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The First Information Report was based on a written report Ex. P-1 by Ram Pratap s/o Shivlal. It was recorded on May 7 at about 7-30 p. m. The prosecution supported their case by the evidence of two eye witnesses, dying declarations made to 3 persons and on the recovery of the kassi. They produced two eye witnesses Begaram P. W. 2 and Hazari P. W.

3. The dying declarations were made to three persons first to Jora P. W. 7, later to Gyaniram P. W. 4 at his shop and lastly to Ram Pratap P. W. 5 who arrived at the shop at 6 p. m. If the dying declaration was made to this witness it must have been at that time.

facile fluent liar " but his testimony was accepted by the High Court. Both courts rejected the statement of Ram Pratap but the statements of Gyaniram and Jora were accepted by the High Court although they were rejected by the Sessions Judge.

The High Court has relied upon the testimony of one eye witness Hazari P. W. 3 and two witnesses before whom Shivlal is alleged to have made two dying declarations. There are apparent contradictions between the testimony of Hazari and Bega. The learned High Court Judges disposed of this by saying that Bega's presence "on the spot is open to grave doubts. As such it is, in our opinion, not proper to contradict the statement of a man who was present on the spot by using the statement of another man who was in all probability not there."

The learned Judges have made the following significant observation in regard to Hazari:

" It seems to us that Hazari had said this because the prosecution was producing Bega, and he must have been asked to say that Bega was also present. So far as the story of Hazari about -the incident itself is concerned, nothing has been brought out in his cross-examination to throw doubts on this part of his statement."

They also pointed out, but attached no importance, to other contradictions in the statements of Hazari made before the trial court and before the Police. If as observed by the learned Judges of the High Court, Hazari had mentioned the presence of Bega merely I because the latter was to be produced as a prosecution witness and because he (Hazari) had been asked to mention it, then it would detract so materially from his reliability that it would be dangerous to accept his testimony as being of any great value which is still more diminished by the finding as to the innocence of Mt. Rameshwari.' The other piece of evidence which the prosecution relied upon was the two dying declarations made by Shivlal to Gyaniram P. W. 4 and Jora P. W. 7. Besides the infirmities which the testimony of these two witnesses (Gyaniram P. W. 4 and Jora P. W. 1) suffered from due to material contradictions in their respective statements made at various stages of the case and which have been pointed out by the learned Sessions Judge who said about Gyaniram:

" In such a state of affairs I refuse to put any weight and value to the statement of Gyaniram......... ........... .. their evidence cannot be a sure foundation for maintaining the conviction if the statement of Hazari the sole eye witness is disregarded, as it must be disregarded in this case; because ordinarily a dying declaration of the kind which the prosecution has relied upon is by itself insufficient for sustaining a conviction on a charge of murder.

The learned Sessions Judge was of the opinion that the evidence of the doctor P. W. II made the story that Shivlal could walk for a little distance upto the Khala of Hukma or was able to talk so as to make a dying declaration, improbable. But the learned Judges of the High Court disposed of this matter by saying that the doctor was comparatively young and that his statement was not in accord with the opinion expressed in books on Medical Jurisprudence by authors like Modi and Lyon. But it cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of disposing of the evidence of an expert unless, the passages which are sought to discredit his opinion are put to him. This Court in Sundarlal v. The State of Madhya Pradesh (1) disapproved of Judges drawing (1) A.I.R. 1954 S. C. 28 conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. The learned Judges of the High Court were, therefore, in error in accepting the testimony of these witnesses in support of the correctness of the two dying declarations nor could the statement of the deceased alleged to have been made in the circumstances of this case be considered sufficient to support the conviction of the accused. The recovery of the kassi is a wholly neutral circumstance because it has not been proved that it belonged to Bhagwandas.