JUDGMENT : (Author S.N. Agnihotri, J.) 1. Sri Dharmendra Singhal, Advocate has filed power today on behalf of appellants, the same is taken on record. 2. Heard Sri Dharmendra Singhal, learned counsel for the appellants and Sri Syed Ali Murtaza, learned A.G.A for the State. 3. This appeal has been challenging the judgment and order dated 18.7.2002 passed by learned Additional Sessions Judge, Court No.12 (Fast Track), Mathura whereby learned Additional Sessions Judge held appellants guilty of offence under section 302 I.P.C., Sessions Trial No. 578 of 1995 arising out of Crime No. 194 of 1993, P.S. Baldev, District Mathura and sentenced them to life imprisonment with a fine of Rs. 500/- to each of them with default stipulation. 4. The relevant facts as has been disclosed by F.I.R. and statements of prosecution witnesses are that on 14.11.1993, the complainant Sri Radhey Shyam Sharma along with his son Sri Rakesh were going towards Baldev from his house by Motorcycle No. DLW-8026. When they reached Mahawan bus stand, the four accused namely, Girish, Suresh, Annu and Chandra Prakash @ Jhandu intercepted the way of complainant and his son. The accused persons were armed with country-made pistol (katta) and pharsa (axe). Accused Annu and Chandra Prakash @ Jhandu were equipped with pharsa (axe) whereas other two accused were equipped with country-made pistol (katta). All four accused assaulted the son of the complainant Sri Rakesh with country-made pistol (katta) and pharsa (axe). Accused-persons committed murder of the son of complainant Sri Radhe Shyam Sharma at about 12:30 p.m. in the town of Mahaavan, P.S. Baldev, District Mathura, the complainant tried to save his son Sri Rakesh but in-vain. However, complainant managed to save himself. 5. Complainant got recorded First Information Report (in short F.I.R.) document exhibit ka.3 from his another son Krishna Murari and lodged it with Police Station Baldev, District Mathura. Before recording of the F.I.R., the police officials also came on the place of incident. After recording the F.I.R, the Station Officer M.L. Chaudhary visited the place of occurrence with relevant register of document from Police Station Baldev. 6. The inquest report, exhibit ka.12 was prepared/executed. The inquest report of dead body of Rakesh (deceased) was prepared by Sri Swaroop Narayan Gautam, Sub Inspector under the direction and guidance of Station Officer. After recording the F.I.R, the Station Officer M.L. Chaudhary visited the place of occurrence with relevant register of document from Police Station Baldev. 6. The inquest report, exhibit ka.12 was prepared/executed. The inquest report of dead body of Rakesh (deceased) was prepared by Sri Swaroop Narayan Gautam, Sub Inspector under the direction and guidance of Station Officer. Sri Swaroop Narayan Gautam also prepared other documents under the direction and control of Sri M.L Chaudhary which are exhibit ka.13 photonash, exhibit ka.15 letter to Chief Medical Officer, Mathura. Exhibit ka.18 Police Proforma No.13 and the dead body of Sri Rakesh (deceased) was sent for Post Mortem to Mathura. After sending dead body to Mathura, the Investigator Sri M.L. Chaudhary inspected the place of occurrence and prepared site plan exhibit ka.5. The Post Mortem was performed on the dead body of deceased Sri Rakesh on 15.11.1993 at about 2:30 p.m. by Dr. D.N. Shukla which is exhibit ka.10 on record. 7. According to Post Mortem report there were 12 ante-mortem injuries on the body of deceased Sri Rakesh which are as under:- 1. Incised wound 2cm x 5cm x bone deep at right side of face 1.5cm infront of right ear 2. Incised wound 1cm x 5cm x muscle deep at right side of face at right border of jaw. 3. Fire arms wound of entry 0.5cm x 0.5cm x mouth cavity deep at left side of face 1.5cm below right angle of mouth. Blackening present with fracture of jaw margin inverted. 4. Fire arms wound of exit 1cm x 1cm at right side of face x depth continuation to (through & through) injury no. 3, 3.5cm away to right angle of mouth. Margins everted. 5. Incised wound 9cm x 2.5cm x trachea deep on left side of neck. 6. Incised wound 4.5cm x 1cm x trachea deep at upper part of neck of middle. 7. Incised wound 5cm x 1.5cm x trachea deep on right side at neck of mid part. 8. Incised wound 2cm x 1cm x trachea deep on right side at neck 1.5cm above injury no. 7. 9. Fire arms wound of entry 4cm x 1.5cm x bone deep at right side of lower part of upper arm at outer aspect, margin inverted. Blackening present. 10. Fire arms wound of exit 6cm x 2cm x through & through to injury no. 7. 9. Fire arms wound of entry 4cm x 1.5cm x bone deep at right side of lower part of upper arm at outer aspect, margin inverted. Blackening present. 10. Fire arms wound of exit 6cm x 2cm x through & through to injury no. 9 at medial aspect of right upper arm at lower part. Margins everted. 11. Fire arms wound of entry 2.5cm x 2cm x muscle deep at upper part of right upper arm at medial aspect near axilla. Margins inverted. Blackening present. 12. Fire arms wound of exit 1cm x 0.5cm x through & through at upper part of right upper arm 20cm below top of right shoulder. Margins everted. Depth with continuation to injury no. 11. 8. In internal examination trachea was found torn 0.250 gm semi digested food was found in stomach. Injuries No. 3, 4, 9, 10, 11 & 12 were caused by fire arm and other were caused by pharsa (axe). Injuries which were found on the body of Sri Rakesh, were sufficient to cause death. Probably deceased was died at 12:30 p.m. On 14.11.1993 due to shock and haemorrhage caused by anti mortem injuries. 9. After completion of investigation, the Investigation Officer filed charge sheet in the Court of Magistrate who committed the matter for trial in the Court of Session, charge sheet on record has exhibited as exhibit ka-4, The Court of Session framed charges against all accused under section 302 I.P.C. Accused denied charges levelled against them and have claimed to be tried. 10. Going through the record, we find that prosecution examined 9 (nine) witnesses to prove the guilt of the appellants. According to prosecution PW1 Sri Sudhir Kumar Sharma, PW2 Sri Gopal Prasad and PW3 Sri Prabhudayal are ocular witnesses of the scene of occurrence. These three witnesses did not support the version of prosecution and all three witnesses were declared hostile and Additional District Government counsel was permitted to cross-examine these witnesses but nothing could be extracted from these witnesses in favour of the prosecution in cross-examination. PW2 Sri Gopal Prasad, PW3 Sri Prabhudayal have stated on oath that they put signature on a plain paper for obtaining ration card and licence which were later misused by someone. PW2 Sri Gopal Prasad, PW3 Sri Prabhudayal have stated on oath that they put signature on a plain paper for obtaining ration card and licence which were later misused by someone. Another witness PW4 Sri Mahesh Kumar has stated on oath that on the date and time of incident he was present at Mahaavan Bus Stand, where he saw that the complainant Sri Radheyshyam Sharma was coming with his son on motorcycle. where accused persons intercepted them. He was familiar with the accused Sri Girish Chand and Sri Annu, whereas he was not familiar with other two accused. This witness has deposed that he reached the place of occurrence after getting the information that Rakesh had been murdered and saw that accused Girish Chand was armed with country-made pistol (katta) and Annu with pharsa (axe). Other two armed with pistol and pharsa (axe) respectively were running from the place of occurrence. This witness has also deposed that the accused-persons assaulted Rakesh (deceased) with country made pistol (katta) and pharsa (axe) and he died on the spot due to injuries inflicted upon his person. 11. PW5 Sri Krishna Murari is the real brother of deceased Sri Rakesh and son of complainant Sri Radheyshyam Sharma, who scribed F.I.R. exhibit ka.1 under direction of Sri Radheyshyam Sharma. PW5 Sri Krishna Murari has deposed on oath that on hearing the news of murder of his brother he reached the place of occurrence. The witness also stated on oath that his father died on 17.04.1994 and document exhibit ka.3 was signed by his father Sri Radheyshyam Sharma as well as by him also. 12. PW6 Dr. D.N. Shukla has performed autopsy upon the dead body of Sri Rakesh (deceased) and proved it as exhibit ka.10. PW7 Sri Swaroop Narayan Gautam is a witness of formal nature who prepared the inquest report and other related document. PW8 Sri M.L. Chaudhary, Investigating Officer is also a witness of formal nature and who prepared site plan and charge sheet and the documents for the post mortem. 13. Learned counsel for the accused-appellants has submitted that there is a solitary witness i.e. PW4 Sri Mahesh Kumar who has deposed against the accused-persons. Learned counsel further submitted that the witness is a chance witness and his presence at the place of occurrence is not reliable because he is neither the resident of Mahaavan nor had any business there. 13. Learned counsel for the accused-appellants has submitted that there is a solitary witness i.e. PW4 Sri Mahesh Kumar who has deposed against the accused-persons. Learned counsel further submitted that the witness is a chance witness and his presence at the place of occurrence is not reliable because he is neither the resident of Mahaavan nor had any business there. The name of this witness surfaced in many other criminal cases, as a witness. Thus the witness seems to be a pocket witness of prosecution. The witness is not reliable and his entire evidence should be discarded. It is also submitted that if the evidence of this witness is discarded then the entire edifice of the prosecution falls. 14. In turn, learned Additional Government Advocate submitted that the evidence of PW4 Sri Mahesh Kumar is wholly reliable and he could be relied/trusted to hold guilty appellants. Learned A.G.A. Also submitted that the presence of this witness at the place and issue of occurrence is established. This witness had seen the commission of crime was familiar with the accused-appellants as well as complainant. 15. In the light of above noted submissions, we have consciously examined the whole evidence of the prosecution. It is our conclusion that the evidence of PW4 Mahesh Kumar is not reliable. The evidence of PW4 Mahesh Kumar has not been corroborated by any other evidence and circumstances. He has deposed that he went to Mahavaan for religious activities. He has also stated that he was sitting on stairs of a Dharamshala, but investigator has not shown the place in site plan exhibit ka.5 where witness was said to be present. This witness has also stated on oath that he was familiar only with Sri Rakesh (deceased), his father complainant besides two accused Girish and Annu. But in statement under Section 161 Cr.P.C., he disclosed the name of two other accused also with whom he was not familiar. It shows that witness is not telling truth. He has not explained the disclosure of names of two unknown persons. 16. But in statement under Section 161 Cr.P.C., he disclosed the name of two other accused also with whom he was not familiar. It shows that witness is not telling truth. He has not explained the disclosure of names of two unknown persons. 16. From careful reading of the statement of Prosecution Witness- 4 Sri Mahesh Kumar, it appears that the commission of crime was not seen by this witness, because this witness stated on oath that he had heard noise that "Rakesh mardiya, Rakesh Mardiya, yeh suna, main vahaan par pahunch gaya" i.e. he reached the place of occurrence after heard the cries regarding murder of deceased Rakesh. 17. This statement denotes that the witness reached the spot after the murder of Rakesh and he had only seen the departure of the accused persons from place of occurrence. In our opinion, the statement of PW4 as referred above, is sufficient to hold that the witness had not seen the commission of crime. PW4 Mahesh Kumar again admitted that the assault on Rakesh (deceased) was committed by country-made pistol (katta) and pharsa (axe). The statements of this witness is self contradictory. At one place, he has stated that he reached the spot on hearing the cries of the peoples and saw accused-person fleeing from the place of occurrence and at another place claimed that he had seen the actual assault on Sri Rakesh committed by the appellants with two other unknown associates. Thus the statement of witness being self contradictory is not worth reliance. 18. On page 4, PW-4 Shri Mahesh Kumar admitted that he had narrated four names of the assailants to the Investigator, whereas he was familiar only with two accused persons. This statement of witness shows that he is not trust worthy. When he was familiar only with two accused person, how could he narrate the name of all the four accused persons. No explanation was tendered from the side of the prosecution regarding this anomaly. 19. The statement of PW4 Sri Mahesh Kumar as stated above is not sufficient to hold guilty to the accused (appellants) and we have no hesitation to hold that PW4 Sri Mahesh Kumar did not see the commission of crime. 20. PW5 Sri Krishna Murari is the writer of the application which was signed by his father, pursuance to which F.I.R. was registered and the criminal law was set in motion. 20. PW5 Sri Krishna Murari is the writer of the application which was signed by his father, pursuance to which F.I.R. was registered and the criminal law was set in motion. This witness has proved document as exhibit ka.3. Thus this witness is of a formal nature, inspite of this learned Additional Sessions Judge treated this witness as a witness of facts. The learned Additional Sessions Judge in his judgment at page 11 paragraph 30 held that the document exhibit ka-3 is admissible in evidence under section 32 of Evidence Act which is proved by PW5 Sri Krishna Murari. To appreciate the finding of learned Additional Sessions Judge, it will be proper to reproduce Section 32(1) of Evidence Act: Section 32(1) The Indian Evidence Act, 1872:- "When it relates to cause of death. --When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." 21. According to Section 32 of Evidence Act, evidence of any person, written or oral could be relied on under the circumstances enumerated in the Section itself. Thus as per Section 32 of Evidence Act, the statement as said by the learned Additional Session Judge that the complainant Sri Radhey Shyam Sharma's statement made in written application exhibit ka.3 who later on died, could be read in evidence is against the law because it is neither in connection of the death of Sri Radhey Shyam Sharma nor it discloses the circumstances in which he was died. When the F.I.R. of this case was registered in pursuance of the application of Sri Radhey Shyam Sharma at that time he was alive. It discloses the facts regarding the murder of Sri Rakesh. Thats-why the facts disclosed in the F.I.R. are not admissible under Section 32 Indian Evidence Act. Thus treating the contents enumerated in F.I.R. as 'dying declaration' is totally against law and a foreign view. Learned Sessions Judge committed a patent error of law in this regard. 22. It discloses the facts regarding the murder of Sri Rakesh. Thats-why the facts disclosed in the F.I.R. are not admissible under Section 32 Indian Evidence Act. Thus treating the contents enumerated in F.I.R. as 'dying declaration' is totally against law and a foreign view. Learned Sessions Judge committed a patent error of law in this regard. 22. In the last, it is submitted by learned counsel for the appellants that the deceased was a gunda and there were so many cases pending against him. In these circumstances, he was murdered by someone else and the appellants were prosecuted falsely due to enmity. Appellants submitted two papers through index 77Kh which are 77Kha/2 and Kha 3. Notice issued by the Court of Additional District Magistrate, Mathura in a criminal case under Section 3 of U.P. Gunda Act, Police Station Baldeo in which it is recorded that there are five criminal pending against deceased Sri Rakesh under Sections 379, 307, 302 and 295A I.P.C. We do not find any weight in the submissions made by learned counsel for the appellants. There may be so many cases pending against the deceased, he may be lad of the area, inspite of this, no one has authority to deprive any person from his life except with sanction of the law. 23. The prosecution has only succeeded to prove the homicidal death of Sri Rakesh on 14.11.1993 at about 12:30 p.m. in Mahavan, P.S. Baldev, District Mathura but failed to prove the participation of appellants in the said crime. 24. We are of the opinion that there is no credible evidence against the accused persons to hold them guilty under section 302 I.P.C. Finding of the learned Additional Sessions Judge are contrary to facts and law. Judgment and order passed by learned Additional Sessions Judge dated 18.07.2002 is liable to be set aside. 25. Appeal is allowed. The impugned judgment and order dated 18.07.2002 passed in Sessions Trial No. 578 of 1995 arising out of crime no. 194 of 1993 by learned Additional Sessions Judge, Mathura is hereby set aside. The accused-appellants are acquitted from the offence punishable under Section 302 I.P.C. If the accused are in jail then they be set at liberty if not required in any other case.