JUDGMENT & ORDER : RAM SURAT RAM (MAURYA), J. 1. Heard Sri. A. K. S. Solanki, along with Mrs. Pashli Solanki, for the accused-appellant and Sri. Brijesh Kumar Yadav, A. G. A., for State of U. P. 2. Sri. alias Sri. Pakash (the appellant) has filed aforementioned appeal against his conviction and sentence, passed by, First Additional Sessions Judge, Jaunpur, dated 08.06.1983, in S. T. No. 118 of 1980, State of U. P. v. Sri. alias Sri. Pakash (arising out of Case Crime No. 417 of 1979, under Section 302, IPC, P. S. Kerakat, district Jaunpur), convicting the appellant under Section 302, IPC and awarding sentence of imprisonment for life. 3. On the complaint (Ex-Ka-1) of Ram Samujh Gupta (PW-1), Constable Moharrir- Jagdish Mishra (PW-4) registered FIR (Ex-Ka-5) of Case Crime No. 417 of 1979, under Section 307, IPC, at P. S. Kerakat, district Jaunpur on 12.12.1979 at 18. 30 hours, against Sri. alias Sri. Pakash (the appellant). It has been stated in the complaint that the first informant Ram Samujh Gupta son of Soti Ram Gupta was resident of village Panihar, P. S. Kerakat, district Jaunpur. On 11.12.1979 at about 6.00 p.m., he, his brother Kanhaiya Lal, his brother's wife & son and his mother were sitting in the outer room of the house (darajja) in the light of lantern and lamp. Radio was tuned on. They were chatting to each other. At that time, Sri. alias Sri. Prakash son of Ram Asre, who was resident of his village, entered into the room, while abusing and shot his brother Kanhaiya Lal, from his pistol. When they chased him, then he ran away, making firing. On listening the sound of fire, villagers came there. Due to critical condition, Kanhaiya Lal was taken to hospital at Varanasi, where his treatment was going on. Immediate action was demanded against the accused by arresting him and sending him to jail and protection should be provided to his family. 4. According to the prosecution, after the occurrence, Kanhaiya Lal was taken to Bajrang Nagar crossing from village, on the cot, on which he was resting at the time of occurrence, which was at a distance of two miles. From Bajrang Nagar, he was taken to SSPG Hospital, Varanasi on vehicle, where he was admitted in the hospital. Dr. R. K. Singh (PW-7) prepared his injury report (Ex-Ka-10) on 11. 12. 1979 at 20. From Bajrang Nagar, he was taken to SSPG Hospital, Varanasi on vehicle, where he was admitted in the hospital. Dr. R. K. Singh (PW-7) prepared his injury report (Ex-Ka-10) on 11. 12. 1979 at 20. 30 hours. Dr. R. K. Singh (PW-7) sent an information (Ex-Kha-1) to Police Station Kotwali, Varanasi on 11.12.1979 at 20. 30 hours, for recording dying declaration. In this letter, the name of the accused has not been mentioned. G. D. Entry of Police Station Kotwali, Varanasi shows that on 11.12.1979 at 22.15 hours, Constable Ram Singhasan Maurya, along with a vehicle and driver was sent for taking Magistrate to hospital for recording dying declaration. Executive Magistrate Yuvraj Singh Kem (PW-11) recorded statement of Kanhaiya Lal, I. e. his "dying declaration" (Ex-Ka-16) on 12. 12. 1979 at 12. 44 AM. Dr. T. B. Rai (PW-12) certified that Kanhaiya Lal was in fit condition of mind to give statement. In dying declaration, he has stated that "He was reading book at his shop. Radio was on, in dalan. Then Sri Singh son of Ram Asre Singh caused gunshot injury from his country made pistol to him. He did not have any enmity with him. He did not know the reason for which he caused gunshot injury to him. " Kanhaiya Lal died in hospital on 12.12.1979 at 22. 05 hours. Thereafter his inquest (Ex-Ka-12) was conducted by SI Janardan Singh (PW-10) on 13. 12. 1979 and his dead body was sent for post-mortem. Dr. M. K. Gupta (PW-8) conducted post-mortem on 13. 12. 1979 at 16. 00 hours and prepared post mortem report (Ex-Ka-11) of Kanhaiya Lal. 5. Si Bajrangi Singh (PW-5) started investigation on 13. 12. 1979, after registration of FIR. After death of Kanhaiya Lal, the case was converted under Section 302, IPC. He recorded statements of Ram Samujh, Smt. Munni Devi and Smt. Pyari Devi on the spot. On the pointing out of the witnesses, he prepared site plan (Ex-Ka-9). He collected two wad piece from the spot and prepared recovery memo (Ex-Ka-2), recovery memos of lantern (Ex-1) and lamp (Ex-2), which were found in running condition on the spot. On 14. 12. 1979, he prepared recovery memo (Ex-K-4) of blood- stained bearing clothes of Kanhaiya Lal namely towel, baniyan, kurta, switter, lungi and scarf. He recorded statement of Basantoo Singh (PW-3). On 14. 12. 1979, he prepared recovery memo (Ex-K-4) of blood- stained bearing clothes of Kanhaiya Lal namely towel, baniyan, kurta, switter, lungi and scarf. He recorded statement of Basantoo Singh (PW-3). On 19.12.1979, he obtained copies of Inquest (Ex-Ka-12) and post mortem report (Ex-Ka-11) of the deceased. Thereafter, investigation was done by SHO K. P. Singh (PW-9). He was also transferred and charge sheet was submitted on 15.03.1980 by his successor, on which cognizance was taken. On committal, the case was registered as S. T. No. 118 of 1980 State of U. P. v. Sri alias Sri. Pakash and tried by First Additional Session's Judge, Jaunpur. 6. In order to prove charges, the prosecution examined Ram Samujh Gupta (PW-1), the first informant and an eye-witness, Smt. Munni Devi (PW-2), wife of the deceased, as an eye witness, Basantoo Singh (PW-3), who came on the spot immediately after occurrence and chased the accused, Constable Jagdish Mishra (PW-4) to prove check FIR, SI Bajrangi Singh (PW-5), first Investigating Officer, Constable Uma Shankar Singh (PW-6), who carried dead body of Kanhaiya Lal to mortuary after inquest, Dr. R. K. Singh (PW-7) to prove injury report, Dr. M. K. Gupta (PW-8) to prove postmortem report, SHO K. P. Singh (PW-9), second Investigating Officer, SI Janardan Singh (PW-10), to prove Inquest, Executive Magistrate, Yuv Raj Singh Kem (PW-11) to prove dying declaration of Kanhaiya Lal and Dr. T. B. Rai (PW-12), who had given certificate of fitness at the time of recording dying declaration. 7. After recording evidence of the prosecution, all incriminatory material and facts were put to the accused under Section 313, Cr. P. C., who denied it. He stated that his family had an old enmity with Satya Narain Singh, resident of his village and teaching in Ganesh Rai Inter College. His father was posted as Head Constable in U. P. Police. His elder brother Pradyumn Singh was doing service at Ludhiyana. He was doing agriculture at his house. He had heard that Kanhaiya Lal was returning from his shop at Bajrang Nagar in the evening of the date of incident. As soon as, he reached the limit of the village Panihar, it has become dark. Some unknown miscreant has caused firearm injury to him at siwan (away from abadi). Thereafter, Satya Narain Singh and others brought him to Varanasi and initiated a false case against him. 8. As soon as, he reached the limit of the village Panihar, it has become dark. Some unknown miscreant has caused firearm injury to him at siwan (away from abadi). Thereafter, Satya Narain Singh and others brought him to Varanasi and initiated a false case against him. 8. After hearing the parties, First Additional Session's Judge, by impugned judgment dated 06. 08. 1983, held that the prosecution has failed to prove that Balwant, elder brother of the accused, was arrested in a robbery case of village Chakra, in which, the deceased Kanhaiya Lal had acted as an informer of police against Balwant or in that connection the accused had challenged Kanhaiya Lal 10-15 days prior to the incident. Although Kanhaiya Lal in his dying declaration has not given any motive but the eye-witnesses have stated that at the time of occurrence, Kanhaiya Lal had stated that two hours prior to the occurrence, the accused came to purchase cigarette on credit, which was refused by Kanhaiya Lal on which the accused had annoyed and caused incident. Ram Samujh Gupta (PW-1) and Smt. Munni Devi (PW-2) were the eye-witnesses of the incident, they have fully proved the incident. Basantoo Singh (PW-3) was coming to purchase tobacco from the shop of the deceased and he heard sound of the gunshot. Then he saw the accused running from the place of occurrence. When he chased him, he opened another fire towards the witness. Minor contradictions in the statements of this witnesses are natural inasmuch as they were laymen and subjected to lengthy cross-examination. However these witnesses were fully reliable witnesses. Dr. T. B. Rai (PW-12) called Executive Magistrate Yuvraj Singh Kem (PW-11) for recording statement of Kanhaiya Lal, who recorded his "dying declaration" (Ex-Ka-16) on 12. 12. 1979 at 12. 44 a. m. Dr. T. B. Rai (PW-12) has endorsed, certificate of fitness of Kanhaiya Lal on this statement. Dying declaration was fully reliable, from which also commission of offence by the accused was proved. On these findings, he convicted the appellant under Section 302, IPC and sentenced as mentioned above. Hence, this appeal has been filed. 9. The counsel for the appellant submitted that the incident had occurred on 11. 12. 1979 at 6. 00 p. m. Usually at that time, darkness fully covers. Kanhaiya Lal was returning from his shop at Bajrang Nagar, in the evening, on that day. Hence, this appeal has been filed. 9. The counsel for the appellant submitted that the incident had occurred on 11. 12. 1979 at 6. 00 p. m. Usually at that time, darkness fully covers. Kanhaiya Lal was returning from his shop at Bajrang Nagar, in the evening, on that day. Some unknown miscreant caused firearm injury to him at siwan (long away from abadi area). No one has seen the incident. Ram Samujh Gupta, Smt. Munni Devi and Basantoo Singh were not present at the place of occurrence. Had Ram Samuth Gupta or Smt. Munni Devi present at the place of occurrence, there could be no reason for their not going to hospital, along with Kanhaiya Lal. Kanhaiya Lal was brought to SSPG Hospital, Varanasi by Satya Narain Singh, which is proved from Injury Report (Ex-Ka-10), in which his name was mentioned as "brought by". Satya Narain Singh had an enmity with the family of the appellant. Satya Narain Singh helped Kanhaiya Lal in admitting him in the hospital as such he was in position to dominate his will and tutor him to say that he was shot by the appellant, as real assailant was unidentified. In post-mortem report, peritoneum and liver of Kanhaiya Lal were found ruptured. As such he would not be in position to speak at 12.44 a.m. on 12.12.1979. Dying declaration (Ex-Ka-16) is not a reliable document. The appellant has filed various documentary evidence to prove that several cases were going on between the appellant and Satya Narain Singh. At the instance of Satya Narain Singh, this false case has been initiated against the appellant. Place of incident was not proved, inasmuch as neither empty cartridge nor blood- stained earth was found from the spot although according to the prosecution, the appellant had shot two fire. House of Kanhaiya Lal is surrounded by abadi, the appellant must have been arrested on the spot along with weapon as it was evening and all the villagers might be present at their house at that time. Alleged weapon was not recovered. The first informant was not certain about the accused and the witnesses as such inordinate delay of about 24 hours was taken in lodging FIR. The appellant is liable to be exonerated from the charges. 10. We have considered the arguments of the counsel for the parties and examined the record. Incident was allegedly occurred on 11. 12. The first informant was not certain about the accused and the witnesses as such inordinate delay of about 24 hours was taken in lodging FIR. The appellant is liable to be exonerated from the charges. 10. We have considered the arguments of the counsel for the parties and examined the record. Incident was allegedly occurred on 11. 12. 1979 at 18. 00 hours at village Panihar, while FIR was lodged on 12. 12. 1979 at 18. 30 hours. According to Ram Samujh Gupta, who was aged about 16 years at that time, after incident, Kanhaiya Lal was taken by him, Satya Narain Singh, Basantoo Singh and Dukhran Singh to Bajrang Nagar crossing on the cot. Thereafter, Kanhaiya Lal was taken to SSPG Hospital Varanasi on vehicle by Satya Narain Singh, Basantoo Singh, Dukhran Singh and Dukhanti, step brother of Kanhaiya Lal. He came back to village Panihar. He went to lodge FIR on 12. 12. 1979 at 8. 00 hours to police station Kerakat, which was at a distance of six miles but his FIR was not registered by Sub-Inspector immediately on one or other pretext and it was registered at 18. 30 hours. According to the prosecution, as father of the appellant was posted as Head Constable in U. P. Police at that time as such FIR was delayed by the police in order to give undue benefit to the appellant. According to the appellant, as the accused and the witnesses were not certain, as such, inordinate delay in lodging the FIR was occurred. However, dying declaration (Ex-Ka-16) of Kanhaiya Lal was recorded on 12. 12. 1979 at 12. 44 a. m. , in which he had named the appellant as such reason for delay in lodging the FIR as given by the prosecution appears to be more convincing. 11. Kanhaiya Lal was admitted to SSPG Hospital, Varanasi, where his medical examination was done by Dr. R. K. Singh (PW-7) on 11. 12. 1979 at 20. 30 hours. In Injury Report (Ex-Ka-10) (i) Five gunshot injuries of 0. 75 cm x 0. 75 cm on right side of upper abdomen in an area of 6. 00 cm x 5. 00 cm were noted. Blood was oozing from the injuries. Duration was noted as fresh. Post-mortem of Kanhaiya Lal was done on 13. 12. 1979 at 16. 00 hours by Dr. M. K. Gupta (PW-8). 75 cm x 0. 75 cm on right side of upper abdomen in an area of 6. 00 cm x 5. 00 cm were noted. Blood was oozing from the injuries. Duration was noted as fresh. Post-mortem of Kanhaiya Lal was done on 13. 12. 1979 at 16. 00 hours by Dr. M. K. Gupta (PW-8). In postmortem report (Ex-Ka-11), following injuries were noted:- (i) Surgical stitched wound of 13 cm x 1 cm on right side of abdomen. Along with that a corrugated pipe was also fixed. (ii) Multiple surgical stitched wound of 4. 5 cm on right side of anterior abdomen wall, just above injury No. 1. (iii) Abraded contusions of 3 cm x 2 cm right forearm 2 inch below the elbow joint. (iv) Two stitched wound back side of the abdomen 2 cm lateral thoracic spine. Internal examination showed that right side of heart was full while left side was empty. About 100 CC of blood was found in the cavity of stomach. Peritoneum, Gall bladder, spleen and Liver were found ruptured. Two pellets were found on back of abdomen. Cause of death was noted due to shock and haemorrhage as a result of ante-mortem gunshot injuries. From above evidence it is proved that Kanhaiya Lal received gunshot injury on 11. 12. 1979 at 18. 00 hours and died in SSPG Hospital, Varanasi on 12. 12. 1979 at 22. 05 hours due to these injuires. 12. Now it has to be examined as to whether the prosecution is able to prove the charges against the appellant. So far as motive of the incident is concerned, the prosecution gave two incidents namely (i) Balwant, elder brother of the accused, was arrested in a robbery case of village Chakra, in which, Ram Asre Singh, the father of the appellant had suspicion that the deceased Kanhaiya Lal had acted as an informer of police against Balwant and in that connection the accused had challenged Kanhaiya Lal 10-15 days prior to the incident. (ii) The accused came to purchase cigarette on credit, two hours before the incident which was refused by Kanhaiya Lal on which the accused had annoyed and caused incident. Additional Session's Judge, in the impugned judgment found that first incident was not proved but second incident was proved. (ii) The accused came to purchase cigarette on credit, two hours before the incident which was refused by Kanhaiya Lal on which the accused had annoyed and caused incident. Additional Session's Judge, in the impugned judgment found that first incident was not proved but second incident was proved. Kanhaiya Lal in his dying declaration (Ex-Ka-16) has not given any motive although specific question was put up to him in this respect. Ram Samujh Gupta (PW-1) and Smt. Munni Devi (PW-2) allegedly deposed second incident on the basis of information received from Kanhaiya Lal, immediately after the incident, but Kanhaiya Lal himself had not stated any such incident in his statement. He did not know the reason for causing gunshot injury. Had Kanhaiya Lal stated this reason for the incident to the witnesses, immediately after incident, then there could be no reason for him in not giving same statements before Executive Magistrate. Motive for committing offence by the appellant is not proved. 13. On the other hand the appellant has filed certified copy of Charge Sheet No. 119 dated 10. 10. 1977 submitted in Case Crime No. 185 of 1977, under Sections 147, 452, 323, 504, 352, IPC against Tejai alias Tej Bahadur Singh, Satya Narain Singh, Ram Ujagir, Hanuman, Ram Pratap Singh and Surendra Singh. FIR of Case Crime No. 185 of 1977 was lodged by Balwant Singh, brother of the appellant. Certified copies of statement of Satya Narain Singh recorded in S. T. No. 60 of 1979 and judgment dated 08. 07. 1980, showing that criminal complaint of robbery was filed by Kanhaiya Lal, the deceased against Bechu alias Jokhu Singh and Birendra alias Binda Singh sons of Ram Lochan Singh of village Panihar, which resulted in acquittal. From these documents, it is proved that Kanhaiya Lal had previous enmity with other persons of the village also. Causing firearm injury to Kanhaiya Lal by others cannot be rulled out. Party-bandi was in the village and Kanhaiya Lal and Satya Narain Singh belonged to one party is also proved. Satya Narain Singh had motive for false implication of the appellant, particularly when real assailant was unknown. 14. However, in the cases of direct evidence, the motive has no important roll to play. Now we have to examine as to whether the prosecution has proved the charges against the appellant. Satya Narain Singh had motive for false implication of the appellant, particularly when real assailant was unknown. 14. However, in the cases of direct evidence, the motive has no important roll to play. Now we have to examine as to whether the prosecution has proved the charges against the appellant. In order to prove charges, the prosecution has adduced oral evidence of eye- witnesses and dying declaration of Kanhaiya Lal. Ram Samujh Gupta (PW-1) and Smt. Munni Devi (PW-2) are claiming to be eye- witnesses of the incident. Bajrangi Singh (PW-3) is claiming to be a witness, who reached the place of occurrence, hearing the noise of gunshot, then he saw the accused running from the spot along with his country made pistol. This witness chased him 10 to 15 paces, however, the threatening given by the accused as well as fire was shot towards the witness, as such he stopped chasing him. 15. Ram Samujh Gupta (PW-1), aged about 18 years stated that on 11. 12. 1979, at about 6. 00 p. m. Kanhaiya Lal was resting on a cot, which was covered with thick bed sheet (gadda), lying inside of front room (dahleej). He, wife of Kanhaiya Lal & his son and his mother Smt. Pyari Devi were sitting on a gunny bag on earth, by the side of that cot. Lightening lantern on one side and lamp on other side of cot were kept. He was preparing for night study at that time. His brother asked not to read at time, then he also sat there. Sri. Prakash entered one step in the front room and kept one step out side the room, said "lo sale mar rahe hai" and shot fire from his country made pistol upon Kanhaiya Lal. His brother told that Sri. Prakash run away after hitting him through fire. They caught his brother. The accused run way towards east and thereafter towards north. He alone chased Sri. Prakash two three steps thereafter due to terror he did not proceed further. On their hue and cries and sound of gunshot, Basantoo and Shankar came on spot and saw the accused while running from the spot. In cross-examination, he has stated that they first took Kanhaiya Lal to the house of Bale at Bajrang Nagar crossing. But Bale was not there and had gone to Lal Ganj. Then they took him to Dr. In cross-examination, he has stated that they first took Kanhaiya Lal to the house of Bale at Bajrang Nagar crossing. But Bale was not there and had gone to Lal Ganj. Then they took him to Dr. Tikari, at 6. 30 p. m. , who even did not provide first aid to Kanhaiya Lal. At about 7. 30 p. m. , they proceeded to Varanasi. He has specifically denied that Kanhaiya Lal was reading book at the time of incident. He admitted that customers used to take goods on credit from the shop of his brothers. The Court asked a question as to whether the appellant had not returned the money of the goods purchased previously, on credit, then he has stated that there was no such previous transaction on credit. He admitted that Kanhaiya Lal used to close his shop at 9. 00 to 9. 30 p. m. He admitted that Dr. Lalji Gupta was resident of village Arwaipur, which was at a distance of one mile from his village Panihar. He has relation from Dr. Lalji Gupta from before the incident. However he showed in ignorance about his posting at SSPG Hospital, Varanasi at the time of incident. He admitted that he was taking study from Ganesh Rai Inter College Karra, where Satya Narain Singh was posted as teacher. 16. Smt. Munni (PW-2) aged about 28 years stated that on 11. 12. 1979, at about 6. 00 p. m., her husband was resting on a cot, which was covered with thick bed sheet (gadda), lying inside front room (dahleej). She & her son, her brother-in-law Ram Samujh and her aunt-in-law Smt. Pyari Devi were sitting on a gunny bag on earth, by the side of that cot. Lightening lantern on one side and lamp on other side of cot were kept. Ram Samujh was studying. Sri. Prakash entered one step in the front room and kept one step out side and instantly shot fire from his country made pistol upon Kanhaiya Lal, which caused injuries to him. The accused run away immediately. Ram Samujh chased Sri. Prakash for some distance, thereafter he had returned. On their hue and cries and sound of gunshot, Basantoo and Shankar came on spot and saw the accused while running from the spot. The accused run away immediately. Ram Samujh chased Sri. Prakash for some distance, thereafter he had returned. On their hue and cries and sound of gunshot, Basantoo and Shankar came on spot and saw the accused while running from the spot. In cross-examination, she stated that she did not know that Basantoo Singh, Shanker Singh, Udai Bhan Singh, Satyanarain, Sita Ram Singh, Ram Narain Singh had taken her husband to Varanasi. One of her villager had informed her that her husband had died in hospital at Varanasi. This information was given on 3rd morning of incident. She had three children - eldest daughter is aged about 11 years and son is about 5 years at the time of occurrence. One son was sitting with him she did not know about the other two children but they were not sitting on the cot of the husband. She also stated that her husband was resting and had denied that he was reading a book. 17. Basantoo Singh (PW-3) stated that his house was towards east of the abadi of village Panihar and towards north-east of the house of first informant, passageway (dalan) was towards north of the house of first informant; and Sahan of the house of the first informant was towards east. Kanhaiya Lal used to run his shop at the threshold (dahleej) of his house. At about 6-00 p. m. on the date of incident he was going to make purchasing from the shop of Kanhaiya Lal but as soon as he reached near the cattle trough (nand) which was 10-12 paces away from the door of the first informant then he heard the sound of firing. Along with sound he saw that the accused Sri. alias Shri. Prakash was coming out from the door of Ram Samujh with country-made pistol in his hand. He ran away towards south along with his country-made pistol. He chased the accused 10-15 paces but he could not catch him. When the accused ran towards south then accused crossed him by just one pace away. When accused Sri. was running he was saying that if anybody had tried to chase him he would shoot him. Sri. shot only two fires - one fire was shot before running and the other shot was fired after reaching back side of the house of Ram Samujh. When accused Sri. was running he was saying that if anybody had tried to chase him he would shoot him. Sri. shot only two fires - one fire was shot before running and the other shot was fired after reaching back side of the house of Ram Samujh. When after chasing the accused he came at the house of Ram Samujh then he found that Kanhaiya Lal was lying in an injured position on the mattress(gadda) spread on the cot. Injury was caused in the abdominal area, from which blood was oozing out. Apart from him Shanker Singh also reached there. Inside room wife of Kanhaiya Lal, his aunt and Ram Samujh were present. There was a lighted lamp in the rack (almari)and a lighted lantern was kept on the floor. There was also a transistor kept in the rack and while he reached it was tuned on but immediately it was tuned off. He remained there for 5-7 minutes. In the meantime, Satya Narain Singh, Dukhharan Singh and he took the injured on the cot to Bajrang Nagar on foot from where he was taken to Varanasi in taxi. The cot as left there. Mattress was taken with injured. The injured was got admitted in Shiv Prasad Gupta Hospital, Varanasi at 8-30 p. m. on 11. 12. 1979. The injured died on 12. 12. 1979 at 10-00 p. m. The cot was lying at the house of father of Kanhaiya Lal. After 3-4 days Udaibhan handed over blood stained clothes of Kanhaiya Lal at police station Kerakat on which recovery memo (Ext. Ka-4) was prepared and it was signed by him. On behalf of the appellant cross-examination of this witness was made to prove that there was partybandi in the village. Satya Narain Singh, Basantoo Singh and Kanhaiya Lal were in one party and Balwant Singh elder brother of the appellant had lodged a case under Section 147/452/323/504/506, I. P. C. against Tejai Singh, Satyanarain Singh, Ram Ujagir Singh and others in which police had submitted charge sheet and the case was pending. Kanhaiya Lal deceased had filed a complaint against Bechu Singh under Section 395/37, I. P. C. in which Ram Narain Singh, Satya Narain Singh were not witnesses but Jai Prakash and Davan Ram were witnesses. However, accused Bechu Singh was acquitted in this case. Kanhaiya Lal deceased had filed a complaint against Bechu Singh under Section 395/37, I. P. C. in which Ram Narain Singh, Satya Narain Singh were not witnesses but Jai Prakash and Davan Ram were witnesses. However, accused Bechu Singh was acquitted in this case. Satya Narain Singh was teaching at Ganesh Rai College, Karra which was about 3-4 kilometer away from Bajarang Nagar. When he was cross-examined on the point as to why any family member of Kanhaiya Lal either from Panihar or from Bajrang Nagar had not accompanied him to SSPG Hospital, Varanasi then he had stated that there was no male member in the family at Panhiar while at Bajrang Nagar none was present. Ram Samujh was about 15-16 years old and he was weeping. His wife Smt. Munni Devi had told them that she would also go with her husband and they had assured her that it was night and she might come in the Hospital in the morning . He submitted that at village Panihar there were 20-22 houses and the house of Kanhaiya Lal was surrounded in its three sides by the abadi. He also stated that house of Kanhaiya Lal at Bajrang Nagar was closed. They remained there for 2-4 minutes but Dukhvanti and Wale were not met only women of the house were met. He could not tell as to who had borne the expenses in carrying Kanhaiya Lal to Varanasi although he had admitted that Rs. 75. 00/- was paid for taxi fare. 18. From evidence on record, it is proved that Kanhaiya Lal was having a grossery shop in northern part of front room (dahleej). Time, when the incident took place, is busy hour for such a shop. But it is utter surprise that there was no customer at that time and entire family were resting. Kanhaiya Lal was having three children and eldest was his daughter aged about 11 years. It is alleged that one son was in lap of Smt. Munni Devi (PW-2) but other two children were not there although all the family members were there. In normal situation, the children might also with Kanhaiya Lal on the cot as it was a cold season. It is alleged that one son was in lap of Smt. Munni Devi (PW-2) but other two children were not there although all the family members were there. In normal situation, the children might also with Kanhaiya Lal on the cot as it was a cold season. House of Kanhaiya Lal was surrounded by abadi but apart from Basantoo Singh and Shankar, no other person had come on the spot, although in evening of a cold season the villagers might be present at their house. Alleged weapon was not recovered. From the spot, no empty cartridges or pellets were recovered although, it has been alleged that the appellant has made two shots. 19. Ram Samujh Gupta (PW-1), in his statement stated that Kanhaiya Lal was taken to Bajrang Nagar crossing, which was at a distance of three kilometer from his house at Panihar, on the cot by him, Satya Narain Singh, Basantoo Singh and Dukhran Singh. He has admitted that his one leg was affected with polio from his birth thus carrying a young man along with cot for three kilometer and covering the distance within thirty minutes by him, raises a suspicion. These witnesses further stated that they first brought Kanhaiya Lal to the house of Bale, his father at Bajrang Nagar crossing but door was not open there, although at the house Bale, his second wife Sudama, her son Dukhanti and his wife Kamalawati along with her children were residing. Although, it has been stated that Bale had gone to Lal Ganj at that time but presence of other members at the house was not denied. This statement that house of Bale was not opened at 6. 30 p. m. was also suspicious. Kanhaiya Lal was taken to SSPG Hospital, Varanasi from Bajrang Nagar crossing on a vehicle by Satya Narain Singh, Basantoo Singh, Dukhran Singh and his step brother Dukhanti. The witnesses have not disclosed about the presence of Soti, the father of Ram Samujh Gupta at the time of incident. Normally, wife of Kanhaiya Lal would not leave her husband, who had received gunshot injury. Had Ram Samuth Gupta or Smt. Munni Devi present at the place of occurrence, there could be no reason for their not going to hospital, along with Kanhaiya Lal. Normally, wife of Kanhaiya Lal would not leave her husband, who had received gunshot injury. Had Ram Samuth Gupta or Smt. Munni Devi present at the place of occurrence, there could be no reason for their not going to hospital, along with Kanhaiya Lal. Kanhaiya Lal was brought to SSPG Hospital, Varanasi by Satya Narain Singh, as is proved from Injury Report (Ex-Ka-10), in which his name was mentioned as "brought by". It is admitted to Ram Samujh Gupta (PW-1) and Smt. Munni Devi (PW-2) that they did not go to SSPG Hospital even on 12. 12. 1979. Aforementioned facts raise a suspicion relating to presence of the witnesses at the place the incident. 20. So far as dying declaration of the deceased are concerned, Constitution Bench of Supreme Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710 , held that the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since, the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 21. Kanhaiya Lal was admitted to SSPG Hospital on 11. 12. 1979 at 20. 30 hours. Dr. R. K. Singh (PW-7) sent an information (Ex-Kha-1) to Police Station Kotwali, Varanasi on 11. 12. 1979 at 20. 21. Kanhaiya Lal was admitted to SSPG Hospital on 11. 12. 1979 at 20. 30 hours. Dr. R. K. Singh (PW-7) sent an information (Ex-Kha-1) to Police Station Kotwali, Varanasi on 11. 12. 1979 at 20. 30 hours, for recording his dying declaration. In this letter, the name of the accused has not been mentioned rather it has been mentioned that some unknown person has caused gunshot injury. Kanhaiya Lal in his statement has stated that he was reading book at the time of occurrence while according to the witnesses, he was resting. He specifically forbade Ram Samujh Gupta (PW-1) from reading. Smt. Munni Devi (PW-2) has specifically denied from reading book by Kanhaiya Lal. Thus chance of tutoring or prompting or a product of imagination, for dying declaration cannot be ruled out. At the time of occurrence, due to darkness, Kanhaiya Lal had no opportunity to observe and identify the assailant. Dying declaration is not corroborated by other evidence on record. 22. In view of the aforesaid discussions, we find that the prosecution has failed to prove the charges against the appellant beyond reasonable doubt. The appeal succeeds and is allowed. The conviction and sentence, passed by, First Additional Session's Judge, Jaunpur, dated 08. 06. 1983, in S. T. No. 118 of 1980 State of U. P. v. Sri. alias Sri. Pakash (arising out of Case Crime No. 417 of 1979, under Section 302, IPC, P. S. Kerakat, district Jaunpur), is set aside. The appellant is acquitted from charges. His bail bonds are cancelled and sureties are discharged from their liabilities. Lower Court Record be returned back along with copy of the judgment.