JUDGMENT 1. - Accused appellant Kalyan has been convicted under section 326 IPC and the other accused appellants Ladu and Kastura under section 326/34 IPC. Accused Kalyana has been sentenced to undergo four years rigorous imprisonment and each of the other accused has been sentenced to undergo two years rigorous imprisonment. 2. Mana deceased was at his house on March 28,1975. It is alleged that accused appellant alongwith many others committed house trespass after having made preparations to cause hurt to deceased Mana. Accused Kalyan was armed with an axe and the other accused persons with lathis. All the accused persons and others are said to have given beating to Mana. Badami PW. 1 is the real sister of Mana deceased and it is alleged that she was returning from the village of her in-laws and when she was near Gaddori Nadi she heard an alarm of her brother Mana, hearing which she went there. In order to avoid detection, she concealed herself behind a tree from where she saw that the accused appellants and others in all numbering about 14-15 were giving beating to deceased Mana. Kalyan who was armed with an axe gave a blow by same on the leg of Mana. The others gave lathi blows to Mana. When the accused had left Mana after administering beating to him, Badami P.W. 1 went near him. Babuda was nearby, he was sent for and was asked to bring a bullock cart. Mana was taken to his house and there it is alleged that he made a dying declaration to Madhu PW. 2, elder brother of deceased Mana, Lakha PW. 3 uncle of Mana and Ganga PW. 4 brother of Mana. It was further alleged that Nathi PW. 6, another sister of the deceased was also present at the scene of the occurrence. 3. The accused persons alongwith five others were arrested and were tried by the learned Sessions Judge, who convicted and sentenced three accused appellants whereas the other five persons were acquitted of the charges levelled against them. The defence of the accused appellants was of bare denial. They set up a case that it was because of enmity that they have been falsely implicated. The accused persons did not examine any witness in defence. 4. The learned Sessions Judge placing reliance on the statement of Badami PW. The defence of the accused appellants was of bare denial. They set up a case that it was because of enmity that they have been falsely implicated. The accused persons did not examine any witness in defence. 4. The learned Sessions Judge placing reliance on the statement of Badami PW. 1, an alleged eye witness and the evidence of dying declaration, convicted and sentenced the accused persons. The learned Sessions Judge has observed that so far as Nathi PW. 6 is concerned, she was not an eye witness of the occurrence and as such has not placed any reliance on her statement. 5. The contention of the learned advocate for the accused is that the statement of Badami PW. 1 cannot be relied upon. She is the real sister of Mana and she has been disbelieved by the learned Sessions Judge so far as one of the accused persons Balia is concerned. He further submits that she was a chance witness and should not have been present at the spot at the time of the occurrence. She has only come to support the case relating to the murder of her brother Mana. Taking up the evidence of dying declaration, the learned advocate submits that the evidence is inconsistent and Badami PW. 1, who is said to be an eye witness and is said to have been present at the time when the dying declaration is said to have been made does not support the other witnesses and clearly states that the deceased did not make any statement to them in her presence. 6. First of all, I will deal with the statement of Badami PW. 1 as to whether her statement will be relied upon or not. The learned Sessions Judge so far as the identity of the accused are concerned, after placing reliance on the statement of Badami PW. 1 has observed that if the evidence of dying declaration is read in the light of the statement of Badami PW. 1, the identity of the three accused appellants as the perpetrator of the crime is clearly -established. The learned Sessions Judge appear in placing reliance on her statement was governed by the fact that her name is mentioned in the FIR. Ex. P. 1 which was lodged at 10. 30 p.m. The occurrence had taken place in the noon on the same day. The learned Sessions Judge appear in placing reliance on her statement was governed by the fact that her name is mentioned in the FIR. Ex. P. 1 which was lodged at 10. 30 p.m. The occurrence had taken place in the noon on the same day. I shall presently show that no reliance can be placed on the statement of Badami PW. 1 and there are more than one reason for it. She is the real sister of Mana deceased. She states that she left Mandal by 12 noon by bus and reached Nimbahera at about 3 p.m., from there she started for the village and she was taking rest on the way. Thus her statement that the occurrence took at about 3 p.m. and she witnessed it can hardly be digested because she having alighted from the bus at 3 p.m. at Nimbahera, must have taken some time to travel to the village which was at some distance from Nimbahera. She stated that she witnessed the occurrence from a little distance and at that time Mana was lying on the ground and she could not see him thereafter because of a cluster of trees and could only see accused persons. Though, in her examination in chief she identified all the eight persons including the five acquitted, but she stated that there were 14-15 persons who were giving beating to deceased Mana. If 14-15 persons would have been beating Mana, there must have been multiple injuries on his person but Dr. Murlidhar Sharma PW. 11 on conducting the autopsy of the dead body of Mana found that there were as many as seven injuries. It cannot be believed that if as many as 14-15 persons will simultaneously give beating to a person, he will receive only this number of injuries. Not only this, it appears from her statement that she was not expected at the scene of occurrence at the time when she professed to have been there. She states at the end of her cross examination that she only identified four accused persons Kalyan, Kasture, Ladu and one Balia acquitted by the trial court. For others, she had given out that she did,not identify them. She had so given out to her brother and others who had arrived but still she identifies all the eight accused persons in the court. For others, she had given out that she did,not identify them. She had so given out to her brother and others who had arrived but still she identifies all the eight accused persons in the court. She states that she was all through present near the injured mana when Madhu and others arrived but she states that none of them talked to Mana in her presence. I am, therefore, unable to place reliance on her statement. Even Babuda PW. 7, nephew of Badami does not state that when Badami, his aunt came to her house, she disclosed the names of any accused person. 7. I will now take up the evidence of dying declaration Before I take up the evidence of dying declaration, it may be stated that such statement is not made on oath and is not subjected to cross examination and unless the witnesses who depose about the dying declaration are independent and their evidence is such which inspire confidence of the court, conviction should not be based on dying declaration. Their Lordships of the Supreme Court in Kaushal Rao v. State of Bombay, 1958 S.C., 22 have observed that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. It should be subject to close scrutiny but when the court has come to the conclusion that the dying declaration was the truthful version as to the cause of death then there is no need of further corroboration. Therefore, while dealing with the statements of those witnesses who have deposed about the evidence of dying declaration, I will show that there appears to be no truth in the version as to the cause of death and at least so far as the accused persons are concerned. All the witnesses who have deposed about the dying declaration are near relations of the deceased. As already stated earlier that though Badami P.W. 1 has stated that she was present but no dying declaration was made by deceased Mana. Badami made a categorical statement that the deceased did not make any dying declaration to anybody in her presence. Madhu P.W. 2 states that it is he who enquired of Mana as to how he received the injuries. Mana slowly and slowly disclosed the names of his assailants. Badami made a categorical statement that the deceased did not make any dying declaration to anybody in her presence. Madhu P.W. 2 states that it is he who enquired of Mana as to how he received the injuries. Mana slowly and slowly disclosed the names of his assailants. He further states that thereafter he went on naming the accused persons and Mana went on nodding and saying yes. Thereafter he asked for water and died. He does not say that deceased Mana in his dying declaration gave out that Kalyan was armed with an axe and others were armed with lathis. He also admits that the deceased when he nodded his head and said yes to the names, called by him, he did not disclose the father's name of his assailants. He also admits that in the village there are more than one person of the same. He admits that Lakha and Ganga were also present at that time. He states that he did not enquire of Badami about the names of assailants, an unnatural thing. If Badami would have been present and if Madhu would have come later on it was natural for him to ask the names of the assailants or atleast for Badami to disclose them. Though the doctor has stated that looking to the injuries, the injured might if have survived for two hours, but Madhu states that after disclosing few names the deceased died. It thus becomes doubtful whether the deceased was in a fit state of mind to have made a dying declaration. Lakha P.W. 3, the other witness states that the deceased gave out that Kalyan gave a blow by axe. The deceased Mana named Booda and Ram Chand and others, thereafter he died. He states that immediately after making the dying declaration, he died as if he was only waiting for making the dying declaration. Contrary to the statement of Madhu, Lakha P.W. 3 states that all the names were disclosed by Mana. Madhu has stated that after disclosing only few names deceased went on nodding his head and saying yes. But he states that Mana could only name eight persons and took very little time and thereafter Mana died. Contrary to the statement of Madhu, Lakha P.W. 3 states that all the names were disclosed by Mana. Madhu has stated that after disclosing only few names deceased went on nodding his head and saying yes. But he states that Mana could only name eight persons and took very little time and thereafter Mana died. Ganga P.W. 4 has stated that he enquired of Mana as to how he received injuries, then Mana gave out that Ladu gave a lathi blow on his head, Kalyan an axe blow on his leg and Balia caught hold of his hands. It has been stated by all the witnesses that they all were present when Mana made his statement, atleast the substance of the dying declaration should have been the same if not the words if Mana would have actually made a dying declaration. Ganga P.W. 4 states that when the names of two or four persons were named and Mana nodded, he died. How can any court place reliance on such type of evidence of dying declaration? 8. It cannot be disputed that the deceased died as a result of injuries but on the evidence which have been discussed above, it cannot be said that the accused appellants are in any way responsible for the injuries received by Mana deceased. The case against all the accused appellants is rendered doubtful and they are entitled for acquittal. 9. The appeal is allowed. The judgment of the learned Sessions Judge convicting and sentencing each of the accused appellants as aforesaid is set aside. They are acquitted of the charges levelled against them. They are on bail and need not surrender to their bail honds which shall stand discharged.Appeal Allowed. *******