JUDGMENT 1. - This appeal is directed against the judgment of learned Additional Sessions Judge, Jaipur District, Jaipur, dated 27-8-197 7 in Sessions case No. 208/74, whereby all the accused respondents have been acquitted of the offence under Section 302 I.P.C. 2. Briefly stated the prosecution case is that the accused respondents reside in Badh Khatipura, Tan Sanganer. Deceased Gopi Chand, who lived jointly with his father and brothers, resides in the same locality. It has been alleged that the relations between the accused respondents and the complainant party were strained and the proceedings under Sections 107/117 Cr. P.C. were going on between them at the relevant time. In the night between 23/24-6-1974, victims father Shri Devi Lal (P.W. 7) and brother Mohan Lal (P.W. 17) returned to their house at about 1.00 P.M. from the house of one Ram Sahai, where they had gone to attend some social function. P.W. 17 Mohan Lal was sleeping on the roof of the house, while P.W. 7 Devi Lal was sleeping on a cot outside the house & deceased Gopi Chand was sleeping on a cot in court-yard. While the aforesaid father & brothers were sleeping, in the mid-night they heard the voice of dog barking. Gopi Chand deceased got up and picked a torch (Art. 1) from his father Devi Lal and went out in the direction of dogs barking. Mohan Lal had a torch with him and flashed it from the roof. He saw some persons behind the Aak tree. He asked Gopi Chand deceased to go to that side to find out what was the matter. Gopi Chand deceased covered a distance of about 150 feet and climbed over the boundary wall of the field of one Kanhaiya Lal Kumawat. It has been further alleged that at the time when Gopi Chand deceased was standing on the boundary wall of the field accused Ram Narain, and Ganesh Narain appeared and they caught hold of deceased Gopi Chand. Accused Ganesh Narain and Kalu Ram (now dead) also came out of the trees. They were armed with lathis. Both the accused Govind Narain and Kalu Ram struck lathi blows to Gopi Chand. All the 4 accused persons then forcibly dragged Gopi Chand towards a dry well situated near the boundary wall of Shri Kanhaiyalal's field. Accused Ganesh Narain and Kalu Ram (now dead) also came out of the trees. They were armed with lathis. Both the accused Govind Narain and Kalu Ram struck lathi blows to Gopi Chand. All the 4 accused persons then forcibly dragged Gopi Chand towards a dry well situated near the boundary wall of Shri Kanhaiyalal's field. It has been further alleged that Mohan Lal (P.W. 17) went towards the well to rescue his brother Gopi Chand. But before he could reach there, the accused persons the Gopi Chand in the well. All the accused persons made good their escape. Gopi Chand started raising cries from the well. On hearing the cries of the deceased, many a persons including Mohan Lal (P.W. 17). Devi Lal (P.W. 7) Munna (P W, 2), Babu Lal (P.W 3), Mst. Madan (P.W. 15), Kanhaiya (P.W. 5), Laxmi Narain (P.W. 5), Mst. Gauri (P.W. 6), Ram Gopal (P.W. 8) and Narain (P.W. 10) reached the well. All the persons requested Nanda (P.W. 2) to get down into the well to take out Gopi Chand. On this, Nanda (P W 2) got down into the well and Gopi Chand was taken out of it. There were multiple injuries on the body of Gopi Chand. It has been further alleged that Nanda P.W. 2 asked Gopi Chand as to what happened and Gopi Chand narrated the incident as aforesaid, while he was in the well. After being taken out from the well the aforesaid witnesses and other persons present also asked Gopi Chand about the incident and in turn, Gopi Chand again narrated the same story as stated above Gopi Chand was taken to the Government Dispensary in a bullock cart. Devi Lal, Mohan Lal and some other persons accompanied him. A three wheeler tempo was hired and Gopi Chand was placed in it. Devi Lal, Mohan Lal and some other persons accompanied him. A three wheeler tempo was hired and Gopi Chand was placed in it. White going towards Sanganer in the Tempo, Kalyan (P.W 1) was also sitting in the same tempo by the side of Shri Gopi Chand and Kalyan asked Gopi Chand about the incident and in tempo, Gopi Cband narrated the same story as was narrated in the well and outside the well, Siiri Gopi Chand was taken to Government Dispensary Sanganer where the Incharge of the dispensary advised the companions of Gopi Chand to take Gopi Chand to S.M.S. Hospital for treatment and at that time at about 2.30 A.M. P.W. 17 Mohan Lal presented a written report of the incident at Police Station, Sanganer. A case under Section 307 I.P.C. was registered and the Police advised Mohan Lal (PW 17) to take the victim to the Govt. Dispensary, Sanganer. The complainant party again took Shri Gopi Chand to the Dispensary. The Police personnel were also accompanying the complainant party. It has been further alleged that P W. 4 Mohd Ali, A.S.I.. Sanganer Police Station recorded the Statement of Shri Gopi Chand at about 3.00 A.M., which is being subsequently treated as dying declaration and is marked as Ex.P.3. in the trial court. Dr. D. K. Joshi, Medical Officer-in-charge Sanganer Dispensary examined the injuries of Shri Gopi Chand. After preparing M.L.R. of the deceased the incharge of the Dispensary again advised the complainant party to take Gopi Chand to the S.M.S. Hospital and on his advise, Shri Gopi Chand was taken to the S.M.S. Hospital Jaipur, where he was admitted as in door patient at about 5.30 A.M. for his treatment but Shri Gopi Chand did not survive and expired at about 7.30 A.M. Dr. R.P. Gupta (P.W.13) conducted the auto pay at about 11.00 A.M. and it was opined that Shri Gopi Chand died due to extensive internal bleeding. An inquest report was also prepared by the Police and blood stained clothes of Gopi Chand were seized. The case was converted from Section 307 to Section 302 I.P.C. after the death of Gopi Chand. Accused were arrested on 24 6.1974. Inconsequence of the information furnished by accused Ganesh Narain and Kalu Ram while they were under arrest, 2 lathis were recovered on 24.6.74. The case was converted from Section 307 to Section 302 I.P.C. after the death of Gopi Chand. Accused were arrested on 24 6.1974. Inconsequence of the information furnished by accused Ganesh Narain and Kalu Ram while they were under arrest, 2 lathis were recovered on 24.6.74. The Police reached the place of occurrence and site plan (Ex P.5) was prepared on 24 6.74. Torch (Art. 1) was taken into possession from Mohan Lal (P.W. 17). After completing investigation police submitted a charge sheet against the accused respondents in the Court of Judicial Magistrate, No 1, Jaipur, who committed the accused in accordance with the provisions of Sec 209 Cr P.C. 3. Charge under Section 302 I.P.C was framed against the accused respondents, which was read over to them. The accused respondents pleaded not guilty and claimed trial. The prosecution in all examined 18 witnesses and filed some documents in support of its case. In defence, the accused-examined 4 witnesses and also filed some documents. Statements of the accused were recorded under Section 313 Cr. P C. by the learned Sessions Judge. Accused respondents denied the allegations levelled against them by the prosecution witnesses and they further claimed that the case against them was false. It was again stated by the accused persons that deceased Gopi Chand fell into the well accidentally in a pitch dark night. The well was to the surface level with no walls around. There was deep rooted enmity and hostility between the accused and the deceased family. The accidental death of the deceased was converted into a case of murder against the accused respondent. 4. At the trial, Dr. B.K. Joshi P.W. 15 was examined, who proved the MLR (Ex. 19). which was prepared by him at the time when Gopi Chand was taken to Sanganer Dispensary. It has been stated by Shri Joshi that the injuries written in Ex P. 19 were caused by blunt objects like lathi or by friction. In his cross-examination. Shri Joshi admitted that if the victim fell into a well having no water, but with stones at the bottom, he could have received all injuries mentioned in the injury report, except injury No. 1. 5. Dr. R.P Gupta (PW 13) was also examined. Dr. Gupta prepared the post mortem report (Ex.P. 17) and he proved the same at the trial during the course of his statement. 5. Dr. R.P Gupta (PW 13) was also examined. Dr. Gupta prepared the post mortem report (Ex.P. 17) and he proved the same at the trial during the course of his statement. Dr.Gupta deposed that the cause of death of deceased was extensive internal bleeding (Retro peritoneal, paranephric & intra luminal (intestine and intra basical) mentioned in the report leading to shock. In cross-examination Dr. Gupta admitted that external injury No. 1 of the victim could be caused by fall in a dry well having stones at the bottom. From the statements of above two Doctors, it is also known that all the external injuries found on the victims body could be caused by fall in the dry well. When a person fell into a well, there may be 3 possibilities and they are; that the fall be suicidal or accidental or homicidal. In the instant case before us the theory of suicide can be easily eliminated. as none of the parties has pleaded it. In this case the fall of the victim may be accidental or homicidal. From the statements of doctors, both accidental or homicidal fall of the victim is possible. 6. The next point which arises for discussion is whether the victim was done to death by the accused persons. In order to establish the charge levelled against the respondents, the prosecution has led both direct and circumstantial evidence. The direct evidence consists of Mohan Lal (P.W. 17), who claimed himself as an eye- witness of the occurrence. The circumstantial evidence consists of (a) Oral dying declaration (b) written dying declaration and (c) strained relations and enmity between the accused and the complainant party. 7. After hearing the arguments, learned Sessions Judge acquitted all the accused persons. Aggrieved by this judgment of learned Addl. Sessions Judge, the present appeal has been filed. 8. We have heard learned counsel for the parties and have gone through the record of the case. 9. Learned Public Prosecutor contended that the Additional Sessions Judge has erred in not placing reliance on the testimony of Mohan Lal (PW 17) and the evidence produced regarding the dying declaration of the deceased. It was further contended that the F.I.R. is not the last word of the prosecution. The statement of Mohan Lal (PW 17) was recorded by the Investigating Officer on the next day of the occurrence. It was further contended that the F.I.R. is not the last word of the prosecution. The statement of Mohan Lal (PW 17) was recorded by the Investigating Officer on the next day of the occurrence. It is further submitted that looking to the circumstances and mental agony of the informant, it was just possible that the informant was not in a position to give full details in the F.I.R. That omission of super facial facts in the F.I.R. does not mean that the witnesses of the F.I.R are not creditable. The broad picture of the incident was there in the FIR which was lodged just after the occurrence. The F.I.R. clearly gives out the names of the accused and the details of their overact. Learned Public Prosecutor further submitted that P.W. 17 Shri Mohan Lal was examined by the Police on 25.6.1974 does not affect the testimony of the witness. The finding of the learned Addl. Sessions Judge on this point is erroneous. The statement of this witness has been corroborated by the other witnesses produced by the prosecution It was further submitted that the testimony of the prosecution witnesses regarding dying declaration has been erroneously disbelieved by the learned Sessions Judge, non-mentioning the names of the witnesses in the FIR itself is not sufficient to disbelieve the testimony of an independent witness, P.W.2 Nanda was an independent person, who went in-side the well for taking out the deceased The prosecution witnesses are unanimous on the f act that it was Nanda who took out the deceased from the well. It was but natural for the witness (PW 2) that he could have asked about the circumstances, which led the deceased to fall down in the well. Sp. Nanda (PW 2) narrated the version given to him by the deceased in the well. Learned Public Prosecutor further contended that the second dying declaration was made by the deceased when he was taken out of the well. This dying declaration was made in the presence of Babu Lal (PW 3) Laxmi Narain (PW 5), Mst. Bhonri (PW 6). Devi Lal (PW 7), Ram Gopal (PW 8), Narain (PW 10) and Mst. Madan (PW 15). The only reason to disbelieve the testimony of the witnesses given by the learned Addl. Sessions Judge was that they were examined by the Police after a day of the occurrence. Bhonri (PW 6). Devi Lal (PW 7), Ram Gopal (PW 8), Narain (PW 10) and Mst. Madan (PW 15). The only reason to disbelieve the testimony of the witnesses given by the learned Addl. Sessions Judge was that they were examined by the Police after a day of the occurrence. This cannot be the only ground for rejecting the evidence of these witnesses. There is no contradiction in the first and second dying declarations. It was further contended by the learned Public Prosecutor that the 3rd dying declaration, which was made before Kalyan (PW 1) was also proved in the case, but the learned Addl. Sessions Judge wrongly rejected the testimony of PW 1 Kalyan solely on the ground that his name did not find place in the F.I.R The fourth dying declaration was before P.W. 3 Mohd. Ali, A. S. I. of P.S. Sanganer. which was reduced in writing and was proved by Shri Mohd. Ali and which was marked as Ex. P.3. This dying declaration was made at 3.00 A.M. on 24.6.1974. It was contended by the learned Public Prosecutor that this dying declaration was erroneously rejected by the learned Addl. Sessions Judge. 10. Learned counsel for the accused respondents on the other hand argued that important facts pertaining to the so-called incident were not mentioned in the F.I.R. Some of the prosecution witnesses are also not named in the F.I.R. The witnesses produced by the prosecution are the caste fellows of the complainant party. The so-called dying declaration is before the relatives of the deceased, the testimony of whom cannot be believed because the witnesses are partial. The evidence regarding dying declaration was not consistent. There are variance in the statements of the prosecution witnesses. The actual words spoken by the deceased are not brought on the record by the prosecution witnesses. The testimony of Shri Mohd. Ali is not believable due to the reason that the statement of the deceased marked Ex. P.3, which was recorded by him is neither signed by the deceased nor the Doctor and the persons present attending the deceased at Sanganer Dispensary. 11. We have given our serious considerations towards the arguments advanced by learned counsel for the parties and have gone through the record. Looking to the statements of Dr. Joshi (PW. 16) and Dr. P.3, which was recorded by him is neither signed by the deceased nor the Doctor and the persons present attending the deceased at Sanganer Dispensary. 11. We have given our serious considerations towards the arguments advanced by learned counsel for the parties and have gone through the record. Looking to the statements of Dr. Joshi (PW. 16) and Dr. Gupta (PW 13), who prepared the MLR and the post-mortem report respectively, we are of the opinion that deceased Gopi Chand died of his injuries sustained by him. The only question before us is as to whether the victim was done to death by the accused persons and in this connection we will have to examine the evidence produced by the prosecution at the trial. 12. The direct evidence consists of eye-witness Mohan Lal (PW 17) who is alleged to have seen the occurrence from the beginning to end. He has deposed that at about 1.00 A.M. in the night between 23/24.6.1974 he and his brother Devi Lal (PW 7) went to sleep. He was sleeping on the roof, while his father was sleeping outside the house on the cot. A lantern was burning outside his house. On dogs barking, he and his father Devi Lal and deceased Gopi Chand got up. His brother Gopi Chand went out with a torch in his hand to find out what was the matter. He (PW 17) flashed his torch and found some persons behind the aak tree. Gopi Chand deceased went towards the trees and after covering distance of 70-80 paces Gopi Chand climbed over a boundary wall of Kanhaiy Lal Kumawat's field. Accused Ram Narain and Ganesh Narain caught hold of the deceased. Both the accused asked other accused Kalu Ram and Govind Ram to come out. Both these accused had lathis in their hands. Kalu Ram and Govind Narain inflicted lathi blows to Gopi Chand. Thereafter all the 4 accused persons forcibly took Gopi Chand towards Khatiwala well. Seeing this, he went running towards the accused, but before he could reach there, accused persons threw Gopi Chand into the well, thereafter the accused persons made good their escape. On the alarm of Gopi Chand, many a persons assembled there on the well. Nanda (PW 12) got down into the well and with the help of persons outside the well, deceased Gopi Chand was taken out by Nanda. On the alarm of Gopi Chand, many a persons assembled there on the well. Nanda (PW 12) got down into the well and with the help of persons outside the well, deceased Gopi Chand was taken out by Nanda. This is the whole testimony of this sole eye witness. This is a settled principle of law that where there is a solitary eye-witness, prudence requires that his testimony should be read with extra care and caution. The witness is the real brother of deceased. This is correct to say that the relation of the witness with the victim per se is no ground to reject his testimony, but the testimony of such a witness should be free from all doubt and must inspire confidence. The worst feature against Mohan Lal (PW 17) is that the F.I.R (Ex. P. 20) was lodged by him at P.S. Sanganer. It was lodged at about 2.30 A.M. on 24.6.74. The earliest version of the occurrence was given by the sole eye witness in the following manner in Ex P. 20 - AAJh jke thAA lsok esa] Jheku~ bUpktZ lkgc] Fkkuk&lkaxkusj uez fuosnu gS fd vkt jkr djhc 1 1@2 cts edku ds ckgj dqRrs Hkksads rks firkth us dqRrksa dks /kedk;k] mlh le; esjh Hkh vka[k [kqyh] esa Nr ij lks jgk Fkk] esjk NksVk HkkbZ xksihpUn uhps lks jgk Fkk rks mlus firkth dh vkokt ij fudyk rks og ns[k jgk Fkk fd rks eSaus dgk fd bu vkdkMks es ls ns[k rks mlus vkokt dh rks eSaus [kM+k gksdj ns[kk rks jkeukjk;.k vkSj xksfoUn ukjk;.k lM+d dh vksj Hkkxs vkSj dkywjke vkSj x.ks'k ukjk;.k mQZ jkeukjk;.k vius edku esa ?kql x;s rks esjk HkkbZ dq, ls fpYy;k rks eSaus vkokt yxkbZ fd esjs HkkbZ dks dq,a esa Mky fn;k] rc esjh vkokt lqudj <+k.kh ds yksx ckgj vkdj mls dq, ls ckgj fudkys] tks fuEu O;fDr ekStwn Fks %& 1- nqxkZyky 2- y{eh ukjk;.k 3 ckcwyky] 4- ukjk;.k 5- fdyk.kA eksguyky rk0 24&6&74 In this F.I.R., it has nowhere been suggested that 4 accused persons overpowered or caught hold of him and struck lathi blows on the deceased and then all the 4 accused persons dragged the deceased up to the well and threw him into the well. In this F.I.R. it has not been stated that a light of lantem was there and that victim had a torch with him, or that the witness flashed the torch and saw the accused persons. All that the witness (PW 17) has mentioned in Ex. P. 20 is that he saw 4 accused persons running in different directions. Looking to the version in the F.I.R. only this thing images that the witness heard the victims cries from the bottom of the well and the witness saw the 4 accused running in different directions. We are of the opinion that there is vast difference in the version given by this witness in the F.I.R and before the court. The difference is on material point, which shows that the witness had not seen how the victim fell down in the well. This witness miserably failed to furnish any satisfactory explanation regarding the facts omitted in the F.I.R and deposed in the court. On being asked during the course of cross-examination, it was replied by the witness that where material facts did not find place in the F.I.R. it is not in his knowledge, but the witness replied that he might have forgotten to write these facts in the F.I.R. as he was utterly confused when he dictated Ex. P.20. 13. As we have stated above that the important facts rather salient facts of the incident are not mentioned in the F.I.R. In the court statement the witness, has narrated the incident as if he was the eye witness, but looking to the F.I.R. it certainly appears that the witness, did not see the actual incident. He went on the spot at the alarm of Shri Gopi Chand deceased. The explanation given by the witness is neither true nor convincing. This is true that the FIR is not the last version of the prosecution. The F.I R. is not an encyclopedia wherein each and every stuff, however, unnecessary it may be mentioned, but if important facts of the occurrence are omitted from the F.I.R. it certainly casts doubt on the prosecution version, specially when the F.I.R. is lodged by the eye witness. The F.I.R. is the first version 4 of the occurrence and is to be lodged promptly after the occurrence without any delay. The F.I.R. excludes to great extent the possibility of false implication and any concoction. In the instant case. The F.I.R. is the first version 4 of the occurrence and is to be lodged promptly after the occurrence without any delay. The F.I.R. excludes to great extent the possibility of false implication and any concoction. In the instant case. (PW 17) claims himself to be an eye witness, but looking to the facts narrated in the F.I.R. it can be inferred that the version given at the trial is not worthy of credence. This is an admitted fact that this witness Mohan Lal is the real brother of the deceased and therefore, it is inconceivable that he failed to mention the essential features in the F.I.R. (Ex. P.20). The fact that he has not mentioned the incident (Ex. P. 20), strongly suggest that he had not seen the occurrence and he was not is a position to say as to how the deceased fell down in the well. The authorities quoted by the counsel for the complainant in his written arguments, do not help the prosecution case because the facts of those cases are entirely different. 14. The only evidence against the accused respondents which remain to be discussed is the circumstantial evidence, which consist of oral and written dying declarations. The oral dying declarations are 3 number. It has been alleged by the prosecution that the deceased made these declarations at 3 different places:- (1) inside the well before Nanda (PW 2); (2) when he was taken out of the well. The witnesses speaking about this dying declaration are PW 2 Nanda, PW 3 Babu Lal, PW 4 Laxmi Narain, PW 5 Mst. Bhori, PW 8 Ram Gopal, PW 10 Narain and Mst. Madan, and third it is alleged to have been made by the victim in the Tempo while he was being carried to Sanganer. The witness speaking about this dying declaration is PW 1 Kalyan. 15. PW 2 Nanda deposed that on hearing alarm he went to the well and found that Gopi Chand was lying in the well and nearly 20-25 persons including P.W. 17 Mohan Lal assembled there. The witness went inside the well and in the well he asked the victim as to what happened and how he fell down in the well The victim told him that the accused persons overpowered him and threw him into the well. Nanda further deposed that the deceased narrated the incident in detail to him. The witness went inside the well and in the well he asked the victim as to what happened and how he fell down in the well The victim told him that the accused persons overpowered him and threw him into the well. Nanda further deposed that the deceased narrated the incident in detail to him. The learned Sessions Judge disbelieved the version of this witness on the ground that the name of this witness Nanda (PW2) has not been mentioned in the F.I.R. and the fact regarding the dying declaration before this witness also does not find place in the F.I R. All the prosecution witnesses who were on the spot at the time when deceased was lying in the well and then taken out of the well, have unanimously deposed that it was Nanda. who went inside the well to take the victim out of the well. In these circumstances, it cannot be said that Nanda was not present at the time when the deceased was taken out of the well. Mere fact that the name of this witness did not find place in the F.I.R would not be sufficient by itself to reject the testimony of this witness. It is just possible that the informant (PW 17) did not mention the name of this witness in the F.I.R because of his mental agony due to fall and critical condition of his brother Gopi Chand. 16. In Narain Singh v. State of Haryana, (1) AIR 1977 S.C. 1066 , it has been observed that in a murder case, if the name of a particular witness is omitted, in that case that emission is not sufficient to discard the testimony of that witness. Their Lordships of the Supreme Court observed as follows - "Mere fact that his name was not given in the F.I.R., though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. We must realise that five person had been killed and the informant Sadhu Ram must have been stunned and stupefied at the ghastly murders that took place in his presence and had picked up sufficient courage to run to the police Station to lodge the F.I.R. It may be that in view of that agitated mental condition may have omitted to mention the name of witness or of the culprits". The other reason to discard the testimoney of this witness given by the learned Sessions Judge is that Nanda was not examined by the Police on 24.4.76, but was examined on 25.6.1974. We are of opinion that mere delay of one day in examining the witness cannot be a reason for rejecting the testimony of the witness. Further, no question has been put to the Investigating Officer so as to enable him to explain this delay. We are also of the opinion that the learned Addi. Sessions Judge was wrong in rejecting the testimony of this witness. This witness is neither related with the complainant party nor any base against the accused persons is claimed or brought on record by the accused persons. 17. Now we deal with the second dying declaration. PW 3 Babu Lal, PW 5 Laxmi Narain. PW 6 Mst. Bohri, PW 7 Devi Lal, PW 8 Ram Gopal and PW 10 Srinarain have given similar versions before the trial court. They have deposed that on hearing the cries they went to the well. Gopi Chand was inside the well. He was raising cries to be taken out. Many a persons including themselves assembled there. Gopi Chand was taken out of the well with the help of Nanda. He was put on a cot. Thereafter the witness asked the victim as to how he fell down into the well. Gopichand deceased told that he went out of the house. The accused persons over-powered him, beat him with lathis and threw him in the well. Learned Addl. Sessions Judge rejected the testimony of these witnesses mainly on the ground that Mst. Bhonri is the real sister of the deceased. Devi Lal is the father of the deceased. Ram Gopal is the brother of the deceased PW. 15. Mst Madan is the wife of victims real brother Ram Gopal. It was further stated by the learned Sessions Judge in discarding the evidence of the witnesses that they have been examined by the Investigating Officer after undue delay. The testimony of Babu Lal (PW 3). Laxmi Narain (PW 5) and Srinarain (PW 10) has been rejected solely on the ground that these witnesses are also examined by the police not on 24.6.1974, but on later dates. We are unable to accept the view taken by the learned Additional Sessions Judge in rejecting the testimony of the aforesaid witnesses Babulal. Laxmi Narain (PW 5) and Srinarain (PW 10) has been rejected solely on the ground that these witnesses are also examined by the police not on 24.6.1974, but on later dates. We are unable to accept the view taken by the learned Additional Sessions Judge in rejecting the testimony of the aforesaid witnesses Babulal. Laxmi Narain and Sri Narain are the witnesses who have no relationship with the complainant party. They are independent persons. There is nothing on record to show that these witnesses are partial or favouring the complainant party with some ulterior motive Under these circumstances, the testimony of these witnesses cannot be rejected, merely because their statements were recorded late by the Investigating Officer. The names of Babu Lal, Laxmi Narain and Sri Narain find place in the F.I.R. This circumstance further strengthen their presence and their credibility These witnesses have given the same version as is given by the other prosecution witnesses who are in relation with the complainant party. Under these circumstances it cannot be said that the witnesses who are in relation with the complainant party have given a wrong version because their version is corroborated by the independent witnesses, such as Babu Lal, Laxmi Narain and Shrinarain. 18. We are, therefore, of the opinion that the second dying declaration before the aforesaid witnesses, of the deceased has been fully proved. 19. The 3rd dying declaration was made in three wheeler tempo, while deceased was taken to the hospital. The prosecution has produced Kalyan (PW 1) to prove this 3rd oral dying declaration. Learned Addl. Sessions Judge rejected the testimony of this witness on the ground that this 3rd dying declaration before Kalyan does not find place in the F.I.R. We think that this reason given by the Addl Sessions Judge is not sufficient to reject the testimony of this witness because there is nothing to show on record that this dying declaration was made in the presence of Shri Mohan Lal also or that the informant Mohan Lal knew about it before lodging the report at the Police Station. This is correct to say that none of the witnesses for the prosecution, who have been produced at the trial, has not disclosed anything about this 3rd dying declaration P.W 1 Kalyan has not been brought into picture. This is correct to say that none of the witnesses for the prosecution, who have been produced at the trial, has not disclosed anything about this 3rd dying declaration P.W 1 Kalyan has not been brought into picture. It has not been made clarified as to how the Investigating Officer or the informant came to know about the 3rd dying declaration. Under these circumstances. we are unable to place any reliance on the testimony of P.W 1 Kalyan. 20. Now there remains 4th dying declaration, which has been reduced in writing by Shri Mohd. Ali, the then A.S.I. Police Station, Sanganer. He deposed that at about 3.00 A.M. on 24.6.1974 he went to the Government Dispensary, Sanganer and there he recorded the statement (Ex. P. 3) of Shri Gopal Chand. Ex. P. 3 was written by a police constable Jagdish Narain whom he took to the dispensary. It is correct to say that in this document every detail of the incident is given, but he question arises as to whether this document is genuine or can be relied upon. Shri Mohd. Ali P.W. 4 admitted in his cross-examination that when he recorded the dying declaration (Ex. P. 3) nearly 7-8 persons were beside the deceased. Not a single person present has been examined on this point that Ex. P. 3 was recorded in their presence. Even P.W. 17 Mohan Lal and PW. 7 Devi Lal who are brother and father respectively of the deceased did not say anything about this Ex P. 3. The injuries of the deceased were examined at about 3.45 A.M. by Dr. B K. Joshi, who was Incharge of the Sanganer Dispensary. It has been alleged that the dying declaration (Ex. P.3) was recorded in the dispensary, yet the doctor Shri Joshi was not kept present when Ex. P. 3. was recorded. Dr. Joshi, in his cross-examination stated that the police did not request him to record the dying declaration of the injured Gopi Chand nor he was asked to be the attesting witness for Ex. P. 3. The proper course for the police was to request Dr. Joshi to be present at the time when the statement of Gopi Chand was recorded. Another king feature about Ex. P. 3. The proper course for the police was to request Dr. Joshi to be present at the time when the statement of Gopi Chand was recorded. Another king feature about Ex. P.3 is that its writer Shri Jagdish Narain has not been examined by the prosecution and no explanation has been furnished for his non examination It is surprising that why Shri Mohd. Ali chose to exclude every body while recording the statement (Ex. P. 3) of Gopi Chand, deceased. One more circumstance, which casts doubt on Ex. P. 3 is that the signature or thumb impression of the deceased was not taken on this statement. Generally the signatures of the maker of dying declaration are taken when it is reduced in writing. Because the signatures of the deponent and the persons present were not obtained on the dying declaration and even Dr. Joshi who was incharge of the Dispensary was not taken into confidence. These circumstances are sufficient to discard this dying declaration contained in Ex. P. 3. 21. For the above observations, reliance can be placed on Menna Raja v. State of M.P. (2), AIR 1966 S.C. 2199 . The evidence value of the dying declaration like any other evidence depends upon the veracity of the witnesses to whom it is made. There is no presumption that the dying declaration is false or that it is unworthy of belief. It must be proved to have been made. It is for the court having regard to accept or not to accept the dying declaration. 22. P.W. 10 Sri Narain in his statement has deposed at the trial that on being asked from Gopi Chand deceased as to how the incident occurred Gopi Chand replied that Ganesh and Govinda caught hold of him and both these two accused persons threw him in to the well. By the statement of this witness, it is clear that he has named only two accused persons for whom deceased Gopi Chand also stated at the time when the witnesses asked him. P.W. 10 Sri Narain is an independent witness. He has no relationship either with the complainant party or the accused party. He has name. Only two accused persons in his statement. In the presence of this deposition, it will not just and fair to draw an inference of guilt against other two accused persons, out of whom Shri Kalu is dead now. He has no relationship either with the complainant party or the accused party. He has name. Only two accused persons in his statement. In the presence of this deposition, it will not just and fair to draw an inference of guilt against other two accused persons, out of whom Shri Kalu is dead now. 23. Looking to the entire evidence of the prosecution, we are of the opinion that the prosecution has succeeded in proving the dying declaration, wherein the overt-act of accused Ganesh Narain and Govind Narain has been clearly established and it can be said that it was Govinda and Ganesh, who inflicted lathi blows an the body of Shri Gopi Chand and afterwards both the accused persons threw him into the well and the injuries sustained by Gopi Chand resulted in his death. 24. In view of the foregoing discussions, we partly accept the appeal. The order of acquittal passed against Govind Narain and Ganesh Narain sons of Kalu is set aside and they are convicted under Section 302 I.P.C. and sentenced to life imprisonment and a fine of Rs. 500/- each, in default of payment of fine to further undergo six months rigorous imprisonment. Acquittal of other accused Ram Narain and Kalu (now dead) is maintained. Accused Govind Narain and Ganesh Narain are on bail. Their bail bonds are cancelled. Learned Additional Sessions Judge, Jaipur Distt. Jaipur is directed to issue warrants of arrest against accused Ganesh Nrrain and Govind Narain and after their arrest send them to jail to undergo the sentence awarded by this Court.Appeal partly allowed. *******