ORDER : Devnarayan Mishra, J. This appeal has been preferred being aggrieved with the judgment dated 04.04.1997 passed by Additional Sessions Judge/Special Judge (NDPS Act), Jabalpur in Sessions Trial No.615/1995 by which the appellant has been convicted for the offence punishable under Sections 302 of the IPC and sentenced to R.I. for life imprisonment with default stipulations. 2. In nutshell the prosecution case before the trial Court was that on 17.03.1995 at about 12:15 PM deceased Dheeraj Singh purchased Samosa from the shop of Ashok Nema and sitting in the school ground of Belkheda was having Samosa. Appellant Om Prakash @ Lallu reached there and demanded Samona on which the deceased Dheeraj Singh denied. Appellant Om Prakash @ Lallu started abusing the deceased and when the deceased Dheeraj Singh objected, appellant Om Prakash @ Lallu started assaulting the deceased by knife and inflicted the injury on his chest. On that the deceased Dheeraj Singh ran away from the spot, appellant Om Prakash @ Lallu followed him and assaulted and caused multiple injuries, deceased fell down on the road. When his brother and Police Authorities got the information of the incident, they reached there. The deceased was brought to the Primary Health Center, Belkheda where Police recorded the Dehatinalishi and treating doctor H.N. Badhwani (PW-11) recorded the dying declaration and deceased succumbed to injuries. Merg No.05/1995 was registered, inquest report was prepared, dead body of the deceased was sent for postmortem. Crime No.24/1995 on 17.03.1995 at 21:03 P.M. for the offence under Section 302 was registered against the appellant. Appellant Om Prakash @ Lallu was arrested and knife used in the offence was recovered. The cloths of the deceased, knife used in offence, shirt and pant of the appellant were sent for FSL examination. After usual investigation the charge-sheet was filed before the Judicial Magistrate First Class, Patan and after commitment, the case was sent to Sessions Judge, Jabalpur and after transfer the case was sent for trail before the Trial Court. 3. The trial Court framed the charges for the offence punishable under Section 302 of the IPC for which appellant pleaded that he is innocent and abjured the guilt and prayed for trial. The trial Court recorded the 17 prosecution witnesses and examined the appellant under Section 313 of the Cr.P.C. Appellant has examined the 2 defence witnesses also. 4. 3. The trial Court framed the charges for the offence punishable under Section 302 of the IPC for which appellant pleaded that he is innocent and abjured the guilt and prayed for trial. The trial Court recorded the 17 prosecution witnesses and examined the appellant under Section 313 of the Cr.P.C. Appellant has examined the 2 defence witnesses also. 4. The appellant has pleaded that he has falsely been implicated in the case. 5. Trial Court after hearing the parties passed the impugned judgment, hence, this appeal. 6. Learned counsel for appellant has submitted that the dying declaration (Ex.P-3), Dehatinalishi (Ex.P-30) and statement of deceased (Ex.P-37) are the concocted documents as the deceased died on the spot and he had not given any statement to Police Authorities or doctor. He further submitted that all these documents were prepared after the death of deceased. There is a material contradiction in the statement of Bhavsingh (PW-2) and police personals i.e. Vidhadhar Pandye (PW-15) and Balram Singh Jhariya (PW-16). 7. Dr. S.P. Singh (PW-8) has stated in para-7 of his statement that deceased suffered the grievous injuries and there was internal bleeding and due to excess bleeding, a person can become unconscious in 5-10 minutes and it is also possible that the person may die on the spot or may be in coma. 8. Learned counsel for the appellant has further submitted that except the dying declaration and Dehatinalishi, no independent witnesses has supported the prosecution story. It is also clear that Police reached at the hospital, after the death of the deceased. Ex.P-15A was produced before the medical officer after the death of deceased. The trial Court has wrongly relied on the dying declaration, Dehatinalishi and the statement of deceased (Ex.P-37), hence, the appellant be acquitted. 9. Shri Manas Mani Verma, learned Government Advocate for the State has submitted that the doctor has clearly stated that he recorded the dying declaration and when the police reached, police also recorded the Dehatinalishi and the statement of deceased (Ex.P-37). The trial Court has properly appreciated the evidence. No interference is required in the well reasoned judgment of the trial Court and submitted that appeal be dismissed. 10. We have heard the parties and perused the record. 11. On the point of death, Dr. The trial Court has properly appreciated the evidence. No interference is required in the well reasoned judgment of the trial Court and submitted that appeal be dismissed. 10. We have heard the parties and perused the record. 11. On the point of death, Dr. S.P. Singh (PW-8) has stated that on 18.03.1995 he was posted as a Medical Officer in Primary Health Center, Patan, dead body of the deceased Dheeraj Singh was brought by Constable No.1825 Shrinath, Police Station - Belkheda. He started the examination of dead body at about 2:30 PM and on examination of dead body, he found : Injury No.1 - Stab wound measuring 1.5x3/4 inch in the right side of chest. Below 2.5 inch in the nipple. Wound was 4 inch deep. On exploration, it was found this cutting the Forex Wall Plura and right lung, damaged the liver. In liver it was 2 inch deep cut over the surface and 1.5 inch long due to perforation huge blood was deposited in the plural cavity and blood was coming out from the wound of liver and was deposited in all side of abdomen. Injury No.2 - A incised wound in the left auxiliary, in mid auxiliary line measuring 1 x .25 x1 inch deep. Injury No.3 - A stab wound in the left side of auxiliary in the back side measuring 1.5 x .5 inch and in skin it was 4 inch deep. On opening the wound, it was found that perforing the thorax wall Plura and perforated the lung upto 2 inch deep. It was between the 3rd and 4th Rib. Lungs was collapsed and Plural cavity was full of blood. Injury No.4 - Incised wound in the left shoulder. It was obliquely placed on postro aspect measuring 3.5 x 1.4 superficial. Injury No.5 - Incised wound over the lateral shoulder of left scapula measuring .5 x .5 x .25 inch. Injury No.6 - A stab wound over the left scapula in measuring 1.5 x 1 inch deep. Injury No.7 - A stab wound over the right side of vertebral column at the level of D2. Size of injury was .5 x .25 x .5 inch deep. Injury No.8 - A stab wound over the back of left side of chest about 2 inch lower then the lower angle of scapula, transversely at the level of D10 and D11. Size of injury was .5 x .25 x .5 inch deep. Injury No.8 - A stab wound over the back of left side of chest about 2 inch lower then the lower angle of scapula, transversely at the level of D10 and D11. Size of wound was 1.5 x .5 on the skin and 4 inch deep extended upward perforated the thorex wall and plura. Injury No.9 - A stab wound over the left buttock measuring 1.5 x .5 x 3 inch deep. Injury No.10 - A superficial incised wound over dorsal aspect seize 1 x 1 x 1/6 inch. Injury No.11 - A superficial incised wound over back and left arm seize 3 inch large only skin deep. Injury No.12 - A linear abrasion over back and left fore arm 3 inch long. Injury No.13 - A incised wound over the left thigh in the upper part of lateral aspect measuring 1 x 1/2 x 1/2 cm deep. Injury No.14 - A incised wound over the left thigh in the upper part of lateral aspect measuring 1.5 x 1/2 x 1/4 inch deep. Injury No.15 - A stab wound over posterior aspect of upper part of the thigh measuring 1 x .5 x 3 inch deep. Injury No.16 - Large abrasion in the lateral aspect in the right arm measuring 6 x 2 inch. Injury No.17 - Abrasion on the right shoulder measuring 3 x .5 inch. Injury No.18 - Incised wound over the right shoulder measuring 2 x .5 x 1 cm deep. Injury No.19 - A incised wound over posterior part of auxiliary and shoulder measuring 1 x .5 x .5 cm. All the injuries were ante mortem. Except injury Nos.16 and 17, all the injuries were caused by hard and sharp or pointed object. The doctor opined that the deceased died due to shock as there was excessive bleeding due to injuries on the vital parts of the body and death occurred within 12 to 36 hours of postmortem. 12. Dr. H.N. Badhwani (PW-11) who examined the deceased on 17.03.1995, just after the incident at about 1:45 PM and had found 18 injuries and as stated by Dr. S.P. Singh (PW-8). Dr. S.P. Singh (PW-8) supported the injuries examined by Dr. H.N. Badhwani (PW-11). Postmortem was conducted by Dr. S.P. Singh (PW-8) that is Ex.P-10 and MLC report that is Ex.P-15. H.N. Badhwani (PW-11) who examined the deceased on 17.03.1995, just after the incident at about 1:45 PM and had found 18 injuries and as stated by Dr. S.P. Singh (PW-8). Dr. S.P. Singh (PW-8) supported the injuries examined by Dr. H.N. Badhwani (PW-11). Postmortem was conducted by Dr. S.P. Singh (PW-8) that is Ex.P-10 and MLC report that is Ex.P-15. Thus, it is clear that the deceased died due to stab and incised wounds suffered on the vital part, particularly due to injuries in lungs and liver. 13. On the point of incident, Bhavsingh (PW-2), brother of deceased has stated that on the date of incident his brother Dheeraj Singh went to field and after returning said that he is going to Bus Stand and shall return after a while. The children were playing in front of his house, came and told him that appellant Om Prakash @ Lallu assaulted his brother Dheeraj Singh on that he left the cooking and ran towards the bus stand. He found that crowd had gathered there and police was also present. Police personal were asking to deceased Dheeraj Singh that who assaulted him, then deceased informed the Police Authorities that Om Prakash s/o Chandrabhan Sahu assaulted him. He saw the injuries on the body of the deceased and blood was coming out. Deceased was smeared with blood. He brought his brother by putting him in the Handcart (Theliya) to the hospital before Dr. H.N. Badhwani (PW-11). Dr. H.N. Badhwani (PW-11) examined the deceased and provided first aid. His father also reached there. Doctor advised him to arrange a vehicle as the victim had to be carried to Jabalpur. Dr. Badhwani also asked the deceased who assaulted him on that deceased told Om Prakash assaulted him. His father went for arranging the vehicle. Doctor asked Dheeraj Singh whether he can sign, he said that he is not in a position to sign, hence, his thumb impression was taken. Dr. H.N. Badhwani (PW-11) recorded the answers given by the deceased. After that the deceased died. From there, they brought out the dead body of the deceased and put in front of the house of Vijay Singh and till 9 PM they kept the dead body there and by the Jeep of Vijay Singh, they brought the dead body for postmortem to the Primary Health Center, Patan. After that the deceased died. From there, they brought out the dead body of the deceased and put in front of the house of Vijay Singh and till 9 PM they kept the dead body there and by the Jeep of Vijay Singh, they brought the dead body for postmortem to the Primary Health Center, Patan. Whole night the dead body was kept in the hospital and next day at about 11 AM the autopsy was conducted over the dead body and thereafter, the dead body was handed over to them. 14. From the statement of this witness, it is clear that when he reached on the spot, the police had ahead reached and recorded the statement of deceased. Second fact which is stated by this witness is that doctor recorded the statement of the deceased and he signed on the statement (Ex.P-3) but from the statement of this witness he never stated that with the help of police authority, he brought the injured to the hospital or to the doctor. 15. On this point, Ashok Nema (PW-4) has stated that he has a shop of Sweets and Namkeen in the said School premises where the deceased was murdered. On the day of incident, was Holi, the deceased came to his shop at about 2:00 PM and asked for Samosa. Deceased had taken 10 Samosas for Rs.10. He had ate two Samosas in his shop and rest 8 Samosas he got packed. After half an hour, deceased went from his shop. He saw that deceased was lying in the campus of the School in blood smeared condition and the persons gathered there were crying that Dheeraj Singh has been murdered. 16. Witness Bhavsingh (PW-2) in para-12 of his statement has admitted that he put the body of his brother Dheeraj Singh in a Handcart (Theliya) and Jallu Bhaijan had helped him but he does not remember that any other person helped him or not. When he put the body of his brother in the Handcart (Theliya), the blood was coming out from his body. In para-14, he has stated that Handcart (Theliya) was parked near the shop of Ashok Nema (PW-4) and he brought the Handcart (Theliya) from there and put the body of his brother Dheeraj Singh on that. This witness in his cross examination stated that Dr. In para-14, he has stated that Handcart (Theliya) was parked near the shop of Ashok Nema (PW-4) and he brought the Handcart (Theliya) from there and put the body of his brother Dheeraj Singh on that. This witness in his cross examination stated that Dr. H.N. Badhwani (PW-11) had applied the bandage on the chest of the deceased. When doctor was recording the statement of the deceased, no police personal was there. If they were standing out side, he does not remember. Doctor had called the police, the doctor had inquired to the police personal before him, whether he was T.I. or head constable, he cannot disclose. When doctor was recording the statement of deceased, Police was also recording the statement of the deceased. He put the thumb impression of his brother by holding the hand. 17. But when this witness was cross examined, from his case diary statement (Ex.D-1), in para-20, he has clearly admitted that he had not stated that when he reached on the spot near his brother Dheeraj Singh, the crowd had gathered and police was also present there and recorded the statement of Dheeraj Singh and in that statement Dheeraj Singh had told that Om Prakash had assaulted him. 18. Thus, there is a contradiction on the material point that the police reached the spot and Police and doctor recorded the statement of Dheeraj Singh but from the statement of this witness, it is clear that he was the first person who reached on the spot after the incident and brought the body of his brother in the injured condition before Dr. H.N. Badhwani (PW-11) who examined the deceased. 19. From the statement of Ashok Nema (PW-4) and Bhavsingh (PW-2), it is clear that except the Handcart (Theliya). there was no other means of transport by which the injured could have been brought to the hospital. Ashok Nema (PW-4), no where stated that when he reached on the spot, police reached on the spot earlier or police reached on the spot along with deceased's brother Bhavsingh (PW-2). 20. Other witness of dying declaration, Dalsingh (PW-3), has not supported the prosecution case and stated that after hearing the incident, he went to the residence of doctor and when he was asked to sign the document, he had signed over the Ex.P-3 and till that time there was no clue who assaulted the deceased. 21. 20. Other witness of dying declaration, Dalsingh (PW-3), has not supported the prosecution case and stated that after hearing the incident, he went to the residence of doctor and when he was asked to sign the document, he had signed over the Ex.P-3 and till that time there was no clue who assaulted the deceased. 21. Another point also, Investigating Officer Balram Singh Jhariya (PW-16) has stated that, on 17.03.1995, he was posted as A.S.I. at Police Station Belkheda and was on duty and during his duty hours, the deceased Dheeraj Singh was lying on road in front of the campus of High School, Belkheda. He had lodged the report and had recorded the Dehatinalishi (Ex.P-30) he had also recorded the statement of the deceased in which the deceased had stated that he had purchased Samosas for Rs.10/- and after taking the Samosa, he went to the ground of High School, he was having the Samosa, at that time the appellant reached there and demanded Samosa but when denied the appellant started abusing him and when the deceased objected, appellant started assaulting him with knife. 22. In the cross examination, this witness has stated that when he was recording the Dehatinalishi (Ex.P-30), Police Constable Mahendra Singh was present there and stated that through constable Mahendra Singh, he sent the deceased to the hospital. He did not accompany the deceased to hospital. He had not given any application to the doctor to record the dying declaration of the deceased as the condition of the deceased was serious, hence, he is not in a position to tell whether doctor had recorded any dying declaration of the deceased or not ? He sent the deceased to hospital and after that SHO reached on the spot, then he did not further investigate the case. In para-11, this witness has stated that he stayed 10 to 20 minutes in campus of the house of the doctor but doctor had not recorded the dying declaration of the deceased. In para-14, he has stated that he recorded the statement of the deceased under Section 161 of the Cr.P.C. (Ex.P-37) and at that time SHO Vidhadhar Pandey (PW-15) was not present and has admitted that in the examination-in- chief, he had wrongly stated that the SHO reached on the spot, hence, he did not further investigate the case. 23. Dr. In para-14, he has stated that he recorded the statement of the deceased under Section 161 of the Cr.P.C. (Ex.P-37) and at that time SHO Vidhadhar Pandey (PW-15) was not present and has admitted that in the examination-in- chief, he had wrongly stated that the SHO reached on the spot, hence, he did not further investigate the case. 23. Dr. H.N. Badhwani (PW-11) has admitted in para-4 of his cross examination that he had not given the treatment to the deceased. Firstly, he had recorded the dying declaration, at 1:10 PM to 1:45 PM, and also admitted that when he was recording the statement, the deceased was in such a serious condition that he was not in a position to sign and was speaking barely and stated that when he was recording the dying declaration, the police had not reached on the spot and he denied the suggestion that when he was recording the dying declaration that head constable and other police officers were present at the hospital. He has also denied the suggestion that Bhavsingh (PW-2) and police personal brought the deceased Dheeraj Singh putting him in a Handcart (Theliya). 24. On the same point, the Investigating Officer Vidhadhar Pandey (PW-15) has stated that on 17.03.1995 during the patrolling, he got the information of the injury to Dheeraj Singh and at 2 PM, he reached at the Belkheda Hospital and received the information of death of Dheeraj Singh and prepared Ex.P-16 and on that basis Dehati Merg Intimation (Ex.P-26) was recorded and on return at Police Station, he registered Merg No.05/1995 (Ex.P-27). He prepared the inquest report and sent the dead body of the deceased for the postmortem. This witness, no where has stated that he recorded the statement of deceased. 25. It is worth mention that photographer Govind Prasad Choubey (PW-13) has stated that he has a Photography Shop in Village Belkheda. He was called by police authorities in Police Station Belkheda for photography. He clicked the photographs of deceased Dheeraj Singh s/o Raja Singh Lodhi in front of resident of Dr. H.N. Badhwani (PW-11). The dead body was lying in the Handcart (Theliya) and there were injuries on the body of the deceased. The photographs and negatives are from Ex.P-18 to 25. 26. He clicked the photographs of deceased Dheeraj Singh s/o Raja Singh Lodhi in front of resident of Dr. H.N. Badhwani (PW-11). The dead body was lying in the Handcart (Theliya) and there were injuries on the body of the deceased. The photographs and negatives are from Ex.P-18 to 25. 26. From the perusal of the photographs, it is clearly shown that the deceased was lying in the injured condition and it did not show that any medical intervention was there in the body of the deceased. Only a Gamchha was tide in the right side of the arm and he was wearing a vest and underwear, rest of his cloths were down side of the legs, thus the body was not lying on the stretcher or Bed. 27. Whereas Bhavsingh (PW-2) has stated that the doctor and police personal both recorded the statement of the deceased but the Investigating Officer Balram Singh Jhariya (PW-16) has stated that he recorded the statement of the deceased on the road in front of ground of High School and also stated that constable Mahendra Singh was present there whereas Bhavsingh (PW-2) has clearly stated that he went on the spot and with the help of Jallu Bhaijan and other unknown persons, he put the dead body of the deceased on the Handcart (Theliya). Furthermore, deceased was not brought to the hospital and MLC report was prepared by Dr. H.N. Badhwani (PW-11) on the proforma brought by constable Mahendra Singh was not for the injured deceased. 28. Strange conduct of Dr. H.N. Badhwani (PW-11) is that the patient was in so serious condition and he was in the immediate need of treatment but the doctor did not examine the deceased and did not provided the medical aid but recorded the dying declaration of deceased for almost half an hour from 1:10 to 1:45 PM. 29. Dr. H.N. Badhwani (PW-11) has also clearly admitted that the patient was so serious and he was not in a position to sign and he was weak in speaking. What was the reason that doctor did not provide the immediate medical help instead of recording the statement of the deceased ? 30. While on the same point, Bhavsingh (PW-2) has stated that firstly doctor had provided medical help and put the bandage and first aid then recorded the statement. Whereas the Dr. What was the reason that doctor did not provide the immediate medical help instead of recording the statement of the deceased ? 30. While on the same point, Bhavsingh (PW-2) has stated that firstly doctor had provided medical help and put the bandage and first aid then recorded the statement. Whereas the Dr. H.N. Badhwani (PW- 11) has stated that he had recorded the statement after that he examined the deceased. 31. On this point, it is also doubtful that the Dehatinalishi and the statement of the deceased (Ex.P-37) were recorded by Balram Singh Jhariya (PW-16), otherwise what was the reason that Vidhadhar Pandey (PW-15) recorded the Merg Intimation (Ex.P-27) on the information given by Dr. Badhwani (PW-11), if already police had the intimation that Om Prakash assaulted the deceased and they were having the Dehatinalishi (Ex.P-30), statement of deceased (Ex.P-37) and dying declaration recorded by Dr. Baghani (PW-11). Why the FIR was lodged on 17.03.1995 at 11:30 PM, when the deceased died at about 14:05 PM. The language of Ex.P-27 is written that ^^eSa Fkkuk csy[ksM+k esa Fkkuk izHkkjh mifujh{kd in ij rSukr g¡w vkt fnukad 17-03-1995 ds 14%05 PM ij MkW- ,p- ,e ck/kokuh us ,d fyf[kr vaxzsth esa ys[k dj fn;k fd /khjt flag s/o. jktkjke yks/kh mez 17 o"kZ R/o. csy[ksM+k dh e`R;q 14 cts fpfdRlk ds nkSjku gks x;h gS^^ was recorded. 32. Another eye witness of the dying declaration Dalsingh (PW-3) has not supported that the deceased had given the statement to Police that appellant had assaulted him. Except these documents, no eye witness has supported the prosecution case. 33. 32. Another eye witness of the dying declaration Dalsingh (PW-3) has not supported that the deceased had given the statement to Police that appellant had assaulted him. Except these documents, no eye witness has supported the prosecution case. 33. On this point, on examination of Badri Prasad Dubey (PW-5), Balram Lodhi (PW-7) and Rajaram (PW-14), it has been brought on record that Dheeraj Singh had stolen the crop of father of appellant and the matter was brought before Badri Prasad Dubey (PW-5) and on the date of incident, the deceased went to the field of Balram Lodhi (PW-7) and on that date the quarrel took place between the deceased and a boy of his village and that lad abused the appellant and after that they went on the high school ground where Dheeraj Singh had taken the samosa, the lad who had abused Dheeraj Singh was aggressive, on that deceased returned to his field after that, he heard that someone murdered Dheeraj Singh and by that want to prove the motive that the appellant had assaulted the deceased due to previous enmity as the deceased had stolen the crop and deceased was made to compensate the theft and on the date of incident, quarrel took place with a boy and for these reasons, the appellant murdered Dheeraj Singh. 34. It is to worth mentioned that Dr. S.P Singh (PW-8) has clearly admitted that the injuries sustained by the deceased, it is possible that due to excessive bleeding, he would have become unconscious within five to ten minutes or died on the spot or went into the coma. 35. Looking to the injuries and the conduct of the doctor Dr. H.N. Badhwani (PW-11), the dying declaration is not trustworthy. In the same way, dying declaration in the form of Dehatinalishi and the statement of the deceased (Ex.-P/37), reasons stated above are not trustworthy and it appears that all the documents were prepared after the death of the deceased and due to previous enmity appellant has been implicated in the case. 36. From the above discussions, it is clear that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt and the trial Court on doubtful evidence, convicted the appellant, that cannot be maintained. 36. From the above discussions, it is clear that the prosecution failed to prove the guilt of the appellant beyond reasonable doubt and the trial Court on doubtful evidence, convicted the appellant, that cannot be maintained. Hence, the conviction of the appellant for the offence punishable under Section 302 of the INDIAN PENAL CODE is liable to be set aside and is hereby set aside. 37. Appellant is acquitted from the charge under Section 302 of the INDIAN PENAL CODE . 38. Appellant is on bail, hence, his bail bonds are discharged. 39. With the copy of order, the record of the trial Court be returned back. 40. Record of this case be consigned to the record room.