JUDGMENT B. N. Katju, J. 1. Siya Ram Upadhya and Vijai Upadhya have filed Criminal Appeal No. 356 of 1978 and Bhoora, Lorika, Nanhaku, Bhikhari and Kunmun have filed Criminal Appeal No. 357 of 1978 against the judgment of III Additional Sessions Judge, Varanasi dated 4-2-1978 passed in Sessions Trial No. 152 of 1976. All the appellants have been convicted under Sections 302/149, 307/149, 324/149 and 323/149 IPC and have been sentenced to life imprisonment, five years rigorous imprisonment, one year rigorous imprisonment and six months rigorous imprisonment respectively. Nanhaku appellant has further been convicted under section 147 IPC and has been sentenced to six months rigorous imprisonment. The remaining appellants have further been convicted under Section 148 IPC and have been sentenced to one year's rigorous imprisonment. All the sentences were ordered to run concurrently. 2. Brij Mohan PW 3 is the son of Rambodh PW 1 and Gopal and Sheorati deceased were brothers of Rambodh PW 1. Sadhu Upadhya and Sheo Shanker Upadhya co-accused are brothers. Vijai Upadhya appellant is the nephew of Siya Ram Upadhya appellant and they are the collaterals of Sadhu Upadhya and Sheo Shanker Upadhya co- accused. 3. The case of the prosecution is that Gopal deceased had instituted a case under Section 436 IPC against Ram Surat Singh co-accused, Rekhai Singh and Fatingi Singh prior to the occurrence in which the aforesaid persons were convicted and sentenced to imprisonment. Lorika appellant had illicit relations with the wife of Gopal deceased and had abducted her about six months before the occurrence. There was litigation between Sadhu Upadhya and Sheo Shanker Upadhya co-accused on the one hand and Ram Bodh PW 1 and others on the other over land which was pending at the time of the occurrence and 2-9-1974 was the date fixed for hearing in that case in the court at Varanasi. On that day at about 5 a. m. while Rambodh PW 1, Dashmi PW 2 and Gopal and Sheorati deceased were going on two cycles to Varanasi from their village Nawahi and had covered a distance of about hundred paces and had reached the culvert of the canal they told Brij Mohan PW 3 who was accompanying them on foot to go back to the village. After Brij Mohan PW 3 had left and they had covered a distance of about one furlong on cycles all the appellants and Vishwanath Singh, Ram Surat Singh, Lalta Singh, Jhuri Singh, Sadhu Upadhya, Sheo Shanker Upadhya, Sadhu Singh, Bansh Lochan Singh, Sikhi, Ramroop and Swaroop co-accused and about fifteen others came out of the paddy and Arhar fields which were near the canal patari shouting 'Maro Maro'. Siya Ram Upadhya and Vijai Upadhya appellants were armed with guns while the other appellants and the co-accused and others were armed with Gandasas, Lathis and spears. On seeing them they left their cycles and tried to run towards the village but they were surrounded by the appellants and the co-accused and their associates and two shots were fired and Ram Surat Singh co-accused assaulted Rambodh PW 1 with his Gandasa as a result of which he fell down. Ghoora and Bhikhari appellants and Sikhi co-accused thereafter assaulted him with Gandasas and other appellants and co-accused assaulted him with Lathis and spears as a result of which he fell down and became unconscious. The appellants and the co-accused also assaulted Dashmi PW 2, Brij Mohan PW 3 and Gopal and Sheorati deceased with the weapons with which they were armed as a result of which they received injuries and Gopal and Sheorati deceased died on the spot. 4. The first information report was lodged by Brij Mohan PW 3 at Police Station Chandauli at 6.30 a. m. on the same day (2-9-1974), the distance of the Police Station from the place of occurrence being four miles. The injuries of Rambodh PW 1, Dashmi PW 2 and Brij Mohan PW 3 were examined by Dr. J. B. Rai PW 7 on 2-9-1974 at 8 a, m., 8.20 a. m. and 8,45 a. m. respectively and the under mentioned injuries were found on their person : Rambodh 1. Lacerated wound 3 1/2 cm x 1 cm x 1/2 cm deep on left side of frontal bone region of the head. 2. Contusion 4 cm x 1/2 cm with bruise on left upper lid including upper eye brow. 3. Incised wound 5 cm x 1/2 cm x 1/2 cm deep on right external ear. 4. Incised wound 5 1/2 cm x 1/2 cm x 1/2 cm deep just below the right mastoid bone Bleeding present. 5. 2. Contusion 4 cm x 1/2 cm with bruise on left upper lid including upper eye brow. 3. Incised wound 5 cm x 1/2 cm x 1/2 cm deep on right external ear. 4. Incised wound 5 1/2 cm x 1/2 cm x 1/2 cm deep just below the right mastoid bone Bleeding present. 5. Incised wound 7 1/2 cm x 1 cm x 3/4 cm deep on lower part of right parietal bone region of the head 2 1/2 above the injury no. 4 suspected fracture of parietal bone of the affected part. Advised X-ray of the skull. Bleeding present. 6. Incised wound 3 cm x 1/2 cm x 1/4 cm deep on right side of the occipital bone region of the head. Bleeding present. 5. Incised wound 2 cm x 1/2 cm x 1/2 cm deep on dorsal surface of lower part of right forearm. Dashmi 1. Incised wound 5 1/4 cm x 1/2 cm x 1/4 cm deep on posterior end of right parietal bone region of the head. 2. Abrasion 1 cm x 1/2 cm on posterior part of the inter parietal bone region of the head. 3. Contusion 5 1/2 cm x 2 cm on dorsal surface of the lower part of left forearm. 4. Contusion 6 cm x 3 cm on right shoulder joint. 5. Abrasion 1/2 cm x 1/2 cm on left shoulder. Brij Mohan 1. Contusion 6 cm x 3 cm on anterior surface of right leg. 2. Contusion 2 1/2 cm x 1 cm near right medial malliolous. 3. Contusion 4 cm x 2 cm on left calf muscle. 7. The postmortem examination on the bodies of Gopal and Sheorati deceased was conducted by Dr. B. Narain PW 9 on 3-9-1974 at 1.45 p. m. and 2.30 p. m. respectively. 6. The under mentioned antemortem injury was found on the body of Gopal deceased : 1. Only one injury seen at the post part of the skull 14 cm long 1/2 cm in bone. The bone is cut in its full length. There is cut on the occipital bone in posterior 12 cm long. The dura matter is also cut in the central portion 3 cm long. In the opinion of Dr. B. Narain PW 9 the cause of death was shock as a result of head injury. 7. The bone is cut in its full length. There is cut on the occipital bone in posterior 12 cm long. The dura matter is also cut in the central portion 3 cm long. In the opinion of Dr. B. Narain PW 9 the cause of death was shock as a result of head injury. 7. The under mentioned antemortem injuries were found on the body of Sheorati deceased. 1. Incised wound in the middle of skull 8 cm x 1 cm x bone deep. 2. Incised wound on the back side of head 16 cm x 2 cm x bone deep. The bone is also cut and the brain matter was coming out 8. In the opinion of Dr. B. Narain the cause of death was shock and haemorrhage as a result of injury no. 2. The prosecution examined four eye witnesses, namely, Rambodh PW 1, Dashmi PW 2, Brij Mohan PW 3 and Chekhur PW 4. 9. All the appellants pleaded not guilty and stated that they were implicated falsely due to enmity. 10. Rajendra Rai DW 1 was examined to prove the illness of Lalta Singh co-accused and Dr. Jogeshwar Lal Sinha DW 2 was examined to prove the alibi of Ram Surat Singh co-accused. The trial Court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellants and convicted and sentenced them as mentioned earlier. Vishwanath Singh, Ram Surat Singh, Lalta Singh, Jhuri Singh, Sadhu Upahhya, Sheo Shanker Upadhya, Sadhu Singh, Bansh Lochan Singh, Sikhi, Ramroop and Swaroop co- accused were, however, acquitted. 11. Rambodh PW 1 narrated the prosecution case as mentioned earlier. His statement was also recorded by K. L. Dohre Sub-Divisional Magistrate PW 6 as a dying declaration on 7-9-1974 at 1.25 p. m. The trial Court has laid great importance on this statement of Rambodh PW 1 and has based the conviction of the appellants on the statement of Rambodh made in the trial Court to the extent it has been corroborated by the aforesaid statement. It has also relied on the evidence of the remaining eye witnesses, namely, Dashmi PW 2, Brij Mohan PW 3 and Chekhur PW 4 to the extent it is consistent with the aforesaid statement of Rambodh PW 1. It has also relied on the evidence of the remaining eye witnesses, namely, Dashmi PW 2, Brij Mohan PW 3 and Chekhur PW 4 to the extent it is consistent with the aforesaid statement of Rambodh PW 1. In our opinion the statement of Rambodh PW 1 made to K. L. Dohre Sub-Divisional Magistrate PW 6 under Section 164 CrPC could not be used to corroborate his testimony in the trial Court under Section 157 of the Evidence Act as it was neither made at or about the time of the incident nor was it made to an authority competent to investigate the incident. It may be mentioned that K. L. Dohre PW 6 was an Executive Magistrate on whom the power of a Judicial Magistrate to record a dying declaration had been conferred by the High Court. He was, therefore, not an authority competent to investigate the incident. The statement of Rambodh PW 1 recorded by K. L. Dohre PW 6 on 7-9-1974 could not he held to have been made at or about the time of the incident which took place on 2-9-1974. It also could not be held that it was made at the earliest opportunity as there is nothing on the record to indicate that Rambodh PW 1 was unconscious after the incident till his statement was recorded by K. L. Dohre PW 6 on 7-9-1974. It may be pointed out that the statement of Rambodh PW 1 appears to have been recorded by the Investigating Officer on 5-9-1974 which shows that he was not unconscious from the time of the incident till his statement was recorded by K. L. Dohre PW 6. Thus the statement of Rambodh PW 1 recorded by K. L. Dohre PW 6 could only be used to contradict his statement in the trial Court under Section 145 of the Evidence Act and not to corroborate it under Section 157 of the Evidence Act. 12. The statement of Rambodh PW 1 in the trial Court that he was first assaulted by Ram Surat Singh co-accused and thereafter he was assaulted by Bhikhari and Ghoora appellants and Sikhi co-accused cannot be relied upon as it was stated by him in his statement recorded by K. L. Dhore PW 6 that he was assaulted with a Gandasa by Ghoora appellant which made him unconscious. His statement in the trial Court that Siya Ram Upadhya and Vijai Upadhya appellants were armed with guns and two shots were fired at the time of the incident cannot also be accepted as no gun shot injuries were either found on the bodies of the two deceased or on the person of any of the three injured witnesses. His statement that he knew Ram Surat Singh, Lalta Singh and Jhuri Singh co-accused before the incident and that the aforesaid person had participated in the incident cannot also be accepted as he had not mentioned their names in his statement recorded by the Investigating Officer as being amongst the assailants. His statement that the seven appellants and the eleven co-accused had taken part in the incident cannot also be accepted as in the statement made by him before the Investigating Officer he had only named Siya Ram Upadhya, Vijai Upadhya, Ghoora, Lorika and Bhikhari appellants and Vishwanath Singh co-accused as the persons who had participated in the incident. It may be mentioned that in his statement recorded by K. L. Dhore PW 6 he had named Siya Ram Upadhya, Vijai Upadhya, Ghoora, Lorika, Nanhaku and Bhikhari appellants and Jamuna and Vishwanath Singh co-accused as being amongst the assailants. His statement in the trial Court is, therefore, clearly inconsistent with his two earlier statements. In these circumstances he is not a reliable witness and implicit reliance cannot be placed on his testimony regarding the participation of the appellants in the incident. Dashmi PW 2 corroborated the evidence of Rambodh PW 1 regarding the incident. In his statement made to the Investigating Officer under section 161 CrPC it was stated by him that both the deceased had received gun shot injuries and had fallen down which is clearly in conflict with the medical evidence as none of the two deceased had received any gun shot injuries. In the trial Court it was stated by him that the miscreants had fired three shots but he did not state whether any of the deceased had received gun shot injuries. In our opinion this was deliberately stated by him so that his testimony may not be in conflict with the medical evidence. In the trial Court it was stated by him that the miscreants had fired three shots but he did not state whether any of the deceased had received gun shot injuries. In our opinion this was deliberately stated by him so that his testimony may not be in conflict with the medical evidence. It was stated by him in the trial Court that Ram Surat Singh co-accused had given a Gandasa blow on the head of Rambodh PW 1 but this was not stated by him in his statement recorded by the Investigating Officer. This statement appears to have been deliberately made by him in the trial Court so that there may be consistency between his statement and the version of the incident given in the first information report. It may also be mentioned that the trial Court has rightly believed the evidence of Dr. J. L. Sinha PW 2 who gave alibi evidence on behalf of Ram Surat Singh co-accused. According to his evidence Ram Surat Singh co-accused was in the Sindari hospital in Dhanbad district on the day of occurrence. He was, therefore, falsely implicated in the present case by Dashmi and the other eye witnesses. It was also stated by Dashmi that Rambodh PW 1 was assaulted by Ghoora and Lorika appellants and by Sadhu Upadhya co-accused with Gandasas. It was further stated by him that he was assaulted by Vishwanath Singh co-accused and Lorika appellant with Gandasas and by Ramroop, Bansh Lochan Singh, Sadhu Singh and Jhuri Singh co-accused with Lathis. All this was, however not, stated by him in his statement under section 161 CrPC. It was admitted by him that he is also an accused in the criminal case which was pending against Gopal deceased at the time of the occurrence in which Rambodh, Sheorati, Shanker, Chekhur and Malvi were also accused and in the cross-case relating to that incident the appellants were the accused. He is also closely related to both the deceased. He is thus not independent. In these circumstances implicit reliance cannot be placed on his testimony regarding the participation of the appellants in the incident. 13. Brij Mohan PW 3 corroborated the statement of Rambodh PW 1 regarding the incident. He is also closely related to both the deceased. He is thus not independent. In these circumstances implicit reliance cannot be placed on his testimony regarding the participation of the appellants in the incident. 13. Brij Mohan PW 3 corroborated the statement of Rambodh PW 1 regarding the incident. In the first information report lodged by him it was mentioned that Siya Ram Upadhya and Vijai Upadhya had fired at Gopal and Sheorati deceased and both of them had received gun shot injuries which resulted in their death. This is in conflict with the medical evidence as no gun shot injuries were found on the body of the two deceased. It may be mentioned that in the trial Court it was stated by him that Siya Ram Upadhya and Vijai Uadhya had fired at the time of the incident but it was not stated by him that the two deceased bad received any gun shot injuries but on the other hand it was stated by him that the two deceased were assaulted with Gandasas by Vishwanath Singh and Lalta Singh co-accused and Bhikhari appellant This improvement was obviously made by him to avoid conflict with the medical evidence. It may be mentioned that according to Rambodh PW 1, Dashmi PW 2 and the two deceased had covered a distance of about a furlong from the culvert from where BRIJ Mohan PW 3 had proceeded back to the village when the incident took place. In these circumstances it is difficult to believe that he would have seen the origin of the incident and the assault made on the two deceased. He appears to have come to the place of occurrence later. His statement that Kunmun and Lorika appellants had assaulted Dashmi PW 2 with Gandasas cannot be implicitly relied upon as this was not stated by him in his statement made to the Investigating Officer. His statement that Bansh Lochan Singh, Sadhu Singh, Ramroop and Jhuri Singh co-accused had assaulted Dashmi PW 2 with Lathis cannot also be accepted as this was not mentioned by him in the first information report. His statement regarding the weapons with which the appellants were armed at the time of the incident cannot also be accepted as the weapons with which the appellants were armed were not specified by him in his statement under section 161 CrPC recorded by the Investigating Officer. His statement regarding the weapons with which the appellants were armed at the time of the incident cannot also be accepted as the weapons with which the appellants were armed were not specified by him in his statement under section 161 CrPC recorded by the Investigating Officer. His statement that Jhuri Singh co-accused had assaulted him with Lathi cannot also be accepted as it was not stated by him in his statement recorded by the Investigating Officer. He is also not independent as he is a close relation of the two deceased. In these circumstances implicit reliance cannot be placed on his testimony, regarding the participation of the appellants in the incident. 14. Chekhur PW 4 deposed that on the day of occurrence while he was at his house in village Nawahi he heard noise coming from the side of the canal. He proceeded towards the canal which was at a distance of about fifty paces from his house and heard the sound of two gun fires and saw Gopal and Sheorati deceased and Dashmi PW 2 and Rambodh PW 1 jumping in the canal and Siya Ram Upadhya, Vijai Upadhya, Ghoora, Lorika, Nanhaku, Kunmun and Bhikhari appellants and Ram Surat Singh, Lalta Singh, Sheo Shankar Upadhya, Sadhu Upadhya, Jhuri Singh, Sadhu Singh, Bansh Lochan Singh, Vishwanath Singh, Ramroop, Swaroop and Sikhi co-accused assaulted them with Gandasas, Lathis and Ballam. His presence at the time of the incident is, however, open to grave doubt as it was stated by Dashmi PW 2 that he was not present at the place of occurrence at the time of the incident but had reached there after the incident was over. He is also not independent as he was a co-accused along with Gopal deceased and others in the criminal case which was pending at the time of the incident. He was also a witness along with Gopal deceased in the case State v. Sukha. He was also a witness of the sale deed executed by Smt. Dulari in favour of Gopal deceased. He also appeared as a witness on behalf of Gopal deceased in the proceedings before the consolidation authorities. He was also a witness along with Gopal deceased in the case State v. Sukha. He was also a witness of the sale deed executed by Smt. Dulari in favour of Gopal deceased. He also appeared as a witness on behalf of Gopal deceased in the proceedings before the consolidation authorities. It was also admitted by him that he did not disclose the name of any of the assailants to the villagers who had come to the place of occurrence soon after the incident and also to any one else before his statement was recorded by the Investigating Officer. In these circumstances reliance cannot be placed on his evidence. The result, therefore, is that the evidence of the eye witnesses regarding the participation of the appellants in the incident cannot be implicitly relied upon. It may be mentioned that the trial court has also hot accepted their statements with respect to the participation of the eleven co-accused in the incident who were acquitted. It may also be mentioned that there was no direct motive for Siya Ram Upadhya and Vijai Upadhya appellants to have participated in the incident. It is true that three out of the four eye witnesses produced by the prosecution were injured but this only establishes their presence at the time of the incident. It appears that they have falsely implicated some innocent persons and it cannot be safely determined who actually participated in the incident. The prosecution has thus failed to establish the guilt of appellants under sections 302/149, 307/149, 324/149, 323/149, 147 and 148, IPC. 15. Both the appeals are accordingly allowed and the conviction and sentences of the appellants are set aside. 16. All the appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeals allowed.