JUDGMENT : Kanwaljit Singh Ahluwalia, J. State of Rajasthan has preferred present appeal against acquittal to assail the impugned judgment dated 15.10.1986 rendered by the Court of Sessions Judge, Kota, whereby accused respondents Mohan Singh and Nihal Ahmad were acquitted of offence under Section 302 IPC, in alternate of offence under Section 302 r.w. 34 IPC. 2. In brief, case of the prosecution is that on 3.8.1985 at about 10.30 AM in a crossing of Kota cantonment, near Tempo Stand, both the appellants had caused knife injuries to Gopal which resulted into his death. The accused have pleaded not guilty to the above said charges and claimed trial. The prosecution to secure conviction of the accused-respondents, examined eleven witnesses, namely Rauf Khan (PW.1), Badri Lal (PW.2), Hanuman (PW.3), Sadakat (PW.4), Shafi Mohd. (PW.5), Nand Kishore (PW.6), Mahendra Singh (PW.7), Vikram Rajawat (PW.8), Bheem Sen (PW.9), Dr. P.D. Vijay (PW.10) and Shiv Dutt Sharma (PW.11). Thereafter statements of accused were recorded under Section 313 Cr.P.C. Accused in his defence examined Dr. Jai Singh (DW.1). Upon examination of defence witness, the trial court examined Dr. S.P. Pareek (CW.1) and Dr. S.S. Bhalla (CW.2). The case of the prosecution rest upon the statement (Ex.P.3) of Gopal injured recorded by the Investigating Officer in presence of Dr. P.D. Vijay (PW.10). 3. Injuries were caused to Gopal on 3.8.1985 at 10.30 AM. His statement (Ex.P.3) was recorded on 3.8.1985 at 10.40 AM in presence of Dr. P.D. Vijay (PW.10) who had appended a certificate below the said statement. Gopal succumbed to his injuries on 3.8.1985 at 11.20 AM. Thus, statement (Ex.P.3) has been termed as dying declaration. 4. Prosecution cited Rauf Khan (PW.1), Badri Lal (PW.2), Hanuman (PW.3), Sadakat (PW.4) and Shafi Mohd. (PW.5) as eyewitnesses. Except Rauf Khan (PW.1), all eye-witnesses turned hostile to the prosecution and stated in categorical terms that they have not seen the occurrence. The trial Judge discarded dying declaration on the ground that medical condition of deceased Gopal was precarious and hence, he could not make dying declaration. To do so, the trial Judge had not relied upon the testimony of Dr. P.D. Vijay (PW.10) in whose presence the dying declaration was recorded. The trial Judge also held that Rauf Khan (PW.1) was not present at the spot. 5. To do so, the trial Judge had not relied upon the testimony of Dr. P.D. Vijay (PW.10) in whose presence the dying declaration was recorded. The trial Judge also held that Rauf Khan (PW.1) was not present at the spot. 5. The only question posed before us is whether the trial Judge has acted perversely by not relying upon purported dying declaration (Ex.P.3/P.13) and whether Rauf Khan (PW.1) solitary eye-witness who deposed against the accused, has been disbelieved for right reasons or not ? 6. First we shall come to the evidence of dying declaration. Gopal made statement (Ex.P.3) to Shiv Dutt Sharma (PW.11) who on the date of occurrence was posted as SHO, Police Station Gumanpura, Kota. 7. Shiv Dutt Sharma (PW.11) in court deposed that on 3.8.1985 at 10.30 AM he received an anonymous information that at the crossing of cantonment near tempo stand, knife injuries have been caused. Upon such information, the witness along with S.I. Vishnu Dev, ASI Mangilal and police companions went to cantonment crossing. They reached there at 10.35 AM. Shiv Dutt Sharma (PW.11) was informed that since condition of injured was serious, he has been taken to the hospital. The witness stated that injured Gopal was got admitted in the hospital. Upon reaching there, Shiv Dutt Sharma (PW.11), SHO, obtained opinion from Dr. P.D. Vijay (PW.10) who declared the injured Gopal fit to make statement. Thereupon, he recorded statement (Ex.P.3) with opinion of the doctor as 'E' to 'F' on the said statement. 8. Now we shall reproduce the statement (Ex.P.3) after translation of the same, as under :- "Statement of Gopal s/o Narayan, caste Jatav, aged 22 years, r/o Kotadi Fakiro Ki, Near Masjid, Kota. On inquiry stated that I am a driver of Tempo No. RSO 2699. I had advanced Rs.500/- as loan to Mohan Gurjar about one month ago for repair of tempo. At 10.30 AM I was sitting at cantonment crossing (circle) at Tempo Stand, when Mohan Gurjar tempo driver and Nihal also tempo driver, came there. I asked Mohan Gurjar to return the amount of loan. Upon this, Mohan Gurjar gave a knife blow in my abdomen. Nihal caused a knife blow in my back. Blood started oozing. Mohan gave a second blow of knife in my abdomen. This attack has been made by Nihal and Mohan Gurjar with an intention to kill me. I asked Mohan Gurjar to return the amount of loan. Upon this, Mohan Gurjar gave a knife blow in my abdomen. Nihal caused a knife blow in my back. Blood started oozing. Mohan gave a second blow of knife in my abdomen. This attack has been made by Nihal and Mohan Gurjar with an intention to kill me. This incident was witnessed by Sadakat @ Balli, tempo driver, and Rauf Khan who is having Pan selling vend and other tempo drivers. LTI Gopal Certified that statement was given in my presence. Sd/- P.D. Vijay Medical Officer 3.8.85" 9. After recording the statement (Ex.P.3), Shiv Dutt Sharma (PW.11), SHO, Police Station Gumanpura, had appended date and time which reads as "3.8.85 at 10.40 AM". 10. Dr. P.D. Vijay (PW.10) on 3.8.1985 at 2.35 PM conducted autopsy on the dead body of Gopal. The said doctor in the postmortem report (Ex.P.12) noted following three injuries :- "1. Stab wound 2½" x ¾" on left hypochondriac region of abdomen. 2. Stab wound 1½ " x ½"x 1" on lateral surface of right hip. 3. Incised wound 1½ " x ¼" x ?" on right lower coastal margin of chest." 11. Doctor further stated that on internal examination, spleen cut was found and the said injury was as a result of injury No.1 given in the abdomen. Dr. P.D. Vijay (PW.10) stated that statement of Gopal was recorded in his presence. As per Dr. P.D. Vijay (PW.10), he had seen the injures of Gopal at about 11.15 AM. In cross-examination, the witness stated that when he had seen the injuries of Gopal at that time his pulse was fast. The witness stated that he is not in a position to remember reading of the pulse. The witness stated that he had prepared the injury report. At that time police was already present and statement (Ex.P.3) was recorded after he had prepared the injury report. We find from the record that no injury report has been exhibited by the prosecution. 12. Testimony of Dr. P.D. Vijay (PW.10) is demolished by Dr. Jai Singh (DW.1) who was attending Gopal in the hospital. 13. Dr. Jai Singh (DW.1) in court stated that on 3.8.1985 he was posted as a Senior Specialist (Surgery) in Government MBS Hospital, Kota. Gopal was brought in injured condition at 10.40 AM. 12. Testimony of Dr. P.D. Vijay (PW.10) is demolished by Dr. Jai Singh (DW.1) who was attending Gopal in the hospital. 13. Dr. Jai Singh (DW.1) in court stated that on 3.8.1985 he was posted as a Senior Specialist (Surgery) in Government MBS Hospital, Kota. Gopal was brought in injured condition at 10.40 AM. At the time of examination of Gopal by him at 11.10 AM, condition of Gopal was precarious. His pulse and blood pressure were not recordable. The injured was clumsy and drowsy. He could only speak after he was kept awake. The witness stated that at 10.40 AM condition of Gopal was precarious. His heart and respiration came to an end. Gopal at 10.40 AM was declared dead. 14. We reproduce the entire statement of Dr. Jai Singh (DW.1) as under :- ^^rk0 3-8-1985 dks eSa M.B.S. Hospital, kota es Senior Specialist, Surgery rSukr Fkk ml fnu bl dsl dk et:c xksiky lqcg 10-40 cts ?kk;y gkyr esa 'ko[kkus esa HkrhZ gqvk FkkA eSus mls 11&10 ,,e ij ns[kk tc mldh gkyr cgqr detksj FkhA mls 3 txg pkdw yxk FkkA mldh pulse o blood pressure fjdkMZ ugha fd;s tk ldrs FksA og cSpsu o drowsy Fkk o cgqr T;knk txkus ij cksyrk FkkA og cold o clammy Fkk ml oDr og lgh c;ku nsus dh fLFkfr esa ughsa FkkA 11-20 ,,e ij mldh heart o respiration cUn gks x;s o mls 11-40 ,,e ij e`r ?kkksf"kr fd;k x;kA eSa vly bed head ticket yk;k gwa tks Ex. D2 gSA blesa AB bckjr esjh dYeh gSA 10-40 rd eSa ejht ds lkFk FkkA 10-40 ,,e ij duty doctor S.P. Pareek us ejht dks esjs okMZ esa HkrhZ dj fn;k FkkA esjs lkeus ejht ds ikl Mk- fot; vk;k Fkk ;k ugha og medical jurist Fkk vkSj vk;k gh gksxkA** 15. Dr. S.P. Pareek (CW.1) stated that he was In-charge of outdoor at MBS Hospital, Kota. At 10.40 AM a person whose name was Gopal was brought in an injured condition. His condition was serious. He was given emergency treatment. In-charge was Dr. Jai Singh. The witness stated that till he remained with the patient, no statement of Gopal was recorded. We reproduce the exact portion from the testimony of Dr. At 10.40 AM a person whose name was Gopal was brought in an injured condition. His condition was serious. He was given emergency treatment. In-charge was Dr. Jai Singh. The witness stated that till he remained with the patient, no statement of Gopal was recorded. We reproduce the exact portion from the testimony of Dr. S.P. Pareek (CW.1), as under :- mlh oDr Incharge doctor tks ward dk Fkk mls cqyk;kA Incharge doctor t;flag th FksA mlds vkus rd rks eSa xksiky ds ikl Fkk vkSj mls treatment ns jgk FkkA esjh ekStwnxh esa MkWDVj t;flga ds vkus rd xksiky dk dksbZ c;ku fdlh us ugha fy;k FkkA xksiky dks HkrhZ fd;k rc mldh gkyr cgqr [kjkc Fkh vkSj og dksbZ c;ku nsus dh fLFkfr es ugha FkkA xksiky bed head ticket, Ex D2 dh gS ftles lh Mh fgLlk esjk dYeh gS vkSj lkFk Dr. Bhalla us Hkh xksiky dks attend fd;k FkkA xksiky dks 'ko[kkus esa HkrhZ djkusa dkSu ysds vk;k FkkA 16. Dr. S.S. Bhalla (CW.2) stated that upon admission of Gopal at 10.40 AM, treatment was started. Doctor has stated that he had attended the patient. Gopal was not in a position to give statement as his pulse and blood pressure were not recordable. The witness stated that Gopal was declared dead at 11.40 AM. 17. A perusal of bed-head ticket (Ex.D.2) and testimony of Dr. Jai Singh (DW.1), Senior Specialist Surgery, Dr. S.P. Pareek (CW.1) and Dr. S.S. Bhalla (CW.2), we are of considered opinion that it is not safe to rely upon the dying declaration which has rightly been discarded by the learned trial Judge. 18. Now, we shall come to the testimony of eye-witnesses. Rauf Khan (PW.1) in court stated that on 3.8.1985 at 10.30 AM he along with Hanuman and Gopal deceased, was taking tea at the vend of another Gopal who used to sell tea. The witness has specifically stated that from the seat of his Pan shop, place of the occurrence is not visible. Rauf Khan (PW.1) in court stated that on 3.8.1985 at 10.30 AM he along with Hanuman and Gopal deceased, was taking tea at the vend of another Gopal who used to sell tea. The witness has specifically stated that from the seat of his Pan shop, place of the occurrence is not visible. The witness in cross-examination, stated as under :- esjk c;ku iqfyl us fy[kk gqvk FkkA c;ku ,Dth&Mh&1 esa , ls ch fgLlk lqukA ;g ckr eSus ugha fy[kkbZA lnkdr viuk VsEiksa ogka LVs.M ij dc ysdj vk;k Fkk eq>s irk ughaA vxj eSa viuh dsfcu esa cSBk jgwa rks ihNs VsEiks LVs.M ij dksbZ O;fDr D;k dj jgk gS og VsEiksa dh lQkbZ dj jgk gS vFkok ugha] eq>s utj ugha vk;sxkA 19. We have perused the statement (Ex.D.1) of Rauf Khan (PW.1) recorded under Section 161 Cr.P.C.. It is recorded therein that Rauf Khan (PW.1) was sitting at his Pan shop. From the admission which we have noted from the testimony of Rauf Khan (PW.1) and statement (Ex.D.1), it is apparent that if Rauf Khan (PW.1) is sitting at the Pan shop he will not be able to witness the occurrence. Furthermore, we find that in the dying declaration (Ex.P.3) it is recorded that Gopal deceased was sitting at the tempo stand at cantonment circle/ crossing. In the dying declaration (Ex.P.3) it was nowhere stated that Gopal was taking tea alongwith the witnesses at the vend of another person called Gopal. The witness was confronted with his previous statement recorded under Section 161 Cr.P.C. (Ex.D.1). The witness stated that he cannot give any explanation as to why it is not recorded in Exhibit-D.1 that he was taking tea along with Gopal deceased at the tea vend, ^^eSusa iqfyl dks crk fn;k Fkk fd okds ds oDr eSa xksiky ds Bsys ij pk; ih jgk Fkk vkSj ogk¡ ;g >xM+k gqvk A ;g ckr vc esjs c;ku ,Dth&Mh&1 esa irk ugha D;ksa ugha fy[kkA** 20. In the above context, we may notice further confrontation of the witness with his previous statement (Ex.D.1) recorded under Section 161 Cr.P.C. as under :- eSusa iqfyl esa fy[kk fn;k Fkk fd eSa e`rd xksiky ds lkFk pk; ih jgk FkkA ysfdu ;g ckr esjs c;ku ,Dth&Mh&1 esa irk ugha D;ksa ugha fy[khaA 21. In the above context, we may notice further confrontation of the witness with his previous statement (Ex.D.1) recorded under Section 161 Cr.P.C. as under :- eSusa iqfyl esa fy[kk fn;k Fkk fd eSa e`rd xksiky ds lkFk pk; ih jgk FkkA ysfdu ;g ckr esjs c;ku ,Dth&Mh&1 esa irk ugha D;ksa ugha fy[khaA 21. Since the witness Rauf Khan (PW.1) made departure from his previous statement (Ex.D.1) recorded under Section 161 Cr.P.C., the testimony of other witnesses assume importance. 22. Hanuman (PW.3), Sadakat (PW.4), Shafi Mohd. (PW.5) have categorically stated that they have not seen the occurrence. They have not seen the accused causing injuries to Gopal. 23. Nand Kishore (PW.6) the witness of recovery of weapon has also turned hostile to the prosecution. Trial Judge has rightly not relied upon the testimony of Rauf Khan (PW.1). 22. Hanuman (PW.3), Sadakat (PW.4), Shafi Mohd. (PW.5) have categorically stated that they have not seen the occurrence. They have not seen the accused causing injuries to Gopal. 23. Nand Kishore (PW.6) the witness of recovery of weapon has also turned hostile to the prosecution. Trial Judge has rightly not relied upon the testimony of Rauf Khan (PW.1). We reproduce Para-8 of the impugned judgment as under :- 8 & tgk¡ rd jmQ[kku dk iz'u gS] esjh jk; esa bl lk{kh us dksbZ okdk ugha ns[kk gS vkSj og fcYdqy >wBk c;ku ns jgk gSA vc mldk ;g c;ku gS fd okds ds le; og xksiky o guqeku ds lkFk Nkouh pkSjkgk ij ,d nwljs xksiky ds pk; ds Bsys ij pk; ih jgk Fkk rks nksuksa eqyfte ogka vk;sa vkSj e`rd xksiky us eqyfte eksgu ls #i;s ekaxs rks eksgu us pkdw fudky dj mlds isV esa ekj fn;kA xksiky ogka ls Hkkxus yxk rks fugky us mlds ihNs Hkkxdj mldh ihB ij ,d pksV ekj nh vkSj fQj eksgu us nwljh ckj mlds isV esa pkdw ekjkA ml lk{kh dk vkxs ;g dguk gS fd eqyfte ds Hkkx tkus ij og vkSj lnkdr xksiky dks vk++WVksfjD'kk esa Mkydj Fkkuk xqeukeiqj ij ys x;sA tgka iqfyl dks xksiky us c;ku fn;s vkSj fQj Fkkus ls og vkSj lnkdr xksiky dks vLirky ys x;s vkSj ogka mldks HkrhZ djk fn;kA loZizFke rks lk{kh f'konRr 'kekZ dk dguk gS fd xksiky dks ?kk;y voLFkk esa mlus ekSds ls mBkdj thi esa Mkyk Fkk vkSj og mls vLirky ys x;k vkSj mlus vLirky esa xksiky dk c;ku fy;k Fkk] tcfd jmQ[kku dk dguk gS fd og vkSj lnkdr xksiky dks ekSds ls Fkkus ij ys x;s tgka xksiky us] c;ku fn;k vkSj fQj os nksuksa xksiky dks vLirky ys x;s FksA vr: jmQ[kku dk ;g c;ku ekuus ;ksX; ugh gSa] blds vykok jmQ us vius iqfyl c;ku ,Dth&Mh&1 ds Hkkx ,-ch esa ;g Li"V fy[kk;k gS fd okds ds le; og viuh iku dh nqdku ij cSBk gqvk FkkA vc mlus ;g c;ku nsus ls bUdkj fd;k gS vkSj dgk gS fd okds ds le; og e`rd xksiky o guqeku ds lkFk pk; ds Bsys ij pk; ih jgk FkkA vr: vc mlus iqfyl esa fn;s gq, c;ku tks cnydj nwljk c;ku fn;k gS og dkQh egRoiw.kZ gS D;ksafd lk{kh us ;g Lohdkj fd;k gS fd ;fn og viuk iku dh nqdku ij cSBk gqvk gksrk rks ;g okdk ugha ns[k ldrk FkkA ekSds dh tks fLFkfr gS] mlds vuqlkj bl lk{kh dh iku nqdku dksVk >kykokM jksM ij gS tks bl jksM ij [kqyrh gS] bl nqdku ds ihNs thou chek fuxe dh fcfYaMx gS] vkSj bl iku dh nqdku o thou chek fuxe dk;kZy; ds chp esa nwljh lMd fudyrh gS] tgka VsEiksa [kMs jgrsa gS] vkSj ml LFkku ij ;g okdk gksuk crk;k x;k gSA lk{kh us ;g Li"V ekuk gS fd okdk mldh iku dh nqdku ds ihNs gqvk Fkk vkSj ;fn og iku dh nqdku ij cSBk gqvk rks xksiky ;k vU; fdlh O;fDr ds VsEiksa LVs.M ij [kMs gq, fdlh dks ;k ogka ekjihV gksrs gq, ugha ns[k ldrk Fkk vr: vc tks mlus c;ku cnydj dgk gS fd og VsEiksa LVs.M ij gh xksiky ds lkFk pk; ih jgk Fkk ;g cgqr gh egRoiw.kZ ckr gS vkSj Li"V gS fd ;g lk{kh Lo;a dks ekSds ij crkus dk iz;kl dj jgk gS ijUrq mlds c;ku ,Dth&Mh&1 dks ns[krs gq, mldk ;g c;ku ekuus ;ksX; ugha gSA bu rF;ksa ls ;g tkfgj gS fd bl lk{kh us ;g okdk ugha ns[kk Fkk vkSj u gh og okdk ns[k ldrk gS] og ftl xksiky ds Bsys ij pk; ihuk crkrk gS] mlds lEcU/k esa Hkh mldk c;ku fuf'pr ugha gSA igys og ml xksiy dk pk; ds Bsys ds ctk; pk; dk LVky gksuk crkrk gS] vkSj ;g c;ku fn;k gS fd uD'kk ekSdk] ,Dth&Mh&1 esa ch LFkku ij xksiky dh pk; dk LVky fn[kk;k x;k gS tks ckr lgh ugh gS vkSj fQj mlus c;ku cnyrs gq, dgk gS fd xksiky dh ogka pk; dh nqdku ugha gS] vkSj mldk pk; dk Bsyk FkkA pk; ds Bsys dk dksbZ o.kZu uD'kk ekSdk ,Dth-ih-1 esa fd;k gqvk ugha gSA mlusa vius iqfyl c;ku ,Dth&Mh&1 esa ;g ckr ugha fy[kkbZ gS fd og okds ds le; xksiky ds lkFk pk; ih jgk FkkA mldk vkxs ;g c;ku gS fd mlus bl ckr ij /;ku ugha fn;k fd xksiky ds 'kjhj ds fdl Hkkx ij pkdw yxk FkkA mlus vkxs dgk gS fd tc og vLirky x;k rc mlus xksiky ds isV ij iV~Vh ca/kh gqbZ ns[kh Fkh vkSj mlls gh mldks irk yxk fd xksiky ds isV esa pksV yxh FkhA blls ;g Li"V gS fd mlus okLro esa okdk ugha ns[kk Fkk] vkSj loZizFke xksiky dks ?kk;y voLFkk esa vLirky esa ns[kk Fkk tc mls isV ij iV~Vh ca/kh gqbZ FkhA mlus ftjg ds vUr essa fQj bl ckr dks nksgjk;k gS fd mlus vLirky esa xksiky ds isV ij iV~Vh ca/kh gqbZ ns[kh ftlls mls irk pyk fd mlds isV esa pksV yxh Fkh vkSj mlls igys mls ;g irk ugh Fkk fd xksiky ds isV esa pksV yxh Fkh ;k ugha ftjg ds vUr esa mlus ;g dgk gS fd tc og xksiky dks Fkkus o vLirky ys x;k rc xksiky vius isV ij gkFk j[kk gqvk FkkA ;fn okLro esa bl lk{kh us okdk ns[kk gksrk] tSlk fd mlus c;ku ds vkjEHk esa crk;k gS vkSj ;fn okLro esa ;g lk{kh xksiky] dks vLirky ys x;k rks mls bl ckr dk vo'; gh Kku gksrk fd xksiky ds isV o ihB ij pksVsa ekjh xbZ Fkha] ijUrq vc mlds c;ku ls ;g Li"V gS fd pksVksa dk irk vLirky esa gh yxk Fkk vkSj mlls igys mls bu pksVksa dk irk ugha FkkA vr: bu lHkh rF;ksa dks ns[krs gq, esjh jk; esa ;g fu:lUnsg dgk tk ldrk gS fd bl lk{kh us dksbZ okdk ugha ns[kk FkkA vkSj tc vc ;g >wBk c;ku ns jgk gSA** 24. Except the evidence of dying declaration and eye-witness account as given by Rauf Khan (PW.1), there is no other evidence to connect the accused-respondent with the crime. Both have been rightly disbelieved by the trial Judge. From appreciation of evidence, the trial Judge formulated an opinion which cannot be termed as perverse. The impugned judgment rendered by the trial Judge is not perfunctory. The view taken by the trial Judge is one view which can be formulated upon appreciation of evidence led by the prosecution. On the touchstone of parameters laid for interference by the High Court in appeal against acquittal, we find that no ground is made to disturb the well reasoned findings returned by the trial Judge 25. Hence, no interference is warranted and the present appeal filed by the State against acquittal of accused respondent, being devoid of merit is dismissed.