JUDGMENT S.D. Khare, J. - This is a Government Appeal against an order dated 17th November, 1962, passed by the learned Additional Session; Judge, Allahabad, acquitting all the three Respondents of the charge u/s 302 read with Section 34, IPC and Section 120 of the Indian Railways Act. 2. The prosecution case, briefly stated, was that Brindaban Dube, aged about 100 years, was not on good terms with the Respondents, namely. Shiv Babu Singh, Hira Singh and Durga Saran. He had filed complaints u/s 218, IPG against Shiv Babu Singh and Durga Saran Lekhpal. It was alleged that Durga Saran Lekhpal had wrongly scored out the name of Brindaban and had entered the name of Hira Singh Respondent against that land. Hira Singh had appeared as a witness for Durga Saran Lekhpal and Shiv Babu Respondent had stood surety for him. A case for correction of papers was also going on between Brindaban on the one hand and Hira Singh on the other. On 28th December, 1960, Brindaban had gone to Allahabad to prosecute one of his cases. The same evening he travelled by Allahabad Mogal Sarai Passenger to reach his home. The three Respondents also boarded the same train and the same third class compartment at Allahabad. Two of the prosecution witnesses, namely, Ram Oudh (P.W. 6) and Shitla Prasad (P.W. 13) also boarded the same compartment. When the train was about to reach Naini railway station, which is the next stoppage alter Allahabad, the three Respondents started taunting Brindaban Dube. The latter took no notice of their taunt and they started filthily abusing him, and there after Hira Sinjrh kicked him and Durga Saran started beating him with a stick. Shiv Babu Respondent sat on his chest and pressed it with both the knees. Shitla Prasad (P.W. 13) had worked as a clerk of the grandson of Brindaban Dube. Both Shitla Prasad and Ram Oudh rushed to rescue Brindaban Dube and saved him from further assault. As soon as the train stopped at Naini all the three Respondents made good their escape. Shitla Prasad (P.W. 13) had worked as a clerk of the grandson of Brindaban Dube. Both Shitla Prasad and Ram Oudh rushed to rescue Brindaban Dube and saved him from further assault. As soon as the train stopped at Naini all the three Respondents made good their escape. Brindaban Dube was taken out from the compartment with the help of Shitla Prasad and others and the first information report of the occurrence, dictated by Brindaban Dube and scribed by Shitla Prasad (P.W. 13), was lodged at G. R. P. police station, Naini, at 9-15 p.m., i.e. within half an hour of the arrival of the train at Naini. 3. Giddumal constable (P.W. 4) had also reached near the compartment in which the occurrence had taken place and Brindaban Dube had been taken out of the compartment in his presence. A stick was found lying inside the compartment. Giddumal cor stable (P.W. 4) took that stick along with him and deposited the same at G.R.P. police station, Naini, at the time the first information report was lodged. Brindaban Dube was taken to the railway hospital at Naini. The medical officer of that railway hospital advised that he should be removed immediately to Moti Lal Nehru Hospital, Allahabad. Brindaban Dube was, therefore, removed to Moti Lal Nehru Hospital, Allahabad, and "admitted there as an indoor patient. His injuries were examined there by Dr. Verma (P.W. 14) the same night. Brindaban Dube succumbed to his injuries at 12-10 p.m. on 29th December, 1960. 4. It appears that nobody suspected that the end of Brindaban Dube was so near. No effort was, therefore, made to get his dying declaration recorded during the period he remained as an indoor patient of Moti Lal Nehru Hospital, Allahabad. Brindaban Dube had, however, sent word to his grandson Hari Saran Dube through Giddumal constable (P.W. 4). Hari Saran Dube received the information at about 10'30 a.m. and proceeded immediately from the bus station where he was working as a clerk to Moti Lal Nehru Hospital and there learnt the names of the assailants of Brindaban Dube from the victim himself. The prosecution case is that Brindaban Dube had also told Giddumal (P.W. 4) the names of the Respondents as his assailants. 5. The post-mortem examination on the dead body of Brindaban Dube was performed by Dr. The prosecution case is that Brindaban Dube had also told Giddumal (P.W. 4) the names of the Respondents as his assailants. 5. The post-mortem examination on the dead body of Brindaban Dube was performed by Dr. Srivastava (P.W. 10) on the 30th December 1960, at 3 p.m. In the opinion of the doctor the deceased was about 65 to 70years of age and the probable time since death at the time of the postmortem examination was about one day. The body was of average built. Rigor mortis was present all over. The eyes were closed. Cornea was lazy. The following ante-mortem injuries were found on the body as a result of the external examination: 1. Lacerated wound 3/4" X l/4" skin deep on the right side forehead 1/4" above the right eye brow. 2. Abrasion 1" X 1/8" on the left side of scalp 3-1/2" from the left ear. 3. Abrasion 1/2" X 1/8" on the left side of scalp near the midline, 4-1/2" from the left ear. 4. Lacerated wound 3/4" X 1/6" scalp deep on the right side of scalp 3" above the right ear. 5. Lacerated wound 1" X 1/4" X scalp deep longitudinal in direction on the back of scalp 5" from the left ear. 6. Contusion 1" X 1/2" on the right side of scalp 3" from right ear. 7. Abrasion 2-1/2" X 1/3" on the dorsum of right forearm inner side length wise 1" above the right wrist. 8. Deformity of right side of chest in its lower part. The internal examination revealed that there was haemotoma 6" X 5" on the right side of the chest with a fracture of the 4th to 9th ribs on the right front side. Pleural cavity contained about one pint of blood in the inner surface of pleura. The lower part of the right lung was contused and both the lungs were congested. Brain was congested. In the opinion of the doctor death was due to shock and haemorrhage resulting from injuries to head and chest. The doctor was further of the opinion that the injuries caused to Brindaban Dube were sufficient in the ordinary course of nature to cause death. 6. The prosecution relied on the eye witness account given by three witnesses, namely, Ram Oudh (P.W. 6), Shitla Prasad (P.W. 13) and Mani Lal (P.W. 15). The doctor was further of the opinion that the injuries caused to Brindaban Dube were sufficient in the ordinary course of nature to cause death. 6. The prosecution relied on the eye witness account given by three witnesses, namely, Ram Oudh (P.W. 6), Shitla Prasad (P.W. 13) and Mani Lal (P.W. 15). Both Ram Oudh and Shitla Prasad had to be declared hostile, because they did not support the prosecution case. According to the statement made by Ram Oudh he did not see any of the three Respondents in that compartment at the time the occurrence took place. Shitla Prasad (P.W. 13) however stated that the three Respondents were there in the compartment, but as he was busy taking to Ram Oudh at the time the occurrence was taking place and his back was towards the place of occurrence he could not see who had actually beaten Brindaban Dube. According to both these witnesses there were other persons also present inside that compartment. Shitla Prasad further stated that soon after the occurrence Brindaban Dube told him that the three Respondents were his assailants and it was on a dictation given by him that he wrote the first information report of the case. Mini Lal (P.W. 15) supported the prosecution case on the point that three persons had assaulted Brindaban Dube and that there was light in the compartment. However, he did not know the three Respondents from before. An identification parade was held and Mani Lal (P.W. 15) was able to idotifv Shiv Babu only after having committed one mistake in another paiade held the same day. 7. No reliance can be placed on the identification evidence furnished by Mani Lal (P.W. 15). The statements made by the other two eyewitnesses, namely. Ram Oudh (P.W. 6) and Shitla Prasad (P.W. 13) did not help the prosecution. It, therefore, relied mainly on the oral dying declaration made by Brindaban Dube (deceased) to Hari Saran Dube (P.W. 3), Giddumal (P.W. 4) and Shitla Prasad (P.W. 13). It also relied on the dying declaration as contained in the first iniormation report made to the police. The learned Additional Sessions Judge did not. think it proper to rely on the oral dying declaration alleged to have been made by Brindaban Dube to Hari Saran Dube, Giddumal and others. It also relied on the dying declaration as contained in the first iniormation report made to the police. The learned Additional Sessions Judge did not. think it proper to rely on the oral dying declaration alleged to have been made by Brindaban Dube to Hari Saran Dube, Giddumal and others. He, however, arrived at the conclusion that the written dying declaration as contained in the first information report was relevant u/s 32 of the Indian Evidence Act and could be read as a dying declaration. He, however, did not consider it proper to rely on it because (a) there was ill feeling between the parties; (b) there was evidence that the eyesight of Brindaban Dube was very poor; and (c) at the time the first information report was lodged nobody was under the Impression that the injuries might prove fatal, and, therefore, the same sanctity could not be attached to this dying declaration as is attached to the statement made by a person who really apprehends death in near future. On the finding the learned Additional Sessions, Judge gave benefit of doubt to all the three Respondents. 8. It is fully established from the prosecution evidence, and has not been disputed before us, that Brindaban Dube is dead and that he died as a result of the injuries received by him inside a railway compartment between Allahabad and Naini at about 8-45 p.m. on 28th December, 1960. The injuries caused to Brindaban Dube were sufficient in the ordinary course of nature to cause death and, therefore, there can be no doubt that the person or persons who caused those injuries Brindaban Dube must be held guilty for the offence of murder. 9. The only point for consideration in this Government Appeal is whether the prosecution had succeeded in establishing beyond doubt the identity of the assailants of Brindaban Dube. In order to fix the identity the prosecution relied on (i) the eye-witness account given by Ram Oudh, Shitla Prasad and Mani Lal (P.Ws. 6, 13 and 15); (ii) the oral dying declaration made by Brindaban Dube (deceased) to Giddumal constable, Hari Saran Dube and others; and (iii) the dying declaration recorded by Shitla Prasad (P.W. 13) contained in the first information report lodged at the police station and proved to have been dictated by Brindaban Dube himself. 10. 6, 13 and 15); (ii) the oral dying declaration made by Brindaban Dube (deceased) to Giddumal constable, Hari Saran Dube and others; and (iii) the dying declaration recorded by Shitla Prasad (P.W. 13) contained in the first information report lodged at the police station and proved to have been dictated by Brindaban Dube himself. 10. The learned Additional Sessions Judge has, for very good reasons, discarded the prosecution evidence on the first two points. Both Ram Oudh and Shitla Prasad (P.Ws. 6 and 13; who knew the Respondents from be. fore had turned hostile while the testimony of Mani Lal (P.W. 15) amounted only to this much that three persons whom he did not know from before had assaulted Brindaban Dube. The identification evidence furnished by him as against Shiv Babu Respondent was of no value. It was, therefore, rightly concluded that the identity of the assailants could not be established from the statements made by Ram Oudh (P.W. 6), Shitla Prasad (P.W. 13) and Mani Lal (P.W. 15). 11. The evidence of oral dying declaration was also discarded for very good reasons and the learned State counsel has, therfore, very rightly not cared to rely on it. It is significant to note that Giddumal constable (P.W. 4) had made no mention of any oral dying declaration made to him in his statement u/s 161, Code of Criminal Procedure. Hari Saran Dube (P.W. 3) was a highlv interested witness, being the grandson of Brindaban Dube (deceased). He claimed to have learnt the names of the assailants of Brindaban Dube from the victim himselt hardly an hour before his death. The evidence on the point of oral dying declaration was hardly of any value and was very rightly not relied upon. 12. The first information report which is proved to have been written at the dictation of Brindaban Dube [deceased] contains the names of the three Respondents RS the assailants of Brindaban Dube. Sub-section (1) of Section 32 of the Indian Evidence Act provides that when a statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person's death comes into question, such a statement, written or verbal, made by a person who is dead is itself a relevant fact. The first information report dictated by Brindaban Dube is, therefore, admissible in evidence u/s 32 [1] of the Indian Evidence Act and can be read as the dying declaration of the deceased. 13. The learned Counsel for the Respondents has very rightly not disputed this position of law. It has, however, been contended by him that this piece of evidence should not be considered enough to connect the three Respondents with the crime because of the reasons given by the learned Additional Sessions Judge which find full support from the facts and circumstances of the case. 14. It is not disputed that there was considerable litigation between Brindaban Dube on the one hand and the three Respondents on the other and the cases between them were pending at the time when Brindaban Dube was assaulted That could, therefore, be a motive for the three Respondents to have attacked Brindaban Dube as alleged by the prosecution. But enmity is always like a double-edged sword; if the ill-feeling between Brindaban Dube on the one hand and the three Respondents on the other could be amative for the latter to assault Brindaban Dube, it would also be the reason for false nomination in case Bfindban Dube was attacked by unknown persons and the assailants could not be identified. 15. It has come in the evidence that there was light inside the compartment. Brindaban Dube could, therefore, have seen the faces of his assailants. The prosecution witnesses who are alleged to have saved Brindaban Dube from being beaten' any further were also expected to have seen the faces of the assailants. However, Brindaban Dube alone vide first information report [Ex. Ka-1] seems to have seen clearly the faces of the assailants and also the part played by each of them at the time of the casualty. It has been contended by the learned Counsel for the Respondents, and, in our opinion, not without force," that an old person of 100 years of age, who himself had stated in the year 1955 on oath before a court that his eye sight was poor, could not be expected to have seen the faces of his assailants very clearly and also to have marked out what part was played by each assailant. 16. 16. The statement made by Brindaban Dube in the year 1955 of which a copy Ex Kha-14 has been filed clearly shows that five years before his death Brindaban Dube had stated that his eye-sight was poor and his vision was blurred. Surely at that age his eyesight was not expected to improve during the years 1955 to 1960. 17. It was contended by the learned Counsel for the State that the statement made by Brindaban Dube in the year 1955 could very well have been for the purposes of that case and not a true statement, as apparently Brindaban Dube was in fairly good health and could see because on that date also he had gone to do the pairvi of one of his cases and was travelling in that compartment altogether unaided and unaccompanied by any of his relations. In our opinion in the face of clear and categorical statement made by Brindaban Dube in the year 1955 [vide Ex. Kha-14] that argument, which is based on surmises only, is not open to the learned Counsel for the State. The statement, Ex. Kha-14, made by Brindaban Dube in the year 1955 is admissible in evidence u/s 158 of the Indian Evidence Act which reads as follows: Whenever any statement relevant under Sections 30 and 33 is proved all matters may be proved either in order to contradict or to corroborate it or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matters suggested 18. The identity of the assailants of Brindaban Dube could not be fixed by the testimony of three eye witnesses of the occurrence. In the circumstances it was not safe to convict the three Respondents u/s 302 read with Section 34, I.P.C. merely on the basis of a dying declaration made by a person who had admittedly borne enmity towards the Respondents and whose eye-sight was poor and vision blurred. 19. In our opinion all the three Respondents were in the circumstances of the case entitled to benefit of doubt and acquittal. There is no force in this Government Appeal and it is accordingly dismissed. The Respondents are on bail. They need not surrender to their bail. Their bail bonds are discharged.