Honble PASAYAT, J.–Challenge in this appeal is to the judgment of a Division Bench of the Rajasthan High Court directing acquittal of the respondent. Respondent alongwith two others faced trial for alleged commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC). The respondent in addition was also convicted for offence punishable under Section 326 read with Section 34 IPC and Section 324 read with Section 34 IPC. Life sentence of two years rigorous imprisonment and six months rigorous imprisonment were respectively imposed alongwith fine with default stipulation.

(2). The learned Additional Sessions Judge, Bansabara convicted all the three accused persons but two other accused did not prefer any appeal while the respondent preferred an appeal against his conviction and sentence imposed. In appeal, High Court set aside conviction and directed acquittal.

(3). Background facts in a nutshell are as follows:

On 8.6.1988 Thanu (hereinafter referred to as deceased) along with three accused persons in the night, went to well of accused-respondent Wakteng in order to capture tribals stealing away forest wood. They also drank mahudi, a local wine, and thereafter, accused Wakteng stated to deceased that he used to frighten village people, and therefore, he shall be taught a lesson today and brought a sword, concealed in the well and inflicted a blow on his neck. When deceased Thanu started running, he was chased by Dhuliya and Lalu and thereafter, Dhuliya took sword from Wakteng and inflicted second blow on neck of the deceased, upon which he fell down unconscious.

(4). This factual narration is found in Ex.P-1O, alleged dying declaration, recorded by Abhey Singh Bhati, SHO, (PW-7) in Surgical Ward of Government Hospital, Banswara on 10th June, 1988 two days after the occurrence.

(5). The FIR Ex.P-11 was lodged by Naveneet Lal (PW-4) on the basis of injuries seen on the person of Thanu, who was unconscious till then and was not able to speak and therefore, neither any narration of the crime is mentioned in it nor name of assailants. An offence under Sec.307, IPC was registered on the basis of Ex.P-11 and the deceased was admitted in the hospital where his injuries were examined and he was given treatment and his dying declaration (Ex.P-10) was recorded, as stated above.

(6). Subsequently, Thanu died on 25.6.1988 and, therefore, offence was converted to one under Section 302 IPC. On the basis of Ex.P-10, all the accused persons were put under arrest on 11th June, 1988 vide memos Ex.P-12 to P-14. A discloser statement Ex.P-15 under Section 27 of the Indian Evidence Act, 1872 (in short the Evidence Act) as given by Dhuliya at 08:00 AM on 2nd June, 1988 by which he wanted to recover myan and sword used in the crime and on the same day, in the presence of attesting witnesses, Bhika (PW5) and Chamna, vide Ex.P-7 Dhuliya made sword along with myan recovered from his residential house, which was seized and sealed then and there. A site plan Ex P-8 was also prepared of the place of recovery. On completion of investigation charge sheet was filed and charges were framed.

(7). Accused persons denied accusations and claimed trial. Seven witnesses were examined to further the prosecution version. The trial Court relied on two circumstances to convict the accused persons; (i) the dying declaration purported to have been made and (ii) the recovery of the sword. Because of the conviction and sentence imposed by the trial Court, an appeal had been filed as noted above.

(8). Before the High Court it was submitted that the dying declaration Exb.P-10 was open to grave doubt. It cannot be treated as a dying declaration as the same was neither in question answer form nor was there any endorsement of fitness of the deceased given. On the other hand, the State supported the order of conviction. The High Court noticed that the dying declaration was not recorded in question answer form and it was not writ

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