JUDGMENT - N.B. NAIK, J.:---The appellants have been convicted by the learned Additional Sessions Judge, Aurangabad, for an offence under section 325 read with section 34 of the Indian Penal Code and each of them has been sentenced to suffer R.I. for nine months and to pay a fine of Rs. 250/-. 2. All the four accused were tried for an offence under section 302 read with section 34 of the Indian Penal Code, on the allegations that on or about 10th of October 1973 at about 10 a.m. village Valuj in the land of Ramchandra Shankar Agade in furtherance of the common intention of the accused committed murder of one Kachru Laxman Barade, a Bhil by assaulting him with sticks and iron rods etc. 3. It is difficult to state the allegations on which the prosecution is founded inasmuch as eleven alleged eye-witnesses examined in support of the charge did not support the prosecution case which it was able to gather the stage of investigation. The prosecution case as could be spelt out from the legal evidence on record is briefly to this effect: The victim of this incident was one Kacharu Laxman Bhil of Itawa village in Aurangabad district. He was a notorious thief and a robber and a terror in the surrounding villages. All the accused are residents of Ranjangaon village which is two miles from Itawa village from where the deceased hailed. Accused Nos. 2 and 3 are full brothers and accused No. 4 is their cousin. Accused Nos. 1 to 3 owned a joint family garden land within the limits of Itawa village. At the relevant time, they had planted sugarcane and chillies and groundnut crop was also reaped. On the night of 9th October, 1973, accused No. 1 and his servant Babu Natha (P.W. 16), had together been to the garden land within Itawa limits for keeping watch over the standing crop. At about mid-night the deceased Kacharu accompanied by two others entered the land and started uprooting groundnuts. Babu and accused No. 1 saw them from a distance of about 50 feet and questioned them in loud tone as to who they were and what they were doing. At about mid-night the deceased Kacharu accompanied by two others entered the land and started uprooting groundnuts. Babu and accused No. 1 saw them from a distance of about 50 feet and questioned them in loud tone as to who they were and what they were doing. On hearing the same the companions of the deceased filed away but the deceased rushed towards Babu and accused No. 1, and he slapped accused No. 1, and threatened as to why he was taking objection in his removal of the groundnuts. Being terrified Babu and Laxman (accused No. 1) left for another land of the accused known as the Wadacha Mala which is at a distance of about one mile from the garden land where they were keeping a watch. After going there, Babu and Laxman narrated the incident to the other three accused. On hearing the same, the three accused accompanied Babu and accused No. 4 to the garden land to see whether the deceased was still there. But on reaching the garden land they found that the deceased had already left by uprooting and taking away about one bag of groundnuts and also brass bells which were tied to the bullocks with the aid of belts. 4. On the next day morning Babu (P.W 16), went to another land of the accused known as Wakda number and carried on sowing operations till about noon. Thereafter he returned to the garden land where groundnut crop was standing and at that time according to Babu he found that the deceased was made to sit and four accused were also present there. This is all the legal evidence which is available on record. 5. Thereafter, it appears from the evidence of Nana Sawai (P.W. 11), Police Patil of village Ranjangaon that on the 10th October, 1973 he learned about the incident in the filed of the accused on the earlier night and he also learnt that about 50 persons from the village had gone to Itawa for apprehending and bringing the deceased. He, therefore, proceeded to Itawa for ascertaining the truth of the information received from the villagers. When he had gone half of the distance on his way to Itawa, he found that the deceased was being brought from the opposite direction by accused Nos. 2 and 4 and about 50 other villagers. He, therefore, proceeded to Itawa for ascertaining the truth of the information received from the villagers. When he had gone half of the distance on his way to Itawa, he found that the deceased was being brought from the opposite direction by accused Nos. 2 and 4 and about 50 other villagers. He also noticed that the deceased had sustained injuries on his head and hand. Having learnt from accused No. 2 about the theft committed by the deceased on the earlier night, Police Patil Nana asked accused No. 2 to bring his bullock-cart for taking the deceased to Valuj. Accordingly accused No. 2 brought his bullock-cart and it was by that bullock-cart that the Police Patil took the accused No. 2 and the deceased to the police station at Valuj. 6. Immediately after reaching Valuj as appears from the evidence of P.S.I. More (P.W. 21) and Head Constable Mirza Krim Beg (P.W. 1), accused No. 2 filed his complaint Ex. 46 about the incident of the earlier night involving the theft of the groundnuts and that offence was registered at Criminal No. 62 of 1973 at the instance of P.S.I. More and the investigation of that case was taken up by Head Constable Mirza Beg. P.S.I. More and Mirza Beg noticed the injuries on the person of the deceased. The deceased was arrested and a panchanama Ex. 11 about the injuries to the deceased was drawn. When perhaps questioned with regard to the complaint of accused No. 2, the deceased made a statement Ex. 9, which in the circumstances of the case has been treated as a dying declaration and when liberally translated it reads as under: "Yesterday on 9-10-1973 in the evening at about 7 or 8 p.m. I, Eknath and one more person from another village had together been to the garden land of Laxman Mahadu (accused No. 1) for eating groundnuts. When I asked Laxman to give groundnuts for eating he declined to give and also abused me and, therefore, all three of us returned home. 7. Today morning accused No. 1 came to my house and asked me to come to the garden by offering to give me groundnuts. That is why I accompanied him to his garden land. He asked me why I had come on the earlier night. So saying he abused me and accused Nos. 7. Today morning accused No. 1 came to my house and asked me to come to the garden by offering to give me groundnuts. That is why I accompanied him to his garden land. He asked me why I had come on the earlier night. So saying he abused me and accused Nos. 1 to 3 and their cousin brother Girjaba Punjaram assaulted me by sticks. That is why I have sustained injuries on my head, chest shins of both the legs. So also there are weal marks on my hands, chest and back. All the above persons have assaulted me severally. All were armed with sticks. I have been beaten severally. That is why I am having pain. Hence my complaint against all the 4 persons. 8. That statement was recorded by Head Constable Mirza Beg and it was treated as N.C. No. 92 of 1973. 9. It appears that thereafter Head Constable Mirza Beg sent the deceased to the Judicial Magistrate, First Class, Gangapur for remand in connection with the theft case which was registered against him. It appears that the learned Magistrate referred the deceased to a civil dispensary and from the civil dispensary the deceased was removed to Ghati Hospital at Aurangabad. But then there is no legal evidence to show when the deceased was sent to civil dispensary or from the civil dispensary to the Ghati Hospital. All that we have on record is as appears from the evidence of (P.W. 22), Police constable Dhondiram is that the deceased being in the custody was admitted in the Ghati Hospital, and the witness and another constable were detailed as guards and the deceased died on 15th October, 1973 at about 9 p.m. in the Ghati Hospital. 10. No Medical Officer concerned with the civil dispensary at Gangapur or in the Ghati Hospital has been examined. The only witness examined is Dr. Bhandarkar (P.W. 18), who has held the post mortem on the dead body of the deceased and the post mortem notes are at Ex. 41. It is enough to state that on receipt of the information of the death of the deceased on 15th October 1973, P.S.I. More registered an offence under section 302 read with section 34 of the Indian Penal code and completed the investigation. 11. Dr. 41. It is enough to state that on receipt of the information of the death of the deceased on 15th October 1973, P.S.I. More registered an offence under section 302 read with section 34 of the Indian Penal code and completed the investigation. 11. Dr. Bhandarkar noticed about 12 external injuries and he noticed 5 internal injuries, which were the anti mortem. In his opinion the cause of death of the deceased was asphysia and shock due to massive pulmonary haemorrhage with plural effusion and due to fracture of left tibea fabula. In his opinion the cumulative effect of all these injuries was to cause the death of the person who has sustained the same. 12. It is on these facts that the accused were prosecuted. 13. The accused pleaded not guilty to the charge and claimed to be tried. They did not dispute the fact that the deceased and two others had come to committee theft of the standing groundnut crop on the midnight of 9th and 10th and the deceased on that occasion slapped accused No. 1 as stated by Babu (P.W. 16). They denied that they had assaulted the deceased but accused No. 2 admitted that at the suggestion of Police Patil he took the deceased to the police station and filed the complaint. 14. For proof of its case against the accused, the prosecution examined as many as 11 alleged eye-witnesses. Out of them 5 witnesses viz. Ramchandra (P.W. 6), Harishchandra (P.W. 8), Laxman (P.W. 12), Fakirchand (P.W. 13), and Kishan (P.W. 15), refused to support the case for the prosecution according to which at the stage of investigation the deceased was alleged to have been assaulted by the accused in the field of Ramchandra Manore (P.W. 6), in the limits of Valuj. The remaining six witnesses viz. Kundlik (P.W. 4), Bansi (P.W. 7), Yemaji (P.W. 10), Nana (P.W. 11), Hirman (P.W. 14), and Jagannath (P.W. 17), also did not support the case for the prosecution and did not at all claim to be eye-witnesses to the incident. The learned Magistrate took the view that the set of these six witnesses is of no use either for the prosecution or for the defence. He, therefore, rejected the evidence of these witnesses and also the evidence of five hostile witnesses, which was no evidence at all. The learned Magistrate took the view that the set of these six witnesses is of no use either for the prosecution or for the defence. He, therefore, rejected the evidence of these witnesses and also the evidence of five hostile witnesses, which was no evidence at all. The learned Sessions Judge was, therefore, left with only the evidence of Babu (P.W. 16). He believed the dying declaration of the deceased. The learned Sessions Judge tried to draw certain conclusions from the evidence of Babu and he concluded that those conclusions corroborate the material allegations in the dying declaration Ex. 9 about the accused being the assailants of the deceased. Although neither the Medical Officer of Nagpur nor any Medical Officer from Ghati Hospital where the deceased died were examined, the learned Sessions Judge felt that the evidence furnished by the panchanama of the injuries (Ex. 11) and the post mortem notes (Ex. 41) by Dr. Bhandarkar (P.W. 8), was sufficient to hold that the death of the deceased was due to the injuries which were noticed on the person of the deceased at the time of his arrest. But at the same time the learned Sessions Judge took the view that it was never the intention of the accused to cause the death of the deceased. According to him, the intention of the accused was only to give beating to the deceased. Consistently with that view while acquiring all the accused of the charge of the offence of murder, the learned Sessions Judge convicted all of them for an offence under section 325 read with section 34 of the Indian Penal Code and in the circumstances of this case he thought that a lenient view ought to be taken in the matter of sentence and, therefore, sentenced each of the accused to suffer R.I. for nine months and to pay a fine of Rs. 250/-. 15. The correctness of that judgment and order is challenged by the accused by filing this appeal. 16. After having taken me through the judgment and the evidence in the case, Mr. 250/-. 15. The correctness of that judgment and order is challenged by the accused by filing this appeal. 16. After having taken me through the judgment and the evidence in the case, Mr. Agarwal has assailed the judgment of the learned Sessions Judge by pointing out that while the learned Sessions Judge has rightly rejected the evidence of the five hostile witnesses and even the remaining six witnesses who according to him did not support the prosecution, he has misread the evidence of Babu (P.W. 16), in a bid to find corroboration to the dying declaration Ex. 9. He also submits that whereas the case for the prosecution at the investigation stage as is disclosed by the charge, was that the incident had occurred in the limits of Valuj village which is about 2½ miles from Itawa, the learned Sessions Judge was not justified in holding that the incident had occurred in the garden land of the accused by relying on the uncorroborated allegations in the dying declaration Ex. 9. In any event he submits that the allegations in the dying declaration about the deceased having gone only for asking the groundnuts and, his being turned away and about accused No. 1 having gone to the deceased and taken him away on the date of the incident on the excuse of giving him groundnuts are clearly false as was held by the learned Sessions Judge himself and having regard to this infirmity and the fact that the allegations in this dying declaration are destructive of the main prosecution case which the prosecution wanted to put through the alleged eye-witnesses, the learned Sessions Judge was not justified in relying on this dying declaration. Mr. Barday, learned Public Prosecutor however, submitted that the dying declaration stands corroborated by the panchanama Ex. 11 of the injuries which was drawn at the time of the arrest of the deceased. 17. After having considered the case anxiously I am of the opinion that the alleged dying declaration cannot be safely relied upon without corroboration with respect to each of the accused and since such corroboration is not forthcoming it would not be safe to rely on it. If that is done since there is no evidence to show that the accused or any of them had caused any injury to the deceased, the conviction cannot be sustained. 18. If that is done since there is no evidence to show that the accused or any of them had caused any injury to the deceased, the conviction cannot be sustained. 18. As I stated, the learned Sessions Judge rightly rejected the evidence of five witnesses who were hostile witnesses and the evidence of six other alleged eye-witnesses on the ground that though they were not treated as hostile witnesses they had neither supported the case for the prosecution nor for the defence. Again, as I have stated the learned Sessions Judge based his conviction solely on the evidence of Babu (P.W. 16), and the dying declaration Ex. 9. I have already set out the substance of the evidence of Babu Natha while stating the case for the prosecution. The learned Sessions Judge concluded in para 23 of his judgment that Babu Nathas evidence establishes four facts viz.; "(i) the incident which occurred during the previous night; (ii) that on that day during the noon time Kachru Bhil was in the custody of these four accused; (iii) these four accused made to sit Kachru Bhil within their custody and at that time there was no injury on the person of Kachru Bhil; (iv) that there was a crowd of spectators none of the members of the crowd hurled stone against Kachru Bhil." But then a mere perusal of the evidence of Babu Natha would show that the learned Judge is not right in holding that the evidence of Babu Natha establishes that there is no injury on the person of Kacharu Bhil inasmuch as one would read in vain in his deposition to find any such statement by the witness. On the other hand if we read the evidence of Nana Police Patil (P.W. 11), who is not treated as a hostile witness, his evidence shows that when he went towards Itava on learned about the nights incident and about the deceased being brought he found that about 50 people were bringing the deceased and that accused Nos. 2 and 4 were also with them and at that time he had noticed the deceased having sustained the injuries. 2 and 4 were also with them and at that time he had noticed the deceased having sustained the injuries. Therefore, the inference drawn by the learned Sessions Judge from the evidence of Babu Natha that there was no injury on the person of Kacharu Bhil when he was in the custody of the accused, is not only not to be found in the evidence of Babu but stands falsified by the prosecution witness Nana, Police Patil (P.W. 11). 19. Again the finding that the deceased was seen by Babu in the custody of these four accused is also not correct as Babu Natha has stated that besides the accused there were about 100 to 150 persons includes some boys when the witness returned to the land near the groundnuts land after doing sowing operations by noon time on the 10th October, 1973. It is not the version of the witness, that in his presence any of the persons hurled stones against the deceased, and, therefore, it is unnecessary to infer from the evidence of the witness as a point of fact that none of the members of the crowd hurled stones against Kacharu Bhil as has been done by the learned Sessions Judge. It would be thus clear that the learned Sessions Judge has misread the evidence of Babu Natha when he concluded from his evidence that the deceased was in the custody of only the four accused or that the evidence of Babu Natha shows that there were no injuries on the persons of Kacharu Bhil. It was from his erroneous assumption of the premises that the learned Judge came to the conclusion that the allegations in the dying declaration that the accused have assaulted the deceased must be accepted although there is no independent evidence about the same. 20. It is enough to state that the evidence of Babu Natha would only speak of the incident of the midnight of 9th and 10th when the deceased had come to commit a theft of the groundnuts and had lapped accused No. 2 and had even given him threats and had gone away with groundnuts to the extent of a bagful and the belts of the bullocks. It further proves that on the next day in the afternoon the witness saw the deceased in the company of a crowd of about 100 to 150 persons from the villages of Itawa, Ranjangaon, Ghanegaon and Kasoda along with four accused as well. The Police Patil Nana also proves the same. 21. All that we know thereafter according to the legal evidence in the case is that Nana, the Police Patil and accused No. 2 having taken the deceased to the Police Station and produced him, at that time injuries as mentioned in the panchanama Ex. 11 were noticed on the person of the deceased. 22. The next, question to be considered is as to the probative value of Ex. 9, the dying declaration of the deceased. As rightly held by the learned Sessions Judge the earlier part of the dying declaration that the deceased had gone to the field of the accused on the earlier night only for demanding the groundnuts for eating and that he was driven away cannot be accepted for a moment and it is positively false. Even so the further story that on the 10th October, 1973 accused No. 2 came to his house and asked him to accompany accused No. 2 to his field by offering to give him groundnuts and thus took the deceased with him would appear to be highly unnatural and improbable. The fact which is proved by the evidence of Babu and was also accepted by the learned Sessions Judge and has to be also accepted by me was that on the night between 9th and 10th October, 1973, the deceased a notorious thief and a terror in that locality had been to the field of the accused and by terrorising Babu Natha and accused No. 2 and by slapping accused No. 2 he had succeeded in taking away a bag full of groundnuts. With this background it is highly unlikely that accused No. 1 would come to his house on the date of the incident and ask him to come to his field on the excuse of giving groundnuts or the deceased would follow him by relying on that so called representation. Clearly this part of the allegation of the dying declaration also is inherently improbable and has to be rejected. 23. Clearly this part of the allegation of the dying declaration also is inherently improbable and has to be rejected. 23. What we are then left with is the allegation that all the accused assaulted the deceased and caused him severe injuries. Having regard to the fact that this dying declaration suffers from an inherent infirmity and it puts forward an improbable and unnatural story and an untrue one at that about the prelude to the assault it cannot be safely relied upon. 24. The next infirmity is that whereas it is the case for the prosecution which was laboriously tried to be put up though unsuccessfully was that the incident of assault occurred at Valuj village, 2 ½ miles away from the place where according to this dying declaration the incident has taken place. Therefore, it would appear that we should require independent corroboration to rely on this dying declaration and it would not be safe to rely upon it without any corroboration. We cannot forget the fact that this so called dying declaration was a complaint given by the accused immediately after he was arrested in the Police Station on a complaint made by accused No. 2 about the offence of robbery overnight. He would, therefore, be naturally interested in involving all the family members of the accused. For whatever it is worth it may be noted that he was not correctly named accused No. 4 but he has named the father of accused No. 4 as the fourth assailant. Again, it is significant to note that although the learned Sessions Judge has rejected the evidence of six witnesses on the ground that they neither support the defence nor the prosecution, they are not treated as hostile witnesses. Almost all of them have stated that the deceased was being taken by several villagers from the surrounding villages and that the number according to some witnesses was 50 and according to the other witnesses it was 100 to 150 or even 200. When a notorious their is taken in that manner by the villagers who must have been angry by the overnights incident, it is not unlikely that as is suggested any members of the crowd including the accused may have pleated stones at such a person. When a notorious their is taken in that manner by the villagers who must have been angry by the overnights incident, it is not unlikely that as is suggested any members of the crowd including the accused may have pleated stones at such a person. It would be therefore, not safe to conclude that a particular person must less a particular accused is responsible for the injuries sustained by the deceased. I, therefore, hold that it is not safe to base a conviction, and the order of conviction has to be set aside. 25. In the result, the appeal is allowed and the order of conviction and sentence passed by the learned Additional Sessions Judge, is set aside. Fine, if paid, shall be refunded to the accused. The bail-bonds of the accused are cancelled. -----