Short Note : 1. The prosecution case is this : On 31-1-75, at about 9 a.m., the deceased Ramsingh. accompanied by Bansilal (P. W. 1), was returning to his village after attending a marriage ceremony at village Sewania; the four appellants and their associates were in hiding duly armed and as soon as Ramsingh came, they simultaneously attacked him with lathis and farsa. Bansilal (P. W. 1) intervened, but he too was assaulted with the result that he ran towards the village. On the way he met Prem (D.W. 4), Jatal (P. W. 2) and Makhan (P. W. 4). Bansi narrated the incident to Jatal and Makhan who are the relations of the deceased. When Hiralal (P. W. 7) and others reached near the injured Ramsingh, he was conscious and told him that the four appellants and their two associates had assaulted him. He was then shifted to his house where his wife Parwati (P.W. 3), gave him water to drink. He gained consciousness and implicated the four appellants and their associates as his assailants. Jatal (P.W. 2) brought Jalam Chowkidar (P.W. 5) and took him to Ichchhawar police station where Bansilal. (P. W. 1) lodged the FIR Ex. P-1 at 1 a. m. on 1-2-1975 Held : Before us, Shri Rajendrasingh Advocate for the appellants, did not dispute that Ramsingh is dead and that his death was homicidal. There is evidence of relations of the deceased, inquest report Ex. P-4. injury and post mortem reports Exhibits P-19-A and P-17 which conclusively established that Ramsingh is dead and that his death was homicidal. We have, therefore, to consider whether the four appellants were the assailants of Ramsingh. 2. Bansilal (P. W. 1) had also sustained an injury as per evidence of Dr. Chaturvedi (P.W. 16) and, therefore, his presence at the time of incident could not be disputed. It is this Bansilal who had lodged the FIR Ex. P-1. Apart from, the contradiction regarding the time of incident, whether it took place while Ramsingh and Barisilal were returning from the Barat or whether they were going there. Bansilal mentioned at point 'D' in Ex. D-1 that it was a dark night and, therefore, he could understand nothing. In this report, Bansilal (P. W. 1) named Dalipsingh as one of the assailants, but he has been acquitted by the Additional Sessions Judge, Sehore. In Ex. Bansilal mentioned at point 'D' in Ex. D-1 that it was a dark night and, therefore, he could understand nothing. In this report, Bansilal (P. W. 1) named Dalipsingh as one of the assailants, but he has been acquitted by the Additional Sessions Judge, Sehore. In Ex. P-1, Bansilal omitted the name of the appellant Onkar. The fact that relations between the deceased and the appellants were highly strained, it will be essential to have a cautious scrutiny of the prosecution evidence, especially when there is mention of dark night in the initial report Ex. P-I. 3. The prosecution evidence consisted of eye witness account of Bansilal (P.W-1), dying declaration made by the deceased at the place of incident and another dying declaration made by him at his house in the presence of his wife Parwatibai (P.W. 3). Regarding the dying declaration at the place of incident, that has been rejected in para 17 of the judgment. This only shows that the prosecution was now introducing false evidence which is also apparent from the fact that though in the FIR Ex. P-1, dark night is mentioned, yet there is an attempt on the part of the prosecution witnesses to show that it was a moon-lit-night. 4. The incident took place on 31-01-1975. We have seen the concerned calendar. On this night, the moon rose at 9.55 p. m. Therefore, at about 9 p.m. there will be complete darkness. Bansilal (P.W. 1) named the four appellants, but as already stated, Onkar is missing from the FIR Ex. P.-1 and Dalipsingh who was an accused, is not named by him. In para 2, he admitted that immediately after the assault, he met, Prem (D.W. 4), but to him, he did not name the assailants. According to Prem (D W. 4), Bansilal told him that he had not recognised the assailants. In para 2, he stated that he met Jatal (P.W. 2) and Makhan (P.W. 4). To them, he named the four appellants. In para 3, he stated that at home, when Ramsingh drank water at the hands of his wife Mst. Parwati (P.W. 3), he named all the four appellants Para 7 of his statement shows that he is on inimical terms with the appellants and, therefore, his statement would need corroboration before his evidence is accepted. 5. Jatal (P.W. 2) is the brother of the deceased. Parwati (P.W. 3), he named all the four appellants Para 7 of his statement shows that he is on inimical terms with the appellants and, therefore, his statement would need corroboration before his evidence is accepted. 5. Jatal (P.W. 2) is the brother of the deceased. He testified to the oral dying declaration made by the deceased implicating six persons. Two of the assailants have been acquitted which shows that the deceased had implicated two innocent persons. He is also inimical towards the appellant Prahladsingh. 6. Mst. Parwati (P.W. 3) testified to the oral dying declaration made by the deceased to her at home implicating six reasons. In para 7, she stated that Maknan, Jatal and Bansi did not name the assailants. This throw doubt on the testimony of Bansi, because if he had seen the assault and had known the assailants, he would at least have told the names of the assailants to the wife of the deceased. Makhan (P.W. 4) stated that Bansi had named six assailants. He testified to the oral dying declaration made at home. He did not disclose about the oral dying declaration to anyone. 7. Jalam Chowkidar (P.W. 5) stated that Jatal (P.W. 2) did not name the assailants to him. No doubt he is a hostile witness, but para 8 of his deposition shows that Bansilal (P. W. 1) told him that it being a dark night, he could not recognise the assailants. 8. Nathuramsingh (P.W. 6), in para 15, stated that Ramsingh was unconscious till he reached the place upto the end. He does not refer to the dying declaration made at home, though he says that Bansilal had told him the names of the assailants. For the reason given above; we do not treat Bansilal (P W. 1) as a reliable witness, because it being a dark night, he could not have recognised the assailant, and secondly, there is no corroboration to his statement by Prem (D. W. 4) who met him first after the incident. 9. Heeralal (P.W. 7) stated that Ramsingh was conscious and named Onkar, Lalji and Prahlad as his assailants. He named Dalip and Deobux, who have been acquitted. We did not name Onkar. He had no talk with Bansilal (P.W. 1). In answer to question No.4, he stated that Bansi did net name the assailants to him which again deprived Bansilal of corroboration to his statement. He named Dalip and Deobux, who have been acquitted. We did not name Onkar. He had no talk with Bansilal (P.W. 1). In answer to question No.4, he stated that Bansi did net name the assailants to him which again deprived Bansilal of corroboration to his statement. 10. The above evidence consisting of inimical witnesses is not corroborated and there is the possibility of the eye witness Bansilal (P.W. 1) not recognising the assailants in the dark night. This is clear from the fact that Bansilal did not name the assailants to Prem (D.W. 4) and Hiralal (P.W. 7). 11. The evidence of Dr. Jain (P.W.9) established beyond doubt that the deceased had sustained many injuries. There was collection of blood in the middle and on the right parietal bone below scalp on the site of injury No. 1. There was fracture of right parietal bone. Brain was punctured. There were other fractures also. Brain haemorrhage as a result of injury to the brain was sufficient to cause death in the natural course. In para 9, Dr. Jain made a categorical statement that the injuries were sufficient to make the deceased unconscious. After becoming unconscious, he could not get lucid intervals of regaining complete consciousness. In case of brain injury, lucid intervals of the type of regaining complete consciousness is not possible. His attention was drawn to certain authorities with which he agreed, but this case is distinguishable. In para 14, he stated that in the extracts of Modi and Taylor put to him the injuries were not like those in hand. In para 15, he repeated that the injuries were sufficient to cause immediate unconsciousness. 12. Thus, in view of the evidence of Jain (P. W. 9), there is conclusive evidence that Ramsingh, after receiving the injuries, would have become unconscious and would not have gained consciousness. The medical evidence completely nullified the prosecution evidence that Ramsingh gained consciousness for a while and narrated the names of the assailants. It will be pertinent to state that in Ex P-1, Bansilal (P.W. 1) mentioned that Ramsingh was unconscious. Thus the oral dying declaration attributed to Ramsingh at his house, is a complete fabrication. 13. In view of the above, we are of the view that the identity of the assailants has not been established beyond doubt. The deceased and Bansilal (P.W. 1) had other enemies also. Thus the oral dying declaration attributed to Ramsingh at his house, is a complete fabrication. 13. In view of the above, we are of the view that the identity of the assailants has not been established beyond doubt. The deceased and Bansilal (P.W. 1) had other enemies also. Relations between the deceased and the appellants were highly strained. The prosecution evidence suffers from corroboration both on the question of oral evidence and also on the question of medical evidence. In view of the above, we are of the view that convictions of the appellants is not in order and deserve to be set aside. Appeal allowed.