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2017 DIGILAW 1304 (ALL)

BISHAMBHAR v. STATE OF U. P.

2017-05-16

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : Hon'ble Bala Krishna Narayana,J. Hon'ble Arvind Kumr Mishra-I,J. 1. The arguments of this appeal concluded on 16.5.2017, we then made the following order:- “Heard Sri Satya Praksh Srivastava, learned counsel for the appellant and Sri Saghir Ahmad, learned A. G. A. assisted by Smt. Manju Thakur, brief holder for the State. We will give reasons later, but we make the operative order here and now. This criminal appeal is allowed. The impugned judgement and order dated 25.2.1988 passed by the Ist Additional Sessions Judge, Farrukhabad in S. T. No. 318 of 1980, convicting and sentencing the appellant under Section 302 IPC, Police Station Mau Darwaza, District Farrukhabad to undergo life imprisonment is hereby set aside. The appellant is acquitted of all the charges framed against him. Appellant is on bail, he need not surrender. His bail bonds are cancelled and his sureties are discharged subject to his complying with Section 437-A Cr. P. C. There shall be however no order as to costs." 2. Here are the reasons upon which we set aside the impugned judgement and order: This criminal appeal has been preferred by the appellant Bishambhar against the judgement and order dated dated 25.2.1988 passed by the Ist Additional Sessions Judge, Farrukhabad in S. T. No. 318 of 1980, convicting and sentencing the appellant under Section 302 IPC, Police Station Mau Darwaza, District Farrukhabad to undergo life imprisonment. 3. Briefly stated, the facts of this case are that the complainant Sardar Ali and his brother Ashraf Ali (deceased) were residents of Mohalla Bibiganj within the circle of police station Mau Darwaza Farrukhabad City. The accused Bishambhar is also resident of Mohalla Mau Darwaza, Farukkhabad City. It is alleged that about 4 years prior to the present occurrence, Radhey Mohan, father of accused Bishambhar had disappeared under mysterious circumstances. The accused Bishambhar suspected that his father Radhey Mohan had been kidnapped and murdered by Ashraf Ali deceased. It was on account of it that the accused Bishambhar had been harbouring ill-will against Ashraf Ali deceased. It is alleged that on 2nd June, 1980 at about 11 P.M. in Mohalla Bibiganj, P.W.1 complainant Sardar Ali along with his brother Ashraf Ali (deceased) had returned from the market to their house. Ashraf Ali (deceased) parked his scooter in front of the door of his house and started opening the lock of the gate of his house. It is alleged that on 2nd June, 1980 at about 11 P.M. in Mohalla Bibiganj, P.W.1 complainant Sardar Ali along with his brother Ashraf Ali (deceased) had returned from the market to their house. Ashraf Ali (deceased) parked his scooter in front of the door of his house and started opening the lock of the gate of his house. In the meantime, the accused appeared from the southern side. He was armed with a country-made pistol, P.W.1 complainant Sardar Ali cried and on the noise made by him, witnesses Abdul Rahman and Raja Ram also arrived at the scene of occurrence. Ashraf Ali (deceased) also turned around and immediately the accused fired with his country-made pistol at Ashraf Ali with the intention to commit his murder, as a result of which Ashraf Ali sustained fire-arm injury in his stomach and these injuries were sufficient in the ordinary course of nature to cause the death of Ashraf Ali and as a result of which Ashraf Ali subsequently died. The accused after causing injuries to Ashraf Ali ran away towards north. He was seen and identified in the electric light. Sardar Ali, the brother of Ashraf Ali, went to the police station Mau Darwaza, Farrukhabad where a report (Ext.Ka.1) was lodged at 11:45 P.M. on 02.06.1990 itself. On the basis of the report, a check report was prepared and a G.D. entry copy (Ext.Ka.6) was made. The injured Ashraf Ali was taken to the District Hospital, Fatehgarh where in the emergency ward, he was medically examined by Dr. A. K. Mani, Medical Officer on emergency duty who also prepared his injury report (Ext.Ka.18). Sri N.P. Sharma, the then Tehsildar Sadar Farrukhabad as Magistrate recorded the dying declaration of Ashraf Ali (Ext.Ka.19) in the presence of Dr. A. K. Mani in the District Hospital, Fatehgarh. The Investigating Officer started investigation of the case and recorded the statement of Ashraf Ali (Ext. Ka. 2). The Investigating Officer thereafter also reached the scene of occurrence and prepared the site plan (Ext.Ka.3). The clothes of Ashraf Ai were seized vide memo (Ext.Ka.4). Subsequently, Ashraf Ali expired on 03.06.1980 at about 8 P.M. in the District Hospital, Fatehgarh and an intimation to that effect was sent vide memo Ext.Ka.15. Accordingly, his panchayatnama (Ext. Ka.13), Photo lash (Ext. Ka.12), Challan lash (Ext.Ka.11), letter to C.M.O (Ext.Ka.10) and letter to R.I. (Ext.Ka.9) were prepared. The clothes of Ashraf Ai were seized vide memo (Ext.Ka.4). Subsequently, Ashraf Ali expired on 03.06.1980 at about 8 P.M. in the District Hospital, Fatehgarh and an intimation to that effect was sent vide memo Ext.Ka.15. Accordingly, his panchayatnama (Ext. Ka.13), Photo lash (Ext. Ka.12), Challan lash (Ext.Ka.11), letter to C.M.O (Ext.Ka.10) and letter to R.I. (Ext.Ka.9) were prepared. Postmortem on the dead body of Ashraf Ali was conducted by the Medical Officer District Hospital, Fatehgarh who also prepared his postmortem report (Ext.Ka.14). After completing necessary investigation and formalities, charge-sheet (Ext.Ka.7) was submitted against the accusd. 4. The accused pleaded not guilty to the charge framed against him and claimed to be tried. His defence was that he had been falsely implicated in this case due to enmity. 5. In support of its case, the prosecution examined five witnesses in all. They are P. W.1 complainant Sardar Ali, P.W.2 Inspector Dev Singh, P.W.3 Dr. H.P. Srivastava, Medical Officer, P.W.4 Sri N.P. Sharma, Sub-divisional Magistrate and P.W.5 Dr. Ashok Kumar Mani, Medical Officer. The accused did not examine any witness in defence and instead relied upon the bed head ticket of deceased Ashraf Ali which is (Ext. Ka.1) on record. 6. P.W.1 Sardar Ali is the first informant and also the eye-witness of the occurrence. He also proved the motive for the commission of the crime by the accused. He has stated on oath that Ashraf Ali (deceased) was his real brother. On the fateful night, he and his brother Ashraf Ali had gone to the market of Farrukhabad on the scooter and returned back. When his brother Ashraf Ali after parking his scooter in the lane in front of the door of his house started opening the lock of the door, the accused came from the southern side, armed with a country-made pistol. On the noise made by him upon noticing the accused-appellant, Ashraf Ali started looking towards the accused who immediately fired at Ashraf Ali, as a result of which Ashraf Ali sustained fire arm injury in his stomach and after shooting him, the accused ran towards north. Having sustained injuries, Ashraf Ali fell on the ground. His injury was bandaged with a piece of cloth. Having sustained injuries, Ashraf Ali fell on the ground. His injury was bandaged with a piece of cloth. A cot was arranged and placed in a Jeep on which Ashraf Ali was made to lie and then he was taken to the police station Mau Darwaza, Farrukhabad where a report of the occurrence Ext. Ka.1 was lodged. Thereafter, in the same Jeep Ashraf Ali was taken to the District Hospital, Fatehgarh where he was medically examined and his statement was recorded in the Hospital. Next day, Ashraf Ali died in the District Hospital, Fatehgarh. The witness further stated that a generator was generating electricity and the accused was seen and identified in the light of electric bulb. He has further stated that his brother Ashraf Ali was owner of three Jeeps and three generators. Regarding the motive, the witness stated that about 2 years back prior to the present occurrence Radhey Mohan, father of accused Bishambhar had disappeared in mysterious circumstances. He was kidnapped and his whereabouts are still not known. The accused suspected that his father Radhey Mohan had been kidnapped and murdered by Ashraf Ali (deceased) and it was on account of it that there was ill-will between Ashraf Ali (deceased) and the accused. The witness stated that Ashraf Ali (deceased) was wearing the clothes (Ext.Ka.1 to Ka.3) at the time of occurrence. 7. P.W. 2 Inspector Dev Singh stated on oath that in June, 1980, he was posted as Sub-inspector of Police Station Mau Darwaza, Farrukhabad. He started investigating the case when it was registered at the police station. He immediately recorded the statement of Ashraf Ali at about 4 A.M. in the night of 02/03.06.1990. The copy of the aforesaid statement is on record as (Ext. Ka 2). The witness further stated that he also recorded the statement of P.W.1 complainant Sardar Ali and then reached the scene of occurrence and recorded the statements of other witnesses as well. He inspected the scene of occurrence and prepared its site plan (Ext. Ka 3). He also took the clothes of the deceased and prepared recovery memo (Ext.Ka.4) thereof. After the death of Ashraf Ali on 04.06.1980, the case u/s 307 I.P.C. was converted to one u/s 302 I.P.C. After completing necessary formalities and investigation, charge-sheet (Ext.Ka.7) was submitted by him against the accused. 8. P.W.3 Dr. Ka 3). He also took the clothes of the deceased and prepared recovery memo (Ext.Ka.4) thereof. After the death of Ashraf Ali on 04.06.1980, the case u/s 307 I.P.C. was converted to one u/s 302 I.P.C. After completing necessary formalities and investigation, charge-sheet (Ext.Ka.7) was submitted by him against the accused. 8. P.W.3 Dr. H.P. Srivastava, Medical Officer stated on oath that on 04.06.1980 he was posted as Medical Officer, District Hospital, Fatehgarh and at about 4 P.M., he had conducted the postmortem examination on the dead body of Ashraf Ali and found the following antemortem injuries on his person:- ANTEMORTEM INJURIES 1) Stitched wound 5" x long vertical (4 stitches) 5" below Rt. Nipple and 2" x away from mid-line Rt. Side of abdomen 3 GSW intentionally and 2 GSW outward of upper 1 and ½" stitched wound present ¼" in diameter margins inverted cavity deep. 2) 2 GSW wound margins everted 3" apart left lumber region laterally 9" below left nipple. 3) Incised wound 1" x ½" cavity deep congested rubber drain is present. The postmortem report was proved by the witness as (Ext.Ka.14). 9. P. W. 4 Sri N. P. Sharma, Sub-divisional Magistrate stated on oath that on 03.06.1980, he was posted as Tehsildar Magistrate Sadar, Farrukhabad. On a call from the District Hospital, Fatehgarh, he went to the emergency ward of the Hospital and in presence of Dr. A.K. Mani, Medical Officer, he recorded the dying declaration of Ashraf Ali (Ext.Ka.17) 10. P.W.5 Dr. Ashok Kumar Mani, Medical Officer has stated on oath that on 03.06.1980, he had examined the injuries of Ashraf Ali at about 12:45 A.M. and found the following injuries on his person:- (1) Six gunshot wound of entry in an area of 1 and ½" diameter each measuring ¼" in diameter into chest cavity on right side chest of sub-costal margin oozing of blood present. Margin inverted. (2) Two gunshot wounds of exit each 1/3" into abdominal cavity in left and ancillary line two & half inches apart bleeding present margins everted. 11. According to him, both the injuries were kept under observation and were caused by fire arms. The duration was fresh and X-ray of chest and abdomen was advised. The injury report prepared by P. W. 5 Dr. Ashok Kumar Mani is on record and proved by him as Ext. Ka 18. 11. According to him, both the injuries were kept under observation and were caused by fire arms. The duration was fresh and X-ray of chest and abdomen was advised. The injury report prepared by P. W. 5 Dr. Ashok Kumar Mani is on record and proved by him as Ext. Ka 18. This witness has further stated that it was in his presence that the Tehsildar Magistrate had recorded the dying declaration of Ashraf Ali and he had appended his certificate Ext. Ka 16 regarding the mental and physical condition of Ashraf Ali. 12. The learned Ist Additional Sessions Judge, after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record convicted the accused-appellant under Section-302 IPC and awarded life imprisonment to him, hence this appeal. 13. Learned counsel for the appellant has submitted that the prosecution having failed to bring home the charge framed against the appellant-accused by adducing any cogent and reliable evidence, neither the recorded conviction of the appellant nor the sentence of imprisonment for life awarded by the Court below can be sustained. He has next submitted that incident having taken place in the dark and there being no evidence of proof of availability of any light at the time and place of occurrence, no credibility can be attached to the claim of P. W. 1 Sardar Ali who is an interested witness being real brother of the deceased Ashraf Ali that he had seen the incident and identified the accused who had committed the murder of Ashraf Ali. He has next submitted that the reliance placed by the trial Judge on the dying declaration (Ext. Ka 16/17) of the deceased for the purpose of convicting the appellant is also per se illegal in view of the inherent contradictions between the facts deposed by P. W. 1 Sardar Ali in his evidence tendered during trial and those allegedly stated by the deceased in his dying declaration. He has lastly submitted that such being the state of the evidence, this appeal deserves to be allowed and the impugned judgement and order be set aside. 14. He has lastly submitted that such being the state of the evidence, this appeal deserves to be allowed and the impugned judgement and order be set aside. 14. Per contra, Sri Saghir Ahmad, learned A. G. A. has submitted that the prosecution case stood fully proved from eye witness account of P. W. 1 Sardar Ali as also the facts stated by the deceased in his dying declaration which was recorded before the P. W. 4 N. P Sharma, Tehsildar, Farrukhabad after P. W. 5 Dr. Ashok Kumar Mani who had examined the injuries of the injured Ashraf Ali in the emergency ward of District Hospital, Fatehgarh, Farrukhabad had certified that he was in a fit mental condition to give his statement and there is no reason to doubt the authenticity of the same. The medical evidence on record fully corroborates the ocular version and the recorded conviction of the appellant-accused is based upon cogent evidence and sentence of life imprisonment awarded to him is supported by relevant considerations. This appeal lacks merit and is liable to be dismissed. 15. We have heard learned counsel for the parties and perused the lower court record. 16. The question which arises is whether the prosecution has been able to prove its case against the appellant-accused beyond all reasonable doubts or not ? 17. The record shows that the prosecution in order to prove its case against the appellant had examined P. W. 1 Sardar Ali, the real brother of the deceased as the solitary eye witness of the occurrence while P. W. 2 Dev Singh, P. W. 3 Dr. H. P. Srivastava, P. W. 4 N. P. Sharma and P. W. 5 Dr. Ashok Kumar Mani were produced as formal witnesses. Apart from the testimonies of the aforesaid witnesses we have before us the dying declaration of the deceased (Ext. Ka 17) which is said to have been recorded before P. W. 4 N. P. Sharma Tehsildar on 3.6.1980 at about 12.45 A. M. after P. W. 5 Dr. Ashok Kumar Mani had certified that Ashraf Ali was mentally fit to give his statement and his statement recorded by the Investigating Officer of this case Ext. Ka 16. 18. Thus, we have three sets of evidences in this case. Ashok Kumar Mani had certified that Ashraf Ali was mentally fit to give his statement and his statement recorded by the Investigating Officer of this case Ext. Ka 16. 18. Thus, we have three sets of evidences in this case. First set of evidence comprises of eye account of the informant P. W. 1 Sardar Ali, who is real brother of the deceased, the second set of evidence in this case consists of dying declaration of the deceased Ashraf Ali and the third set consists of evidences of formal witnesses. 19. We first proceed to evaluate the first set of evidence. P. W. 1 Sardar Ali has stated on oath that about 7.1/3 years back he and his brother Ashraf Ali had gone to the market of Farrukhabad on a scooter. They returned at about 11.00 P. M. while his brother Ashraf Ali was parking his scooter in the lane in front of the door the accused came from southern side armed with a country-made pistol and fired at Ashraf Ali, as a result of which Ashraf Ali sustained fire arm injuries. He was taken to the police station where a report Ext. Ka 1 was lodged and then he was taken to the district hospital, Fategarh for treatment and medical examination. Next day his brother Ashraf Ali succumbed to his injuries. The witness further stated that place of occurrence was illuminated with the light of bulb lit by electricity generated by a generator set. Although P. W. 1 Sardar Ali has in his evidence tendered during trial claimed that his brother Ashraf Ali was shot by the accused-appellant in his presence but in view of the facts stated by the deceased Ashraf Ali in his dying declaration (Ext. Ka 16) a big question mark is put about the truthfulness of his claim of his being an eye-witness of the occurrence. It is pertinent to note that the deceased Ashraf Ali has not stated about P. W. 1 Sardar Ali being present at the place of occurrence at the time when he was shot by accused-appellant. Moreover, the deceased in his dying declaration has not corroborated the manner of occurrence as narrated by P. W. 1 Sardar Ali in the written report (Ext. Ka 15) of the occurrence. Moreover, the deceased in his dying declaration has not corroborated the manner of occurrence as narrated by P. W. 1 Sardar Ali in the written report (Ext. Ka 15) of the occurrence. While P. W. 1 Sardar Ali in the written report as well as in his statement recorded during trial has stated that the deceased and the informant Sardar Ali had returned to their house at about 11.00 P. M. on 2.6.1980 from the market and when his brother, Ashraf Ali after parking the scooter was going to open the lock of the gate of his house, the accused-appellant arrived at the place of occurrence with a county-made pistol in his hand and on seeing him approaching, he raised a cry for help on which Abdul Rahman and Raja Ram also arrived at the place of occurrence and as soon as his brother Ashraf Ali turned around, the appellant shot him with his firearm in his stomach and escaped towards the north. However, the deceased in his dying declaration has neither stated that when he had returned from the market, his brother Sardar Ali had also accompanied him or that he had raised any cry for help on which Abdul Rehman and Raja Ram both the residents of the same locality had reached at crime scene. It is further relevant to note that the deceased in his dying declaration stated that when he was shot, his family members were on the roof of his house. He has nowhere in his statement either stated about the presence of P. W. 1 Sardar Ali at the time and place of occurrence or that he was brought to the hospital by P. W. 1 Sardar Ali. 20. Thus in view of the above, we have no hesitation in holding that there is no truth in the claim of the P. W. 1 Sardar Ali that he had witnessed the crime and identified the accused-appellant as the perpetrator thereof. Moreover, admittedly P. W. 1 Sardar Ali is an interested witness being the real brother of the deceased and hence highly interested in getting the appellant convicted. Moreover, admittedly P. W. 1 Sardar Ali is an interested witness being the real brother of the deceased and hence highly interested in getting the appellant convicted. It is true that there is no law which lays down that evidence of a witness is liable to be discarded merely on the ground of his being related to the deceased, if upon a careful scrutiny of the evidence of such witnesses the Court comes to the conclusion that he has given a cogent version of the occurrence, conviction can be based on such evidence but in the instant case after having very carefully gone through the statement of P. W. 1 and the facts stated by the deceased Ashraf Ali in his dying declaration, we are not at all convinced that he was present at the place of occurrence at the time of incident and had witnessed the crime. The possibility of his statement, under the facts and circumstances of the case, being tutored, cannot be ruled out. 21. We now proceed to evaluate the second set of evidence in this case, which is the dying declaration of the deceased Ashraf Ali, which is on record as Ext. Ka-17. 22. Before embarking upon the aforesaid exercise we consider it proper to have a glimpse of the law on the issue. 23. The doctrine of dying declaration is enshrined in the legal maxim 'Nemo moriturus praesumitur mentire', which means 'a man will not meet his maker with a lie in his mouth. The doctrine of Dying Declaration is enshrined in Section 32 of the Indian Evidence Act, 1872 (hereinafter called as, 'Evidence Act') as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i. e, it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. 24. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. 24. In this connection, we may usefully refer to the case of Munnawar and others Versus State of Uttar Pradesh, 2010 (70) ACC 853 (SC) wherein the Apex Court has held as hereunder: "that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration. That may be evidence to show that his condition was not overtly critical or precarious when the dying declaration was recorded." 25. We may also refer to the case of Munna Raja and another Versus The State of Madhya Prades, (1976) 3 SCC 104 wherein the Apex Court has observed as under: "Reliance by the learned counsel appearing for the appellant/accused upon the judgement of this Court in the case of Munna Raja and another Versus The State of Madhya Pradesh to contend that a dying declaration cannot be corroborated by the testimony of hostile witnesses is hardly of any help. As already noticed, none of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgement relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction. Paragraph 6 of the said judgement reads as under:- "......It is well settled that though a dying declaration must be approached with caution for the reasons that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Kushal Rao Versus State of Bombay). The High Court, it is true, has held that the evidence of the two eye-witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration." 26. In para 22 of this report the Hon'ble Court has further held that- "The law is very clear that if the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the Court and could form the sole piece of evidence resulting in the conviction of the accused. This Court has clearly stated the principle of that Section 32 of the Evidence Act, 1872 (for short ''the Act') is an exception to the general rule against the admissibility of hearsay evidence. Clause (1) of Section 32 makes the statement of the deceased admissible, which is generally described as a ''dying declaration'." The Apex Court relying upon the dying declaration of the deceased being consistent with the prosecution case which was fully corroborated by medical evidence did not disturb the concurrent findings of guilt of accused-appellant recorded by the two Courts. In view of the aforesaid preposition of the law the dying declaration of the deceased recorded in this case fulfills all the legal requirements and it is in consonance with the prosecution story as also the medical evidence." 27. We now proceed to examine the reliability and truthfulness of the dying declaration of the deceased Ashraf Ali on the touch stone of the principles enunciated by the Apex Court in a catena of its decisions referred to hereinabove and in the light of the evidence on record. 28. The dying declaration allegedly made by the deceased before P. W. 4 N. P. Sharma, Tehsildar/Magistrate on 3.6.1980 at about 2.00 P. M. is being reproduced herein below: ^^c;ku fd;k fd fo'kEHkj iq= jk/ks eksgu us vkt jkr dks lk<+s&nl X;kjg cts esjs xksyh ekj nhA ;g xksyh esjs ?kj ij ekjhA eS LdwVj [kM+k djds vUnj vk jgk Fkk rHkh ;g xksyh ekj nhA mij Nr ij gekjs ?kj okys FksA nks vkneh vkSj xyh esa [kM+s Fks ftUgsa eS ugh igpkurkA c;ku lqudj rLnhd fd;k fu0va0 g0&viBuh^^ 29. Dr. Dr. Ashok Kumar Mani, the then medical officer posted at district hospital, Fatehgarh who was examined as P. W. 5 has stated on oath that on 3.6.1980 at about 12.45 P. M. he had examined the injuries of Ashraf Ali deceased and he had made a request to N. P. Sharma, Tehsildar, Fatehgarh to come to the district hospital for recording the dying declaration of Ashraf Ali and on his request Sri N. P. Sharma, Tehsildar had come to the district hospital, Fatehgarh and recorded the statement of Ashraf Ali. He further deposed that he had appended his certificate (Ext. Ka 16) on the said dying declaration to the effect that Ashraf Ali was physically and mentally fit to give his statement and that in his presence Sri N. P. Sharma, Tehsildar had recorded the dying declaration of the deceased (Ext. Ka 17). Dying declaration of the deceased Ashraf Ali was proved by N. P. Sharma, S. D. M., Fatehgarh as Ext. Ka 17. In his cross examination P. W. 4 N. P. Sharma had stated that at the time when he had recorded the dying declaration of Ashraf Ali, he was in the emergency ward of the hospital and no other person was present in the emergency ward at that time. He also deposed that the deceased had given his statement voluntarily. 30. Apart from the dying declaration of the deceased recorded by P. W. 4 N. P. Sharma, we also have the statement of the deceased Ashraf Ali recorded by the Investigating Officer of this case and which has been brought on record and proved by P.W. 2 S. I. Dev Singh as Ext. Ka 2. P. W. 2 S. I. Dev Singh has in his evidence tendered during trial deposed that he had recorded the statement of Ashraf Ali in the intervening night of 2/3.6.1980 at about 2.00 A. M. 31. After having very carefully evaluated the testimonies of P. W. 2 S. I. Dev Singh, I. O. of this case, P. W. 4 N. P. Sharma, Tehsildar, Fatehgarh and P. W. 5 Dr. Ashok Kumar Mani, we are of the view that the dying declaration of the deceased Ashraf Ali does not inspire confidence for the following reasons: 32. There is neither any endorsement of P. W. 5 Dr. Ashok Kumar Mani, we are of the view that the dying declaration of the deceased Ashraf Ali does not inspire confidence for the following reasons: 32. There is neither any endorsement of P. W. 5 Dr. Ashok Kumar Mani on the deceased's dying declaration who had certified before recording of the dying declaration of the deceased Ashraf Ali had commenced that he was physically and mentally fit to give dying declaration nor he has deposed in his statement recorded during trial that the deceased Ashraf Ali had remained physically and mentally fit during and also after the recording of his dying declaration by P. W. 4 N. P. Sharma. 33. There is no evidence oral or documentary on record indicating that P. W. 4 N. P. Sharma before recording the dying declaration of the deceased had satisfied himself by enquring from the deceased that his statement was voluntary and not tutored and he was giving his statement voluntarily without any pressure or fear of any kind. 34. The deceased has not stated in his dying declaration that there was any source of light available at the place of occurrence in which he had identified the accused-appellant Bishambhar as the person who had shot him. There is no mention in his dying declaration that when he was shot at by the accused-appellant Bishambhar either his brother informant Sardar Ali, P. W. 1 was also present at the place of occurrence or he had taken him to the hospital as stated by him in the F. I. R. and also in his evidence tendered before the trial. 35. Moreover, the deceased was fully conscious of the fact that the accused-appellant suspected that the deceased having kidnapped his father and committed his murder, deceased could have a grudge against the appellant-accused and he may be apprehending that the accused-appellant may implicate him in the case of his father's kidnapping and murder, on account of which he may have named him as the perpetrator of crime. 36. Since the deceased had died within three hours of being shot, it is apparent that at the time when the dying declaration was recorded, his condition was overtly critical and extremely precarious and it is quite possible that at the time of recording the dying declaration, he was in-cohesive and delirious. 37. 36. Since the deceased had died within three hours of being shot, it is apparent that at the time when the dying declaration was recorded, his condition was overtly critical and extremely precarious and it is quite possible that at the time of recording the dying declaration, he was in-cohesive and delirious. 37. For the same reasons, no reliance can be placed on the statement of the deceased recorded by P. W. 2 Sri Dev Singh, Investigating Officer of this case (Ext. Ka 17). 38. Thus in view of the aforesaid infirmities in the dying declaration of the deceased Ashraf Ali, we are of the considered view that it will not be safe to uphold the conviction of the accused-appellant on the basis of the uncorroborated facts stated by the deceased in his dying declaration. 39. The motive suggested by the prosecution for committing the murder of Ashraf Ali the accused-appellant is that the father of the appellant Bishambhar had disappeared under mysterious circumstances and the accused suspected that the deceased had kidnapped his father and committed his murder. Previous enmity between the parties is always a double edged sword and if it can provide motive for committing a crime, it can be an equally very good reason for false implication. In the instant case the incident had taken place at about 11.00 P. M. on 2.6.1980 in Biwiganj locality within the limits of P. S. Maudrawaja, district-Farrukhabad. P. W. 1 in his evidence has nowhere deposed that at the time when the incident had taken place, the crime scene was illuminated by road lights or the power supply was on. Being fully conscious about the aforesaid fact, he had deposed that he had seen the occurrence and identified the accused-appellant as perpetrators of the crime in the light of a bulb which was lit from the current generated by a generator set. 40. We have very carefully perused the site plan of the occurrence Ext. Ka 3 which was prepared by P. W. 2 Dev Singh, I. O. of this case at the instance of P. W. 1 Sardar Ali. The spot where generator set was installed, has not been shown. 40. We have very carefully perused the site plan of the occurrence Ext. Ka 3 which was prepared by P. W. 2 Dev Singh, I. O. of this case at the instance of P. W. 1 Sardar Ali. The spot where generator set was installed, has not been shown. Even if we assume for the sake of argument, that the two bulbs near the houses of Akhtar Ali and Ashraf Ali were lit, the distance between the place of occurrence and the sources of light, which have been marked by letters PA and F1 and F2 respectively in the site plan is about sixteen paces and fourteen paces respectively, which comes to about 35 feet and 42 feet and hence the place of occurrence could not have been illuminated by the light emitting from the bulbs affixed at points F1 and F2 in the site plan enabling the witnesses to identify the accused. There is neither any evidence on record about the wattage of the bulb nor any electric bulb or any generator set were seized from the place of occurrence. 41. Thus it transpires that in all probabilities, the incident had taken place in the night when it was totally dark and no-one could identify the assailants but in view of the previous enmity between the accused-appellant and deceased Ashraf Ali, he was falsely implicated in the murder of Ashraf Ali by P. W. 1 Sardar Ali and deceased Ashraf Ali. The blood stained and plain earth collected from the place of incident was never sent to the forensic expert for obtaining his report. No effort was made by the I.O. of this case to recover the firearm allegedly used in the commission of the crime. The material contradictions in the evidence of P. W. 1 Sardar Ali and the facts deposed by the deceased in his dying declaration about the presence of his brother Sardar Ali at the place of incident and other discrepancies in his dying declaration which have been highlighted hereinabove, are some of the circumstances which create a strong doubt about the reliability of the prosecution case and thus after taking a holistic view of the facts and circumstances of the case and a thread bare appraisal and scrutiny of the evidence on record, we find that the prosecution has not been able to prove its case against the appellant Bishambhar beyond all reasonable doubts. 42. These are the reasons for allowing the appeal.