JUDGMENT : J. M. Shelat, J. 1. This appeal, by special leave, is by the original accused 2 against the conviction and sentence of rigorous imprisonment for life ordered by the High Court of Bombay under Section 302 read with Section 149 of the Penal Code, reversing the order of acquittal passed by the Additional Session Judge, Nanded. 2. Before the trial court there were in all 11 accused charged under Sections 147, 148, 302 read with Section 149 or in the alternative under Section 302 read with Section 34 for having caused the death of one Sambhaji in the morning of April 8, 1964 near his field. Accused 1, 5, 6, 8 and 11 denied the charges. The appellant (original accused 2) besides denying the charges pleaded that he was not in the village Sonari on that day. Accused 3, 4, 7, 9 and 10 pleaded that they had been falsely involved in the case owing to previous enmity. The said enmity appears to have arisen from the following events :- 3. The deceased Sambhaji had a stepbrother Ganpati who died some years ago leaving him surviving his widow Gangubai and a minor daughter Kausabai. After the death of Ganpati, Sambhaji cultivated besides his own land the land left by Ganpati. The said Gangubai got Kausabai married to accused 9 Jambutta, without the knowledge or consent of Sambhaji. This enraged Sambhaji who on March 4, 1963 filed a complaint against Gangubai. Jambutta and others under the Child Marriage Restraint Act. Soon thereafter Gangubai executed a will bequeathing the property left by her husband to Kausabai. The will was attested by accused 2, 4 and 7. The incident in question occurred only a few days after the execution of the said will. 4. The prosecution examined P. W. 1 Digambar, and P. W. 2, Ganpati, the son and nephew of the deceased respectively, both of whom claimed to be eye-witnesses Besides, there was evidence as regards discovery of certain weapons and the dying declaration made by the deceased Sambhaji in the Government dispensary about two 't hours before his death. The trial Judge disbelieved the evidence and acquitted all the accused. In the appeal filed by the State, the High Court partially set aside the order of acquittal and convicted accused 1, 2, 3, 6 and 11 under Section 302 read with Section 149. 5. The trial Judge disbelieved the evidence and acquitted all the accused. In the appeal filed by the State, the High Court partially set aside the order of acquittal and convicted accused 1, 2, 3, 6 and 11 under Section 302 read with Section 149. 5. The High Court did not rely upon the evidence as to discovery of the weapons but based its order of conviction partially on the evidence of P. W. 1 and P. W. 2 and partially on the said dying declaration. The trial judge in refusing to accept the evidence of the two eye-witnesses had observed "the eye-witnesses are highly interested in the prosecution and their evidence would have to be scanned very carefully and would have to be accepted with great caution". The High Court took exception to these observations and stated that they indicated that the trial Judge had started with suspicion agains the two witnesses only because they were close relations of the deceased and that in making these observations he had lost sight of the dicta of this Court in Dallip Singh v. State of Punjab, 1954 SCR 145 . The observations of this court referred to by the High Court were that "when feelings run high and there was personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such criticism and a mere fact of relationship far from being foundation is often a sure guarantee of truth." This court, however, observed that no general rule was sought to be laid down by those observations and that each case had to be judged on its own merits. If the trial judge while considering the evidence of P. W. 1 and P. W. 2 felt that their evidence required careful scrutiny and caution it would not be correct to say that he had lost sight of these observations or had looked at the evidence with suspicion or "from an entirely incorrect perspective". We do not think that the High Court was correct in its said remarks. The possibility of partisan witnesses in some cases to drag in an innocent person along with the guilty ones was in fact recognised in Dalip Singh's case. We do not think that the High Court was correct in its said remarks. The possibility of partisan witnesses in some cases to drag in an innocent person along with the guilty ones was in fact recognised in Dalip Singh's case. Since the High Court reappraised the evidence on its own and reversed the order of acquittal it becomes necessary for us to see whether the assessment of evidence by the trial court was inconsistent with this court's aforesaid observations or otherwise faulty. 6. The evidence of Digambar, P. W. 1 was that he was about 40 to 50 cubits from where his father was being attacked and that he saw the entire attack. The sequence of attack according to him was as follows :-accused 10 started the attack by hitting Sambhaji on his wrist with a stick and thereafter accused 1, 3, I 1 and 6 gave several blows to Sambhaji with an axe, a jambia and a stick and the rest of the accused attacked him with sticks. He, therefore, raised an alarm on hearing which P. W. 2 arrived on the scene and the accused then ran away. He and P. W. 2 went over to Sambhaji and then P. W. 2 asked Sambhaji as to who had attacked him. Thereupon, Sambhaji asked for water. After water was given to him, P. W. 2 again asked him the same question and Sambhaji then told him that all the accused except accused 7 had assaulted him. 7. This narration by P. W. 1 at once raises a number of difficulties. If he and . P. W. 2 saw the attack as both of them claimed, it was not likely that P. W. 2 would ask Sambhaji as to who his assailants were. In fact, the case of P. W. 2 was that he had not asked any such question to Sambhaji. But it was one Dattaram Palaspure who had questioned Sambhaji. If P. W. 1 were to be believed Sambhaji was said to have stated at that time that all the accused except accused 7 had attacked him. According to the evidence of P. W. 1, however, all the accused including accused 7 had struck the deceased. In his first Information Report, Ex. If P. W. 1 were to be believed Sambhaji was said to have stated at that time that all the accused except accused 7 had attacked him. According to the evidence of P. W. 1, however, all the accused including accused 7 had struck the deceased. In his first Information Report, Ex. 10 given shortly after the incident, his case, however, was that accused 2, 5, 6, 9 and 10 had attacked Sambhaji and that the rest of the accused had merely stood by. In view of these discrepancies, it is not surprising that the trial judge considered his evidence unreliable. Even the High Court agreed that the evidence of P. W. 1 suffered from discrepancies and exaggerations and that his claim of being an eye-witness was not true. But the High Court took the view that P. W. I must have seen some persons attacking his father from a distance, that he must have shouted and that P. W. 2 must have come there hearing his alarm and P. W. 2 must have been the first to reach Sambhaji. P. W. 1, therefore could not have seen the attack but he and P. W. 2 ran there immediately and found the accused named by them still near Sambhaji. But if it is assumed that P. W. I saw the assault from 40 to 50 cubits, he must recognise the assailants as he knew all of them and it was day light in which event he would be full fledged eye-witness. On the other hand, if he was not an eye-witness but reached the spot either simultaneously or immediately after P. W. 2 arrived there and saw the assailants who were still near Sambhaji he would be in a position to say who those assailants were. Even this position raises difficulties. In his evidence P. W. I mentioned all the accused including accused 7 as his father's assailants. But in his First Information Report, he mentioned only accused 2, 6, 10, 9 and 5 as the actual assailants. If he was 40 to 50 cubits away from the place of occurrence and saw the assault on his father it is difficult to believe that he would simply raise an alarm and not run up to save his father or would reach the place after P. W. 2 arrived. If he was 40 to 50 cubits away from the place of occurrence and saw the assault on his father it is difficult to believe that he would simply raise an alarm and not run up to save his father or would reach the place after P. W. 2 arrived. Assuming that he reached the spot immediately after P. W. 2 arrived as the High Court was inclined to believe it is hardly possible that his father's assailants would still remain there. Assuming again that he ran up to Sambhaji either simultaneously or immediately after P. W. 2 came there and further assuming that Sambhaji was questioned about his assailants, it would surely be he and not P. W. 2 who would ask that question. But then if the assailants were still there when they reached the spot and they saw them, it is somewhat unnatural that either of them would put such a question to Sambhaji. It would appear that it was for this reason that P. W. 2 repudiated P. W. 1 and stated that it was not he but Dattaram who had asked that question. Acceptance of P. W. 1 being present there becomes still more difficult when we find that in dying declaration which Sambhaji made later on he did not even mention Digambar as having been seen by him along with P. W. 2. His version about the oral dying statement said to have been made by Sambhaji is therefore not only unnatural but stands contradicted by P. W. 2. The discrepancy between his deposition in court and his First Information Report makes not only his claim of being an eye-witness difficult to believe but his having come to the scene of the offence simultaneously or immediately after P. W. 2 suspect. There was no question of his making any mistake about the identity of the assailants if he saw them and therefore his involvement of different accused in the F. I. R. and then in his deposition raises a doubt about his being there at all. In these circumstances, it is difficult to agree with the High Court that the assessment of his evidence by the trial court suffered from the defects stated by the High Court. 8. As regards P. W. 2 also, there are difficulties in accepting his evidence. In these circumstances, it is difficult to agree with the High Court that the assessment of his evidence by the trial court suffered from the defects stated by the High Court. 8. As regards P. W. 2 also, there are difficulties in accepting his evidence. He had been out that morning near the field of the appellant to answer the call of nature. His evidence was that he heard the alarm of P. W. 1 and thereupon he rushed to Sambhaji's field. When he was about 40 cubits from the scene of the offence, he saw Sambhaji fallen on the ground and some assailants beating him. According to him accused 11 seeing him warned the assailants that he, the witness, was coming there and thereupon the assailants ran away. Amongst the persons beating Sambhaji were accused 10, 1, 3, 6, 4, 9, 5 and 11. It will be noticed that he excluded accused 7 and also the appellant from the list of assailants and in clear terms stated that when he neared the scene of offence, the appellant was standing at a distance of 60 cubits from the place where Sambhaji was assaulted between Sambhaji's field and the filed of the appellant. He did not say also that the appellant had any weapon with him, though P. W. 1 in his F. I. R. had stated that he had an axe with him. 9. Though his examination-in-chief was that he saw the assault while he was running towards the scene of offence and listed as many as 8 accused as the assailants. In cross-examination, he admitted that "when I saw the assailants of Sambhaji, the beating incident had ended. I had seen the assailants surrounding Sambhaji. But I cannot say who out of them beat Sambhaji". Obviously, his evidence-in-chief where he asserted that he saw the assault and the eight accused listed by him as actually beating Sambhaji must be held to be unreliable. His conduct also raises difficulties. It is in his evidence that soon after he reached the spot, a number of persons collected there and out of them the said Dattaram asked Sambhaji about his assailants. He admitted that he had not talked Sambhaji nor to P. W. 1 nor to the said Dattaram, but he said that he had talked to these other persons and had told them who Sambhaji's assailants were. He admitted that he had not talked Sambhaji nor to P. W. 1 nor to the said Dattaram, but he said that he had talked to these other persons and had told them who Sambhaji's assailants were. None of these other persons was examined to corroborate his word that immediately after the assault he had named the assailants to those persons. As regards Sambhaji making a dying declaration to the said Dattaram, Dattaram was not examined though he was in the court on the ground that he had been won over by the accused. Apart from that. his evidence that Sambhaji told Dattaram about the incident does not appear to be true. In his statement to the police, he had omitted to state that fact. It is clear, therefore, that though he had not seen the assault, he had in examination-in-chief categorically stated that he had seen eight of the accused actually beating his uncle. Sambhaji could not have made any statement as regards his assailants for, if he had done so, it is not possible that this witness would not have mentioned that fact before the police. His subsequent conduct, viz. that he had no talk at that time either with Sambhaji or P. W. 1 or the said Dattaram appears to be strange on the part of a close relation who was said to have rushed to the scene of the offence immediately after the assault. 10. As aforesaid, the trial court dis-carded his evidence on the ground that there was so radical a change between his examination-in-chief and cross-examination that it would not be safe to accept his word that he had run up to the place to see the part of the incident and to be able to name Sambhaji's assailants who were still there. The High Court disagreed with this view and said "that a perusal of his entire evidence including his admission in the cross-examination showed that on hearing shouts that Sambhaji was being assaulted he came running and found from a distance that Sambhaji who had fallen down was surrounded by some persons whose backs were towards him and then on coming closer he identified those persons in the vicinity of the injured man. Therefore, a perusal of his evidence would leave no -,manner of doubt that he has established the presence of all the accused near the scene as he arrived on hearing the shouts of Digambar." The High Court then read the evidence of these two witnesses together and came to the conclusion that "after weeding out exaggerations and improvements in their versions, it is dear that they-had seen the assault from some distance and had come on the scene after the actual assault was over and had also found the accused in close vicinity of Sambhaji who was lying in the field at that time." This hardly answers the difficulties posed by the Trial Judge in acting on the evidence of the two witnesses. A general statement that the two witnesses saw the accused near the fallen man does not explain (1) how they named different accused as being in the vicinity of Sambhaji, (2) how it happened that P. W. 1 gave different names first in his F. 1. R. and then in his evidence, (3) how it was that according to P. W. 1 it was P. W. 2 who asked Sambhaji about his assailants while P. W. 2 said that it was not he but the said Dattaram who had asked that question, (4) that if both of them had reached the spot when the assailants were still there, there would not be such a radical difference between them as to who amongst the accused they had seen at that time, and (5) that if they had reached there immediately, it was impossible that neither of them would talk to Sambhaji or to the said Dattaram who according to P. W. 2 was the first person to talk to Sambhaji. if the said Dattaram was there and had talked Sambhaji, it is difficult to appreciate how P. W. 1 could draw a detailed picture as to how Pi W. 2 had questioned Sambhaji, how Sambhaji had asked for water and after it was given to him, how P. W. 2 put the same question again and then Sambhaji mentioned that all the accused were his assailants. Considering all these difficulties this is not, in our view, a case where the evidence suffered only from exaggeration or improvements after weeding out which, it would be possible to say safely that either of these witnesses had come to the scene of the offence in time to see the assailants of Sambhaji. We are of the view that the High Court was not right in reaching such a conclusion without answering the difficulties which the trial court felt in accepting the evidence of these two witnesses. This is particularly as when according to P. W. 2 a number of persons had collected there and to whom he had given the names of the assailants and yet none of them was examined to corroborate him, and to establish the presence of these two witnesses there. 11. We next come to the dying statement made by Sambhaji. It was recorded in the dispensary at 1.15 p.m. that day in the form of a Panchnama in the presence of two Panches of whom witnesses Gangaram was examined. In that statement iambhaji stated that his assailants were accused 1, 2, 3, 6 and 11. He also stated that Deoji, whom we may presume to be accused 2, though his name is Deorao alias Bapurao, had an axe, The dying statement was signed by the Ponchos, the medical officer and it also bears the thumb impression of Sambhaji. This would ordinarily be an important piece of evidence. But the Pancha Gangaram admitted in his evidence that P. W. 1 was present at the time when this statement was recorded and it was he and not Sambhaji who gave the names of the five accused. The trial Judge refused to rely on the dying statement as he felt it was unsafe to do so, firstly, because of the precarious condition of Sambhaji at the time and secondly because of the discrepancies between the names given by him as his assailants and those named by P. W. 1 in his F. I. R. recorded earlier that very day and also in his evidence. It is true that the doctor's evidence was that Sam-bhaji was in a fit condition, physically and mentally, to make the statement. It is true that the doctor's evidence was that Sam-bhaji was in a fit condition, physically and mentally, to make the statement. The evidence of the head constable and the doctor also was that though P. W. 1 and P. W. 2 were in the room they were asked to go out at the time of recording the statement. The High Court disbelieved Gangaram's admission as false in view of the evidence of the doctor in particular that the two witnesses had in fact been asked to go out of the room when the dying statement was recorded. The High Court held on these facts that the dying statement was absolutely trustworthy and that it was safe to act upon it even without corroboration. 12. In Khusal Rao v. State of Bombay, 1958 SCR 552 relied on by the High Court, it has no doubt been observed that a dying statement cannot be said as a general proposition to be a weaker kind of evidence, that it stands an another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. If, therefore, a dying statement has been properly and with due caution recorded and is trustworthy, a conviction can be founded upon it though it is not corroborated. The doctor testified to the fitness of Sambhaji to make the said statement. The head constable also testified that the statement was recorded faithfully and in conformity with the answers given by Sambhaji to the questions put by him and the doctor had given his signature underneath that statement. Neverthless, the trial court, in our view, was not wrong in refusing to base the conclusion on it as there was genuine difficulties in accepting it. So far as the appellant is concerned, the evidence of P. W. 2 was clear that when he came to the scene of the occurrence the appellant was standing about 60 cubits away from that place and had no weapon with him. In the evidence of P. W. I also there is an admission that before the committal court he had stated that when he reached the spot he had not seen the appellant amongst the assailants. In the evidence of P. W. I also there is an admission that before the committal court he had stated that when he reached the spot he had not seen the appellant amongst the assailants. It is true that a statement before the committal court is not substantive evidence and the substantive evidence is that which he deposed in the court. However, in view of the said admission, his evidence that the appellant was amongst the assailants cannot be accepted as at one stage his case was that he had not seen at the scene of the occurrence. Next, the evidence of the head constable and the doctor shows that P. W. 1, P. W. 2 and other relations of the deceased were in the room when the head constable arrived to record the dying statement. The two witnesses no doubt were asked to go out of the room when the statement was actually re-corded. But if Sambhaji was in a fit condition physically and mentally, the possibility of a discussion between him and P. W. 1 and P. W. 2 about the likely assailants of Sambhaji cannot be ruled out. The mere fact, therefore, that they were asked to go out of the room at the time when the statement was recorded cannot guarantee that there was no possibility of Sambhaji having been told by these witnesses and other relations who his assailants were. Such a possibility is relevant in a case like the present one where enmity between the prosecution witnesses and the accused is not in dispute. The witnesses must have known that the doctor had called the head constable to record the statement in view of the deteriorating condition of Sambhaji. In these circumstances, it is not impossible that there was discussion amongst the people who were around Sambhaji as to who could be his assailants. Apart from this possibility which casts a doubt on the dying statement there is the fact that P. W. 1 gave the names of different persons at different stages. P. W. 2 definitely excluded the appellant from amongst those who according to him were at the spot when he was said to have reach-' ed there. There is clear discrepancy between those mentioned in the dying statement and those mentioned by these witnesses. P. W. 2 definitely excluded the appellant from amongst those who according to him were at the spot when he was said to have reach-' ed there. There is clear discrepancy between those mentioned in the dying statement and those mentioned by these witnesses. In this state of evidence it would, in our opinion, be unsafe to place complete trust on the dying statement and convict the appellant an its sole basis as the High Court was inclined to do. This being the position, we find it difficult to sustain the appellant's conviction. 13. The appeal has, therefore, to be allowed and the order of conviction and sentence passed 'against the appellant set aside. Appeal allowed.