JUDGMENT : 1. Heard Ms. Seema Pandey (Amicus Curiae) for the appellant; Sri Amit Sinha, learned AGA and have perused the record. 2. This appeal is against the judgment and order of conviction and punishment dated 09.11.1993 and 16.11.1993, respectively, passed by III Additional Sessions Judge, Ghaziabad in Sessions Trial No.166 of 1990 whereby the appellant (Ravindra) has been convicted under Section 302 read with Section 34 IPC and awarded life imprisonment whereas co-accused Smt. Rajni who was tried for the charge of criminal conspiracy for murder has been acquitted. Introductory Facts 3. (i) The prosecution case, in brief, is that in the morning of 24.10.1988, at about 7.30 a.m., while Devendra Singh (Informant PW1), a police constable, was going to attend nature’s call, he was informed by one Ram Mehar (PW-2) that, on the road side, in a sewer pit (manhole), a person is lying injured and is groaning. On receipt of the information, PW-1 went to the spot and with the help of PW-2, Sri Chand Chowkidar (not examined) and Prakash Yadav (PW-5) pulled out the person injured from the manhole (sewer pit) and discovered that he was badly injured and his intestine had come out. On being queried, that person disclosed his name (Shiv Kumar Pathak-the deceased), parentage and place of residence. That injured person also stated that “he (the injured), Munna (absconding accused) son of not known, resident of village Tesuwa, police station Faridpur, district Bareilly and Ravindra (the appellant) son of Siya Ram, resident of village Tesuwa, police station Faridpur, district Bareilly, today, in the morning, at about 5.00 a.m., were going to village Barauk to purchase vegetables; Munna (co-accused) owed Rs.500/-to him (the deceased); he (the deceased) had been requesting Munna to return the money, and when, on way, he (the deceased) made a demand for the money, Munna, all of a sudden, inflicted him (the deceased) a knife blow on his (deceased’s) abdomen and Ravindra (the appellant) held him; thereafter, he (deceased) fell unconscious and, later, when he regained consciousness he is feeling the pain” after stating as above, the injured pointed towards his injury. Narrating the aforesaid incident and the statement of the person injured (the deceased) recited above in vernacular, PW1 lodged a written report (Ex. Ka1) at police station Dadri, district Ghaziabad at 7.30 am on 24.10.1988, which was registered as first information report (FIR) (Ex. Ka-2). Narrating the aforesaid incident and the statement of the person injured (the deceased) recited above in vernacular, PW1 lodged a written report (Ex. Ka1) at police station Dadri, district Ghaziabad at 7.30 am on 24.10.1988, which was registered as first information report (FIR) (Ex. Ka-2). (ii) The injured was rushed to the All India Institute of Medical Sciences, New Delhi (AIIMS). He was admitted there at 10.00 am. There he died at 11.20 am on 24.10.1988 itself. The summary of his admission and death provided by Department of Forensic Medicine, AIIMS is there on record as Paper No. Ex. Ka-3. Prior to his death, an effort was made to record his statement but the doctor noted “unfit for statement”, paper with regard thereto is on record as Ex. Ka-8. On 25.10.1988, the body was identified by deceased’s wife Rajni (co-accused) and Rajni’s brother (Avnish Kumar), papers with regard thereto, are on record as Ex. Ka-5 and Ex. Ka-4, respectively . Autopsy was conducted on 25.10.1988 at about 4.30 pm, the autopsy report was admitted under section 294 CrPC. Autopsy report stated that death could be about 28 hours before. The Autopsy report recorded following ante-mortem injuries: 1. Incised wound present in left lumbar area size 8 cm x 6 cm going deep and intestine coming out, 18 cm below left nipple and 6 cm left axillary line. On exploration small intestine and transverse colon cut, peritoneal cavity contained about 2500 cc blood. 2. Incised wound 6 cm x 2 cm x 0.5 cm in mid-umbilical area just 2 cm lateral to the right of injury no.1 and 18 cm below left nipple. 3. Three small lacerated wound size 1 cm x 1 cm x 0.2 cm, 0.5 cm x 0.5 cm and 1 cm x 1 cm just lateral to injury no.2 to the right. (iii) During investigation the police lifted blood stained and plain earth from the spot, collected chappals (slippers) and prepared memorandums thereof on 24.10.1988, which were marked Ex. Ka10 and Ex. Ka 9 respectively. On 04.11.1988, a shirt of the deceased from the manhole of the sewer from where the injured was taken out; and a knife from the bushes around, was recovered allegedly on the pointing out of the appellant, while in police custody. A memo of that recovery (Ex. Ka-9) was made, which was witnessed by Rajendra Prasad (PW-6) and another. 4. On 04.11.1988, a shirt of the deceased from the manhole of the sewer from where the injured was taken out; and a knife from the bushes around, was recovered allegedly on the pointing out of the appellant, while in police custody. A memo of that recovery (Ex. Ka-9) was made, which was witnessed by Rajendra Prasad (PW-6) and another. 4. After investigation, on the strength of material collected during investigation, the police sent three persons for trial, namely, Ravindra (the appellant); Munna (the person who inflicted the knife injury); and Smt. Rajni (wife of the deceased). Notably, Munna was challaned as an absconder. After taking cognizance on the police report, the case was committed to the Court of Session. Through out the trial Munna remained absconding therefore evidence was recorded against him as under section 299 CrPC. Evidence 5. During the course of trial following prosecution witnesses were examined: Constable Devendra Singh (PW-1), the person who lodged the first information report and before whom the deceased had allegedly made statement as noted above; Ram Mehar (PW-2), the person who first noticed the deceased lying in the manhole and on whose information the deceased was taken out from the manhole; Ram Pal Singh (PW-3), who was examined by the prosecution to demonstrate that all the three accused were residing at his premises as his tenant, and that the male accused persons had developed illicit relations with co-accused Rajni (the wife of the deceased), however, this witness completely resiled from the prosecution story and was declared hostile; Inder Singh (PW-4), a police personnel, posted at Defence Colony police station, New Delhi, who proved: the admission of the injured (i.e. the deceased) at AIIMS on 24.10.1988, his death, shortly thereafter, identification of his body by co-accused Rajni (deceased’s wife) and Avnish Kumar (Rajni’s brother), inquest and handing over of body for autopsy as also papers connected therewith; Prakash (PW-5), the person who helped PW-1 and others to take out the injured from the manhole; Rajendra Prasad (PW-6), the person in whose presence the knife was recovered - he proved the recovery memo (Ex. Ka-9); and Sub Inspector Bahadur Singh (PW-7), the Investigating Officer, who started the investigation. It be noted that post mortem report as well as charge sheet and forensic reports were admitted under section 294 CrPC therefore formal proof requirement was dispensed with. 6. Ka-9); and Sub Inspector Bahadur Singh (PW-7), the Investigating Officer, who started the investigation. It be noted that post mortem report as well as charge sheet and forensic reports were admitted under section 294 CrPC therefore formal proof requirement was dispensed with. 6. After the prosecution evidence was led, the incriminating circumstances appearing in the prosecution case were put to the appellant who denied his involvement in the crime and claimed that he has been falsely implicated. Findings of the Trial Court 7. The trial court found that -(a) there was no occasion to doubt the version narrated in the FIR as the police witnesses had no reason to make false allegation; (b) during investigation the investigating officer (PW-7) found that the deceased, his wife (Rajni); Munna and Ravindra (appellant) resided in one room let out by PW-3; (c) PW-4 proved that the deceased in an injured condition was admitted in AIIMS were he expired shortly after admission and his statement could not be recorded as the doctor did not allow him to do so; (d) autopsy report established that the deceased was inflicted knife blows which resulted in his death and the estimated time of death also correlated with the prosecution story; (e) PW-6 established recovery of knife at the instance of the appellant; (f) blood stained shirt was also recovered from the manhole at the instance of the appellant; (g) the chemical examiner report established the presence of human blood on knife, clothes, soil etc therefore, the place of occurrence and the weapon used was proved; (h) the statement of the deceased made before his death is admissible under section 32 of the Evidence Act which clearly establishes that the appellant caught hold the deceased whereas Munna inflicted knife blows resulting in injuries and ultimately his death, the appellant therefore, is liable to be convicted for the offence punishable under Section 302 read with Section 34 IPC. The trial court however found no evidence of conspiracy to nail co-accused Rajni. Submissions 8. The trial court however found no evidence of conspiracy to nail co-accused Rajni. Submissions 8. Assailing the judgment and order of the trial court, learned counsel for the appellant contended : (a) that the prosecution failed to prove any motive against the appellant; (b) that the motive was exclusively with Munna; (c) the story in the FIR reciting the manner of incident suggests that it was the individual act of Munna; (d) the statement of the deceased as recited in the FIR is inconclusive as against the appellant; (e) that admittedly the doctor did not certify the condition of the deceased as fit to record statement hence no reliance can be placed on his (deceased’s) statement; (f) that recovery of incriminating articles is from an open place already discovered hence it is inconsequential; and (g) that there is no ocular account or any other evidence that the deceased was in the company of the appellant or any body else on or about the time of the incident. It was argued that this is a case where there is virtually no evidence, ocular or circumstantial, to complete the chain of incriminating circumstances to rule out all other hypothesis than the guilt of the appellant. Hence, it is a fit case where the appellant be acquitted of the charges for which he has been tried. 9. Per contra, Sri Amit Sinha, learned AGA, submits that this is a case where the presence of the appellant with the deceased and the other co-accused at the time when the deceased was inflicted injury is substantiated from the statement made by the deceased to PW-1; and the recovery of knife on the pointing out of the appellant corroborates that statement of the deceased therefore, the burden was on the appellant to explain the circumstances in which the deceased had suffered injuries and in absence whereof, the conviction of the appellant would be justified under section 302 IPC with the aid of section 34 IPC. Analysis 10. We have considered the rival submissions and have perused the record carefully. Admittedly, there is no ocular version of the incident therefore, the case would have to be decided on the basis of proven circumstances. Before we proceed to analyse the prosecution evidence, we may notice that the explanation of the appellant in his statement, under section 313 CrPC, is nothing except that he denies the incriminating circumstances. Admittedly, there is no ocular version of the incident therefore, the case would have to be decided on the basis of proven circumstances. Before we proceed to analyse the prosecution evidence, we may notice that the explanation of the appellant in his statement, under section 313 CrPC, is nothing except that he denies the incriminating circumstances. He does not dispute his identity or the identity of the deceased. He also does not claim that he does not know anything about the deceased. In that light, we will have to analyse the prosecution evidence. The prosecution evidence against the appellant can be divided into two parts. One is the statement of the deceased made to PW-1 and other persons who pulled him out of the manhole, admissible under section 32 of the Evidence Act, and the other is the circumstantial evidence of recovery of shirt of the deceased from the manhole, and the knife from the bushes around, on the information provided by the appellant. In so far as recovery is concerned, that was made on 4.11.1988, that is ten days later, from the same spot which is accessible to all and from where the deceased was taken out in an injured condition. Hence, in our view, the recovery is inconsequential and appears to have been developed to fortify an otherwise weak prosecution case. Even assuming that it is a genuine recovery, it, at best, would be reflective of the knowledge of the appellant where the knife was thrown, suggestive of appellant’s presence at the scene of crime. But not that the appellant participated in the act of infliction of injuries on the body of the deceased with the other co-accused Munna. 11. In so far as the statement of the deceased made to the witnesses is concerned, we may observe that it is not a formal dying declaration which a Magistrate records after being satisfied with regard to the condition of its maker. Importantly, it has come on record that at AIIMS when an effort was made to record the statement of the deceased, the doctor did not permit as the person was not fit to give his statement. This was just within three to four hours after the deceased was pulled out of the manhole. Importantly, it has come on record that at AIIMS when an effort was made to record the statement of the deceased, the doctor did not permit as the person was not fit to give his statement. This was just within three to four hours after the deceased was pulled out of the manhole. Even in the FIR, wherein the statement of the deceased is recited, the deceased, while he was alive, stated that after infliction of injury he had turned unconscious and has now regained consciousness. Bearing all these circumstances in mind we have to very carefully analyse as to what the deceased actually stated and whether from his statement could it be said with certitude that the deceased was caught hold by the appellant to enable co-accused Munna to inflict injuries with knife. 12. In this case, the statement of the deceased made to PW-1 at the time when the deceased, in an injured condition, was taken out from the manhole, is recorded in the FIR, lodged by PW1, and nowhere else. Meaning thereby that there is no record to suggest that the statement of the deceased was recorded by way of his statement made to the investigating officer under section 161 CrPC. Thus, the recital in the FIR with regard to what the deceased stated is the last record of his statement. In this statement, the deceased had specifically stated that the co-accused Munna had borrowed Rs.500/-from the deceased and when the deceased raised a demand upon him (Munna) for return of the money, while they were moving together in the company of the appellant to purchase vegetables, Munna all of a sudden inflicted him with knife blow on his (deceased’s) abdomen and the appellant held him. In this statement of the deceased, there is no specific allegation that the appellant exhorted Munna to inflict knife blows or that the appellant first caught hold the deceased and then knife blows were inflicted. This statement of the deceased therefore, is not conclusive as regards the role of the appellant. Rather, it leaves us guessing whether the appellant held the deceased, to support him, after he was inflicted knife injury by Munna, or to enable Munna to inflict knife injuries. This riddle could have been solved had the prosecution been able to prove a motive for the crime against the appellant. Rather, it leaves us guessing whether the appellant held the deceased, to support him, after he was inflicted knife injury by Munna, or to enable Munna to inflict knife injuries. This riddle could have been solved had the prosecution been able to prove a motive for the crime against the appellant. Here, the prosecution set out to prove twin motive for the crime. One, which could not be proved, was that the co-accused Munna and the appellant both had an affair with co-accused Rajni, the wife of the deceased, and, therefore, they were interested in finishing off the deceased; and the other, which stood proved from the statement of deceased, was that Munna was annoyed with the pestering demand of the deceased to return his money. Thus, the proven motive for the crime was with Munna alone. Further, the statement of the deceased made to PW-1 also attributes infliction of knife injury to Munna alone, that too, as a sudden response to the demand for return of the money. In our view, therefore, to convict the appellant for the charge of murder with the aid of section 34 IPC would not be safe even though the evidence led may cast suspicion on the conduct of the appellant. But suspicion alone is no substitute for legal proof. No doubt, had it been a case where there was no statement of the deceased in respect of infliction of injury by Munna and circumstantial evidence had proved the presence of the appellant with the deceased at the time of occurrence, by virtue of section 106 of the Evidence Act, burden would have been on the appellant to explain the circumstances in which the deceased suffered injuries and, in absence of proper explanation, he could have been held guilty. But, here, the statement of the deceased conclusively indicts co-accused Munna and, in respect of the appellant it is inconclusive, therefore, taking the aid of section 106 of the Evidence Act, when the mode and manner of infliction of injury is proved by the statement of the deceased, would not be appropriate. 13. At this stage, we may notice that in the statement of PW-1 and PW-2 made during trial there is some improvement than what is stated in the FIR with regard to what the injured (the deceased) stated when he was taken out from the manhole. 13. At this stage, we may notice that in the statement of PW-1 and PW-2 made during trial there is some improvement than what is stated in the FIR with regard to what the injured (the deceased) stated when he was taken out from the manhole. In their statement in court the witnesses stated that the deceased had informed them that the appellant held his hand and Munna inflicted knife blow. Importantly, in their testimony in court, the sudden infliction of knife blow by Munna is also not disclosed though, in the FIR, according to what the deceased had told, there was sudden infliction of knife blow by Munna. Further, the sequence of such infliction i.e. that the appellant first held deceased’s hands and then knife blow was inflicted, was not there. This improvement goes a step further in the testimony of PW-5 when he states that the deceased on being pulled out of the manhole stated that both Kalua @ Ravindra (the appellant) and Munna had inflicted him knife injuries. In our view, the statements made during trial in so far as they are at variance with the one put on record, that is the FIR in this case, would have to be eyed with extreme suspicion because here we are dealing with hearsay evidence. No doubt, a dying declaration is an exception to the rule against hearsay evidence but where the contents of a statement, which is to read as a dying declaration, are put on record, parole evidence different to that what is codified must not ordinarily be accepted unless there are very strong reasons to do so, because the accused gets no right to cross-examine its maker. We are therefore of the firm view that the so called statement of the deceased is not conclusive as regards the role of the appellant and therefore, by relying upon the same, it would be unsafe to hold the appellant guilty with the aid of section 34 IPC. 14. Now, a question may arise as to why an inference with regard to the guilt of the appellant be not drawn from the conduct which he exhibited. One may say that if the appellant’s presence with the deceased had been proved, had he not been guilty, common human courtesy would have been to help out the deceased and not run away by putting him in a manhole. One may say that if the appellant’s presence with the deceased had been proved, had he not been guilty, common human courtesy would have been to help out the deceased and not run away by putting him in a manhole. In this regard, we may observe that, firstly, there is no reliable evidence that the appellant had, with the help of co-accused, put the deceased in a manhole. The oral narration of the witnesses in that regard as to what the deceased had told them is not acceptable for two reasons: (a) it is at variance with what the deceased told, as recited in the FIR; and (b) from the recital in the FIR the deceased had stated that he had turned unconscious after infliction of injuries, if that was so, how would he get opportunity to notice as to who put him in the manhole. Secondly, there is no charge framed against the appellant for an offence punishable under section 201 IPC; and, thirdly, different persons react differently. It is a natural human tendency to run away from the scene of crime, particularly, when it is of a heinous nature. Such a conduct is more pronounced when the victim is not a close associate or relative of the person whose conduct is in question. In this case, noticeably, the prosecution failed to prove close relationship between the deceased and the accused persons. PW-3, the witness, set up to do that, turned hostile. Conspiracy allegation also could not be proved. Thus, even if a question may arise as to why the appellant did not help the deceased if he held no guilt, that, by itself, is not a proof of his guilt. 15. The upshot of the foregoing discussion is that though the proven circumstances may create a strong suspicion with regard to the conduct of the appellant but they are not conclusive to enable us to hold with certitude the appellant guilty. 15. The upshot of the foregoing discussion is that though the proven circumstances may create a strong suspicion with regard to the conduct of the appellant but they are not conclusive to enable us to hold with certitude the appellant guilty. At this stage, we may remind ourselves of the observations made by Supreme Court in its judgment in Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1973) 2 SCC 793 where it was observed: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." The aforesaid legal principle is time-tested and is the bedrock of criminal jurisprudence. 16. In view of the discussion above, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond the pale of doubt. The appellant is therefore entitled to the benefit of doubt. Consequently, the judgment and order of the court below in so far as it relates to the appellant is liable to be set aside. The appeal is therefore allowed. The judgment and order of conviction and sentence passed by the trial court as against the appellant is set aside. If the appellant is on bail, he need not surrender subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court below. 17. Before parting, we record our appreciation for the labour put in by Ms. Seema Pandey, who assisted the Court as an Amicus with commendable preparation. We, accordingly, direct that she be paid Rs.10,000/-(ten thousand only) by the High Court Legal Aid Services Committee for her efforts. 18. Let a copy of this order be sent to the court below for information and compliance.