A dying declaration is admissible in evidence if it is made in the immediate aftermath of the incident and there is no evidence that the declarant had any motive to lie.

( 1 ) THIS is an appeal by the State Government from an order of acquittal based upon a jury's verdict. The trial was held by an Additional Sessions Judge, 24-Parganas sitting with a jury who by a bare majority (5:4) found In favour of the respondents Ram Ajodhya Singh and Sitaram Singh who had been charged for the murder of a man named Chandraket Singh. The learned Judge accepted the verdict and acquitted the respondents. Hence this appeal.

( 2 ) AFTER the appeal was admitted, the usual notices were directed to be issued and the respondents were ordered to be rearrested and released on bail. Respondent Ram Ajodhya Singh was served and has appeared through counsel to appose the appeal; but respondent Sitaram Singh could not be served despite the issue of proclamation and attachment failing execution of a warrant of arrest against him. He continued to be unserved when this Court directed the appeal against respondent Ram Ajodhya Singh to be made ready and heard, even if the notice of appeal and other processes on the other respondent remained unserved and unexecuted. We have, accordingly, before us the appeal against respondent Ram Ajodhya Singh alone. References to respondent Sitaram Singh cannot be avoided without truncating the case as a whole and making it nearly unintelligible, seeing that the appeal against Ram Ajodhya undoubtedly involves consideration of facts affecting Sitaram Singh. But our conclusions will not affect consideration of the appeal against Sitaram Singh if and when it comes to be heard.

( 3 ) PREMISES No. 93/3, Circular Garden Reach Road is a bustee in which there are a large number of tenements. The huts are reached by a narrow passage or Gulli which runs north to south and connects the Circular Garden Reach Road which runs east to west. The deceased Chandraket Singh was a lessee in respect of six rooms, two of which he kept in his own occupation where he lived with his wife and daughter. He had set up a straw-cutter electrically operated in one of the rooms, but the straw business could not be looked after by himself on account of a disability which had supervened. About two years before the date of occurrence he lost use of both hands which obliged him to make some arrangement about the straw cutting business with one Bhagwan Singh (P. W. 1) who came to occupy one of the rooms and to conduct the business on payment of a stipulated monthly sum to the deceased. Two rooms one on either side of the Gulli were sublet, to one Bis-wanath Gossain (P. W. 9 ). The room facing west was being used as a tea-shop by Biswanatb. Further down south another room was lot to a tailor. There were electric lights in the shop where Bhagwan carried the straw business as well as in the rooms in the occupation of the deceased. In front of the straw shop there used to be kept a cot on which the deceased would often rest.

( 4 ) THE tea-shop on the Gulli facing west run by Biswanath was the eause of trouble; it was said to interfere with the free use of the narrow Gulli by the respondents. Earthen pots thrown on the Gulli as left-overs would frequently incommode them.

( 5 ) RESPONDENT Ram Ajodhya Singh as well as his brother Sitaram Singh occupied one of the rooms in the bustee towards the far end in the north reached by the Gulli to which we have referred. It had a ledge in front and to the contiguous north there was a boundary wall several feet high, the other side being flanked by the Port Commissioners' godowns. Respondent Ram Ajodhya Singh was a money lender who lived at the place with his brother and two boys. They had no female inmates living with them. Both of them were exasperated by reason of the newly set-up tea shop to the west of the Gulli which they had to use to get in and out of their room in the bustee.

( 6 ) THE prosecution case is that on the 21st of April, 1960 at about 8. 30 p. m. respondent Ram Ajodhya Singh complained of the inconvenience felt and demanded demolition of the tea