JUDGMENT : By the judgment impugned dated 9th September, 1983, learned Special Judge/Additional Sessions Judge, Jalaun at Orai, recorded conviction of accused appellants Raghubir Singh, Himmat Singh, Sarnam Singh and Pheran Singh for commission of offence punishable under Section 302, read with Section 34 Indian Penal Code and sentenced them to undergo imprisonment for life term. The accused appellants have also been convicted for an offence punishable under Section 394 IPC and for that they have been sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 1,000/-each and further to undergo six months rigorous imprisonment in default of payment of fine. Accused appellant Pheran Singh has also been convicted for an offence punishable under Section 411 IPC. During the pendency of the appeal, all the accused persons except Sarnam Singh, son of Raghubir Singh, have died and as such appeal has also been abated qua them. The case of the prosecution is that on 15th December, 1980, at about 5.45 pm, Sri Gajendra Singh (PW-2) and his father Nathu Singh (deceased), were returning to their home after visiting Devi Temple situated in outskirts of their village. At a pond, on way, Pheran Singh armed with a knife, Sarnam Singh, Raghubir Singh, Himmat Singh and Makrand Singh armed with lathis along with four other unknown persons came from backside and attacked on Nathu Singh. They also snatched the pistol that was fastened by a belt on the robes of Nathu Singh. On arrival of certain other persons including Ram Das (PW-1), Hakim Singh (PW-3) and Hamir Singh (PW-4), who too were also coming from the temple, the accused persons fled from the spot of occurrence. Consequence to the attack, Nathu Singh received several injuries and, therefore, he was taken to the hospital at a Jalaun. Doctor present at Jalaun hospital provided first aid and also stitched the injuries received by Nathu Singh. Looking to the seriousness, injured was referred for further treatment at Government hospital Orai. Gajendra Singh while leaving Nathu Singh at Orai hospital for treatment went to the police station at Orai to lodge a First Information Report. At his instance, a case was lodged against accused appellants and one Makrand Singh for commission of offence punishable under Section 307, read with Section 149 IPC. At Orai hospital, after obtaining fitness certificate from Dr. Gajendra Singh while leaving Nathu Singh at Orai hospital for treatment went to the police station at Orai to lodge a First Information Report. At his instance, a case was lodged against accused appellants and one Makrand Singh for commission of offence punishable under Section 307, read with Section 149 IPC. At Orai hospital, after obtaining fitness certificate from Dr. D.S. Chauhan (PW-9), the Sub Divisional Magistrate, Orai Sri P.D. Srivastava (PW-12) recorded Dying Declaration (Exhibit Ka-6) of Nathu Singh. Sri Nathu Singh then was referred and moved for further treatment to Government Hospital, Kanpur and while in transit he died. After death of Nathu Singh, investigation was undertaken for commission of offence under Section 302/149 IPC. It would be pertinent to mention that though the FIR was lodged at Police Station Orai but the investigation was transferred to Police Station Madhogarh having territorial jurisdiction for investigation of cases, at the place, where the alleged crime was committed. During the course of investigation accused Pheran Singh was arrested and from him a pistol and certain live cartridges were recovered. As per the prosecution, the pistol was of deceased Nathu Singh that was snatched by the accused appellants while committing the crime. The Investigating Agency after completing the investigation filed a report along with a charge sheet before the competent court. The case being triable by the Court of Sessions was committed to it. The Sessions Court on basis of the material available framed the charges and on denial of the same trial commenced as desired. The prosecution supported its case by citing several documents, including Dying Declaration (Exhibit Ka-6) and by getting ocular evidence of sixteen witnesses recorded. Out of the sixteen witnesses, four witnesses, namely, Ram Das (PW-1), Gajendra Singh (PW-2), Hakim Singh (PW-3) and Hamir Singh (PW-4) were cited as eye witnesses. Dr. R.G. Singh (PW-11) adduced medical evidence as he conducted autopsy on the corpus of the deceased Nathu Singh. Sri Dinesh Chandra Chaturvedi (PW-10) narrated all the steps taken by him during the course of investigation, being the Investigating Officer. Sri P.D. Srivastava (PW12) affirmed the Dying Declaration (Exhibit Ka-6) and its contents as he recorded the same in the capacity of Sub Divisional Magistrate. The testimony of Dr. D.S. Chauhan (PW-9) was recorded as he granted fitness certificate of Sri Nathu Singh for getting his Dying Declaration recorded. Sri P.D. Srivastava (PW12) affirmed the Dying Declaration (Exhibit Ka-6) and its contents as he recorded the same in the capacity of Sub Divisional Magistrate. The testimony of Dr. D.S. Chauhan (PW-9) was recorded as he granted fitness certificate of Sri Nathu Singh for getting his Dying Declaration recorded. After completing the prosecution evidence, opportunity was extended to the accused appellants for explaining adverse and incriminating circumstances existing against them in prosecution evidence. All the accused termed the entire evidence as false and concocted with an allegation that they have been falsely implicated in the case. No evidence in defence was adduced. It would be appropriate to state that out of the four eye witnesses three, namely, Ram Das (PW-1), Hakim Singh (PW-3) and Hamir Singh (PW-4) did not support prosecution case in any manner and, therefore, they were declared hostile. Sri Gajendra Singh (PW-2) who also happens to be son of deceased Nathu Singh supported the prosecution story. Trial Court after examining the entire evidence available on record while acquitting the accused Makrand Singh from all the charges, held the accused appellants guilty for offences mentioned in para 1 of the judgment and sentenced them accordingly. In appeal, the argument advanced by learned counsel appearing on behalf of the appellant is that the evidence available on record is not adequate to arrive at a definite conclusion about involvement of the accused appellant Sarnam Singh in the crime and a reasonable doubt exist to accept the prosecution story. According to learned counsel, the Dying Declaration (Exhibit Ka-6) is not a reliable being having serious contradictions with the prosecution case. According to him, the narration of the incident by eye witness Gajendra Singh (PW-1) is in serious conflict with the facts given in Dying Declaration. In such circumstance, as per learned counsel, the Dying Declaration deserves to be ignored. To substantiate the argument, he has placed reliance upon a judgment of the Supreme Court in State of Uttar Pradesh Vs. Madan Mohan and others., reported in AIR 1989 SC 1519 . The other argument advanced by learned counsel is that even the evidence adduced by the eye witness is not reliable. According to him, lot of contradictions exists in the version of facts narrated by the eye witness. Madan Mohan and others., reported in AIR 1989 SC 1519 . The other argument advanced by learned counsel is that even the evidence adduced by the eye witness is not reliable. According to him, lot of contradictions exists in the version of facts narrated by the eye witness. The eye witness is a witness interested being a son of deceased, as such, it was necessary to get his version of facts corroborated by independent witnesses, but in the case in hand, such witnesses have not supported the prosecution story. Hence, the accused appellant-Sarnam Singh deserves to be acquitted from the charges levelled against him. Per contra, Km. Meena, learned Additional Government Advocate submits that the Dying Declaration is an important piece of evidence and that cannot be ignored for minor reasons. According to her, a Dying Declaration in itself is sufficient to record conviction of an accused. In the case in hand, as per learned Additional Government Advocate, the Dying Declaration made by deceased Sri Nathu Singh is very definite and that in quite unambiguous terms mentions for causing knife blows to him by Sarnam Singh. As per the medical evidence available on record, the stab wounds were the cause of death. Hence, the Trial Court rightly recorded the conviction. Heard learned counsels and examined the record and considered the argument advanced. At the threshold, it would be appropriate to state that as per the medical evidence available on record, there is not doubt about the homicidal death of Sri Nathu Singh. The question before us is with regard to culpability of the surviving accused Sarnam Singh. Suffice to state that deceased Nathu Singh had 21 injuries and his cause of death was shock and excessive bleeding due to injuries Nos. 6, 7, 8, 13 and 17. The injuries referred above are as follows: “6. Punctured wound 2 ½ cm x 1cm x cavity deep, on left side of chest 10 cm above left nipple. 7. Stitched wound 1 cm long in epigastric region. 8. Stitched wound 1 cm long on left side of abdomen 8 cm above and lateral to the umblicus. 13. Stitched wound 2cm long on lateral aspect right side of chest 4 cm above sub coastal margin. 17. 7. Stitched wound 1 cm long in epigastric region. 8. Stitched wound 1 cm long on left side of abdomen 8 cm above and lateral to the umblicus. 13. Stitched wound 2cm long on lateral aspect right side of chest 4 cm above sub coastal margin. 17. Punctured wound 2 cm x ½ cm x cavity deep on lateral aspect of left chest 13 cm below left axilla.” All these injuries could have been received by knife. As per the facts stated in the FIR, the knife was with accused Pheran Singh and he caused injuries to Nathu Singh by it. The fact relating to knife blows by Sarnam Singh came before the investigation agency in the Dying Declaration (Exhibit Ka-6). The Dying Declaration “Exhibit Ka-6” is an important piece of evidence in the instant matter and that reads as under: “Question No. 1 - What is your name and address? Answer -My name is Natthu Singh s/o Sri Gulab Singh r/o Gohani, Police Station Madhaugarh, District- Jalaun. Question No. 2 -Where, at what time and by whom the injuries were inflicted on you? Answer -As I was coming towards the village from my agriculture fields and had reached near Hardev Singh s/o Chhote Singh's house, four persons had emerged out from the shop which used to be run from the room of his house, and had grabbed me on the way itself and had begun to assault me with knives. Sri Pheran Singh s/o Raghuraj Singh and Sarnam Singh s/o Raghuveer Singh were involved in assaulting with the knives while Raghuveer Singh s/o Chatur Singh and Himmat Singh s/o Chatur Singh kept holding me? It was around 7.00 in the evening and the date was 15.12.80. All the injuries suffered by me were knife injuries. Question No. 3 - Why did they assault you? Answer -All the accused harbour animosity against me due to the mutual legal battle, as I have emerged victorious in the case at every level. Question No. 4 -Do you have anything else to state? Sir, Immediate action against these people is needed otherwise they will attack other ones as they are history-sheeters. Answer -All the accused harbour animosity against me due to the mutual legal battle, as I have emerged victorious in the case at every level. Question No. 4 -Do you have anything else to state? Sir, Immediate action against these people is needed otherwise they will attack other ones as they are history-sheeters. They had injured me with knife and had taken away my licensed pistol also.” The statement was heard, read and verified.” (Authorized translation of the original which is in Devnagari) Before proceeding further, it would also be appropriate to quote the relevant part of the statement given by the eye witness Gajendra Singh (PW-2) and that reads as under: “On 15.12.80 at 5:45pm, it was very bright there. My father and I were returning after devi darshan. When we reached near the pond, which was on the path itself. Accused Feran Singh, Raghuvir Singh, Sarnam Singh, Himmat Singh and Makrand Singh were coming from ahead. Four outsiders were accompanying them whom I do not know. Feran Singh was armed with knife. Rest were armed with lathies. These persons came and surrounded my father. Feran Singh and four outsiders hit him to ground. At that time, Feran Singh started inflicting knife on my father. When I turned back and saw, the witness Hammir Singh, Ramdas, Kripal Singh and Hakim Singh were coming. Then, I raised alarm “Run! these persons are killing my father”. When Feran Singh was inflicting knife on my father, rest of the accused persons were exhorting “Come on, kill the bastard, don't leave him alive”. When the aforesaid witnesses reached at the scene of occurrence the accused immediately ran with challenge to see later on. On this, the accused escaped northwards. My father had a licensed pistol that he always keeping with him. Feran Singh took it away by cutting the belt with knife. He took it away with cover itself.” (Authorized translation of the original which is in Devnagari) In absolute contradiction to the facts stated in the Dying Declaration, the eye witness stated that the knife injuries were caused by Pheran Singh. Beside that, in the Dying Declaration, it is stated that Nathu Singh was returning from his house but as per eye witness, he was coming from temple after Devi darshan. Beside that, in the Dying Declaration, it is stated that Nathu Singh was returning from his house but as per eye witness, he was coming from temple after Devi darshan. As per the Dying Declaration, the incident occurred near the house of Hardev Singh but as per eye witness, incident took place near a pond situated on the way. From perusal of the site plan, it reveals that the incident occurred at the road in front of a pond. On other side of the road, house of Sri Syam Lal is situated. A primary school building is also shown close to the pond but no house of Hardev Singh is there in the site plan. As a matter of fact, no other building except the two mentioned above is situated in close vicinity of the pond and the place where the incident occurred. On minute appreciation of evidence brought on record, it is apparent that the version of facts stated in the Dying Declaration are in enormous conflict with the facts stated by the eye witness and also locations shown in the site plan. With this background, we have measured evidentiary weight of Dying Declaration in the instant matter. We are aware of the legal position that a Dying Declaration possess great weight and an accused of a crime can very be held guilty on basis of it only without further corroborations, but at the same time it has to be ensured that such declaration must inspire full confidence of the Court in its correctness. It is always required to be kept in mind that the Dying Declaration is accepted with a concept of human behaviour and tendency that a person dying will neither speak lie nor make any effort to implicate an innocent person in the crime. While relying upon a Dying Declaration, Court must be conscious to this fact that the accused would not be having any chance in cross examination. The primary effort of the Court while dealing with the Dying Declaration hence is to find out its truthfulness and to see that it must not suffer from any infirmity. If in a case the prosecution version of facts differs from the version of facts given in Dying Declaration, then such declaration suffers from serious infirmity and that cannot be acted upon. In State of Uttar Pradesh Vs. If in a case the prosecution version of facts differs from the version of facts given in Dying Declaration, then such declaration suffers from serious infirmity and that cannot be acted upon. In State of Uttar Pradesh Vs. Madan Mohan (supra), the Supreme Court refuse to accept the Dying Declaration which was in contradiction to the narration of facts by eye witness upon whom the prosecution relied. In the instant matter too out of the four eye witnesses sited by the prosecution, three did not support the prosecution story and whatever stated by Gajendra Singh (PW-2) is having huge difference in version of facts mentioned in the Dying Declaration. As per Dying Declaration, knife blows were given by the accused Pheran Singh as well as Sarnam Singh but the eye witness in quite specific terms assigns the role of causing knife blows to Pheran Singh only. The location of the place of occurrence too is not matching in both the pieces of evidence. True it is, the Dying Declaration was recorded by a Executive Magistrate after obtaining a fitness certificate from a medical practitioner who treated the deceased but the infirmities noticed above makes the Dying Declaration less reliable or to say looses reliability to rest upon the case of the prosecution entirely on that. In view of it, in our considered opinion, the Dying Declaration in the instant matter deserves to be ignored. Learned Additional Government Advocate also relied upon the evidence adduced by eye witness Gajendra Singh (PW-2) with assertion that the participation of accused Sarnam Singh is definite and he was certainly sharing common intention with Pheran Singh in killing Nathu Singh, as such, his conviction under Section 302/34 is justified. We do not find much force in this argument too. As already stated, Sri Gajendra Singh (PW-2) is son of deceased Nathu Singh and beside that, three other independent witnesses produced in evidence by prosecution did not support the prosecution story. The evidence adduced by Gajendra Singh is also in huge contradiction with the facts stated in the Dying Declaration. In entirety of the case, it was necessary to have some corroboration of the evidence adduced by Gajendra Singh, son of deceased Nathu Singh, which is conspicuously absent. A reasonable doubt thus exists in accepting the prosecution case. For the reasons given above, this appeal deserves acceptance. Hence is allowed. In entirety of the case, it was necessary to have some corroboration of the evidence adduced by Gajendra Singh, son of deceased Nathu Singh, which is conspicuously absent. A reasonable doubt thus exists in accepting the prosecution case. For the reasons given above, this appeal deserves acceptance. Hence is allowed. The conviction recorded and the sentence awarded in the judgment impugned dated 9th September, 1983 passed by learned Special Judge/Additional Sessions Judge, Jalaun at Orai, in Sessions Trial No. 68 of 1981 and Sessions Trial No. 6 of 1983 is set aside. The accused Sarnam Singh is acquitted from all the charges for which he was tried. He has already been released from State custody on furnishing bail bonds and sureties, the same are hereby discharged.