JUDGMENT Chandra Prakash, J. These two appeals are against the order dated Oct. 23, 1973 of Shri M.L. Agarwal, Sessions Judge, Kumaun, convicting appellant Avdhesh Kumar Dixit under Sections 302, I.P.C. and 307, I.P.C. and sentencing him to death under the former and to 10 years R.I. under the latter and convicting Dilshad appellant under Sections 302/34, 307/34, I.P.C. and sentencing him to life imprisonment under the former and to seven years R.I. under the latter. The appeal by Avdhesh Kumar Dixit is No. 2953 of 1973 while the appeal by Dilshad is No. 2997 of 1973. The sentences were directed to run concurrently. There is also the usual reference under Section 374, Cr.P.C. for the confirmation of the death sentence passed on Avdhesh Kumar Dixit. The appellants along with three others, viz., Susil Kumar, Pradip Kumar and Rajesh Sah, were prosecuted for forming a criminal conspiracy for committing the murder of Satyendra Singh, Bisht alias Sweetie (deceased) and for attempting to kill Surendra Lal Sah (P. W. 2). The prosecution story in brief was as follows. Rajesh Sah accused acquitted contested the election for the post of Secretaryship of D.S.B. Government College Union, Nainital, in 1971 against Kunds Singh. Satyandra Singh Bisht alias Sweetie (deceased) was a supporter of Kundan Singh. Mahendra Singh Pal was a candidate for Presidentship. The elections were to take place on September 3, 1971. Satyendra Singh Bisht in the night between September 1 and 2, 1971 was coming along with Mahesh Chandra Bajetha (P.W. 20) and Pushkar Pal Singh (P. W. 23) from D. S.B. Government College to Talli Tal after fixing posters in connection with the aforesaid election. When they reached the Dat they saw Dilshad appellant who had a barber's shop at a few from the Dat on the NainitalHaldwani Road under Indra Pharmacy tearing of the posters supporting the candidature of Mahendra Singh Pal near Gandhi Statute. Rajesh Shah accused acquitted was also with Dilshad along with some other students. Satyendra Singht Bisht gave a beating to Dilshad appellant for tearing of the posters favouring Mahendra Singh Pal and abused Rajesh Sah. Dilshad admitted his mistake and prayed for forgiveness. The matter ended there and Rajesh Sah lost the election and Kundan Singh was elected. Rajesh Shah accused acquitted was also with Dilshad along with some other students. Satyendra Singht Bisht gave a beating to Dilshad appellant for tearing of the posters favouring Mahendra Singh Pal and abused Rajesh Sah. Dilshad admitted his mistake and prayed for forgiveness. The matter ended there and Rajesh Sah lost the election and Kundan Singh was elected. It is said that on this all the five accused in this case, including the two appellants, hatched a conspiracy to commit the murder of Satyendra Singh Bisht. In pursuance of the conspiracy Satyendra Singh was murdered near the northwestern corner of Paradise Restaurant at about 6.45 p.m. on October 9, 1971 by Avdesh Kumar Dixit appellant in the presence and at the instigation of Dilshad appellant in Bara Bazar, Malli Tal, in the city of Nainital. At that time the complainant Bhoopal Singh (P.W. 1) and Vinod Kumar Mehrotra (P.W. 3) were in Paradise Restaurant in connection with their taking tea there. At about 6.45 p.m. Avdhesh Kumar Dixit along with Dilshad appellant came. Dilshad stopped Satyendra Singh Bisht and slapped him. Satyendra Singh Bisht tried to catch hold of Dilshad but in the meantime Avdhesh Kumar Dixit gave a knife blow to Satyendra Singh Bisht on the left flank thereby causing him a two inch deep injury. Surendra Lal Sah (P.W. 2), Bhuwan Chandra Pant and Ishwar Chandra Joshi who came along with Satyendra Singh Bisht, out of Lala's cafe and of which was at about 10 or 12 paces to the north, were there. Surendra Lal Sah (P.W. 2) tried to catch hold of the appellant Avdhesh Kumar Dixit but the latter gave a knife blow to Surendra Lal Sah also on the back right side. Surendra Lal Sah sustained an inquiry about one inch deep. Bhoopal Singh (P.W. 1) and Vinod Kumar Mehrotra (P.W. 3) saw the incident and this incident also drew the at tention of Padam Chand (P.W. 17) and Lakhpat Singh (P.W. 21), who were standing at a Pan shop nearby. All these witnesses saw Avdhesh Kumar Dixit running away with an open knife in his hand and was accompanied by Dilshad appellant. Padam Chand also saw that the other three accused, viz., Rajesh Sah, Sushil Kumar and Pradip Kumar, were running away downwards. All these witnesses saw Avdhesh Kumar Dixit running away with an open knife in his hand and was accompanied by Dilshad appellant. Padam Chand also saw that the other three accused, viz., Rajesh Sah, Sushil Kumar and Pradip Kumar, were running away downwards. There was ample electric light at that place on account of street lights and also on account of the lights of the shops which were open on account of the autumn season. Bhoopal Singh (P.W. 1), who is the maternal uncle of Satyendra Singh Bisht (deceased), ran to Malli Tal Police Station, which was only one or one and a half furlongs away from the scene of incident and lodged the first information report (Ex. Ka1) there at about 7 p.m. Satyendra Singh Bisht also ran up to the shop of Laxmi Chand but he fell down in front of that shop. After lodging the first information report Bhoopal Singh (P.W. 1) returned back to the scene of incident accompanied by the Station Officer Jaipal Singh (P.W. 25). Jaipal Singh (P.W. 25) found Satyendra Singh Bisht in front of Laxmi ?hand's shop in an injured state. He took him to B.D. Pandey Hospital. At the hospital Jaipal Singh interrogated Bhoopal Singh (P.W. 1), Satyendra Singh Bisht (deceased) and Surendra Lal Sah (P.W. 21). He also took the bloodstained clothes of Satyendra Singh Bisht and Surendra Lal Sah in his possession. He then prepared the siteplan (Ex. Ka20) of the scene of incident. He further took bloodstained earth and unstained earth from the place of occurrence. He found sufficient light on account of electrification at the place of incident. He tried to contact Vinod Kumar Mehrotra (P.W. 3) but the same was not available. Satyendra Singh Bisht died on October 10, 1971 sometime before 4.30 p.m. The Investigating Officer went to the hospital and prepared the inquest report (Ex ka7) of the dead body of stayendra Singh Bisht at the hospital. Ho sent the dead body for postmortem examination. Thereafter the Investigating Officer interrogated Vinod Kumar Mehrotra (P. W. 3). On October 11, 1971 Jaipal Singh (P. W. 25) interrogated Badri Lal (P. W. 11) and Padam Chand (P. W. 17). On October 13, 1971 the Investigating Officer interrogated Lakhpat Singh (P. W. 21) and Chandan Singh. Ho sent the dead body for postmortem examination. Thereafter the Investigating Officer interrogated Vinod Kumar Mehrotra (P. W. 3). On October 11, 1971 Jaipal Singh (P. W. 25) interrogated Badri Lal (P. W. 11) and Padam Chand (P. W. 17). On October 13, 1971 the Investigating Officer interrogated Lakhpat Singh (P. W. 21) and Chandan Singh. On October 18, 1971 Jaipal Singh (P. W. 25) arrested Rajesh Sah accused and at his pointing out he recovered one knife (Ex. VII) from a heap of bajri near the gate of Belvedere Building, On October 23, 1971 the Investigating Officer came to know that Dilshad appellant had surrendered in Moradabad Court and Avdhesh Kumar Dixit appellant had been arrested at Lucknow. He gave a retort for the identification proceedings of Avdhesh Kumar Dixit on October 28, 1971. Sushil Kumar accused surrendered in Farrukhabad Court on November 24. 1971. The Investigating Officer sent the bloodstained articles to the Chemical Examiner and after completing the investigation he Submitted the chargesheet. (Ex. Ka29) against all the accused. All the five accused including the two appellants, pleaded not guilty. They denied to have hatched any conspiracy. Avdhesh Kumar Dixit and Dilshad appellants denied to have stabbed satvendra Singh Bisht or to have participated in the crime. The prosecution examined 25 witness in all in support of its story, including the three eyewitnesses. The accused examined one witness viz., H. K. (P. W. 1), in their defence. After considering the entire evidence on record the Court below came to the conclusion that it was not established in the case that all the accused hatched any conspiracy. Accordingly, the three accused, viz., Sushil Kumar, Pradin Kumar learned Sessions Judge, however, on a, consideration of the direct testimony in this case came to the conclusion that it was established in the case that Avdhesh Kumar Dixit and Dilshad appellants had common intention to commit the murder of Satyendra Singh Bisht and to make the murderous assault on Surendra Lal Sah (P.W. 2). Avdhesh Kumar Dixit committed the murder of Satyendra Singh Bisht by de1ivering a knife blow and did commit a murderous assault on Surendra Lal Sah by stabbing him with a knife. Accordingly both the appellants were convicted and sentenced as noted above. The appellants have now come up in appeal before us. Avdhesh Kumar Dixit committed the murder of Satyendra Singh Bisht by de1ivering a knife blow and did commit a murderous assault on Surendra Lal Sah by stabbing him with a knife. Accordingly both the appellants were convicted and sentenced as noted above. The appellants have now come up in appeal before us. It is contended on behalf of the appellants that their conviction and sentences under Sections 302, I.P.C. or 307 I.P.C. or 302/34, I.P.C. or 307/34, I.P.C. are not warranted by the testimony on record, After hearing the learned counsel for the appellants and the learned counsel appearing on behalf of the State and after going through the record and giving the matter our anxious consideration we have come to the conclusion that this contention has much force. Dr. Mahesh Chandra Sharma (P.W. 12) examined the injuries of Satyendra Singh Bisht on October 9, 1971 at 7.30 p.m. at B.D. Pandey Hospital and found a stab wound 314" x 1|4" x 2" deep on the left flank, directed medially and downwards. Dr. Sharma aforesaid also examined the injuries of Surendra Lal Sah (P.W. 2) at 7.35 p.m. the same day and found on his person a stab wound 314" x 1|2" x `1" on the right side back rear the lower ribs, 3" from the midline. The injuries on both Satyendra Singh Bisht and Surendra Lal Sah were fresh and had been caused with a sharpedged weapon like a knife. Dr. Mahesh Chandra Sharma also conducted the postmortem examination of the dead body of Satyendra Singh Bisht on October 10, 1971 at 7.20 a.m. Besides the aforesaid injury which was then in the form of a stitched wound he found extensive damage to the abdomen aorta, large intestine including the mesocolon and to the kidneys. The internal injuries received by Satyendra Singh Bisnt were the result of the knife blow which had caused the external injury and all these injuries in the opinion of Dr. M.C. Sharma, were sufficient in the ordinary course of nature to cause death. Shri R. N. Sharma (P.W. 9) conducted the identification proceedings of Avdhesh Kumar Dixit appelltant on December 19, 1971 in Haldwani jail. He observed the usual precautions and Avdhesh Kumar Dixit was correctly identified by Bhoopal Singh (P.W. 1) and Surendra Lal Sah (P.W. 2) without commuting any mistake. Shri R. N. Sharma (P.W. 9) conducted the identification proceedings of Avdhesh Kumar Dixit appelltant on December 19, 1971 in Haldwani jail. He observed the usual precautions and Avdhesh Kumar Dixit was correctly identified by Bhoopal Singh (P.W. 1) and Surendra Lal Sah (P.W. 2) without commuting any mistake. The statement of Shri R.N. sharma is supported by the identification memo (Ex. Ka6). Two other witnesses, viz., Ishwar chand Joshi and Chandan Singh Adhikari, who had also gone to attend the identification parade, failed to identify him. The defence of appellant Avdhesh Kumar Dixit was that he was not placed behind cover after his arrest and that he was shown to the witnesses by the police, but this has not been accepted by the Court below. The appellant Avdhesh Kumar Dixit also took the plea that the police had taken his photo from his College and the witnesses were made to identify him with the aid of this photo. This defence has also been rejected by the Court below. As a matter of fact, the Court below has come to the conclusion that the evidence regarding the taking of the photo of Avdhesh Kumar Dixit appellant by the police is fabricated. These findings of fact were not challenged before us on behalf of the appellants. The only contention raised in this connection was that Bhoopal Singh (P.W. 1) was not present at the time of incident at all and he did not see the incident himself. Since he was able to identify Avdhesh Kumar Dixit in the test identification parade whom he did not know from before extraneous and must have been used to enable him to identify Avdhesh Kumar Dixit in the test identification parade dated December 19, 1971 and this circumstance will reduce the value of the identification by Surendra Lal Sah (P.W. 2) also. This argument will be referred to and noted at the proper stage, otherwise the result of the test identification parade held by Shri R.N Sharma on December 19, 1971 has great corroborative value. Bhoopal Singh (P.W.1) is the maternal uncle of Satyendra Singh Bisnt (deceased). He claims to have seen the incident himself. He has stated that on the day of incident at about 6.45 p.m. He was enjoying tea at the Paradise Care. Bhoopal Singh (P.W.1) is the maternal uncle of Satyendra Singh Bisnt (deceased). He claims to have seen the incident himself. He has stated that on the day of incident at about 6.45 p.m. He was enjoying tea at the Paradise Care. Satyendra Singh Bisnt (deceased along with Surendra Lal San, Ishwar chand joshi and Bhuwan ?hand Pant was conming from Lara's cafe down the road. Dhsnad appellant and one other boy of fair colour and wearing green suit came from Talli Tal side near the Paradise Restaurant. Dilshad appellant slapped Satyendra Singh Bisht and when satyendra Singh bisht tried to catch hold of Dilshad his companion stabbed Satyendra Singh Bisht with a knife. When Surendra Lal San (P.W. 2), companion of Satyendra Singh Bisht, tried to catch hold of Dilshad's companion the latter stabbed Surendra Lal ?ah also. Then both Dilshad and his companion ran away towards the upper side and could not be caught. He identified Avdhesh Kumar Dixit as the companion of Dilshad appellant at the time of incident. He also proves the first information report (Ex. Ka1) lodged by him at Maili Tal Police Station at 7 p.m. on October 9, 1971. Surendra Lal Sah (P.W. 2) stated that at about 6.45 p.m. He and Satyendra Singh Bisht (deceased) and their two other companions left Lala's Cafe at about 6.45 p.m. and hardly they had gone to a distance pf 10 or 12 paces Dilshad Barber and his one companion in green suit appeared coming from the down side. Dilshad slapped Satyendra Singh Bisht saying 'Say about that day'. Satyendra Singh Bisht caught hold of the hand of Dilshad appellant. Dilshad appellant then delivered a knife blow on Surendra Lal Sah. When the witness tried to catch hold of the assailant the assailant (companion of Dilshad) stabbed him also. Dilshad and his companion then ran away towards the upper side. He identified Avdhesh Kumar Dixit as the companion of Dilshad appellant who had stabbed him and Satyendra Singh Bhisht. The witness added that Bhoopal Singh (P.W. 1) and Vinod Kumar Mehrotra (P.W. 3) had reached the scene of incident. The eyewitness account given by Surendra Lal Sah (P.W. 2) was supported by Vinod Kumar Mehrotra (P.W. 3), who named Dilshad and Avdhesh Kumar Dixit and according to him it was Avdhesh Kumar Dixit who had stabbed Satyendra Singh Bisht and Surendra Lal Sah with a knife. The eyewitness account given by Surendra Lal Sah (P.W. 2) was supported by Vinod Kumar Mehrotra (P.W. 3), who named Dilshad and Avdhesh Kumar Dixit and according to him it was Avdhesh Kumar Dixit who had stabbed Satyendra Singh Bisht and Surendra Lal Sah with a knife. According to his testimony, he had come to know Avdhesh Kumar Dixit on the day of incident at about 10 or 11 a.m. The paper (Ex. Ka2) It the dying declaration made by Satyendra Singh Bisht before Magistrate Ram Sanehi (P. W. 4) on the very day of incident on October 9, 1971 at 8.50 p.m. in B.D. Pandey Hospital, that is, only one hour and fifty minutes after the incident. In this dying declaration Satyendra Singh Bisht stated as follows: "I came out of Lala's Cafe. I have no idea of the time, but it was about 7 p.m. Surendra Lal Sah, Ishwar Chand Joshi and one more boy whose name I do not remember were with me. Somebody delivered a first blow at me. I do not remember his name but I can recognize him by his face. He works, perhaps, at the barber's shop in Talli Tal. One person in green suit and having moustaches was with him. This other person stabbed me with a knife. I fell down. I had no idea. I ran up to Laxmi Chand & Sons Shop in an injured state and then I found myself in the hospital. I do not know the name of the person who stabbed me but I can recognize him on seeing him. The boy who worked at the barber's shop had torn away the posters supporting Mahendra Singh Pal in the latter's election to the Presidentship of D.S.B. College and we beat him for removing the posters. Possibly, at his instigation the boy wearing green suit stabbed me". The genuineness of the above dying declaration was not challenged before us. The first question that arises in this case for determination is whether Vinod Kumar Menhrotra knew Avdhesh Kumar Dixit at the time of incident as alleged by him. According to the testimony of Vinod Kumar Mehrotra (P. W. 3) himself he came to know of Avdhesh Kumar Dixit for the first time on the day of incident at about 10 or 11 a.m. and he did not know Avdhesh Kumar Dixit prior to that time at all. According to the testimony of Vinod Kumar Mehrotra (P. W. 3) himself he came to know of Avdhesh Kumar Dixit for the first time on the day of incident at about 10 or 11 a.m. and he did not know Avdhesh Kumar Dixit prior to that time at all. According to his testimony before the Investigating Officer, one Pradip Kumar introduced Avdhesh Kumar Dixit to him for the first time at about 1045 a.m. or 11 a.m. near the canteen. In his statement given m the Court below Vinod Kumar Mehrotra stated that he did not remember the name of the boy who introduced Avdnesh Kumar Dixit to him. When his attention was drawn to his statement before the investigating Officer that Avdhesh Kumar Dixit was introduced to him by Pradip Kumar he repudiated the correctness of the statement given by him before the Investigating Officer. His denial of his testimony given before the Investigating Officer appears to be false. He, however, admitted in the Court below that he did not known even Pradip Kumar from before. It appears to be unbelievable that Avdhesh Kumar Dixit appellant was introduced to Vinod Kumar Mehrotra on the day of incident at about 10 or 11 a.m. by Pradip Kumar whom the witness did not know from before at all. The story that Vinod Kumad Mehrotra came to know of Avdhesh Kumar Dixit on the day of incident in the morning at the instance of Pradip Kumar, therefore, falls to the ground. There is no suggestion on behalf of the prosecution that Vinod Kumar Mehrotra knew Avdhesh Kumar Dixit otherwise also. According to the prosecution itself, Vinod Kumar Mehrotra and Bhoopal Singh (P. W. 1) were present at the time of incident and Vinod Kumar Mehrotra knew the real assailant himself and yet he did not disclose to Bhoopal Singh (P.W. 1) that the person, who had stabbed, was Avdhesh Kumar Dixit. A large number of witnesses had come at the scene of incident and a large number of witnesses collected in front of the shop of Laxmi Chand & Sons where Satyendra Singh Bisht fell unconscious. Vinod Kumar Mehrotra went to the hospital also along with Satyendra Singh Bisht and he did not disclose the name of the real assailant Avdhesh Kumar Dixit throughout. Vinod Kumar Mehrotra went to the hospital also along with Satyendra Singh Bisht and he did not disclose the name of the real assailant Avdhesh Kumar Dixit throughout. If Vinod Kumar Mehrotra knew the name of Avdhesh Kumra Dixit he would have named him as the real assailant at the time of incident; at any rate, on a number of occasions till he reached B. D. Pandey Hospital. This also shows that Vinod Kumar Mehrotra's nonnaming of Avdhesh Kumar Dixit at the time of incident in the circumstances of the case leaves no room for doubt that, perhaps, Vinod Kumar Mehrotra did not know Avdhesh Kumar Dixit at all. In this view of the matter" the testimony of Vinod Kumar Mehrotra in naming Avdhesh Kumar Dixit as the assailant of Satyendra Singh Bisht appears to be false and. his testimony is not believable so far as Avdhesh Kumar Dixit is concerned. We now proceed to discuss the testimony of Bhoopal Singh (P.W. 1) in this case. He is the real uncle of Satyendra Singh Bisht (deceased). According to his statement, he was taking tea at Paradise Restaurant at the time of incident. According to his statement he saw the incident in which his nephew had received a stab wound at the hands of a stranger. He made no attempt to see the injury received by his nephew Satyendra Singh Bisht. He did not care to enquire about the assassin or the name of the assassin from the victim who was his own nephew. He did not care to enquire the name of the assassin even from the witnesses who were present there. He did not care to attend the injury received by his nephew. He did not care to give any first aid to his nephew. He did not even care to take his nephew to the hospital which was nearby or to a private doctor whose shop was closer still. Without caring for saying the life of his nephew he ran away to the police station for making a first information report in this case. His conduct appears to be entirely unnatural. The life of his nephew after all was more important than a report to the police in this case. Without caring for saying the life of his nephew he ran away to the police station for making a first information report in this case. His conduct appears to be entirely unnatural. The life of his nephew after all was more important than a report to the police in this case. Further according to the version given by him in the first information report the incident took place in front of Paradise Restaurant, while according to the dying declaration (Ex. Ka2) made by Satyendra Singh Bisht the incident took place at a few paces from Lala's Cafe. Moreover, according to the dying declaration (Ex. Ka2) Satyendra Singh Bisht ran up to the shop of Laxmi Chand & Sons and fell unconscious in front of it. There is no reference to the running of Satyendra Singh Bisht and his falling in front of the shop of Laxmi Chand & Sons in the first information report (Ex. Ka1). If Bhoopal Singh (P.W. 1) had seen the incident himself he would not have failed to mention the running away of Satyendra Singh Bisht up to the shop of Laxmi Chand & Sons and his falling there in front of it in the first information report. The absence of these events in the first information report (Ex. Ka1) which took place after stabbing shows that, perhaps, Bhoopal Singh (P.W. 1) did not see the incident himself. According to the dying declaration (Ex. Ka2) Dilshad appellant delivered a blow with his fist while according to the first information report (Ex. Ka1) Dilshad slapped the deceased. The testimony of Bhoopal Singh (P. W. 1) in the Court below that the companion of Dilshad was wearing a green suit is an improvement on the first information report itself. There is no reference to it in the first information report. It was argued on behalf of the State that if Bhoopal Singh (P.W. 1) was not present at the time of incident how could he lodge the report at Police Station Malli Tal at 7 p.m., i.e., immediately after the incident. It is in prosecution evidence that Bhoopal Singh (P.W. 1) runs a sports shop in Malli Tal. The incident took place in Bara Bazar o E Malli Tal. It is in prosecution evidence that Bhoopal Singh (P.W. 1) runs a sports shop in Malli Tal. The incident took place in Bara Bazar o E Malli Tal. If Bhoopal Singh (P.W. 1) is running a sports shop not far away he could reach the scene of incident within five or six minutes of the incident on hearing the alarm or noticing a huge assemblage and immediately on arrival there he found garbled version of the incident from the witnesses rushed to the Police Station Malli Tal and dictated the report (Ex. Ka1). This explains the promptness in the making of the report. Considering all the circumstances of the case and the entirely unnatural conduct of Bhoopal Singh (P.W. 1) we are very doubtful about the presence of Bhoopal Singh (P.W. 1) at the time of incident and in this view of the matter both his statement as well as the first Information report fali to the ground. Surendra Lal Sah (P.W. 2) received injuries himself at the time of incident. His presence at the time of incident is unquestionable. He gave a consistent story from the beginning to the end and with the exception of the description of the moustaches of the real assailant his statement is in conformity with the dying declaration (Ex. Ka2) made by Satyendra Singh Bisht (deceased). He has named Dilshad appellant and he identified Avdhesh Kumar Dixit as the person who stabbed Satyendra Singh Bisht and him. The discrepancy between the dying declaration (Ex. Ka2) and the statement of the witness on the question of the moustaches of the real assailant will be discussed at appropriate part of the judgment. On the whole, Surendra Lal Sah (P.W. 2) is a reliable eyewitness against both the appellants. Vinod Kumar Mehrotra (P.W. 3) has named Avdesh Kumar Dixit as well as Dilshad. We have already held above that this witness did not know Avdhesh Kumar Dixit from before. His naming of Avdhesh Kumar Dixit is, therefore, of little avail and his testimony so far as Avdhesh Kumar Dixit is concerned has no value at all. He has, however, no motive to depose against Dilshad appellant. His testimony about beating by Dilshad is consistent with the dying declaration (Ex. Ka2) given by Satyendra Singh Bisht (deceased). In our opinion, Vinod Kumar Mehrotra is a credible eyewitness against Dilshad appellant. He has, however, no motive to depose against Dilshad appellant. His testimony about beating by Dilshad is consistent with the dying declaration (Ex. Ka2) given by Satyendra Singh Bisht (deceased). In our opinion, Vinod Kumar Mehrotra is a credible eyewitness against Dilshad appellant. Satyendra Singh Bisht did not name Dilshad appellant but he referred about it in his dying declaration (Ex. Ka2) that the person who delivered a first blow on him was running a barber's shop at Talli Tal. He has also pointed out that he had beaten him when he was found removing posters supporting the candidature of Mahendra Singh Pal. According to the testimony given by Mahesh Chandra Bajetha (P.W. 20) and Pushkar Pal Singh (P.W. 23), on September 2, 1971 at about 1 a.m. they along with Satyendra Singh were coming after pasting the posters supporting Mahendra Singh Pal for Presidentship of D.S.B. Government College, Nainital. At about 1 a.m. they and Satyendra Singh saw Dilshad appellant removing the posters supporting Mahendra Singh Pal on the Dat near the statute of Gandhi Ji. Rajesh Sah accused was also with Dilshad appellant. Satyendra Singh who was supporter of Mahendra Singh Pal beat Dilshad and abused Rajesh Sah. The testimony also points out that Dilshad was running a barber's shop near the Dat on NainitalHaldwani Road under Indra Pharmacy. Mahesh Chandra Bajetha (P.W. 20) and Pushkar Pal Singh (P. W. 23) have no motive of any kind to depose against Dilshad falsely. Their testimony coupled with the description given in the dying declaration (Ex. Ka2) leaves no room for doubt that Dilshad appellant was present at the time of incident and it was he who delivered a fist blow on Satyendra Singh Bisht. The other evidence in the case on the question of conspiracy and the recovery of knife at the instance of Rajesh Sah accused has been disbelieved by the Court. below. The Court below has further disbelieved Padam Chand (P.W. 17) and Lakhpat Singh (P.W. 21) with the result that the other three accused have already been acquitted. There is no Government appeal against their acquittal. We now proceed to discuss the individual cases of the appellants. below. The Court below has further disbelieved Padam Chand (P.W. 17) and Lakhpat Singh (P.W. 21) with the result that the other three accused have already been acquitted. There is no Government appeal against their acquittal. We now proceed to discuss the individual cases of the appellants. Avdhesh Kumar Dixit.So far as Avdhesh Kumar Dixit is concerned, the evidence to connect him with the crime consists of the statements of Vinod Kumar Mehrotra (P.W. 3) and his identification by Bhoopal Singh (P. W. 1) and Surendra Lal Sah (P.W. 2). We have already rejected the testimony of Vinod Kumar Mehrotra (P.W. 3) on the ground that he did not know Avdhesh Kumar Dixit at all although he claims to have known him. We have also come to the conclusion that in all probability Bhoopal Singh (P. W. 1) was not present at the time of incident. There remains the testimony of this identification by the single witness Surendra Lal Sah. It was contended on behalf of the appellant before us that in the test identification parade dated December 19, 1971 both Bhoopal Singh (P.W. 1) and Surendra Lal Sah (P.W. 2) identified Avdhesh Kumar Dixit correctly. It was contended that if Bhoopal Singh (P.W. 1) was not present at the time of incident and he had no opportunity to see Avdhesh Kumar Dixit his identification of Avdhess Kumar Dixit in the test identification parade dated December 19, 1971 must have been brought about by some external aid and if that external aid had been used in getting Avdhesh Kumar Dixit identified by Bhoopal Singh his identification by Surendra Lal Sah (P. W. 2) also becomes of doubtful character. We do not propose to answer this question in this case because this case can be decided without determining this controversy of law. After eliminating the testimony of Bhoopal Singh (P.W. 1) and Vinod Kumar Mehrotra (P. W. 3) there remains the single identification of Surendra Lal Sah (P.W. 2) against Avdhesh Kumar Dixit and following the usual rule of prudence which has matured into a rule of law we are not prepared to convict Avdhesh Kumar Dixit on the solitary identification of Surendra Lal Sah (P.W.2). On behalf of the State it was contended that in the dying declaration (Ex. Ka2) Satyendra Singh Bisht mentioned the person who stabbed him as one who was wearing green dress and who had moustaches. On behalf of the State it was contended that in the dying declaration (Ex. Ka2) Satyendra Singh Bisht mentioned the person who stabbed him as one who was wearing green dress and who had moustaches. Surendra Lal Sah (P.W. 2) also stated that the companion of Dilshad appellant was wearing a green suit. But he nowhere stated that Avdhesh Kumar Dixit appellant was wearing green suit at the time of incident. No green dress was recovered from Avdhesh Kumar Dixit. Further according to the dying declaration (Ex. Ka2) the person, who stabbed Satyendra Singh Bisht, had moustaches, while according to Surendra Lal Sah (P.W. 2) the person, who had stabbed, had only a light line demarcating his moustaches. He did not state that the person who had stabbed had any moustaches. The testimony of Surendra Lal Sah (P.W. 2) doesnot, therefore, stand corroborated by the dying declaration (Ex. Ka2) in fastening the identity of Avdhesh Kumar Dixit appellant. In this view of the matter the case against Avdhesh Kumar Dixit becomes still more doubtful. Avdhesh Kumar Dixit is, therefore, entitled to the benefit of doubt. Dilshad appellant.Now coming to the case of Dilshad appellant, the evidence to establish the presence of Dilshad appellant consists of two reliable witnesses, viz., Surendra Lal Sah (P.W. 2) and Vinod Kumar Mehrotra (P. W. 3). The description of the person who had accompanied the real assailant given by Satyendra Singh Bisht (deceased) in his dying declaration (Ex. Ka2) together with the testimony of Mahesh Chandra Bajetha (P.W. 20) and Pushkar Pal Singh (P.W. 23) also fix the identity of Dilshad as the person who had accompanied the assailant who stabbed Satyendra Singh Bisht and Surendra Lal Sah (P. W. 2) and who did deliver a fist blow to Satyendra Singh Bisht (deceased). The presence of Dilshad appellant at the time of incident and his participation to some extent in the crime is, therefore. assured. The question now arises whether it is possible to convict Dilshad appellant under Section 302, I.P.C., or Section 307, I.P.C. with the aid of Section 34, I.P.C. after acquitting Avdhesh Kumar Dixit. Dilshad appellant did not stab either Satyendra Singh Bisht (deceased) or Surendra Lal Sah (P.W. 2). He cannot, therefore, be convicted either under Section 302, I.P.C. for the murder of deceased or under Section 307, I.P.C. for the attempted murder of Surendra Lal Sah (P.W. 2). Dilshad appellant did not stab either Satyendra Singh Bisht (deceased) or Surendra Lal Sah (P.W. 2). He cannot, therefore, be convicted either under Section 302, I.P.C. for the murder of deceased or under Section 307, I.P.C. for the attempted murder of Surendra Lal Sah (P.W. 2). It has been held in the ruling reported in Krishna Govind Patil v. State of Maharashtra (1) as under: "Where the High Court acquitted 3 of the four accused charged for an offence under Section 302 read with Section 34 giving them the benefit of doubt in view of the fact that their identity was not established but convicted the fourth under Section 302 read with Sec. 34 on the ground that he had committed the offence along with one or other of the acquitted accused. Held that the conviction of the fourth accused was clearly wrong. When accused were acquited either on the ground that evidence was not acceptable or by giving benefit of doubt to them the effect in law would be that they did not take part in the offence. Hence the effect of acquittal of the three accused was that they did not conjointly act with the fourth accused in committing the murder. If that was so the fourth accused could not be convicted under Section 302 read with Section 34 for having committed the offence jointly with the acquitted person." The matter was further explained by giving illustrations at pages 1415 and 1416, which are reproduced as below: "(1) A, B, C and D are charged under Section 302, read with Section 34. of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder. (2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence. (3) A, B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others have jointly committed the offence. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence. (3) A, B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others have jointly committed the offence. As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the named accused is guilty of murder under S. 302, read with Section 34, of the Indian Penal Code, though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused? Can it hold, in the absence of a charge as well as evidence, that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons? If the Court could do so it would be making out a new case for the prosecution; it would be deciding contrary to the evidence adduced in the case. A court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other, other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration." This ruling precludes the application of Section 34 to the case of Dilshad. There must be some foundation in the evidence that persons other, other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration." This ruling precludes the application of Section 34 to the case of Dilshad. On behalf of the State reference was sought to the ruling reported in Karan Singh v. State of Madhya Pradesh (A.I.R. 1965 S.C. 1037). This ruling is distinguishable on facts for in that case there were two cases. In the first case A had been acquitted and in the second case when B was tried under Section 302/34, I.P.C. on the ground that he along with A acquitted in the case had committed the murder. It was held that Section 34, I.P.C. could be applicable for the obvious reason that as trial was no bar to the trial of B subsequently. The case before us is of the same trial. On behalf of the State our attention was further drawn to the case reported in Sukh Ram V. State of U. P. (A.I.R. 1974 S.C. 323). This case is also distinguishable on facts. In that case Sukh Ram and two others, viz., Lakhan Singh and Mahendra Singh, were charged under Section 302/34, I.P.C., for the murder of Chunnilal. The two others., viz., Lakhan Singh and Mahendra Singh, were acquitted but the conviction of Sukh Ram under Section 302, I.P.C. because there was evidence in the case that Chunnilal was murdered by Sukh Ram and two other persons and the question put to Sukh Ram in his statement under Section 342, Cr.P.C. was that Sukh Ram and two others had committed the murder of Chunni Lal and not Sukh Ram and two others, viz., Lakhan Singh and Mahendra Singh, had committed the murder of Chunni Lal. In these circumstances the Supreme Court maintained the conviction of Sukh Ram with the aid of Section 34, I.P.C. In the present case the charge against Bilshad is that he along with Avdhesh Kumar Dixit formed a common intention and in furtherance of that common intention Avdhesh Kumar Dixit fatally stabbed Satyendra Singh Bisht (deceased) and attempted to murder Surendra Lal Sah (P.W. 2). There is no charge that Dilshad and one stranger or unknown person formed a common intention and in furtherance of that common intention the stranger or unknown person fatally stabbed Satyendra Singh Bisht or attempted to commit the murder of Surendra Lal Sah (P. W. 2). The question put to Dilshad in his statement under Section 342, Cr.P.C. was that he along with Avdhesh Kumar Dixit formed a common intention and in pursuance of that common intention Avdhesh Kumar Dixit committed the murder of Satyendra Singh Bisht. If Avdhesh Kumar Dixit is acquitted, in these circumstances, in view of the Supreme Court ruling reported in Krishna Govind Patil's case (supra) the conviction of Dilshad with the aid of Section 34, I.P. C., cannot be sustained. But Dilshad appellant was charged under Section 323, I.P.C., for causing simple hurt to Satyendra Singh Bisht. There is cogent evidence on the record to show that Dilshad appellant delivered a fist blow at Satyendra Singh Bisht. He is, therefore, guilty under Section 323, I.P.C. He is, therefore, convicted under Section 323, I.P.C. for causing simple hurt to Satyendra Singh Bisht and is sentenced to six months' R.I. under it. Appeal No. 2953 of 1973 is allowed in toto. The conviction of Avdhesh Kumar Dixit under Sections 302 and 307, I.P.C. are set aside. He is acquitted. He is in jail. He shall be released forthwith unless required in some other case. Reference for the confirmation of the death sentence is rejected. Criminal Appeal No. 2997 of 1973 is partly allowed. The conviction and sentence of Dilshad appellant under Sections 302/34 and 307/34, I.P.C., are set aside. Instead, he is convicted under Section 323, I.P.C. and is sentenced to six months' R.L He is on bail. He shall be taken into custody forthwith to serve out the sentence now imposed on him.