hinges upon such statement, and same shall go unrebutted, without affording any opportunity of cross-examination to the accused. Before we advert to the veracity and genuineness of the dying declaration and notice the argument raised before this Court by the learned counsel appearing for the parties, we should take brief note of the medical evidence. As per Medico-Legal Report, (Exhibit-P/20) deceased - Naresh Sharma had suffered as many as twelve injuries, same as noticed in Medico-Legal Report are reproduced as under:- 1 Lacerated 0.6x0.4x0.5cm On Lt.hand post aspect Simple Blunt (i) A OSM 3x0.3 cm in size on Rt. Side of face. 1 cm below from Rt. Eye. (ii) A OSM 0.2x0.4 cm in size on Lt.side of face 1.5 cm below & lat of Lt.eye. Duration within 24 hours Adv.X-ray Lt.leg including knee joint/AP lat.V. 2 Lacerated 0.5x0.5x0.6 cm On Lf. F.arm 13.5 cm above from wrist joint 14 cm below from elbow joint Simple Blunt --- --- Adv. X-ray, Rt.leg. Including knee joint/ AP lat. V. 3 Contusion with swelling 4x3 cm On Rt. F. arm just above wrist joint Simple Blunt --- --- --- 4 Contusion with swelling multiple compond fracture 3x2cm muscle deep On Lt. Leg below knee & ankle joint Grievous Blunt --- --- --- 5 Lacerated 3x2 cm. x muscle deep On Lf. Leg below knee & ankle joint Simple Blunt --- --- --- 6 Lacerated 3x2cm x muscle deep 7 cm. below from knee joint --- --- --- --- --- 7 Contusion with swelling with multiple compund fracture 30x18 cm. On Rt. Leg below knee & ankle joint Grievous Blunt --- --- --- 8 Lacerated 3x1cm x muscle deep On Rt. Knee Simple Blunt --- --- --- 9 Lacerated 3x2cm x muscle deep On Rt.leg. 4cm below from Rt. below from knee joint --- --- --- --- --- 7 Contusion with swelling with multiple compund fracture 30x18 cm. On Rt. Leg below knee & ankle joint Grievous Blunt --- --- --- 8 Lacerated 3x1cm x muscle deep On Rt. Knee Simple Blunt --- --- --- 9 Lacerated 3x2cm x muscle deep On Rt.leg. 4cm below from Rt. Knee Simple Blunt --- --- GPC conscious cooperative P-92m regular BP 124/82 10 Lacerated 4x2cm x muscle Rt.leg 7cm below from knee Simple Blunt --- --- Mmhg Rs.98.6 F. 11 Lacerated 1x1 cm x muscle deep Rt.leg 10 cm below from knee Simple Blunt --- --- Pupil – NAD Heart legs NAD 12 Lacerated 1x5x1cm muscle deep Rt.leg 12cm below from knee Simple Blunt --- --- A Injury Nos. 4 and 7 were declared as grievous in nature. Injury Nos. 4 and 7 are compound fracture of left and right leg between knee and ankle joint. Dr. Pratap Singh Yadav (PW-13), who had conducted the autopsy on the person of deceased, had noticed as many as sixteen injuries. Two of the injuries were stitched wounds. Thus, injuries remain the same, which were noticed in the Medico-Legal Report (Exhibit-P/20). As per Doctor, on the left and right legs, there were fractures of tibia and fibula. Dr. Pratap Singh Yadav (PW-13), as a member of the Medical Board had opined that the “cause of death was haemorrhagic shock” due to multiple injuries on both the feet. It is to be noted here that except two injuries, which are on the lower portion and non-vital part of the body, all other injuries are not of much consequence. Two injuries below the knee and ankle on both the legs had proved fatal. Mr. It is to be noted here that except two injuries, which are on the lower portion and non-vital part of the body, all other injuries are not of much consequence. Two injuries below the knee and ankle on both the legs had proved fatal. Mr. Suresh Sahni, the learned counsel appearing on behalf of the appellant Mahaveer Sharma has placed reliance upon the case of Molu and Others vs. State of Haryana, (1976) 4 SCC 362 to contend that in case of double murder, where injuries were on the non-vital part of the body the Court considering that the accused had not given injuries on the vital part of the body had converted offence from Section 302 I.P.C. to Section 304 Part-I I.P.C. In support of above contention, reliance has been further placed by the learned counsel upon the case of Bhajan Singh and Others vs. The State of Punjab, (1978) 4 SCC 77 and a recent judgment rendered by Hon'ble Apex Court in the case of Badal Murmu and Others vs. State of West Bengal, Criminal Appeal No. 1502 of 2004, decided on February 05, 2014. Having noted the argument regarding the nature of offence, we shall notice the circumstance towards the manner in which statement (Exhibit-P/19) was recorded. It is to be noted here that in the present case, dying declaration has not been recorded by a Magistrate. There is no certificate on record by the Doctor that statement was correctly recorded in his presence. Mr. Arvind Kumar Gupta, the learned counsel appearing for the appellants – Sandeep Sharma and Meghraj Mali, has relied upon Rule 6.22 of the Rajasthan Police Rules, 1965, which reads as under:- “6.22. Dying declarations – (1) A dying declaration shall, whenever, possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case. (4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (5) A dying declaration made to a police officer should, under Section 162, Code of Criminal Procedure, be signed by the person making it.” It is contended before us by the learned counsel that the dying declaration ought to have been recorded in the presence of two or more Police Officers. Mr. Suresh Sahni, the learned counsel appearing for the appellant – Mahaveer Sharma, has submitted that the last line of statement (Exhibit-P/19), marked as Y to Z by the trial Court i.e. ^^eq>s tku ls ekjus ds fy;s bu yksxks us esjk vigj.k fd;k gSA** was added subsequently as this interpolation was made in the dying declaration, after death of the deceased. It is urged that we should not attach any sanctity to this document which has been later treated as Dying Declaration. To fortify his submission, learned counsel has shown original F.I.R. (Exhibit-P/25), which was drawn later-on and is reproduction of statement (Exhibit-P/19) to contend that this line was added subsequently and same is evident to the naked eye from bare perusal of original document (Exhibit-P/25). It is submitted by the learned counsel that in Exhibit-P/19, portion marked Y to Z has been added with a different pen and by referring the size of the words, it can be inferred that it was inserted above the signatures of the deceased. It is further submitted by the learned counsel that if Exhibit-P/19 and Exhibit-P/25 are harmoniously examined at the same time, it is apparent that above said line has been added in Exhibit-P/19 and Exhibit-P/25. Had this been solitary argument, we would have ignored the same, but since dying declaration has not been recorded by the Magistrate and not certified by the Doctor to be recorded in his presence though signatures of Doctor are appended thereupon, we are put on guard to carefully examine various features, which make the recording of statement (Exhibit-P/19) as doubtful. Dr. Dr. H.K. Meena (PW-12) has stated that vide Exhibit-P/18 he opined that Naresh Sharma was fit to make a statement. Thereafter, when the Police was recording statement, he was treating patient. This witness further stated that after Police had recorded statement, they obtained his signature. He also stated that on statement (Exhibit-P/19) his signatures are at point A to B. However, in cross-examination, this witness has stated that as to what was recorded by the Police in Exhibit-P/19 is not in his knowledge. He further stated that as to who recorded the statement of deceased is not in his knowledge as he was busy in his work, when the Police was recording statement. He also stated that the signatures of the deceased - Naresh Sharma at point C to D were not taken in his presence. Lastly, he stated that who had appended signatures at point C to D is also not in his knowledge. Another feature of the case, which has been highlighted by Mr. Gupta, the learned counsel appearing for the appellants, is also required to be noticed by us. Ummaid Singh (PW-14), Head Constable in his cross-examination has stated that on 05.01.2003 he was posted at Police Station, Kishanganj. He stated that the injured was first brought to Police Station, and at that time he (Ummaid Singh) was present there. It is further stated that injured was brought by the Police in Jeep and thereafter, injured was duly taken to the Hospital. He further stated that “since evening Station House Officer was sitting in the Police Station.” In this context, reference has been made to the Medico-Legal Report (Exhibit-P/20), wherein it is noticed by the Doctor that the injured - Naresh Sharma was brought to hospital by A.S.I. Bharat Singh (PW-19). The signatures of Bharat Singh are at point B/B of Medico Legal Report (Exhibit-P/20). The Prosecution has examined Bharat Singh as PW-19. In the Court, this witness is totally silent about taking the injured to the Hospital. It is contended before us by the learned counsel that S.H.O. Shivraj (PW-16), who remained at the Police Station, had appended his signature to the statement (Exhibit-P/19) at the Police Station, as same is not recorded by him, and he has not gone to the hospital. It is contended before us by the learned counsel that S.H.O. Shivraj (PW-16), who remained at the Police Station, had appended his signature to the statement (Exhibit-P/19) at the Police Station, as same is not recorded by him, and he has not gone to the hospital. It is contended that statement of Doctor, handwriting of statement (Exhibit-P/19), application (Exhibit-P18) and Medico-legal Report (Exhibit-P/20) belie presence of S.H.O. Shivraj Singh (Exhibit-P16) in the Hospital. To fortify this submission, it is submitted by the learned counsel that Exhibit-P/18, whereby opinion regarding fitness of the injured – Naresh was sought was signed by A.S.I. Bharat Singh and was also in the handwriting of Bharat Singh. It is urged before us by the learned counsel that the witnesses may lie, but the circumstances will not. Therefore, when confronted with handwriting and signature on Exhibit-P/18., S.H.O. Shivraj (PW-16) had to admit that Exhibit-P/18 is written by A.S.I. Bharat Singh and, same also contained signature of A.S.I. Bharat Singh, and after opinion Exhibit-P/18 was given thereafter Medico-Legally Report (Exhibit-P/20) was prepared. It is submitted by the learned counsel that Exhibit-P/19 (written-report) was recorded on 05.01.2003 at 11:15 P.M., whereas Medico Legally Report commenced at 11:30 P.M. Be that as it may, we may notice the following portion of the statement of Shivraj (PW-16): ^^izn’kZ ih0 18 rgjhj Hkkjr flag ,0,l0vkbZ0 dh dyeh gS vkSj mUgha ds bl ij gLrk{kj gSA ;g lgh gS fd izn’kZ ih0 19 fy[kus ds ckn ,e0vks0 dks rgjhj pksVksa dh eqvk;us dh nsuk fy[kk gSA** A perusal of statement of A.S.I. Bharat Singh (PW19) clearly reveals that he has not uttered a word regarding submission of application (Exhibit-P/18) to the Doctor, and his signature thereupon. Bharat Singh, A.S.I. has not proven Exhibit-P/18. Thus, from the Medico-Legal Report, Exhibit-P/20 & Exhibit-P/18, which as per statement made by S.H.O. Shivraj (PW-16) are in the handwriting of Bharat Singh, we are of the view that presence of Bharat Singh in the Hospital, when injured was examined and dying declaration was recorded, is proved, as Bharat Singh (PW-19) was present at that time. Therefore, silence on the part of A.S.I. Bharat Singh (PW-19) is baffling, as to why A.S.I. Bharat Singh has not uttered a single word on this material feature of the case. Therefore, silence on the part of A.S.I. Bharat Singh (PW-19) is baffling, as to why A.S.I. Bharat Singh has not uttered a single word on this material feature of the case. No cogent reason has been divulged by the learned Public Prosecutor appearing for the State of Rajasthan or by the learned counsel appearing for the complainant. Another feature of the case, which has emerged in the statement of Shivraj (PW-16), the Station House Officer is that the statement (Exhibit-P/19), which has been termed as dying declaration is in the handwriting of Munshi of the Police Station. As to who was the Munshi who had recorded the same, the name of such person has not been disclosed by Shivraj (PW16). We will reproduce here the following portion of the statement of Shivraj (PW-16):- ^^ipkZ c;ku izn’kZ ih&19 esjs eaq’kh dk fy[kk gqvk gSA ml eqa’kh dk uke vHkj ;kn ugha vk jgk gSA izn’kZ ih0 19 dh bZckjr ,Dl ls okbZ rd eaq’kh dh fy[kh gqbZ gS vt[kqn dgk vkxs dh Hkh ykbZu mlh eqa’kh dh fy[kh gqbZ gS vt[kqn dgk vkxs dh Hkh ykbZu mlh eqa’kh }kjk esjh mifLFkfr esa fy[kh x;h gSA ;g dguk xyr gS fd izn’kZ ih&19 esa okbZ ls tsM rd dh ykbZu ,d ckn esa c<+kbZ xbZ gksA** Having confronted the witness that the Exhibit-P/19 is not in his handwriting, witness Shivraj (PW-16) who had purportedly recorded the same, gave an explanation that the same was dictated by him. The witness further stated to be correct that Exhibit-P/19 was dictated by him to a Munshi. This witness further stated that he was asking the questions to the deceased, and the deceased was answering the same. Thereupon, he was giving dictation to the Munshi. This witness also stated that how many questions were asked to the deceased, same is not remembered by him. Moreover, he stated that the statement was not recorded in a question-answer form. This witness further stated that he was asking the questions to the deceased, and the deceased was answering the same. Thereupon, he was giving dictation to the Munshi. This witness also stated that how many questions were asked to the deceased, same is not remembered by him. Moreover, he stated that the statement was not recorded in a question-answer form. We will reproduce here the following portion of the statement of this witness:- ^^;g ckr lgh gS fd izn’kZ ih0 19 ipkZ c;ku esjs fMDVs’ku esa esjs eaq’kh us fy[kk FkkA e`rd dks eSa loky iwNrk x;k vkSj e`rd eq>s crkrk x;k vkSj oSls gh eSusa eqa’kh dks fMDVs’ku nsrk x;k FkkA vkt eq>s /;ku ugha gS fd e`rd ls eSusa fdrus loky iwNs FksA ;g ckr lgh gS fd eSaus tks iz’u iwNs vkSj ?kk;y us tks mrj fn;s mlds vuq:i ipkZ c;ku iz’u o mRrj esa ugha fy[kk x;k gSA ;g ckr lgh gS fd izn’kZ ih0 19 ipkZ c;ku eSaus fdlh xokg ds lkeus fjdkMZ ugha fd;kA ;g dguk xyr gS fd izn’kZ ih0 19 dk lh ls Mh ds e/; ujs’k ds gLrk{kj esjs eqa’kh us gh djok;s gks vkSj esjs lkeus ugha djok;s gks cfYd esjs lkeus gh djok;s FksA** Furthermore, statement was dictated by the S.H.O. Shivraj (PW-16) after asking questions and obtaining answers, no note to this effect was appended below the statement. It was incumbent upon the Investigating Officer to record that the questions were asked and reply thereupon has been noted in the form of a statement. As to who was the person who had taken dictation, and who was the then posted as Munshi in the Police Station, this material fact has not been revealed to the Court. Person in whose handwriting statement was written has been withheld from the Court. Thus, the defence has been deprived to question the person in whose handwriting Exhibit-P/19 has been recorded. There is merit in the contention raised by the learned counsel appearing for the parties that it cannot be ruled out that Exhibit-P/19, as a result of consultations and deliberations, may have been submitted by the some relation of the deceased as it is admitted by the Investigating Officer that crowd had gathered in the hospital which included many relations of the deceased. It has been held in numerous judgments that to rule out any exaggeration, or addition, or omission of any words, dying declaration should be recorded in the exact words of the maker. It has been further held by the Courts that if the dying declaration is in question and answer form, same should be recorded in verbatim especially when no other incriminating evidence has been led by the prosecution. Taking totality of the circumstances, which have emerged before us, and noticed by us herein above, we are of the view that it is highly unsafe to rely upon the dying declaration (Exhibit-P/19). Therefore, we shall extend the benefit of doubt to the appellants. Consequently, we accept the present appeal, set aside the judgment of conviction and order of sentence pronounced by the trial Court and acquit the appellants of charges by extending the benefit of doubt.