Judgment M. P. Varma, J. 1. Then accused, as noted in the judgment of the trial court, which is the judgment under appeal, were put on trial on various charges including the charges under Sec.302 read with Sec.149 of the Indian penal Code (hereinafter referred to as the Code) on the allegation that they formed an unlawful assembly and in prosecution of the common object of that assembly, they caused the death of one Chandrika Rai in village Samaria, Tola brahmsthan. This village lies under police station Rivilganj in the district of saran. Five of them, namely, Nepal Mahto, Sudisuba Rai, Baiju Rai alias baijnath Rai, Nathuni Rai and Jatan Mallah were acquitted of the charges by the trial court against which the State preferred an appeal under Sec.378 of the Code of Criminal Procedure which has been registered as Government appeal no.17 of 1979. This appeal against Nepal Mahto was dismissed and was admitted against other respondents and it was directed that the same be heard alongwith Criminal Appeal No.39 of 1959. This second appeal has been preferred under Sec.374 (2) of the Code of Criminal Procedure by appellants bharat Rai, Lachuman Rai, Balli Rai, Maku Rai and Baban Mallah alias babban Choudhary against the order of conviction by the same impugned judgment dated 25th January, 1979 passed by the 2nd Additional Sessions Judge, chapra. 2. These five appellants of Criminal Appeal No.39 of 1979 have been convicted of the charge under Sec.302 read with Sec.149 of the Code and each one has been sentenced to suffer imprisonment for life. Appellant No.3 Balli Rai has been further convicted under Sec.148 of the Code but there has been no order of sentence under this charge. The rest of the appellants, being appellant No.1 Bharat Rai, appellant No.2 Lachuman Rai, appellant No.4 maku Rai and appellant No.5 Babban Mallah alias Babban Choudhary have been held to be guilty of the charge under Sec.147 of the Code but here again there has been no order of sentence under this charge. Appellant No.3 Balli ram and appellant No.4 Maku Rai have also been further convicted under section 397 of the Code as it was alleged by the prosecution that they removed two milk containers (drums) one carried by the deceased Chandrika Rai and the other by P. W.2 Bhagwan Rai. Appellant No.3 Balli ram and appellant No.4 Maku Rai have also been further convicted under section 397 of the Code as it was alleged by the prosecution that they removed two milk containers (drums) one carried by the deceased Chandrika Rai and the other by P. W.2 Bhagwan Rai. Appellant No.2 Lachuman Rai has also been held guilty of the charge under Sec.379 of the Code for removing the hasuli from the neck of P. W.5 Rashmi Devi. Appellant no.5, Babban Mallah has further been convicted under Sec.323 of the Code for causing voluntary hurt to Rashmi Devi (P. W.5) but no separate sentence has been passed against any one on these charges. 3. Since both the appeals, that is, Government appeal and the Criminal appeal by the accused arise out of the same judgment and so, for the sake of convenience both are being disposad of by this judgment. 4. P. W.7 Kedar Rai is the informant. He has stated that while he was going home from the diara, he noticed assemblage of all the ten accused and they were seen assaulting Chandrika Rai. Allegation is that appellant Nos.3 and 4 were holding Bhalas in their hands and the others had Lathis. The incident happened in village Samaria, tola Brahmsthan in front of the house of one Jaddu mallah. Chandrika Rai, the deceased, was crying for help. Kedar Rai the informant, raised bhulla. People ran. P. W.5 Rashmi Devi, aunt (Mausi) of chandrika Rai also came running. The accused were then assaulting Chandrika rai indiscriminately. Reshmi in order to save him, from further assault, fell on his body to cover him up. She too got badly injured. A few other witnesses namely, P. W.1 Bhagat Choudhary and P. W.4 Ramji Choudhary also tried to intervene and both of them sustained injuries at the hands of the accused. Many others ran to the scene on hearing the cry. Accused ran but while running away, appellant No.2 snatched the Hasuli from the neck of P. W.5 Reshmi Devi. 5. The case of the prosecution is that Chandrika Rai, the deceased, and p. W.2 Bhagwan Rai were getting back home from Chapra after selling milk when Chandrika Rai was caught and assaulted. Accused ran but while running away, appellant No.2 snatched the Hasuli from the neck of P. W.5 Reshmi Devi. 5. The case of the prosecution is that Chandrika Rai, the deceased, and p. W.2 Bhagwan Rai were getting back home from Chapra after selling milk when Chandrika Rai was caught and assaulted. Further case of the prosecution is that two of the accused i. e. , appellant Nos.3 and 4 took away the two drums in which the deceased and Bhagwan Rai had carried milk. P. Ws.1, 2, 3, 4, 5, 6 and 7 are said to be the eye witnesses to the occurrence. 6. Chandrika Rai was soon taken to Chapra hospital. His statement was also recorded in the hospital by P. W.11 the Assistant Sub-Inspector of police named Sarwan Kumar Singh of Chapra. P. W.10 Dr. Akhauri Kailash Behari immediately attended on Chandrika Singh. It was at about 4.30 p. m. He noticed following injuries on Chandrika. The injury report is Ext.6/2. Soon after Chandrika Rai died due to multiple injury and the inquest report was also prepared by P. W.11. The report is Exhibit 10 :- " (i) An oblique lacerated wound 4" X 3/4" X skull bone over the head in the midline near forehead. (ii) A lacerated wound 1/2" X 1/4" X bone deep over head half inch above injury No.1. (in) An incised wound 3/4" X 1/4" X bone deep in the upper part of sternum. (zv) An incised wound 1/2" X 1/8" skin deep over the left cheek. (v) Swelling of upper gum in the region of upper right inciser teeth with bleeding. (vi) A bruise 2" X 1" over the lateral side of right leg below right knee joint. (vii) A bruise 1" X 1/2" over the back of right forearm mar the wrist. (viii) An oblique bruise 8" x 1" over the front part of the chest from nipple to the right side of the chest. (ix) An oblique bruise 6" X 1/2" over the front of abdomen from left to right. (x) A bruise 4" X 1" over the back of left arm. The doctor opined that the injuries Nos.3 and 4 were caused by sharp cutting weapon, such as Bhala and the rest of the injuries by hard and blunt weapons. Chandrika Rai could not survive and died of the injuries sufferred by him. (x) A bruise 4" X 1" over the back of left arm. The doctor opined that the injuries Nos.3 and 4 were caused by sharp cutting weapon, such as Bhala and the rest of the injuries by hard and blunt weapons. Chandrika Rai could not survive and died of the injuries sufferred by him. The same doctor P. W.10 conducted post mortem examination of 22-3-75 at about 10.30 a. m. The post mortem report is Ext.10. The doctor has further said that he found stitches on the head and on dissection found the skull bone fractured, and on removing the skull, he found the durametre underneath filled with blood. He also found blood present in the dura, and brain matter lacerated with effusion of blood. He further found stitch wound 3/4" in length in the upper part of sternum and on dissection he found skin and muscle cut. On the left cheek he found stitches found 1/2" in the length and on dissection the skin was found cut. He also found two inciser teeth missing from the sockat. The roots of the teeth were found lacerated. He found bruises on the right leg below the right knee joint, the size of bruise being 2" X 3". Another bruise 1" X 1/2" was found over the back of the right forearm near the wrist and oblique bruise 8" X 1" was found in front of the chest from the nipple to the right side of the chest and on dissection blood clots were found in the subcutaneous tissues. Another. bruise 4" x 1/2" was found on the left arm. The doctor, who proved the post mortem report (Exhibit 7), stated that all the injuries were ante mortem. In his opinion the cause of death was the head injuries mainly as also on account of shock and haemorrhage as a result of the multiple injuries found. 7. P. W.10, the doctor further examined P. W.1 Bhagat Choudhary and p. W.4, Ramjih Choudhary who had also received injuries in the said occurrence. 8. P. W.7, Kedar Rai, the informant, had accompanied Reshmi Devi (P. W.5) to Revelganj Hospital. It was there that the Sub-Inspector of Police harihar Singh of Revelganj had recorded the statement of Kedar Rai. The fardbeyan is Exhibit 8/1 and the formal first information report was drawn up and it has been marked as Exhibit 11. 8. P. W.7, Kedar Rai, the informant, had accompanied Reshmi Devi (P. W.5) to Revelganj Hospital. It was there that the Sub-Inspector of Police harihar Singh of Revelganj had recorded the statement of Kedar Rai. The fardbeyan is Exhibit 8/1 and the formal first information report was drawn up and it has been marked as Exhibit 11. Sub-Inspector of police Harihar Singh took up the investigation and conducted a part of it. Another police officer, namely, Md. Hasmi took over and conducted the other part of the investigation. The charge sheet was finally submitted by the third police officer P. W.12 sitaram Singh, the Assistant Sub-Inspector of Police. Both the earlier police officers namely, Harihar Singh and Md. Hasmi died prior to the taking up of the trial and they could not be examined in the Court. The entries in the case diary recorded by those two have been proved by P. W.16 and that have been marked exhibits 13 and 13/1. 9. The other witnesses are P. Ws.8 and 9. It was in their presence that p. W.11 the Sub-Inspector of Police had recorded the statement of Chandrika rai which has been treated and considered by the Court as a dying declaration of the deceased. This statement has been marked as Exhibit 8. The other witnesses P. W.14 is a witness to the inquest held over the dead body of chandrika Rai. P. W.15 is another doctor who had examined the injured, reshmi Devi. 10. The accused, in their defence, pleaded their innocence and they have examined four defence witnesses whose evidence will be discussed hereafter at the proper place. 11. Altogether 18 witnesses have been examined on behalf of the prosecution to prove the charges. The witness Nos.1, 2, 3, 4, 5 and also No.7 arc said to be the eye witnesses, out of whom P. Ws.1, 4 and 5 had also received injuries in the occurrence at the hands of the accused persons P. Ws.8 and 9 have testified to the fact that the deceased Chandrika Rai had given statement with regard to the occurrence before P. W.11 Sarwan Kumar Singh, A. S. I. of police Chapra. P. W.10 is the Doctor, who had examined the injuries of p. W.1 and 4 and also that of Chandrika Rai, the deceased when they had come to hospital and their injuries reports are Exhibits 6 to 6/2. P. W.10 is the Doctor, who had examined the injuries of p. W.1 and 4 and also that of Chandrika Rai, the deceased when they had come to hospital and their injuries reports are Exhibits 6 to 6/2. It is this very doctor P. W.10, who had subsequently held post mortem examination on the dead body of deceased Chandrika Rai on the following day of the incident i. e. on 22-3-75. P. W.12 is another police officer, who had submitted the charge-sheet in this case. P. W.13 is also A. S. I. of police. He has simply proved the signature on the fardbeyan of P. W.7, which is exhibit 5 P. W.14 is an witness to inquest. P. W.15 is another Doctor Shambhunath, who had examined the injuries on P. W.5 Reshmi. P. W.16 is a writer constable, who has proved ext.8/1, which was in the pen of police officer Harihar Singh (now dead) and has further proved the entries in the case diary marked Exts.13 and 13/1. P. W.17 is a formal witness. He was then Munshi attached to the police station chapra. He has also proved a paper written in the pen of one Sarwan Kumar, the then police officer posted at Revelganj P. S. in which it has been said that a station diary entry dated 21-3-75 was destroyed and therefore, the same could not be made available in court. The last witness is P. W.18, who is also a police officer who has given an explanation for non-production of the station-diary dated 21-3-75. The learned Advocate Mr. Jawahar Prasad appearing for the appellants, in his opening address to the Court, has stated that the prosecution has failed to prove both the place of occurrence and as well as the manner of occurrence and that the accused persons have been implicated only out of enmity. According to the prosecution the occurrence took place near a Bar tree in village samaria tola Brahmsthan. The case is that. Chandrika Rai, the deceased alongwith P. W.2 Bhagwan Rai were getting back to their home after selling milk at chapra. They were carrying their empty drums. Chandrika Rai had cash of rs.125 in his pocket. When he was nearing his house and was a little ahead of the Darwaza of P. W.2 Bhagwan Rai, all the accused fell upon him. Chandrika Rai, the deceased alongwith P. W.2 Bhagwan Rai were getting back to their home after selling milk at chapra. They were carrying their empty drums. Chandrika Rai had cash of rs.125 in his pocket. When he was nearing his house and was a little ahead of the Darwaza of P. W.2 Bhagwan Rai, all the accused fell upon him. It has transpired from the evidence that accused Balli (appellant No.3} had a Bhala and the other accused appellants were carrying lathis. Accused appellant No.1 bharat Rai gave order for assault. He said in the following words :- "sale ko Bhala pel do wa mar kar fek do. " It was then that Balli Rai dealt Bhala blows hitting on the neck and also on the check below the eye. Appellant No.4 Maku Rai assaulted with Lathi on the face. The two front teeth of Chandrika Rai were broken. Remaining accused appellant also assaulted. Chandrika Rai had raised Hulla, which attracted other witnesses, who came running to save him. 12 It has come in evidence that the houses of almost all the accused persons are near the Bar tree where the deceased was assaulted. Accused Nepal mahto Sudhisth Rai, Baiju Rao, Nathuni Rai and Jatan Choudhary had their houses very close to the Bar tree and other accused appellants too had their houses hardly a bigha away from the Bar tree. Learned Advocate for the appellant has made a straneous argument stating that there is no evidence of any blood like stains near the Bar tree and that the occurrence took place somewhere else and at the same time it has also been urged that the witnesses are not consistent in giving the distance from the Bar tree where exactly Chandrika Rai was attached and assaulted. It is no bodys case that there was profused bleeding nor could it be accepted from the injuries sustained by Chandrika Rai. Non-finding of any blood on the village path does not falsify the prosecution case. At the same time it is not a case of the prosecution that deceased Chandrika Rai got static or fixed at a particular place when he was attacked by the accused. He moved about to save himself on being badly hit and finally fell down near a road close to the Bar tree. The witnesses had also their houses near about the same place. He moved about to save himself on being badly hit and finally fell down near a road close to the Bar tree. The witnesses had also their houses near about the same place. P. W.4 has his house at a distance of about 8 to 10 steps away from the Bar tree, P. W.3 has also made a similar statement, 13. According to P. W.3 Bathan of Sadhu Mallah was near the Bar tree. P. W.1 Bhagwat Choudhary and Sadhu Mallah are full brothers and lived in the same house. According to P. W.1 the house of Mst. Reshmi p. W.5 is adjacent north of the Bar tree. 14. At this stage it may be noted that defence examined one Sri Laxmi narain Sahay (as D. W.4 ). He is an advocate. He has said that he had gone to Samaria on 22-9-78 nearly three years after the occurrence and had prepared a sketch map (marked Ext. H) and his field book is Ext. C. He had gone to Samaria alongwith Sri Lallanji Prasad, Advocate who had appeared with him in the court below and the case was then in progress. On the basis of evidence of this witness D. W.4 and the map prepared by him, an attempt has been made to argue that the occurrence took place somewhere else. I could not understand the significance of the sketch map (Ext. H) prepared by the learned Advocate laxmi Narain Sahai (D. W.4) and how could it falsify the prosecution evidence that the occurrence took place under the Bar tree The S. I. of police had inspected the place of occurrence on the day of the incident, i. e. on 21-3-75 at 4 p. m. which is evident from the case diary marked Ext.13. It was then pointed out to the police officer by P. W.7 Kedar Rai. It is noted that he found foot-prints near about the place of occurrence pointed out to the police officer, but did net find any blood like stains. Explanation has been taken from P. W.2 that from the injuries caused to Chaudrika Rai some blood had trickled down on his Kurta and Dhoti. But he did not remember if there was any blood on the ground. Explanation has been taken from P. W.2 that from the injuries caused to Chaudrika Rai some blood had trickled down on his Kurta and Dhoti. But he did not remember if there was any blood on the ground. Thus, non-finding of the blood at the place of occurrence or any discrepancy in giving out the exact distance where Chandrika Rai was assaulted, in describing the place of occurrence that it was in front of house of Sadhu Mallah or someone stating that it was near the house of Bhagwan Rai or Baijnath Prasad do not make any difference and it can very safely be said, as shown by the prosecution that it was under the Bar tree close to the house of the accused as well as the witnesses residing thereby, and it does not falsify the case of the prosecution and it cannot be said that the prosecution failed to fix up and prove the place where Chandrika was assaulted. All the eye witnesses including the informant kedar Rai are equivocal in stating that the incident happened near the Bar tree. 15. Coming to the next phase of his argument with regard to the manner of occurrence, the learned Advocate referred to the evidence of P. W.7, who pointed out that from the F. I. R. it transpires that both appellant No.3 and also no.4 were carrying Bhala with which they inflicted injuries on Chandrika Rai. But the doctor P. W.10 did not find any piercing wound on the body of chandrika and that the occurrence might have happened in altogether a different manner. It will be relevant to state here that P. W.7 stated in court that only appellant No.3 Balli Rai had a Bhala and the rest had Lathis. It will also be relevant to state that in the trial court the A. P. P. filed an application stating that P. W.7 had gone in the camp of the accused. The Court also while discussing the evidence of this witness finally held that it was not safe to rely on his statement. Apart from it the evidence is very much consistant that the appellant No.3 Balli rai assaulted Chandrika with a Bhala hitting on the neck and also on the cheek and other assaulted with Lathi. The doctor found incised wound on the sternum and also on the left cheek. Apart from it the evidence is very much consistant that the appellant No.3 Balli rai assaulted Chandrika with a Bhala hitting on the neck and also on the cheek and other assaulted with Lathi. The doctor found incised wound on the sternum and also on the left cheek. All the accused had suddenly fallen upon Chandrika rai. They began assaulting. It would be difficult for anyone to pin point the exact part of the body on which the blows fell, when there were repeated assaults, both by Bhala and Lathi. The finding of the two incised wounds indicate that they were Bhala injuries and the doctor further found many other injuries on different parts of the body and according to the doctor they were caused by blunt substance which might be lathi. It therefore, cannot be said that there is any discrepancy in the statement of the witnesses in narrating the manner of -occurrence. The evidence of the eye witnesses including that of the P. W.7 have been read out to us in court. I find that each one is consistant in stating that appellant No.3 Balli Rai had used his Bhala and all others had wielded Lathis on chandriak Rai. There is no inconsistancy in the statement and it cannot be said that the prosecution failed to prove the manner of occurrence. 16. Lastly, it has been said that the implication of these accused in the case is sequal to enmity. In support of this contention the learned Counsel has referred to the evidence of P. W.1 Bhagwat Choudhary to show that Balli Rai appellant No.3 and Maku Rai appellant no.4 are full brothers. Accused Baiju rai is the father of accused Sudhisth Rai and accused Jatan Mallah is full brother of P. W.6 Hazari Choudhary. This relationship of Hazari with his borther Jatan mallah has been admitted by P. W.6 Hazari himself. The evidence of P. W.2 bhagwan Rai has also been referred to show that Asharfi and Sukdeo were uncles of deceased Chandrika Rai. P. W.1 Bhagwat Choudhary has also said that asharfi, Sukdeo, Brahmdeo and Deolal were sons of Sarjug and lived in one house. Deceased Chandrika Rai was son of Deolall. Learned Advocate has drawn our attention to Ext.14 which is certified copy of the judgment of G. R. case No.2610/1974 (State V/s. Asarfi Yadav and Sukdeo Rai ). P. W.1 Bhagwat Choudhary has also said that asharfi, Sukdeo, Brahmdeo and Deolal were sons of Sarjug and lived in one house. Deceased Chandrika Rai was son of Deolall. Learned Advocate has drawn our attention to Ext.14 which is certified copy of the judgment of G. R. case No.2610/1974 (State V/s. Asarfi Yadav and Sukdeo Rai ). It has been stated that this ease related to an occurrence, in which Lalmuni Devi wife Bharat appellant No.1 was assaulted and kept confined in a room by Asarfi Yaday, sukdeo Rai and others and that they were convicted also of the charge under section 342 of the Code. Learned Advocate on the basis of this document and the aforesaid statement of the witnesses and also be admitted by P. W.2 Bhagwan rai argued that because of the enmity persisting between the parties the accused persons have been falsely implicated as such only to take revenge of the earlier case brought against some of them on the charge of assaulting Lalmuni Devi. The learned Counsel for the State Sri Jayaswal on the other hand, contends that enmity has always been considered by the court as an instrument with double edge and in the instant case the enmity provides strong motive for committing the murder of Chandrika Rai. I have given full consideration to this question of enmity. As indicated above, the wife of appellant No.1 Bharat Rai was assaulted and kept confined and this incident would naturally cause a serious annoyance and a hang over in the mind of the accused for being revengeful and lastly finding opportunity they fell upon Chandrika Rai, who was done to death in the manner as alleged by the prosecution. So, in the instant case the factum of enmity as brought on the record weighs heavily against appellants prompting them to commit the offence and cannot be considered as an instrument for false implication in this case. 17. A similar criticism has been raised against P. W.2 Bhagwan Rai that appellant No.2 Laxman Rai had filed a criminal case against him and he has therefore, falsely given evidence in the present case. A criminal case of Laxmi Rai was brought in the year 1972 about three years prior to the present case. I do not consider it to be an adequate ground to reject the testimony of P. W.2. A criminal case of Laxmi Rai was brought in the year 1972 about three years prior to the present case. I do not consider it to be an adequate ground to reject the testimony of P. W.2. He appears to be a competent witness as the evidence is that he was doing in the company of Chandrika Rai, the deceased when getting back from Chapra and his name finds mention in the dying declaration made by the deceased Chandrika rai. This witness too has got his house close by near the Bar tree and he has alleged that accused persons had removed his milk container also while running away from the place of occurrence. The contention of the learned Advocate on the aforesaid score is totally ruled out. 18. P. W.3 is also a witness on the point of occurrence. The credibility of his evidence has been attacked on the ground that at the relevant time he did not reside in village Samaria where the occurrence took place and he lived as revelganj, far away from the village. As noted above, three defence witnesses have been examined to show that this witness (P. W.3 Baijnath Prasad) did not reside in village Samaria and therefore, he could not have been a competent witness on the point of occurrence. D. W.1 Satyadeo Prasad ,was then a clark posted at Revelganj. He has proved some entries in the death register maintained in the Municipality at Revelganj from which it transpires that one Baijnath Prasad gave information regarding the death of Gopal Prashad of Samaria. The evidence of this defence witness does not sum to have any bearing in the case nor does it show that Baijnath Prasad lived at Revelganj. I may state here that Baijnath prasad himself admitted in his cross-examination that he used to do business at revelganj and he had some jewellary shop. He is Sonar by profession. D. W.2 has stated that Baijnath Sonar meaning thereby that P. W.3 Baijnath Sonar lived at Revelganj for the last seven or eight years. But this witness has admitted that Baijnath Sonar belongs to village Samaria and members of his family lived at Samaria. Therefore, from the evidence of this defence witness too it can not be affirmatively be held that Baijnath Sonar (P. W.3) did not live at Samaria. But this witness has admitted that Baijnath Sonar belongs to village Samaria and members of his family lived at Samaria. Therefore, from the evidence of this defence witness too it can not be affirmatively be held that Baijnath Sonar (P. W.3) did not live at Samaria. D. W.3 is another witness, who has stated that re had ration shop at Revelganj and Baijnath Prasad meaning thereby P. W 3 used to collect ration from his shop this witness D. W.3 has further added that Baijnath Prasad had his house at revelganj. In cross examination he admitted that fathers name of Baijnath prasad was not noted on the ration card. D. W.3 had contradicted D. W.2 in stating that Baijnath Sonar had no house at Samaria. The evidence of D. W.2 is specific that Baijnath Sonar had his house at Samaria and the members of his family lived there. Even assuming and taking the face valus of the statement of these three witnesses i. e. , D. W.1,2 and 3 that Baijnath Sonar P. W.3 had his house at Revelganj that alone will not take away the evidence any value of his statement when he gave out that at the time of occurrence he was in village samaria. His statement is very clear that he had his jewellary shop at Revelganj and he lived with his family members in village Samaria and the distance between the two places are hardly 1/4 the mile. The evidence of D. W.4 has been discussed above. He is an advocate and at the instance of the defence Counsel working in the Court, below he had prepared a sketch map of the place of occurrence, as pointed out to him by the Advocate for the accused in the year 1978 i. e. , nearly three years after the occurrence. The evidence of this witness is of no avail for the decision of this case. 19. No other point has been raised for the consideration of this Court. One thing which strikes us is that a few witnesses namely, P. W.1 Bhawat Choud-hary, P. W.2 Bhagwan, Baijnath Prasad P. W.3, and Ramji Choudhary (P. W.4)were examined on 23-3-75, 26-4-75, 24-3-75 and 3-4.75 respectively. 20. Learned Advocate for the appellants had, at one stage of his argument made a criticism that the delayed recording of the statement of these witnesess creates doubt in the testimony. 20. Learned Advocate for the appellants had, at one stage of his argument made a criticism that the delayed recording of the statement of these witnesess creates doubt in the testimony. I may only add here that delay by itself in recording the statements cannot be a sole criteria to disbelieve all such eye witnesses, if reasonable explanations have been given for not appearing before the police or for not recording their statement. In the instant case the trial court has discussed about this aspect of the position and I find that a very witness has come forward with some explanation which caused some delay in their statement to be recorded by the police and I therefore, do not agree with the contention that their evidence be looked into with any doubt. They are quite probable witnesses present at the scene of occurrence and I feel inclined to accept their testimony in upholding the conviction and also sentence against these five appellants as imposed by the trial court. 21. One very significant question arises which cannot be overlooked. It is not known how the appellants counsel did not draw our attention to the dying declaration made by the deceased Chandrika Rai. On persistant asking by the court, all that the learned Advocate could say was that Chandrika Rai falsely implicated these accused at the instance of P. W.8 Krishna Bihari Pandey. The dying declaration (Ext.8) was recorded in his presence by P. W.11 and he has proved his own signature on it. Some enmity has been suggested to this witness in cross-examination. He has been asked if his father had brought any case against Asarfi Rai and Bhagwan Rai P. W.2. In reply he said that he did not know about it. This suggestion is not enough to discredit the evidence. 22. Next witness is P. W.9. He too was present in the hospital when chandrika Rai, deceased had given his statement to the police officer (P. W.11)on which Chandrika had given his L. T. I. P. W.9 has proved his signature also on the said document. No enmity has been suggested to this witness except that he has falsely deposed at the instance of one Pandey. He too was present in the hospital when chandrika Rai, deceased had given his statement to the police officer (P. W.11)on which Chandrika had given his L. T. I. P. W.9 has proved his signature also on the said document. No enmity has been suggested to this witness except that he has falsely deposed at the instance of one Pandey. P. W.11 who is the police officer, posted at Bhagwan Bazar Thana Chapra stated that he had recorded the statement of Chandrika Rai in the hospital at about 7 p. m. in the evening on 21-3-75 and the two witnesses P. Ws.8 and 9 were also there. He has further stated that he had made requisition to get the statement of Chandrika Rai recorded by a Magistrate but it could not be done and Chandrika Rai died. I do not find any apparent reason to disbelieve this witness P. W.11. Needless to say that the dying declaration alone, if accepted will be a good evidence to hold the accused guilty of the charge. I may only be repeating that the dying declaration could not be assailed by the appellants. The trial court has also placed reliance on it. Chandrika Rai, the deceased in his declaration gave out that he was returning with P. W.2 Bhagwan Rai after selling milk at Chapra market. They were getting back with two empty drums after the sale of their milk. He further stated that when he reached near the Bar tree about a few steps away from his house the accused persons made an attack. Appellant No.3 Balli Rai hit him twice with a Bhala and others began assaulting with Lathi. There is further statement that accused appellant Bharat Rai had ordered for assault stating that let Bhala be pierced and Chandrika be killed and thereupon all the accused started assaulting with Lathi and Bhala. It has also been stated that when he fell down, appellant Balli Rai took away the money from his pocket and appellant Maku Rai carried away the drums. The dying declaration was recorded in the hospital by a Police Officer of Chapra at 7.30 p. m. whereas the F. I. R. was lodged by P. W.7 kedar Rai at Police station Revelganj at about 3.45 p. m. This informant Kedar rai was not there in the hospital. The dying declaration was recorded in the hospital by a Police Officer of Chapra at 7.30 p. m. whereas the F. I. R. was lodged by P. W.7 kedar Rai at Police station Revelganj at about 3.45 p. m. This informant Kedar rai was not there in the hospital. The two attesting witnesses of the dying declaration P. W.8 and P. W.9 are not the eye-witnesses. There is no suggestion even that there was any whispering, prompting or any sort of tutoring when chandrika Rai was brought to hospital and when he could give the statement. It is quite an independent statement of all that happened with him and the manner, in which he was assaulted by the accused persons. He made the statement at the time when his life was ebbing and died shortly thereafter. The evidence is admissible under Sec.32 of the Evidence Act and sufficient to fasten the accused persons with the guilty they have been charged with. It is equally important to note that this statement of Chandrika Rai stands fully corroborated by P. W.2 Bhagwan Rai. P. Ws.1, 4 and 5 are injured witnesses. Their injury report has also been proved as discussed above and they all have narrated about the occurrence in the same sequence and have named and identified all the accused on trial and apparently there is no reason to reject their testimony as well. The case against these appellants, who have filed Criminal Appeal No.39 of 1979 stands well proved and the appeal is fit to be dismissed. 23. Coming to the Government Appeal No.17 of 1979 filed against five of the accused, who have been acquitted by the Court below, I am of the view, the learned Judge is totally wrong inappreciating the evidence against all those five accused. The learned trial judge on a petition filed by the Asst. Public prosecutor conducting the case on behalf of the State took the view that the informant P. W.7 had gone in the camp of the accused and has rejected his evidence. This does not appear to be wholly correct. The learned Judge has rather written the judgment in most clumsy manner. Public prosecutor conducting the case on behalf of the State took the view that the informant P. W.7 had gone in the camp of the accused and has rejected his evidence. This does not appear to be wholly correct. The learned Judge has rather written the judgment in most clumsy manner. On perusal of the same I have noticed that the statement of each one of the witnesses have only been reiterated and written out in long detail without bringing out the facts note for a decision, so much so that there has been no discussion at all on the statement of some of the witnesses who have been disbelieved. So far the five accused, who are respondents in the Government Appeal No.17 of 1979 are concerned, how could the learned Judge accept the part of the statement in convicting the other five sets of the accused, who preferred Criminal Appeal No.39 of 1979. Some of the facts noted, I mean the grounds as indicated, are quite flimsy and lacks proper reasoning and appreciation. But in spite of it, I refrain from interfering with the judgment of acquittal recorded in favour of those five accused, against which the Government Appeal has been preferred.1 say so, as even the State counsel, in view of the judgment of this Court in case of State V/s. Maksudan singh and others, AIR 1986 Patna 38 : 1985 Cr. L. J.1982 (Full Bench) reported in 1986 February issue page 38 (Full Bench) did not press the Government appeal. I will only add that the incident took place on 21-3-1975 and it is now nearly more than 11 years that the accused were kept in long suspense which itself is very much torturous and the long delay defeats their inherent right for speedy trial. I therefore, do not disturb the finding of acquittal. 24. In the circumstances, the Government Appeal No.17 of 1979 is dismissed and at the same time the Criminal Appeal No.39 of 1979 preferred by the other five accused referred to above, is also dismissed. Both the appeals dismissed. Appeals dismissed.