Judgment M.P.Varma and K.B.Sinha JJ. 1. This is an appeal against the judgment of conviction passed by the Sessions Judge, Sasaram. The appellants have been sentenced to suffer imprisonment for life under sections 302/149 of the Indian Penal Code (hereinafter referred to as the Code). Further appellant Sheomurat Singh has been convicted and sentenced to rigorous imprisonment for one year under sec. 147 of the Code and the remaining six appellants to suffer imprisonment for two years under lection 148 of the Code. Appellants Ayodhya Singh, Dasrath Singh, Baliram Singh and Jitendra Singh have been further sentenced to suffer rigorous imprisonment for one year under sec. 27 of the Arms Act also. 2. The case against them arose on the statements of Lal Bahadur Singh, the victim of this episode. He was seriously injured in the occurrence and later died in the hospital at Banaras. His fardbeyan (Ext. 1/1) was recorded by the police, on that basis an F.I.R. marked Ext. 1 was drawn. This fardbeyan has now been treated as dying declaration admissible under sec. 32 of the Evidence Act. The narration of the story as given by him is as follows. It was in the evening at about 4:30 p.m. on 16-8-79 when he was getting back to his village Bhakhar Band, that he saw accused Ayodhya Singh and Dasrath Singh carrying guns, accused Baliram Singh and Jitendra Singh holding rifles and accused Mohan Singh and Ram Bachan Singh with Ballam and accused Sheomurat Singh carrying a lathi. They all cried out to assault him. Accused Ayodhya fired a shot from his gun, but it did not hit him. Accused Jitendera then fired another shot from his rifle which struck him (Lal Bahadur Singh) on his right arm. Accused Baliram Singh also opened fire which hit on his stomach. Being fatally injured he dropped down in a nearby field. He has further said that a few days prior to it, on 25-1-1979 his nephew was suddenly bitten by a dog belonging to accused Ajodhya Singh. He had remonstrated and, chided Ajodhya Singh. But Ajodhya Singh instead of being apologistic had thrown the child in a water-reservoir resulting in instantaneous death of the child. Lal Bahadur had then asked Ajodhya Singh to kill his dog. He had remonstrated and, chided Ajodhya Singh. But Ajodhya Singh instead of being apologistic had thrown the child in a water-reservoir resulting in instantaneous death of the child. Lal Bahadur had then asked Ajodhya Singh to kill his dog. Ajodhya Singh took it up in a front and instead of killing his dog he in conspiracy with his other companions killed the informant Lal Bahadur Singh. 3. On hearing the cry of Lal Bahadur Singh, a few persons had arrived and had witnessed the occurrence. Lal Bahadur Singh was soon taken to Bhagwanpur Police Station. The Sub-Inspector of Police (P.W. 8) has said that he found the condition of Lal Bahadur serious and took him to Bhagwanpur State Dispensary for immediate medical aid. The Sub-Inspector however, made station diary entry No. 272, of these facts, which has been marked as Ext. 4 4. The doctor in the dispensary at Bhagwanpur gave medical treatment but finding the condition critical advised to take Lal Bahadur Singh to Bhabhua hospital for proper and better treatment. The same Sub- Inspector P.W. 8 got back to Thana and made further entries of these facts in his station diary No, 274 (marked Ext. 4/1) and then made arrangements to remove the victim to Bhabhua hospital by a bus. P.W. 8 has then said that Lal Bahadur Singh was brought out of the State Dispensary and after detaining him by the roadside took down his statements (recorded as fardbeyan Ext. 1/1) and he was then taken to Bhabhua and admitted in the hospital. 5. It is here at Bhabhua that P.W. 8 thought of getting his dying-declaration recorded by a Magistrate. He sent a requisition to S.D.O. Bhabhua for deputation of a Magistrate and one Kanhaiyaji Srivastava, an Executive Magistrate came to the hospital and recorded the dying-declaration of Lal Bahadur Singh. This document has been marked Ext. 9. P.W. 8 then took steps to examine other witnesses, who had accompanied Lat Bahadur Singh all through upto Bhabhua Hospital. Here again the doctor at Bhabhua finds, the condition fast deteriorating advised to take Lal Bahadur Singh to Varanasi for still better treatment. P.W. 8 then got back to Bhagwanpur Police Station and the member of the family too Lal Bahadur Singh to Varanasi. He was admitted in Kabir Chaura hospital, but could no survive and met his death in the hospital at Varanui. 6. Dr. P.W. 8 then got back to Bhagwanpur Police Station and the member of the family too Lal Bahadur Singh to Varanasi. He was admitted in Kabir Chaura hospital, but could no survive and met his death in the hospital at Varanui. 6. Dr. V.B. Subramanyam conducted postmortem examination over the dead-body. The doctor could not be available for his evidence. The court succeeded in occurring his attendance as a later stage after the close of the case for the parties and examined the doctor as a court witness. The attendance of the Executive Magistrate Kanhaiyaji Srivastava could not be secured and the alleged dying declaration recorded by him was brought on the record and proved in evidence by P.W. 11 an advocates clerk. This document has been marked as Ext. 9. 7. P.W. 8 conducted further investigation but he made over charge of the case on his transfer to another Sub-Inspector of Police. (P.W. 12), who finally submitted charge-sheet against the aforesaid accused, who were thus put on trial. 8. In the session court during trial. 12 (twelve) witnesses were examined to substantiate the charges, out of whom P.Ws. 2 and 3 are said to be the eye-witnesses. P; Ws. 6 and 10 were also said to be eyewitnesses of the incident, but the trial court did not rely on their evidence as they were declared hostile by the prosecution. P.W. 4 is the first doctor, who had examined the deceased Lal Bahadur Singh at Bhabhua State Dispensary: P.W. 9 is also a doctor of Kabir Chaura Hospital, Varanasi, who had assisted Dr. V.B. Subramanyam in conducting the autopsy over the dead-body of the deceased. Lal Bahadur Singh and this witness had earlier proved the postmortem report marked Ext. 8. As pointed out above, the doctor Mr. Subramanyam was also examined ala court witness on the lame point. P.Ws. 1, 5 and 1 are most formal witness it and their evidence needs no discussion, P.W. 3 is the first Investigating Officer and P.W. 12 is the second one who conducted the part of the investigation and had submitted charge-sheet. 9. Thus apart from the alleged statements said to have been given by the deceased Lal Bahadur Singh at two different cases the evidence of the two eye-witnesses P.Ws. 9. Thus apart from the alleged statements said to have been given by the deceased Lal Bahadur Singh at two different cases the evidence of the two eye-witnesses P.Ws. 2 and 3 appear to be worth consideration to find out how far the prosecution succeeded in bringing home the chares against the appellant. It, however, could not be denied that Lal Bahadur Singh died of the gun shot injuries. The Dy. Superintendent of Hospital Dr. B.D. Singh P.W. 4 had examined him on 16-8-1979 at Bhabhua Government Hospital and had found the following injuries on his body: (i) One lacerated wound 2½" x 2 x 1 on the front of the right forearm with fracture of the right forearm bone both right radius and ulna were broken into pieces. (ii) One punctured wound on the left side of the front of abdomen ¾" x¾" In diameter. This formed the wound of entrance. (iii) Wound of exit on the right side of front of abdomen 3 from the umbilicus with coils of intestine protruding, out through the wound. The wound was lacerated 3 x 2. 10. The doctor has said that though the injuries were simple in nature but might have been caused by fire-arms. The injury-report submitted by him is Ext. 2. He had advised to take Lat Bahadur Singh to Varanasi for better medical facilities but he could not survive. The post-mortem report shows that the deceased had suffered following antemortem Injuries: (a) Firearm entry hole left lower abdomen 3 c.m. to midline and 104 c.m. above left heel horizontally placed 1½ c.m. x 1 cm. abraded collar present on the left margin. The right lass abuse and deeper. Wound entered the abdominal cavity. (b) Firearm exit hole 5 c.m. x 21 c.m. right flank 17 c.m. to the midline and 140 c.m. above right heel large gut protruding through and through the wound which Is perforated at many places and stitches found. (c) Protruding large gut through the wound Irregular with two liters of blood and clots in the abdominal cavity. (d) Firearm entry hole 5 c.m. x 3 cm over the back and inner aspect of right forearm 14 c.m. above the wrist. (e) Firearm exit wound 2.5 c.m. x 6 c.m. right forearm front 9 c.m. above the wrist. 11. Dr. (d) Firearm entry hole 5 c.m. x 3 cm over the back and inner aspect of right forearm 14 c.m. above the wrist. (e) Firearm exit wound 2.5 c.m. x 6 c.m. right forearm front 9 c.m. above the wrist. 11. Dr. Subramanyam stated that the abdominal injuries were the cause of death of Lal Bahadur Singh. From the evidence noted above, there is no hesitation in holding that Lal Bahadur died of the gun shot injuries but the fact remains to find out if these accused were the assailants and the occurrence took place in the manner, as alleged by the prosecution. 12. In appeal before us, the counsel has submitted that the nature of the injuries suffered by the victim, prima-facie indicated that he must have been unconscious all through. He could not have made any statement. In other words, the Fardbeyan Ext. 1/1 said to contain the statements of deceased Lal Bahadur Singh has been seriously challenged and at the same time it has also been argued that the alleged eye-witnesses have been brought in court in aid of the prosecution just to seek corroboration of the alleged dying declaration. 13. It is the case of the prosecution that Lal Bahadur Singh was soon taken to police station Bhagwanpur. The evidence is that his brother P.W. 2 and also P.W. 3 accompanied Lal Bahadur Singh. They were all along with him up to Varanasi. The officer-in-charge P .W. 8 met them at the police station and advised to take Lal Bahadur Singh immediately to Bhagwanpur State Dispensary. P.W. 8 has said that he accompanied Lal Bahadur Singh to the dispensary, where he was examined by a doctor Sri Sachidanand Pd. This doctor gave first aid and asked to take Lal Bahadur Singh to Bhabhua Government Hospital. P.W. 8 speaks that he recorded the station diary entry. It is not clear to me, nor the prosecution could give any explanation, why the statements of Lal Bahadur Singh (if he was at all able to speaks) was not recorded. Not only that way the statements of anyone of those witnesses (two of them have figured in court as eye. witnesses) accompanying Lal Bahadur Singh were also not recorded. A bus was arranged and from Bhagwanpur Lal Bahadur Singh was taken to Bhabhua. P.W. 8 states that he made another station diary entry of this fact in (Ext. 4/1). Not only that way the statements of anyone of those witnesses (two of them have figured in court as eye. witnesses) accompanying Lal Bahadur Singh were also not recorded. A bus was arranged and from Bhagwanpur Lal Bahadur Singh was taken to Bhabhua. P.W. 8 states that he made another station diary entry of this fact in (Ext. 4/1). P.W. 8 then prepared an injuryreport also to be submitted to the doctor at Bhabhua Hospital. The injury report is Exhibit 2/1. But, I am not getting any explanation why the other details were not mentioned or atleast the names of the persons causing such assault and injury to Lal Bahadur Singh. Both the station diary entries fall short of these facts. There is no mention about the Incident in the manner as alleged, much to speak about the names of any of the accused. 14. If the doctor Sachidanand Prasad at Bhagwanpur hospital declared the condition of the victim as critical and if he was at all able to speaks the doctor attending on him could have very well recorded his statement and at least, it should have been done by the police accompanying him there in the hospital. We are not getting correct picture. Dr. Sachidanand Prasad has not been examined to tell the condition of the patient nor any paper of the hospital has been brought in court for our assessment of the situation. We are told that on the advice of the doctor. Lal Bahadur Singh was taken to Bhabhua by his men. P.W. 8 also accompanied him to Bhabhua. Here, it has been introduced that when Lat Bahadur Singh was taken out of the hospital on way to Bhabhua, the Police Officer P.W. 8 recorded his statement on a road-side. Why this hush-hush business after taking Lal Bahadur away the hospital when the doctor was available in the hospital. 15. The learned counsel for the appellants rightly submitted that there is something obscure or it has been obliquely done to create evidence. The doctor an independent fellow could not have been a party to the preparation of such a surreptitious and fabricated document (Fardbeyan Ext. 1/1) said to contain the statements of Lal Bahadur Singh and therefore. P.W. 8 did it by a road-side. The doctor an independent fellow could not have been a party to the preparation of such a surreptitious and fabricated document (Fardbeyan Ext. 1/1) said to contain the statements of Lal Bahadur Singh and therefore. P.W. 8 did it by a road-side. It has been argued that Lal Bahadur Singh was not in sense and he could not have made any statement as he was in shock and coma. Here again, our attention has been drawn to the aforesaid two station diaries entries written by the police officer P.W. 8. There two documents do not contain the statements of any of the witnesses nor even of Lal Bahadur Singh or his brother or his men who later prepared in court as eye-witnesses to the incident. 16. Apart from it there are other patent infirmities noticed in the statement (Fardbeyan Ext. 1/1) i.e. the dying-declaration, making it unworthy of credence. 17. It has been the consistent view of the different courts of the country that a dying declaration. If found true may from the basis for conviction of an accused even if there be no other corroborative evidence. If doubt creeps in; it would be wholly unsafe to act on it. In the case before us, the deceased Lal Bahadur Singh said to have made the statements at two successive stages. The first one as discussed above, i.e. the fardbeyan of the deceased (marked Ext. 1/1) was recorded by P.W. 8 on the same day of occurrence i.e. 16-8-79 when Lal Bahadur Singh was taken out of Bhagwanpur State Dispensary for being taken to Bhabhua Hospital for better treatment. I have already laid that prosecution could not give any explanation why P.W. 8 did not record the statement of the dying man when he was taken to the police station or in the State Dispensary. P.W. 8 has come forward with an explanation that he, in order to save the life of the victim Lal Bahadur Singh made arrangement to take him, to Bhabhua Hospital. It was quite good. But before doing all these, he recorded two station diary entries (Exts. 4 and 4/1) No explanation has been given why the statement of P.W. 2 the brother of Lal Bahadur Singh and also P W. 3 another eye-witness, who had accompanied Lal Bahadur. Singh was not recorded. It was quite good. But before doing all these, he recorded two station diary entries (Exts. 4 and 4/1) No explanation has been given why the statement of P.W. 2 the brother of Lal Bahadur Singh and also P W. 3 another eye-witness, who had accompanied Lal Bahadur. Singh was not recorded. The two witnesses could have given out then and there a short synopsis of the incident or atleast could have given the names of the accused who assaulted Lal Bahadur Singh. The circumstance tells upon the credibility of these eye witnesses also. 18. It has again come in evidence that the condition of Lal Bahadur Singh was deteriorating fast and the doctor at Bhabhua advised to get the dying declaration recorded. Evidence is that later a Magistrate named Kanhaiyaji Srivastava was summoned and he recorded the statement of the dying man. This statement, described as dying declaration could not be legally proved in a evidence. The Magistrate Kanhaiyaji Srivastrava was not examined. It is a serious lapse. The trial court has only lamented over the conduct of the Magistrate is not appearing in court, on some pretext or the other. P.W. 11 an advocates clerk has been examined to prove the writings of the said Magistrate. The document described as dying declaration has been marked as Ext. 9. The trial court rightly, did not attach importance to it. I find from the judgment impugned that a show cause notice was served on the Magistrate asking him as to why he should not be prosecuted for disobedience of the courts order. It is not known what action has been taken against the Magistrate thereafter. But this does not bring any Improvement in the case of the prosecution. 19. It has been argued that P.W. 2 also admitted in court (paragraph 12 or the deposition) that his brother Lal Bahadur Singh after getting injuries had become unconscious and remained in coma till his end when he was taken from Bhabhua Hospital to Varanasi. If this evidence is accepted, then there is an end of the matter regarding any dying declaration. If this evidence is accepted, then there is an end of the matter regarding any dying declaration. The trial court has adjudged this evidence taking into consideration that P.W. 2 has been denied the suggestion made to him in cross-examination that Lal Bahadur Singh had remained unconscious all through till his end came at Varanasi The trial court took the view that from the aforesaid denial it can atleast be gathered the deceased might have gained consciousness at some stage and that his statement was recorded. The finding of the trial court is based on certain assumption not supported by reliable evidence. The approach of the trial court is not correct. In view of the non-examination of the first doctor of Bhagwanpur Hospital, and the positive statement of the doctor (C.W. 1.) that on receiving injuries the victim would remain in the state of shock. C.W. 1 said that the patient might gain consciousness and might have again lapsed into coma and in that situation, it is not expected that be could have possibly made a long coherent statement giving minutest details of the incident and naming all the accused and assigning over acts to each one of them and also narrating some motive for the occurrence. I therefore, do not feel inclined to rely on the fardbeyan (Ext. 1/1) and quite likely, it may not be his statement. Even assuming, if it so, that he could give some statements during the short interregnum when he might have regained consciousness, the possibility of whispering into his ears by his brother P.W. 2 and other witnesses accompanying him all through, cannot be ruled out. It would be unsafe to accept such doubtful evidence. 20. The prosecution has examined two eye-witnesses. They are P.Ws. 2 and 3 both related to the deceased. While discussing the evidence of these two witnesses, the trial court itself has held in paragraph 19 of the judgment as follows: "It is true that there is some discrepancy in the evidence of P.Ws. 2 and 3 and the dying declaration (Ext. 1/1) in respect of as to who actually exorted to assault and on the point whether any other accused except Jitendra Singh and Balram Singh had fired a shot from their fire arm: 21. Apart from above, we have seen that on the basis of fardbeyan (Ext. 1/1) the F.I.R. was drawn up. 1/1) in respect of as to who actually exorted to assault and on the point whether any other accused except Jitendra Singh and Balram Singh had fired a shot from their fire arm: 21. Apart from above, we have seen that on the basis of fardbeyan (Ext. 1/1) the F.I.R. was drawn up. P.W. 8 then registered a case on getting back to Police Station. A perusal of the F.I.R. shows that the same was despatched from the Police Station on 19-8-1979. It was drawn up on 16-8-1979. No explanation has been offered why it was so delayed in despatch from Police Station. Question again arises whether it was really sent to court on 19-8-1979 or some time after. It was received in court on 20th of August, 1979. The learned counsel for the appellants has submitted that this delay must be viewed with suspicion and that the suspicion gets deeper in view of the circumstances discussed above as to whither the deceased Lal Bahadur Singh had really made any statement. This long delay of the F.I.R. in reaching court has exposed the prosecution case to various criticism and a right criticism that the F.I.R. Is an after thought, inasmuch as it could not be accurately said that it is the statement of a dying man. 22. At another stage in paragraph-21 the trial court, while further discussing the credibility of the aforesaid two eye-witnesses, observed as follows :- The attention of P.Ws. 2 has been drawn to para 19 of his cross-examination to the effect that whereas he had stated before the police that accused Rambachan and Mohan bad given the exortion that accused Dasrath had fired a shot, which hit none and that the injured Lal Bahadur Singh had told him about the manner of occurrence. The I.O. P.W. 8 has, however, contradicted this witness regarding this statement in paragraph 30 or his deposition stated that this witness had not stated the facts to him. The I.O. P.W. 8 has, however, contradicted this witness regarding this statement in paragraph 30 or his deposition stated that this witness had not stated the facts to him. And with regard to the evidence of P.W. 3, it has been discussed as follows: "The attention of P.W. 3 Muni Ji Singh has also been drawn in para 15 of his cross-examination wherein he has said that he had stated to the police that he had heard alarm and saw the accused Ajodhya Singh exhorting the assault that the short fired by Jitendra Singh had hit the deceased on the right arm and. the shot fired by Balram Singh had hit him on the stomach that Lal Bahadur Singh told him that Jitendras shot had not hit him on the arm and Balrams shot had hit him on the stomach, that Lal Bahadur Singh was then taken under the Mahua tree and that it had rained after the occurrence. The I.O. (P.W. 8) has, however, denied in para 31 of his evidence that this witness had not stated to him that the shot fired by Jitendra hit and Injured on the arm and the shot fired by Balram had bit him on the stomach." The material contradiction in the statements of these two witnesses made at the earlier stage under section 162 of the Code of Criminal Procedure before the police is very significant and naturally. It would not be safe to rely on such statements to uphold the conviction of the appellant on a capital charge. It could not be rushed for any other purpose except to contradict the witness. The trial court however, bas found out its own reasons in appreciating the same and in accepting the statements of the two eye-witnesses, which in my opinion, is not a correct approach. The reason given by the trial Judge is that he had perused the case diary in this regard and he was convinced that the contradiction was not in the nature to discredit the witness. I can understand that a court is within its competence to read a police diary as an aid and that can be done to satisfy its conscience in appreciating the legal evidence available on the record but not beyond. It cannot be used as evidence against the interest of accused for upholding a conviction on any charge. I can understand that a court is within its competence to read a police diary as an aid and that can be done to satisfy its conscience in appreciating the legal evidence available on the record but not beyond. It cannot be used as evidence against the interest of accused for upholding a conviction on any charge. The error apparent committed by the court below and fact remains that the two witnesses P.W. 2 and 3 have not only contradicted each other on material points but both further stand contradicted from their statements. 23 P.W. 8 has given the location of the houses of the parties. The house of the appellant is south of the house of the deceased Lal Bahadur Singh. The Sahan of the appellant is there. P.W. 3 has said that the accused persons were at their Sahan. Even P.W. 1 states that the accused were at their Sahan. It has been said that appellant Ajodhya gave order, but he himself rested to firing. In that circumstance it would be wrong to fasten all other accused who were at their Sahan land with the constructive liability under sec. 149. I.P.C. read with sec. 302 of the Code when it was a sudden and abrupt act of accused Ajodhya Singh. The charge under sections 302/149 therefore, fails P.W. 3 has said that accused Ajodhya was shouting on getting over on his Nad and Charan, whereat P.W. 2 stated that accused Dasrath had also opened fire. But this is not the case in the dying declaration. It is also to be noted that witnesses have said that firm, was from a rifle. But only some pellets were found in the body, of the deceased. This falsifies the case of firing by a rifle. Earlier case is that Ajodhya had fired in the air and nobody was hit. Animosity has been pleaded with P.W. 3. He has admitted that his father was an accused in a case brought by deceased Lal Bahadur Singh and on further probe in the crossexamination, P.W. 2 admitted that he did not see Ajodhya Singh firing any gun, nor did be see accused Sheomurat Rambachan or Mohan Singh attempting to assault on deceased Lal Bahadur Singh. In these circumstances, it would be quite unsafe to place reliance on these two witnesses and to hold them guilt, of the charge under sec. 302 read with sec. In these circumstances, it would be quite unsafe to place reliance on these two witnesses and to hold them guilt, of the charge under sec. 302 read with sec. 149 of the Code. 24. Counsel for the appellant has next submitted that not only the prosecution could not successfully establish the place of occurrence but has also failed to prove the manner of occurrence. It has been contended that from the statement of witnesses it is clear that copious blood had fallen down, but the Investigating Officer P.W. 8 did not find even a drop of blood at the place of occurrence. In order to explain the absence of blood. Counsel for the respondent has drawn our attention to the statement of P W. 3 who had said there was a rain after the Incident. Even P.W. 8 the I.O. has also said that he found water in the field and near the place of occurrence and possibility of blood being washed out due to rain could not be reused out. But some facts arc otherwise. The I.O. has prepared a sketch map marked Ext. 5. According to this and also from the statement of P.W. 3 it has been noticed that the deceased has received gun shot injuries near the house of accused Ajodhya Singh but the whole Incident of Marpit took place in the field of another accused Rambachan Singh and this place has been marked in the map as Ka. The place is about 130 yards away from the Nad and Charan. The occurrence took place late at 8 p.m. in the night on 16-8-1979. The I.O. visited the place on the following morning and found the field ploughed and the earth was made plain and this means that there was no such incident in the field. There has been no evidence even remotely to suggest that the ploughing or the leveling of the earth in the field was done late in the night after the incident to erase or remove the sign of blood. In absence of any such evidence, doubt remains that there was any occurrence in the field of Rambachan Singh. 25. There is another snag in the story. P.W. 3 has said that Lal Bahadur Singh was lifted up by the accused and taken to some distance under a Mahua tree. All the accused ran away leaving Lal Bahadur under the tree. 25. There is another snag in the story. P.W. 3 has said that Lal Bahadur Singh was lifted up by the accused and taken to some distance under a Mahua tree. All the accused ran away leaving Lal Bahadur under the tree. There was no protest by the members of the prosecution party at any stage and it is not understood why the accused would carry Lal Bahadur to some distance under a tree and leave him there. It is not the case that the accused left Lal Bahadur under the tree out of fear or any protest by any member of the prosecution party. But no blood was found even under the Mahua tree. In the dying declaration Lal Bahadur himself did not speak a word that after assault, he was picked up and taken up to Mahua tree and leaving him there the accused ran away. P.W. 2, another eyewitness who is the brother of the deceased is also silent about it. We get this in the evidence of only P.W. 3 which does not inspire confidence. It shows that the occurrence took place in some different manner and the witnesses are not clean in their statements. 26. There is another important factor. P.W. 8 the Investigating Officer got back to Bhagwanpur P.S. from the dispensary. He found accused Ajodhya Singh present at the police station. Ajodhya Singh lodged information giving counter version of the case. The police recorded his statement and registered Bhagwanpur P.S. Case No. 6(8) 79 under sections 324, 149, 148 and 147/27 of the Code in which the deceased Lal Bahadur Singh was named as one of the accused. So this is another circumstance to indicate that material facts have been suppressed. This counter version given gives an inkling that the incident happened in a different manner and not in the manner as alleged by the prosecution. 27. The motive for the occurrence is another circumstance, which too needs consideration. The prosecution alleges some motive on the part of the accused persons to commit the murder of Lal Bahadur Singh. We get this in the statement of Lal Bahadur (dying declaration Ext. 1/1). 27. The motive for the occurrence is another circumstance, which too needs consideration. The prosecution alleges some motive on the part of the accused persons to commit the murder of Lal Bahadur Singh. We get this in the statement of Lal Bahadur (dying declaration Ext. 1/1). 18 has been said that about 20-25 days prior to this occurrence a dog belonging to accused Ajodhya had bitten the nephew of Lal Bahadur Singh and thereafter another accused Sheomurat had thrown the child fn a water reservoir resulting in his death. Lal Bahadur Singh had chided accused Ajodhya Singh for it and had asked to kill his dog. He instead of killing his dog, after twenty days took further revenge and killed Lal Bahadur Singh. But I fell that he could not reasonably have any motive to kill Lal Bahadur Singh after twenty or twenty five days. The motive alleged does not inspire confidence. The child was been by the dog. Why the accused Sheomurat would throw away the child in the ditch full of water. It is not believable that anyone would throw an innocent child in a ditch. Even assuming such incident of dogbite took place, Lal Bahadur Singh would not have been a mute spectator and would not have taken things lying down, Members of the prosecution party must have reacted sharply then and Lal Bahadur would not have sat tight after making only a mild protest or simple remonstrance. It must have caused havoc and upheaval in the village. But no one even registered a case before police about killing of the child. It is an utter surprise that twenty five days after the accused persons would again resort to some tactics to kill Lal Bahadur Singh without any rhyme or reason or any quarrel over earlier incident of killing the child. Trial court has disposed of this aspect of the case by stating in paragraph 22 of the Judgment impugned that motive is not an important element and the case of the prosecution would not fail in absence of any positive proof of motive. True it is, absence of any motive would not accessorily lead to failure of every prosecution story. Motive is a mental phenomenon and at times it may not be easy to prove what was the motive behind. Motive has to be inferred from the attending circumstances. True it is, absence of any motive would not accessorily lead to failure of every prosecution story. Motive is a mental phenomenon and at times it may not be easy to prove what was the motive behind. Motive has to be inferred from the attending circumstances. But once a motive is introduced in a case, It is the duty of the prosecution to satisfy the conscience of the court that such motive did exist impelling accused persons to embark on such a ghastly crime. No witness has been examined in this case either on the point of the child being bitten by the dog or of being thrown in the water by accused Ajodhya. We get its glimpses in. the statement of Lal Bahadur Singh, in Ext. 1/1). I have already laid that he relative of the child would not have remained idle for so long a period, if the child was done to death in that manner. A short and cryptic evidence was led to show that there was some panchayat in the village with no tangible result. I feel that the motive alleged in the case totally appears to be, not only out of context but a got up story prepared for the purpose of lending some truth in the prosecution case. But the prosecution failed in its attempt making the prosecution story all the more weak and quite unworthy of credence. 28. Thus, on examination of the pros and cons of the case; I do not find any clarity in the story narrated by the prosecution. It is quite obscure full of doubts. It appears that the occurrence took place in a different manner and in a different situation and the prosecution has not come to court with clean bandi. The statements of the witnesses and the dying declaration are not worth relying to uphold an order of conviction. The accused persons, therefore, deserves to be acquitted. 29. In the result, the appeal succeeds, the orders of conviction and sentences passed against these appellants on all the charges are set aside. Let accused Baliram who is in jail be released forthwith, if not worked in any other case and other be discharged from their ball bonds. K.B.Sinha, J. 30 I agree.