JUDGMENT : M.G. Giratkar, J. 1. Present appeal is filed by the appellant against his conviction for the offence punishable under Section 307 of the Indian Penal Code and for the offence under Section 4 punishable under Section 25 of the Indian Arms Act passed by the Sessions Court, Bhandara in Sessions Trial No. 32/2016. 2. The case of the prosecution against the appellant/accused in short is as under:- (i) Injured Mukesh Bhaisare and appellant are residents of Ambedkar Ward, Bhandara. Mukesh Bhaisare and the sister of appellant were serving in Model Swaraj Tractor Agency at Bela. Their friendship developed and before 10 years of the incident, injured Mukesh had given proposal of marriage with the sister of appellant. That proposal was rejected. Marriage of sister of appellant was performed in 2008-09 but resulted in divorce after some days. The appellant and his cousin Anda Koche (juvenile in conflict with law) were enraged as they felt that divorce was because of misunderstanding created by Mukesh Bhaisare. Her second marriage was performed. Appellant had threatened Mukesh. (ii) On 7-4-2016 at about 10.00 p.m., injured came to his house. He saw Anda Koche, cousin of accused/appellant was standing with motorcycle in front of his house. He asked him as to why he came there. He told appellant that Abhay Koche had called him. Injured told him to visit in the morning. After sometime, appellant Abhijit Koche and Anda Koche came there and blew horn of the motorcycle. Accused and Anda Koche were standing outside the house. Injured asked them as to why they had come. The appellant and Anda Koche told him that they will tell him it at the pan stop of Manish Vaidya within 10 minutes. Then injured proceeded with them by sitting on the motorcycle. That time, his father asked him as to where he was proceeding. Injured Mukesh told that he would come back after sometime. (iii) Instead of taking injured Mukesh to pan shop of Manish Vaidya, he was taken to the ground of Mission High School, Ganeshpur, Bhandara. Appellant started assaulting injured by knife on his head. Then he assaulted on his chest and left thigh. The knife was thrusted in the thigh of injured Mukesh. He made hue and cry. The appellant and juvenile accused ran away by motorcycle. The blade of knife was thrusted into the left thigh of injured Mukesh. Appellant started assaulting injured by knife on his head. Then he assaulted on his chest and left thigh. The knife was thrusted in the thigh of injured Mukesh. He made hue and cry. The appellant and juvenile accused ran away by motorcycle. The blade of knife was thrusted into the left thigh of injured Mukesh. The blood was oozing from injuries. He proceeded towards the road near office of B. & C. Then he stopped one van there. Friend of Mukesh by name Deepak Potdar was driving the said van. He took him to the hospital at Bhandara. Injured was treated there. The Doctor operated him and took out the thrusted knife from his left thigh. At about 3.00 a.m. on 8-4-2016, the father of victim lodged report. Crime was registered for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code against the appellant and the juvenile in conflict with law. (iv) PSI Gaikwad investigated the crime. He went to Civil Hospital, Bhandara in morning and recorded statement of injured Mukesh. Thereafter he went to the spot of incident and prepared spot panchanama. Investigating Officer seized handle of knife, one blood stained T-shirt and earth mixed with blood from the spot of incident. Statements of witnesses were recorded. (v) Appellant was arrested. The appellant was having injury to his right index finger. He was sent for medical examination. Clothes of injured and accused were seized. The seized property were sent to Chemical Analyser, Nagpur for examination. After complete investigation, charge-sheet was filed before the Judicial Magistrate First Class, Bhandara. Offence punishable under Section 307 of the Indian Penal Code is exclusively triable by the Sessions Court, therefore, Judicial Magistrate First Class, Bhandara committed the said case to the Sessions Court for trial. (vi) Charge was framed at Exhibit 19 for the offence punishable under Section 307 of the Indian Penal Code and for the offence under Section 4 punishable under Section 25 of the Indian Arms Act. The prosecution has examined 13 witnesses. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. After hearing the prosecution and defence, the appellant is convicted for the offence punishable under Section 307 of the Indian Penal Code and sentenced to suffer life imprisonment. The prosecution has examined 13 witnesses. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. After hearing the prosecution and defence, the appellant is convicted for the offence punishable under Section 307 of the Indian Penal Code and sentenced to suffer life imprisonment. He is also convicted for the offence under Section 4 punishable under Section 25 of the Indian Arms Act and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 25,000/-, in default to suffer rigorous imprisonment for one year. Hence, the present appeal by the appellant against his conviction. 3. We have heard learned Advocate Shri Dangre for the appellant. He has pointed out evidence of prosecution witnesses. Learned Advocate has submitted that the trial Court wrongly recorded its findings about the commission of offence by the appellant. Learned Advocate has pointed out the findings of the trial Court and submitted that the trial Court has wrongly relied on evidence of P.W. 1 and the statements of injured recorded by PSI Gaikwad, Exhibit 55 and Naib Tahsildar Sima Patne, Exhibit 51. 4. Shri Doifode, learned Additional Public Prosecutor has supported the impugned judgment and prayed for dismissal of appeal. 5. From the evidence on record, it is clear that there was no eye witness of the incident. Injured was not examined by the prosecution as he was murdered on 9-3-2018 and crime in that respect was registered in Police Station, Bhandara vide Crime No. 192/2018. 6. From the perusal of the impugned judgment, it is clear that trial Court has relied on the evidence of P.W. 1 and statement of injured recorded by Tahsildar, Sima Patne at Exhibit 51 and the statement of injured recorded by PSI Gaikwad at Exhibit 55. Trial Court also relied on the statement of injured recorded by the Judicial Magistrate First Class at Exhibit 77. 7. There is no dispute about the injuries sustained by the injured Mukesh. Medical Officer, P.W. 6 Dr. Vinod Ghadsing examined the injured. He has found following injuries. (1) Incised wound over scalp parietal region, size 7 cm. X 2.5 cm. (2) Stab injury over chest below left axilla, size 7 cm. X 2.5 cm. X 8 cm. deep. (3) Stab injury over left thigh, lateral side. The weapon i.e. knife was present inside the wound. Vinod Ghadsing examined the injured. He has found following injuries. (1) Incised wound over scalp parietal region, size 7 cm. X 2.5 cm. (2) Stab injury over chest below left axilla, size 7 cm. X 2.5 cm. X 8 cm. deep. (3) Stab injury over left thigh, lateral side. The weapon i.e. knife was present inside the wound. Medical Officer Ghadsing had opined that those injuries were sufficient to cause death. His opinion is at Exhibit 49. He has stated that weapon was removed. 8. From the evidence of P.W. 6, there is no dispute that injured Mukesh sustained injuries on the vital part of the body and those injuries were sufficient to cause death. Now, the question arises as to who is the author of crime. In that respect, there is no eye witness of the incident. The prosecution has brought on record the evidence of P.W. 1 Bhimrao Bhaisare. Trial Court has relied on his evidence to record that the injured was last seen with the appellant. Learned Advocate for the appellant has submitted that this witness has specifically admitted in his cross-examination that he had not stated before the police while recording his report that appellant Abhijit Koche and Anda Koche had come to his house and they had taken his son (injured) with them. Trial Court has relied on this witness observing that P.W. 1, father of injured had last seen his son in the company of the appellant and juvenile accused. Thereafter he received information that his son was admitted in the hospital. He went to Civil Hospital, Bhandara. His son told him that appellant and juvenile assaulted him by knife, therefore, he sustained injuries. It is pertinent to note that this witness has stated specifically in his cross-examination that he did not see the injuries sustained by his son. His son did not tell about the particular injuries sustained by him. He did not state before police that the appellant and juvenile had come to his house. They had taken his son with them. This material omission creates doubt about his evidence. The material part of his evidence that he had last seen the injured in the company of appellant is not reliable. Being the father, he would have stated the material fact before the police. Therefore, his evidence cannot be relied on. Trial Court has wrongly relied on the evidence of P.W. 1. This material omission creates doubt about his evidence. The material part of his evidence that he had last seen the injured in the company of appellant is not reliable. Being the father, he would have stated the material fact before the police. Therefore, his evidence cannot be relied on. Trial Court has wrongly relied on the evidence of P.W. 1. 9. P.W. 2 Kailash Shahare has stated in his evidence that on 8-4-2016, he was called by police at the spot of incident and spot panchanama was prepared. Spot of incident was shown by one Potdar. From the spot one T-shirt stained with blood, part of metal handle, plain earth and blood mixed earth were seized as per seizure panchanama, Exhibit 36. This witness is near relative of the injured. In the cross-examination, he has stated that injured was brother of wife of his brother. T-shirt was shown to him before the Court. There were no blood stains on it. Evidence of this witness in respect of spot panchanama and seizure panchanama is completely falsified by the evidence of Potdar i.e. P.W. 3. 10. P.W. 3 Dipak Potdar has stated in his evidence that on 7-4-2016 at about 9.30 p.m., he was proceeding to his house from Zilla Parishad, Bhandara by his four wheeler, that time, he saw injured Mukesh standing in the injured condition near Naresh Chicken Centre behind Gurjar Petrol Pump, Bhandara. That time, he took him in his car and admitted in the hospital at Bhandara. He has specifically stated in his evidence that he did not show the spot of incident to the police. He has specifically stated that "it did not happen that Abhay Koche and Anda Koche assaulted the informant Mukesh and he had shown that spot of incident to the police. Police interrogated him." In the cross-examination he has stated that police recorded his statement. He had stated in his statement that he had taken injured Mukesh to Civil Hospital, Bhandara. Except that, nothing was stated by him to the police. This witness has stated that injured Mukesh was residing in Ramabai Ambedkar Ward, Bhandara and he was knowing the injured. He has not stated that injured told him anything about the incident. The injured, in normal course should have disclosed about the incident. Except that, nothing was stated by him to the police. This witness has stated that injured Mukesh was residing in Ramabai Ambedkar Ward, Bhandara and he was knowing the injured. He has not stated that injured told him anything about the incident. The injured, in normal course should have disclosed about the incident. Injured was standing on the road and, it was not the case of the prosecution that he was not in a position to talk. This material witness P.W. 3 falsified the evidence of P.W. 2 about the preparation of spot panchanama and seizure panchanama. Moreover, PSI Gaikwad seized the clothes of accused from his house. Prosecution has not explained that the T-shirt which was seized from the spot was of the accused or any other person. From the case of prosecution, it appears that it was not the T-shirt of the accused or the injured. The clothes of injured were seized from the hospital. Therefore, seizure of T-shirt from the spot of incident creates doubt. The assailant might be a different person. 11. Trial Court has come to the conclusion that evidence on last seen is corroborated by the statement of injured recorded by Naib Tahsildar, Sima Patne vide Exhibit 51 and statement recorded by PSI Gaikwad vide Exhibit 55. Trial Court has wrongly exhibited the statement of the injured recorded vide Exhibit 77, under Section 164 of the Code of Criminal Procedure. Judicial Magistrate First Class who had recorded the statement was not examined before the trial Court. Even if those statements are taken into consideration, then also those statements are nothing more than the statement recorded by the police under Section 161 of the Code of Criminal Procedure. Use of those statements can be only to bring on record omissions and contradictions. Those statements cannot be treated as a dying declaration. The injured had survived and, therefore, those statements cannot be taken into consideration. Injured was murdered subsequently in 2018. 12. As per Section 32 of the Indian Evidence Act, statement in respect of cause of death or the circumstances which resulted in cause of death can be taken into consideration as a dying declaration. Section 32(1) of the Indian Evidence Act reads as under:- 32. Injured was murdered subsequently in 2018. 12. As per Section 32 of the Indian Evidence Act, statement in respect of cause of death or the circumstances which resulted in cause of death can be taken into consideration as a dying declaration. Section 32(1) of the Indian Evidence Act reads as under:- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.---- (1) 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. 13. Injured was alive for about two years after the incident. He was murdered in other incident in 2018. The injuries sustained by the injured in the present case were not the result of his death and, therefore, the statements recorded vide Exhibit 51, Exhibit 55 and Exhibit 77 cannot be taken into consideration to convict the accused. 14. Trial Court recorded its finding that as per the evidence of P.W. 1, injured was taken by the appellant and juvenile accused. The appellant has not explained as to what happened thereafter. Trial Court has recorded finding that the fact which was exclusively within the knowledge of the appellant and as per the Section 106 of the Indian Evidence Act, he has to explain and, therefore, adverse inference is drawn under Section 114(g) of the Indian Evidence Act. It is pertinent to note that prosecution has to prove its case and thereafter burden shifts on the accused. The admission of P.W. 1 itself clearly shows that he is not reliable witness on "last seen". He has specifically stated in his cross-examination that he had not stated to the police that the appellant and juvenile accused taken his son Mukesh. Therefore, burden could not be shifted on the appellant to explain. Trial Court has wrongly drawn presumption under Section 114(g) of the Indian Evidence Act. Section 114(g) of the Indian Evidence Act reads as under:- 114. Therefore, burden could not be shifted on the appellant to explain. Trial Court has wrongly drawn presumption under Section 114(g) of the Indian Evidence Act. Section 114(g) of the Indian Evidence Act reads as under:- 114. Court may presume existence of certain facts.---- (a)--- (b)--- (c)--- (d)--- (e)--- (f)--- (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; 15. The appellant was not bound to produce any evidence and, therefore, presumption is wrongly drawn by the trial Court. Except the evidence of P.W. 1 and statements recorded by Naib Tahsildar, Sima Patne, PSI Gaikwad and Judicial Magistrate First Class, Exhibit 51, Exhibit 55 and Exhibit 77, there is nothing on record to connect the appellant. Evidence of P.W. 1 is not reliable due to his material admissions in the cross-examination. Statements, Exhibit 51 and Exhibit 55 recorded by Sima Patne and PSI Gaikwad cannot be treated as dying declarations. Statement recorded by the Judicial Magistrate First Class, Exhibit 77 cannot be taken as gospel truth. It is not proved by examining the Judicial Magistrate First Class, who recorded the statement under Section 164 of the Code of Criminal Procedure. The injured survived after the incident. The injuries sustained by him in this incident were not the cause of death or the circumstances which resulted in his death, therefore, the use of statements at Exhibit 51, Exhibit 55 and Exhibit 77 can be only to contradict the maker of statements. Trial Court wrongly recorded its findings by drawing wrong presumption under Section 114(g) of the Indian Evidence Act. Without any material evidence, the trial Court has convicted the accused. Hence, we are of the view that the impugned judgment is illegal and, therefore, liable to be quashed and set aside. In the result, we pass the following order: (i) Criminal Appeal is allowed. (ii) Judgment passed by the Sessions Court, Bhandara in Sessions Trial No. 32/2016 on 26-10-2018 convicting the appellant/accused is set aside. (iii) Appellant/accused Abhijit @ Abhay S/o. Kewal Koche is acquitted of the charge of commission of the offence punishable under Section 307 of the Indian Penal Code and Section 4 punishable under Section 25 of the Arms Act. He be set at liberty, if not required in any other case or crime. (iv) Fine amount, if paid by the appellant/accused be refunded to him.