Judgment S. Shamsul Hasan, J. 1. Appellant Awadhesh Rai has been convicted under Sec.302 of the Penal Code and appellant Jai Kishun Rai has been convicted under Sec.302 read with Sec.34 of the Indian Penal Code and each of them has been sentenced to imprisonment for life. 2. The deceased in this case is one Ramji Rai and two other persons, namely, Parma Rai and Satyanarain Rai had received injuries. The appellants have been found guilty of assaulting Ramji Rai only by bhala and pharsa. It is said that Awadhesh Rai struck Ramji with Bhala on his right panjra and Jaikishun Rai gave a Pharsa blow on his head. Originally there were six accused persons, four of whom have been acquitted, because tht assault by other accused persons, as alleged by the prosecution, was not proved beyond reasonable doubt. 3. It may be stated here that the prosecution party and the accused persons belong to the same village Tarwan P. S. Mirganj, district Gopalganj. Accused Narsingh Rai and deceased Ramji Rai had their Baithaka in front of each other. Rajendra Rai P. W.1 and appellant Awadhesh Rai both were students of Gopeshwar College, Hathwa. On 21-8-72, at about 1 p. m. Rajendra Rai had gone to Gopalganj to attend his class. While he was sitting near the college all alone appellant Awadhesh and his associate Uma Shanker went to the Mandir and in the way appellant Awadhesh Rai accused Rajendra rai P. W.1 and told him that he had learnt that P. W.1 had arranged a man for Rs.50/- for killing him. Both appellant Awadhesh and his associate Uma shankar tried to assault Rajendra. On this Rajendra fled away on his cycle towards his house and related the occurrence to accused Narsing Rai. At about 5 p. m deceased Ramji questioned accused Narsingh Rai as to why such an occurrence was happening and also as to why his son tried to assault his son (Rajendra Rai ). This led to exchange of hot words. At that moment P. Ws.1, 4 and 6 reached the spot. Appellants Awadhesh and jai Kishun and other accused persons were sitting in the Baithka of Narsingh rai from before. Appellant Awadhesh Rai and accused Chandrama Rai had Bhala while Jaikishun Rai had Pharsa and others had Lathi. This led to exchange of hot words. At that moment P. Ws.1, 4 and 6 reached the spot. Appellants Awadhesh and jai Kishun and other accused persons were sitting in the Baithka of Narsingh rai from before. Appellant Awadhesh Rai and accused Chandrama Rai had Bhala while Jaikishun Rai had Pharsa and others had Lathi. Awadhesh, it is said, came forward in the Sahan and inflicted Bhala blow on this right panjra of Ramji Rai on which he fell down. Thereafter appellant Jaikishun raj gave a Phalsa blow on the head of Ramji Rai causing considerabk bleeding. Then other accused persons assaulted Satyanarain Rai and Parma rai were then taken to Hathwa Hospital and the accused persons fled away. 4. At 8 p. m. an information was received by the Officer-in-Charge mirganj P. S. from the hospital. After making S. D. entry No.329 dated 21-8-72, he left for the hospital reaching there at 8.30 p. m. There he found Ramji Rai in a very precarious condition. Dr. (Smt.) Rajeshwari narain had sent an information to the Block Development Officer and to the circle Inspector for recording the dying declaration of Ramji Rai. When they were not available the Officer-in-Charge of Hatwa P. S. requested dr. Narain to record the dying declaration, which was duly done and it is ext.5 in this C3se. The Officer-in-Charge recorded the Fardbeyan Ext.6 on the statement of Satyanarain Rai P. W.6. Ramji Rai died at 2 p. m. in the hospital. Dr. (Smt.) Rajeshwari Narain could not be examined because, it is said, she died in the meantime and the dying-declaration has been proved by the compounder. 5. The defence of the appellants is that the prosecution has not come out with true version of the occurrence. Several persons had been injured on the side of the accused persons. According to the defence, it was the prosecution party, which had surrounded the accused persons over the Rasta due to previous enmity and as a matter of fact the prosecution party had assaulted two of the accused persons Chandrma Rai and Ramkishum Rai. In this way it was sought to show that the prosecution case is not worthy of acceptance. 6. In order to test the acceptability of the prosecution story based on the prosecution evidence reliance has been placed on Ext.5, the dying-decluration, and the prosecution witnesses, who have deposed to the occurrence. 7. In this way it was sought to show that the prosecution case is not worthy of acceptance. 6. In order to test the acceptability of the prosecution story based on the prosecution evidence reliance has been placed on Ext.5, the dying-decluration, and the prosecution witnesses, who have deposed to the occurrence. 7. Learned Counsel for the appellants had submitted that the witnesses are unworthy of acceptance because they have suppressed the material circumstances that is, the injuries on Ramkishun Rai and Chandrama Rai and they had falsely implicated four persons who have been acquitted. It was also submitted by him that the dying-declaration is a document that is unworthy of acceptance for the reasons pointed out by him in course of the submissions which I shall deal forthwith. 8. According to learned Counsel for the appellants the evidence on the record cast a shadow of doubt on the physical fitness of Ramji Rai to make the statement as contained in Ext.5. Undoubtedly, it is essential to show that the dying declaration was made when the maker was in a position of his faculties to enable him to make such a declaration, that he should be free from any prompting or external influence. It has been demonstrated by learned Counsel for the appellants that the deceased was not in a position to make the dying declaration. P. W.1 has stated in paragraph 19 of his evidence that his father, the deceased, did not regain his sense after assault on him till he died. In paragraph 21, however, he says that his father had regained sense for a few moments on the night of occurrence at the hospital when his dying declaration was recorded. The doctor in the injury report has stated that the deceased was admitted in the hospital in marbid condition. P. W.9, the Investigating Officer, in paragraphs 30 and 60 of his evidence has stated that the deceased was unable to make any statement in that night and in the following morning. From this it is very difficult to say that the deceased was in a position to make the dying-declaration attributed to him. Sufficient doubt is thrown on the physical condition of the deceased, particularly when nothing is stated in the dying declaration itself to show that he was in a fit condition to make the dying declaration. From this it is very difficult to say that the deceased was in a position to make the dying-declaration attributed to him. Sufficient doubt is thrown on the physical condition of the deceased, particularly when nothing is stated in the dying declaration itself to show that he was in a fit condition to make the dying declaration. It is also not stated in the dying declaration that the contents were read over to the deceased, who had admitted its correctness. The fact that the dying declaration has been recorded has not been stated in the bed head ticket of the deceased. This is apparent from the evidence of P W.8 in paragraph 14, though there is a note that request had been made for recording the dying declaration. 9. Another fact that creat suspicion with regard to the dying declaration is that it was sent from the hospital to the Sub-divisional Officer, gopalganj, after about one month. This is apparent from the letter written by the doctor to the Sub divisional Officer, sending therewith the dying declaration, as would be found at page 74 of the paper-book. The time of recording of the dying declaration also seems to be shrouded with discrepancy. From the evidence on the record it is not clear whether the dying declaration was recorded at 9.30 p. m. or at 8.45 p. m. The discrepancy by itself is minor but taken cumulatively with other circumstances, it succeeds in destroying the reliability of the document (Ext.5 ). In this view of the matter, I am inclined to feel that the dying declaration does not inspire sufficient conlidence to be of any vital use to the prosecution. 10. The next circumstance that has to be considered in the fact that the injuries on the two accused persons have not been explained by the prosecution. Exts. A and A/1 are the injury reports of Chandrama Rai and Ramkishun Rai, respectively. These two persons were examined by the same doctor, who is said to have attended the deceased and they were examined on the same day and precisely at the same time in the same hospital as the deceased. Exts. A and A/1 are the injury reports of Chandrama Rai and Ramkishun Rai, respectively. These two persons were examined by the same doctor, who is said to have attended the deceased and they were examined on the same day and precisely at the same time in the same hospital as the deceased. Chandrama Rai had one incised wound on the right cheek, one inch lower border of jaw and a swelling with abrasion on the upper surface of the left shoulder joint, the former being grievous in nature and the latter simple, accused Ramkishun had four incised wounds on the left elbow joint, right fore-arm, right elbow joint and right thigh, and one abrasion on the back of left arm. All the injuries were caused by sharp cutting weapon and were simple in nature. It will thus be found from the nature of the injuries mentioned above that they cannot be attributed to have been self-inflicted by friendly hands. Futher, the investigatting officer had also found them injured in the hospital when he went to investigate the case. 11. The witnesses have denied the infliction of the injuries on the accused persons. P. W.1 denied it in paragraph 30 that any accused was assaulted in that occurrence. In paragraph 43 of his deposition P. W.4 has denied the examination of the injuries of Chandrama Rai and ramkishun Rai at the hospital P. W.5 in paragraph 16 of his evidence has stated that he saw injuries on these accused persons but he did not see any one inflicting injuries on any of them. In the following paragraph 16 he has stated that in the hospital the investigating officer did not inquire from him as to how accused Chandrama Rai and Ramkishun Rai were injured. In paragraph 61 the investigating officer has stated that when he had asked P. W.5 as to how Chandrama Rai and Ramkishun Rai were injured, this witness remained silent. P. W.6 in paragraph 41 has stated that he did not know till the date of his deposition that Chandrama Rai and Ramkishun Rai have received injuries. In these circumstances it is clear that there is deliberate attempt on the part of the prosecution witnesses to conceal the injuries on the accused, thereby failing to disclose the true manner of occurrence. 12. In these circumstances it is clear that there is deliberate attempt on the part of the prosecution witnesses to conceal the injuries on the accused, thereby failing to disclose the true manner of occurrence. 12. The acquittal of the four accused persons also in the circumstances of this case creates doubt on the reliability of the evidence adduced on behalf of the prosecution in regard to the real manner of occurrence. Once the four accused persons have been acquitted, in view of the manner of assault the other two accused persons were also entitled to the benefit of doubts. The entire occurrence is inextricably inter-releated and so it is difficult to disbelive on the one hand the assault by the four acquitted persons and, on the other, accept the assault by the two appellants. The witnesses in this situation do not inspire confidence. I am inclined to give benefit of doubt to these two appellants on this ground alone. 13. Learned Counsel for the appellants has challenged seriously the place of occurrence and has tried to show that the place of occurrence as given in the counter version is correct. I do not wish to dilate on this question because the discrepancies shown are not of such nature as to completely destroy the prosecution story in this regard, particularly when it is clear that the injuries were inflicted in the same occurrence. 14. In the ultimate analysis, I hold that in view of the fact that the injuries on the two accused persons which were inflicted in the same occurrence, have been concealed, the dying declaration is not free from doubt and the four persons have been acquitted, the two appellants are entitled to the benefit of doubt. 15. In the result, the appeal is allowed, the conviction and the sentence passed against the appellants are set aside and they are acquitted and discharged from their bail bonds. 16. Before I part with this judgment, I would like to make a suggestion in regard to the prosecution and trial of cases in which two parties clash. It has because a most common feature for both party two conceal injuries inflicted on the other side. It results in two F. I. Rs. , two trials and even in two convictions and/or two acquittals, mainly on the ground that the injuries have not been explained. It has because a most common feature for both party two conceal injuries inflicted on the other side. It results in two F. I. Rs. , two trials and even in two convictions and/or two acquittals, mainly on the ground that the injuries have not been explained. This results in persons, who come to a clash causing injuries and death on either side, not facing the consequence of their act and being acquitted In such a situation, my view is that the police should arraign the whole lot persons involved in such an occurrence involving clash between the two parties in one case, charging each person for any specific act that they may have committed, separately as well as cumulatively. The general lot of accused persons could be charged for rioting, affray, etc. Appeal allowed.