JUDGMENT : Shree Chandrashekhar, J. The sole appellant has faced the charge under section 302 of the Indian Penal Code and under section 27 of the Arms Act in S.T. Case No. 288 of 2009. He has been convicted and sentenced to undergo R.I for life under section 302 of the Indian Penal Code and R.I for 3 years and fine of Rs. 1000/-under section 27 (1) of the Arms Act. 2. The informant of this case is wife of Ram Chandra Tanti, the deceased. 3. On the basis of the fard-beyan of wife of the deceased, Parsudih (Bagbera) P.S. Case No. 68 of 2009 was registered on 10.04.2009 against the appellant under sections 324 and 307 of the Indian Penal Code and under section 27 of the Arms Act. Ram Chandra Tanti had died during the course of his treatment at TMH, Jamshedpur and accordingly the offence under section 302 of the Indian Penal Code was added in the report. 4. After the investigation a charge sheet was submitted and the appellant has faced trial on the aforesaid charges for committing murder of Ram Chandra Tanti with fire arms. 5. During the trial, the prosecution has examined 11 witnesses; the informant is P.W 9. There is not eye witnesses to the actual occurrence and case of the prosecution against the appellant is based on oral dying declaration of Ram Chandra Tanti before his wife, daughter-in-law, namely, Rupa Devi P.W 2 and co-villager, namely, Guruwari Majhiain, P.W 1. 6. Dr. Vibhakar Kumar, who has been examined as P.W 10, has conducted the post mortem examination on 11.04.2009. He has found the following injuries on Ram Chandra Tanti: Abrasion : (i) 1 cm x 1/2 cm left forearm back middle part. (ii) 3 cm x 2 cm with scab over right side of face just lateral to right eye. Stitched wound: (i) 1 ½ cm in length with one stitch over left eyebrow medial side. (ii) 3 cm in length with two stitches over left scrotal wall interiorly (iii) 3 ½ cm in length with two stitches over right scrotal wall interiorly. On dissection of the stitched wound no. (i) contusion of scalp over left side of forehead and adjoining left upper eyelid has been found by the doctor. (ii) 3 cm in length with two stitches over left scrotal wall interiorly (iii) 3 ½ cm in length with two stitches over right scrotal wall interiorly. On dissection of the stitched wound no. (i) contusion of scalp over left side of forehead and adjoining left upper eyelid has been found by the doctor. He has observed mark of fire arm entrance over medial side of left super orbital ridge, 1 cm in diameter, with beveling of inner table of skull. The bullet had passed through the brain matter but it was stuck in the mid-occipital area of the brain which was recovered on dissection of the brain. The doctor has also observed laceration of left cerebrum, contusion of soft tissue and tunica with blood clots. In the opinion of the doctor, the injuries were ante-mortem in nature. The stitched wounds were caused by fire arm and the abrasion by hard blunt substance. The death has occurred due to head injury caused by fire arm. 7. Ram Chandra Tanti has suffered homicidal is thus proved through the evidence of P.W 10. 8. By now, it is well-settled that conviction of an accused can be recorded on the basis of oral dying declaration and even though there is minor inconsistency in the dying declarations if the court finds the dying declaration reliable conviction of an accused can be recorded. However, there are certain safeguards which have to be kept in mind before conviction of a person is recorded on the basis of the dying declaration. In “Tapinder Singh Vs. State of Punjab” reported in (1970) 2 SCC 113 , the Supreme Court has observed that the weak points of a dying declaration merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances. In “Arun Bhanudas Pawar Vs. State of Maharashtra” reported in (2008) 11 SCC 232 , the Supreme Court has held that it is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination. In “Arvind Singh Vs. State of Bihar” reported in (2001) 6 SCC 407 , the Supreme Court has explained the law on oral dying declaration, thus: “Dying declarations shall have to be dealt with care and caution. In “Arvind Singh Vs. State of Bihar” reported in (2001) 6 SCC 407 , the Supreme Court has explained the law on oral dying declaration, thus: “Dying declarations shall have to be dealt with care and caution. Corroboration is not essential but it is expedient to have the same, in order to strengthen the evidentiary value of declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of such a statement as trustworthy evidence.” 9. In her fard-beyan, the informant has stated that in the evening of 9.04.2009 she started for home with her husband and a co-villager, namely, Guruwari Manjhiain. Her husband is a vegetable vendor and after selling vegetables they proceeded for home at about 8.30 hrs. in the night. After travelling some distance her husband intending to ease himself asked her to move ahead and when she had gone some distance she heard sound of firing. She came running near her husband who had fallen on the ground near the hand pump adjoining the house of Kartik Patro. She has found injuries on the head and private part of his body. Her husband told her that Indrajeet Patro @ Indra Patro has fired at him. The informant has stated that at that time her husband was conscious. He was first taken to MGM Hospital, Jamshedpur and thereafter to TMH, Jamshedpur where during his treatment her fard-beyan was recorded. The informant has alleged that 2-3 days back the accused-appellant had demanded Rs. 2000/-. Before that also he had taken Rs. 500/-on the occasion of Holi which he did not return. In the court she has reiterated her statement as recorded in the fard-beyan. She has deposed that in the fateful evening she was returning home with her husband and Guruwari Manjhiain and when she had moved ahead of her husband she heard sound of firing. By the time she came near her husband she found that Indrajit Patro @ Indra Patro had fled away after firing at him. On hearing the sound of firing her family members and co-villagers arrived there and in their presence her husband has stated that Indra has fired at him. The informant has further deposed that the accused-appellant was demanding Rs. 2500/-and he was paid Rs. 1500/-. Her co-villager, namely, Guruwari Majhiain was examined as P.W 1. She is also a vegetable vendor. On hearing the sound of firing her family members and co-villagers arrived there and in their presence her husband has stated that Indra has fired at him. The informant has further deposed that the accused-appellant was demanding Rs. 2500/-and he was paid Rs. 1500/-. Her co-villager, namely, Guruwari Majhiain was examined as P.W 1. She is also a vegetable vendor. She has deposed in the Court that in the evening of 9.04.2009 she was returning home with Ram Chandra Tanti and his wife and Ram Chandra Tanti told her that Indrajeet Patro @ Indra Patro has fired at him. She has stated that at that time Ram Chandra Tanti was conscious. The daughter-in-law of the informant who has been examined as P.W. 2 has also claimed that her father-in-law told her that Indro has fired at him. 10. The other prosecution witnesses – P.W 4, P.W 5, P.W 6, P.W 7 and P.W 8 – are not the eye witnesses. They have seen Ram Chandra Tanti in injured condition and taken him to the hospital. 11. In the above facts, a doubt is created on the prosecution story that Ram Chandra Tanti has told name of the appellant as his assailant before the prosecution witnesses. During the investigation the investigating officer has also failed to collect material informations and seize the articles which could have connected the appellant with the crime. He has admitted in his cross-examination that no seizure was made from the place of occurrence. 12. According to the prosecution the informant and Guruwari Manjhiain were walking ahead of Ram Chandra Tanti and they have heard sound of two firing. It has come in the evidence of the prosecution witnesses that the place of occurrence is near the house of Kartik Patro. In her cross-examination P.W 1 has stated that the house of Luthur Patro, Kajal Lohar and Kartik are near the place of occurrence and after some time these persons had also arrived at the place of occurrence. However, during the trial they have not been examined by the prosecution. She has stated in her cross-examination that she has not informed the village-pradhan or any other person about the incident. P.W 2 has stated in her cross-examination that father-in-law of the accused-appellant also resides near the place of occurrence and there are several tenants in his house. However, during the trial they have not been examined by the prosecution. She has stated in her cross-examination that she has not informed the village-pradhan or any other person about the incident. P.W 2 has stated in her cross-examination that father-in-law of the accused-appellant also resides near the place of occurrence and there are several tenants in his house. She has also stated that several persons from the vicinity had arrived at the place of occurrence. In her evidence the informant has also claimed that several villagers came to the place of occurrence. However, except P.W 1 who was returning home along with the informant and her husband no one from the village has been examined during the trial. This has also to be kept in mind that the witnesses examined by the prosecution are close relatives of Ram Chandra Tanti. The daughter-in-law of the deceased is P.W 2; his brother is P.W 4; his sister is P.W 5; P.W 6 and P.W 8 are his son; his daughter-in-law is P.W 7 and wife is P.W 9. The related witnesses are not necessarily interested witnesses, but then, as observed by the Supreme Court in “Raju V. State of Tamil Nadu” reported in (2012) 12 SCC 701 their testimony has to be scrutinized with due care and caution. 13. The testimony of P.W 2 who is daughter-in-law of the deceased is tainted with improvements. The story of oral dying declaration before her is not supported by any other prosecution witness, particularly, the informant. In her fard-beyan the informant has not stated that when her husband told her that Indrajeet Patro @ Indra Patro had fired at him her daughter-in-law was also present there. During her cross-examination, presumably to a suggestion by the defence that she has expressed her apprehension before the investigating officer that Kashi Mardi, Dashu Mardi and Shyam Tanti had committed maar-peet in respect of which a case was pending and they were threatening to kill her father-in-law, she has denied that she has made such statement before the investigating officer. But, the investigating officer in his cross-examination has admitted that during investigation P.W 2 has stated before him that when her father-in-law was returning home he was shot by Dashu Mardi and Kashi Mardi. 14. But, the investigating officer in his cross-examination has admitted that during investigation P.W 2 has stated before him that when her father-in-law was returning home he was shot by Dashu Mardi and Kashi Mardi. 14. The proviso to section 162 of the Code of Criminal Procedure provides that when any witness is called for the prosecution in any inquiry or trial whose statement has been reduced into writing, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict the witness in the manner provided by section 145 of the Indian Evidence Act, 1872. The law on the subject has been discussed by the Supreme Court in “V.K. Mishra Vs. State of Uttarakhand” reported in (2015) 9 SCC 588 , as under: “19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted....” 15. What has been stated by P.W. 2 before the police also creates doubt on complicity of the appellant in the crime. 16. Dr. Fateh Bahadur Singh who has examined Ram Chandra Tanti at 11: 32 p.m on 09.04.2009 has stated that he was unconscious when he was brought to the hospital. He has seen two stitched wounds on Ramchandra Tanti, who has died in course of treatment at 9:55 p.m on 10.04.2009. P.W 10 who has conducted the post-mortem examination has stated that a person receiving such injuries as found on Ram Chandra Tanti would become unconscious within 5-10 minutes and the investigating officer has also admitted during the cross-examination that statement of the injured could not be recorded because he was unconscious. Under these circumstances, the distance between the place of occurrence and the place from where the informant and P.W 1 who were walking together have heard sound of gun fire becomes very relevant. P.W 1 who has claimed that she was with the informant when she heard sound of firing has stated that the distance between the place of occurrence and the place from where she has heard the sound of firing was about ½ Km. In the context of the oral dying declaration, it is also of some significance and not out of the context to record here that during her cross-examination the informant was put a suggestion that she had told wife of the appellant that if the appellant reveals name of the real culprits she would exonerate him. 17. In the context of the oral dying declaration, it is also of some significance and not out of the context to record here that during her cross-examination the informant was put a suggestion that she had told wife of the appellant that if the appellant reveals name of the real culprits she would exonerate him. 17. The above being the state of affairs; (i) unnatural conduct of P.W 1 in not informing anybody about the incident, (ii) distance between the place of the occurrence and the place from where the witnesses have heard sound of firing, (iii) the injured was unconscious, and (iv) enmity between the deceased and Kashu Mardi and Dashu Mardi, in our opinion conviction of the appellant cannot be recorded on the basis of the oral dying declaration of Ram Chandra Tanti. 18. In the final analysis, we find that the prosecution has failed to establish the charge under section 302 of the Indian Penal Code and under section 27 of the Arms Act against the appellant and, therefore, his conviction for the aforesaid offences is set-aside. 19. The judgment of conviction under section 302 of the Indian Penal Code and under section 27 of the Arms Act dated 20.01.2011 and the order of sentence of R.I for life under section 302 of the Indian Penal Code and R.I for 3 years under section 27(1) of the Arms Act and fine of Rs. 1000/-dated 21.01.2011 against the appellant, namely, Indrajeet Patro @ Indra Patro passed by the learned 1st Additional Sessions Judge, Jamshedpur in S.T. Case No. 288 of 2009 are set-aside. 20. The appellant is acquitted of the criminal charges framed against him in S.T. Case No.288 of 2009. 21. Mr. Arun Kumar Pandey, the learned A.P.P states that the appellant is in custody. 22. Accordingly, the appellant, namely, Indrajeet Patro @ Indra Patro shall be set-free forthwith if not required in connection to any other criminal case. 23. Criminal Appeal (D.B) No.369 of 2011 is allowed. 24. Let lower-court records be sent to the court concerned forthwith.