JUDGMENT 1. - This appeal is directed against the judgment of the Additional Sessions Judge, Jhalawar, dated March 19, 1977, whereby the accused appellants have been convicted under section 302/34 IPC., and sentenced to rigorous imprisonment for life and a fine of Rs. 100/- each. In default of payment of fine to undergo further rigorous imprisonment for three months. 2. The brief facts of the case which are relevant for the disposal of this appeal are that P.W. 1 Kajori Lal, lodged a report at Police Station Manohar Thana on July 30, 1976, at 2 45 P.M. stating that to-day at about 7 A.M., Jai Ram son of Dhuli Lal Dhakad came to our village and said that Bhura Lal son of Amar Lal Meena, resident of Samli Jagir, has been murdered by Meenas of Nandora village by striking with Gandasis. On receiving this information, Kajori Lal and Jai Ram alongwith Ram Chandra Bhairu Son of Dewa, Dola son of Dawa, Nanga son of Ram Chandra, Moti Lal son of Baldev and Smt Ganga Bai, mother of Bhura, went to the site where Bhura was lying. Bhura was in a state of un-consciousness and was lying in a pool of blood. He had injuries on his head, hands and legs and was crying. Kajori lal and Jai Ram made enquiries from him, on which Bhura stated that Panna son of Ganga Ram Meena. Dhakhia son of Prabha Lal Meena and the son of Laliya Meena, whose name he did not remember, have dealt Gandasi blows on him. After saying so, Bhuru died. Both of them tried to give water to Bhura and shock his body also, but he did not survive. On the site Jai Ram, who was with Bhura, stated that he, Bhura and Nand Lal had come to sell their buffalo to the village Aklera when they reached near the fields of Manna then Dakhiya, Panna and the son of Laliya residents of Nandera started beating Bhura with Gandasi. He and Nand Lal ran away. On hearing this, Smt Ganga Bai then went to lodge the report with the police. There was an old enmity between Bhura Lal, Dhanna, Dakhiya and son of Laliya on the ground that cattles of Bhuma used to damage the standing crops.That is why these three accused persons have beaten Bhura to death. He and Nand Lal ran away. On hearing this, Smt Ganga Bai then went to lodge the report with the police. There was an old enmity between Bhura Lal, Dhanna, Dakhiya and son of Laliya on the ground that cattles of Bhuma used to damage the standing crops.That is why these three accused persons have beaten Bhura to death. After investigation Panna, Dakhiya and Kalyan come up for trial before the Additional Sessions Judge, Jhalawar. 3. The prosecution examined 15 witnesses and produced 22 documentary exhibits. The investigating agency then sent the lathis, Gandasi and clothes which the accused persons were putting on; the clothes of the deceased and the soil which was smeared with blood, the shoes and `Safa' of the deceased were sent for chemical examination and to the Serologist also. All these articles were found smeared with human blood. 4. On 31st July 1976, P.W. 14, Dr. R.C. Dube conducted the Postmortem on the body of the deceased. There were following 12 external injuries on the body of the deceased : 1. Transverse incised wound 2" x 2" x 11/2" over right parietal bone of head. 2. Transverse clear cut incised wound 3"x2" x 11/2" over occipital bone of bead. 3. Clean cut vertical incised wound 1 "x 1/2" x 1/4" mastoid process of left side. 4. Vertical incised wound 1, 1/2"x 1/2"x 1/2" over right shapt of tibia. 5. Clean cut incised wound 1" x 1/2"' x 1/2" over same part 1/2" below the injury No. 4. 6. Clean cut incised wound l"x 1/2"x 1/2"over left mid shapt of tibia medially. 7. Clean cut vertical incised wound 1"x 1/2" x 1/2" over upper ⅓rd of right leg medially. 8. Clean cut incised wound 1" x 1/2" x 1/2" over lower ⅓rd of right leg. 9. Bruise 5" x 11/2" over mid left scapula. 10. Bruise 5" x 11/2" over right scapula. 11. Bruise 2" x 3/2" just below the inferior angle of right scapula. 12. Bruise 5" x 1" over superior angle of right scapula. 5. The following internal injuries were also found on the person of the deceased : 1. There is fracture of frontal bone 1/2" below the chronal suture. 2. There is fracture of right parietal bone of head. 3. Fracture of radius and ulna right fore arm. 4. Fracture of lower ⅓rd of right humorous bone. 5. 5. The following internal injuries were also found on the person of the deceased : 1. There is fracture of frontal bone 1/2" below the chronal suture. 2. There is fracture of right parietal bone of head. 3. Fracture of radius and ulna right fore arm. 4. Fracture of lower ⅓rd of right humorous bone. 5. Fracture of upper ⅓rd of tibia and fabula of right side of the leg. 6. Scalp is injured over the injuries mentioned above hemorrhage between the skull bone and membrance present. Membrance congested, brain congested. There is a fusion of blood in cranial cavity. 7. In the opinion of the Medical Officer the death was caused due to coma which was there as a result of injuries to the brain. It was also stated by the Medical Officer that these injuries were sufficient in the ordinary course of nature to cause death of the injured. The Medical Officer also stated that injury No. 2 could be caused by Gandasi and that injuries No. 1 to 8 could be caused by the weapons as stated in the Medical Certificate. 8. P.W. 3, Jai Ram and P.W. 4, Nanda, are eye witnesses in whose presence these injuries were caused to the deceased. The dying declaration which the deceased made was done in the presence of P.W. 1, Kajori Lal, P.W. 2, Jagannath and P.W. 9, Smt. Ganga Bai. 9. After arrest the accused persons gave information under section 27 of the Indian Evidence Act and Gandasi, lathis and the lathi of the deceased were recovered at their instance. 10. The statement of the accused persons were recorded under section 313 Cr. P.C. They denied all the charges and stated that they have been falsely implicated. The accused persons did not lead any evidence in defence. 11. The learned trial court gave benefit of doubt to accused Kalyan and convicted Panna and Dakhiya under section 302/34, I.P.C. 12. On behalf of the accused appellants it was contended that there are inconsistencies between the ocular and the medical evidence.In support of this, reliance has been placed on Mohar Singh and other v. State of Punjab, 1981 Cr. L.J. 998 (S.C) . It was also contended that the dying declaration should not be relied upon in the facts and circumstances of the case. L.J. 998 (S.C) . It was also contended that the dying declaration should not be relied upon in the facts and circumstances of the case. Reliance has been placed on Banka Naiko and others v. State of Orissa, AIR 1976 S.C. 2013 , Balak Ram and and another v. State of U.P., AIR 1974 S.C. 2165 , and Bhagwan Das and another v. State of Rajasthan, AIR 1957 S.C. 589 . It was also contended that the conduct of the prosecution witnesses are of such a nature that no reliance can be placed on them and on the basis of the statements of such witnesses it cannot be held that the prosecution has suceeded in bringing the guilt home to the accused-appellants. Reliance has been placed on Namdeo Daulata Dbyagude and others v. State of Maharashtra, AIR 1977 Supreme Court 381 . On behalf of the accused-appellants emphasis was laid on the following lines of the judgment of the trial court and on this basis it was contended that the learned trial court has convicted the accused persons only on conjectures and surmises. " vfHk;qDrx.k dh vksj ls ,slh dksbZ Hkh ifjfLFkfr o izek.k izLrqr ugha fd;k x;k gS ftlls ;g dgk tk lds fd e`rd Hkwjk ds 'kjhj ij ik;h x;h pksVsa vU; fdlh dkj.k ls ,oa vU; fdlh O;fDr }kjk igqapk;h x;h gksaA " 13. The contention of the learned counsel for the accused appellants is that these observations of the learned trial court are against the basic principles of criminal law as it is for the prosecution to establish by unimpeachable and cogent evidence that the guilt of the accused has been established. 14. It was similarly urged on behalf of the accused appellants that the learned trial court has observed as under : " ,slh lwjr esa pkgs e`R;q ls iwoZ dk ;g dFku vU; rF;ksa dh deh ds dkj.k ls detksj gks fQj Hkh bls dsoy izR;{kn{khZ lkf{k;ksa ds dFku ds leFkZu esa ds :i esa gh iz;ksx djuk mfpr gksxkA " From this the learned counsel for the accused-appellants has contended that the dying declaration of deceased Bhura could not be relied upon. It was also contended that PW 3 is not an independent witness on whom reliance could be placed. 15. It was also contended that PW 3 is not an independent witness on whom reliance could be placed. 15. It was also contended that the dying declaration was alleged to have been made not only before the relations of the deceased Bhura, but also before many others. Except the relations of Bhura none of these independent witnesses has been produced. It was also contended that according to the F I R., deceased Bhura did not speak even though water was poured into his month. It was also contended that the dying declaration of Bhura was alleged to have been made in the presence of Kajori Lal, P.W. 1, Jagannath, P.W. 2 and Smt. Ganga Bai, P W. 9, The actual words spoken by Bhura differ in the statements of these three witnesses It was also contended that the trial court erred in law ignoring that part of the statement of Dr. Dube, P.W. 14, where he stated that there was intra cranial hemorrhage due to which membrance and brain was congested. The injuries were very severe on the head. Generally speaking these injuries shall cause the death of the injured instantaneously. It was also contended that the trial court has connected the accused appellant with the crime with the help of chemical examination report Ex. P. 21 and the Serologist's report Ex. P. 22. The contention on behalf of the accused appellant is that the record shows that no-body seized the clothes of deceased Bhura and as such, the report of the Serologist is meaningless. It was also contended that the blood group remained undecided. Lastly it was contended that the prosecution has failed to establish the guilt of the accused appellants beyond reasonable doubt, and as such, the accused-appellants are entitled to be acquitted. 16. On behalf of the accused-appellants reliance was placed on AIR 1974 SC 2165 (supra), wherein it has been held that It is not prudent to base conviction on a dying declaration made to Investigating Officer, particularly when it is not signed by declarant or the witness. It was also held that when declarant was in the midst of friends and admirers right since the time of incident until dying declaration was recorded by SDM, dying declaration can have hardly any evidentiary value. It was also held that when declarant was in the midst of friends and admirers right since the time of incident until dying declaration was recorded by SDM, dying declaration can have hardly any evidentiary value. Reliance was also placed on AIR 1957 S.C. 589 (supra) wherein it has been held as under : "The prosecution alleged that the deceased who had been severely hit several times by the accused fell down unconscious. The eye witness who was grazing his camels in a nearby field went to him and sprinkled some water on him. Thereupon the deceased recovered consciousness and then was led to a threshing floor at a short distance where he made a statement to J regarding the assault. From there he was taken to a neighbouring town to the shop of G where he again made a statement to G. The prosecution relied on the evidence of the eye-witness and also the dying declaration proved by G and J for the conviction of the accused for murder. From the doctor's evidence it was found that it was improbable that the deceased would have been in a position either to walk or speak so as to make a dying declaration. Apart from the fact that the statements of G and J suffered from material contradictions at various stages the evidence of the eyewitness was also found to deserve being disregarded. Held in these circumstances the evidence of G and J could not be a sure foundation for maintaining the conviction when the evidence of the sole eye witness was disregarded. Ordinarily the dying declaration of the kind which the prosecution relied upon in the case was by itself insufficient for sustaining a conviction on a charge of murder." 17. Reliance was also placed on AIR 1977 Supreme Court 381 (supra) wherein it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused. 18. 18. Reliance was also placed on A.I.R. 1976 S.C. 2013 wherein it was held as under:- "Where the High Court after coming to the conclusion that the statements of eye-witnesses by themselves, were inadequate proof of the commission of the offences under Section 302/34 by the appellants upheld the conviction of the appellants on the basis that the evidence of eye-witnesses had been corroborated by the dying declaration as stated by other prosecution witnesses. Held, that as the dying declaration had not been proved by reliable evidence, the same could not corroborate the statements of those who had been examined as eye-witnesses. The appellants, in the circumstances, were entitled to benefit of doubt. Criminal Appeal No.82 of 1970, D/10.2.1971 (Orissa), Reversed. Although the witnesses to the alleged dying declaration had stated that the deceased told them that two appellants "pierced" him and the third appellant had assaulted on the head with a "kati", the Doctor who performed the post mortem examination nowhere stated that he found any such injury as could corroborate the version that piercing injury had been inflicted on the deceased. The witnesses to the alleged dying declaration had stated that they found deceased lying unconscious and he came to his senses temporarily when some water was put into his mouth. The Doctor had, however, stated that there was congestion of the brain of the deceased due to the head injuries and that having "lost consciousness the victim might not have regained consciousness." It could not thus be said with any amount of certainty that the deceased made dying declaration as stated by the witnesses to the alleged declaration." 19. Reliance was also placed on 1981 Cr.L.J. 998(supra), wherein it was held as under:- "Where in a murder case the witnesses categorically stated that the accused assaulted the deceased with spade but the doctor who held the autopsy of the deceased clearly stated that the injuries could be caused only by a Kassi (pickaxe) the accused was given benefit of doubt in view of the glaring inconsistency between the ocular and medical evidence. 20. The prosecution case mainly rests on the statement of the eyewitnesses, P.W.3, Jai Ram and P.W 4, Nanda. The dying declaration made by the deceased in the presence of P.W.l, Kajori Lal, P.W.2, Jagannath and P.W.9, Smt. Ganga Bai also lends support that the injuries were caused to the deceased Bhura by accused appellants. 20. The prosecution case mainly rests on the statement of the eyewitnesses, P.W.3, Jai Ram and P.W 4, Nanda. The dying declaration made by the deceased in the presence of P.W.l, Kajori Lal, P.W.2, Jagannath and P.W.9, Smt. Ganga Bai also lends support that the injuries were caused to the deceased Bhura by accused appellants. It has been emphatically urged on behalf of the prosecution that there is no reason to disbelieve the statements of P.W.3, Jai Ram and P W.4 Nanda. The cloths which the accused were wearing, have been found to be smeared with blood as is evident from the report of the Chemical Analyser and the Serologist vide Ex.P.21 and Ex. P.22. 21. On behalf of the accused-appellants it has been contended that the presence of P.W.4, Nanda as an eye witness is doubtful. Looking to the injuries received by deceased Bhura it cannot be said that he was in a position to give the dying declaration which is alleged to have been given by him. There are material differences in the wordings of the dying declaration as alleged by P.W. 1. Kajori Lal P.W.2, Jagannath and P.W.9, Ganga Bai. 22. P.W.3, Jai Ram, has stated that he had gone to the market of Aklera alongwith Bhura. P.W.4, Nanda was coming behind them According to this witness accused Dakhiya caught hold of Bhura in village Samli. Accused-appellant Panna started dealing lathi blows on Bhura- The other accused Kalyan was standing near by; and, as a result of the lathi blows which were dealt by Panna, Bhura fell down. Thereupon Panna and Dakhiya started beating him with lathi and Gandasi. Accused Dakhiya had a Gandasi with him. After some time Panna took the Gandasi from Dakhiya and started beating Bhura with Gandasi. P.W.4, Nanda, was about 15 to 20 spaces behind and saw Panna and Dakhiya assaulting Bhura. He has further stated that though Panna and Dakhiya were dealing blows with Gandasi and lathi on Bhura Kalyan was only standing there. Kalyan did not deal any lathi or Gandasi blow on Bhura. Jai Ram then went to the village and narrated the entire story to PW. I, Kajori Lal, P.W. 2, Jagannath and P.W. 9, Smt. Ganga Bai. This version finds supports from the statements of these three witnesses. Kalyan did not deal any lathi or Gandasi blow on Bhura. Jai Ram then went to the village and narrated the entire story to PW. I, Kajori Lal, P.W. 2, Jagannath and P.W. 9, Smt. Ganga Bai. This version finds supports from the statements of these three witnesses. It has been urged on behalf of the accused appellants that there is material contradiction between the statements P.W.3, Jai Ram and P.W.4, Nanda. 23. Learned counsel for the accused-appellants has then drawn attention of the court to the statements of P W.l, Kajori Lal, P.W 2, Jagannath and P.W.9, Smt. Ganga Bai. It has been contended that by the statements of these three witnesses, the prosecution has not succeeded in proving the dying declaration alleged to have been made by Bhura We have carefully gone through the evidence on record and we are convinced that the prosecution has succeeded in bringing the guilt home to the accused appellants. These minor contradiction in the statements of the prosecution witnesses do not, in any way, discredit the statements of these witnesses. The entire set of prosecution witnesses is not expected to make a parrot like statement. There are no major contradictions which might in any way destroy the bad I rock of the prosecution case. The statements of P.W 3 Jai Ram and P.W.4, Nanda, clearly establish the prosecution case. The dying declaration stands proved by the statements of P.W.l, Kajori Lal, P.W.2, Jagannath and P.W.9, Smt. Ganga. Bai The weapons of offence have been recovered on the information given by the accused appellants under section 27 of the Evidence Act and at their instance. The statement of the Medical Officer also lends support to the prosecution case. The clothes which the accused appellants were wearing, were also smeared with blood and, on the test by the Chemical Analyst and the Serologist they have been found to be stained with human blood. 24. The case law relied on by the learned counsel for the accused-appellants has no relevancy to the facts of the present case. 25. For the reasons stated above, we are satisfied that the prosecution has succeeded in bringing the guilt home to the accused-appellants. Thus, there is no force in this appeal which is hereby dismissed. Appeal dismissed. *******