B. C. VARMA, J. ( 1 ) OUT of the four persons prosecuted for causing death of Dileshwar Prasad and for sharing common intention to do so, only two, viz. , appellants Balbhadra and Sitaram, have been convicted and sentenced to imprisonment for life. They appeal. ( 2 ) THE incident resulting in Dileshwar Prasads death took place at 5. 00 P. M. on 17-11-1982 in village Shahgaon in Police Station Nandini, in Durg district. The assault on the deceased is said to be by Lathis in front of his house. He died while he was being removed to the hospital. The report of the incident was lodged by Bhukheram (P. W. 8) on the same day at about 11. 00 P. M. at the Police Station Nandini During investigation, the post mortem examination on the body of the deceased was performed by Dr. D. L. Tamarkar (P. W. 9) whose report is Ex. P114. He found the parietal bone fractured. Besides this fracture, three lacerated wound on the leg and the arm were also found. Multiple contusions were found over supra scapular and infra scapular region. Fracture of right humerus middle part and left ulna, left lower tibia, febula, fracture of sternum at the level of 4th rib, fracture of left ribs at sterno costal junction and like fractures of second and fifth ribs were also found. Depressed fracture on the right parietal bone 31/2 x 11/2 with blood clots over the brain surface was also detected. All the injuries were found to be ante mortem. They could be caused by hard and blunt object like lathis. In his opinion, the fracture of the right parietal bone and the rupture of the right lung were sufficient to cause death. In cross-examination, the doctor asserted and affirmed that the fracture of the skull in the present case was sufficient to cause death because there was rupture of meningese which was putting pressure on the brain. ( 3 ) DURING investigation, statements of certain witnesses were recorded. During trial, Indabai (P. W. 7), the mother of the deceased, and Bhukberam (P. W. 8) were examined as eye witnesses. Mausharam (P. W. 1), Dhan Singh (P. W. 4), Kalindribai (P. W. 6), Bhukheram (P. W. 8) and Soot. ( 3 ) DURING investigation, statements of certain witnesses were recorded. During trial, Indabai (P. W. 7), the mother of the deceased, and Bhukberam (P. W. 8) were examined as eye witnesses. Mausharam (P. W. 1), Dhan Singh (P. W. 4), Kalindribai (P. W. 6), Bhukheram (P. W. 8) and Soot. Mansharam (P. W. 1), Dhan Kantibai (P. W. 10) appeared in the witness box to say that the deceased orally told them that it is the appellant who caused lathi blows to him. The trial Court believed all this evidence and relying upon it has convicted the two appellants as aforesaid. The other two co-accused prosecuted have been acquitted because in the oral dying declaration made to witnesses, the deceased has not named the other two persons: It may also be mentioned that the trial Court has rejected the lestimony of Indabai (P. W. 7) because of her being of a very weak sight and because of her not identifying the accused in Court. ( 4 ) WE may first examine the oral dying declaration said to have been made by the deceased to Mansharam (P. W. 1), Dhansingh (P. W. 4), Kalindribai (P. W. 6), Bhukheram (P. W. 8) and Smt. Kantibai (P. W. 10 ). Before, however, any such testimony of dying declaration is accepted it has to be shown that the person making the dying declaration was in such a state of health and mind that he could make a coherent statement. Medical evidence in this regard, therefore assumes importance. Dr. Tamarkar (P. W. 9) performed the post mortem examination on the body of deceased Dileshwar Prasad. He found multiple abrasions of veering sizes over the chest, upper abdomen, left arm. He further found lacerated wound on parietal region obliquely the size being 3 x 1/2 x 11/4. Multiple contusions over the supra scapular and infra scapular region both sides of upper part of the back were also found. Average breadth of these contusions was about 1/2 Fracture of right humerus, left radious and left ulna left lower tibia and fibula and fracture of sternum at the level of 4th rib, fracture ofleft ribs 2-6 at sterno costal junction and a like fracture of right ribs was also found. Depressed fracture of right parietal bone slightly obliquely placed of the size of 31/2 x 11/2 was also found. Depressed fracture of right parietal bone slightly obliquely placed of the size of 31/2 x 11/2 was also found. Meningese were found torn at places below the fractured part. The abdominal cavities were found full of blood. Fracture of right lung at places was found. The liver was also found ruptured. It is under these circumstances that Dr. Tamarkar opined that because of the fracture of parietal bone the patient must have become unconscious immediately. He also opined that without treatment there was no possibility of the patient regaining consciousness. Shock could result from the fracture and that such shock would add to the deterioration of the patient's condition. We do not see any reason particularly in view of the multiple fractures of ribs and liver, to doubt the statement of Dr. Tamarkar that patient Dileshwar Prasad must have became unconscious immediately after receiving injuries. There is no evidence of such treatment given to him, which could result in regaining consciousness. In view of this evidence, it is difficult to reply upon the testimony of the witnesses named above who came forward in the trial Court to depose that the deceased made a dying declaration in their presence seeking to implicate the appellants. Even otherwise, we find such discrepancies in their statement, which indicate that they are net speaking the truth. Mansharam (P. W. 1) did net state to the police about the fact of the deceased making any such declaration to him. Kalindribai (P. W. 6) is the daughter of the deceased and her statement appears to be a bit strange. She deposed to have left the father only to be beaten by the accused although she was suspicious of their conduct. She also does net appear to be a truthful witness. Even then she stated that when Dileshwar Prasad was brought home he was bleeding profusely and his condition was not good. She stated that the deceased became unconscious immediately after stating that Sitaram and Balbhadra caused the beating as if the deceased was only conscious only to make such statement. Smt. Kantibai (P. W. 10) has faired no better than Kalindribai (P. W. 6 ). She too is guilty of making no such statement to the police and could not account for such omission in her case-diary statement (Ex. D/-2 ). Smt. Kantibai (P. W. 10) has faired no better than Kalindribai (P. W. 6 ). She too is guilty of making no such statement to the police and could not account for such omission in her case-diary statement (Ex. D/-2 ). Under these circumstances, we are not prepared to believe that the deceased made any such statement as was deposed to by the witnesses in Court and we discard this evidence of dying declaration. It cannot be taken into consideration to hold the appellant guilty. ( 5 ) THE only other evidence that remains to be considered is that of Bhukheram (P. W. 8) who appeared in the witness box to depose that he had seen not only the appellants but the other acquitted accused also causing beating to Dileshwar Prasad who was no other than his brother. He at the outset is guilty of implicating two such persons whom even according to the prosecution, deceased also did net implicate. His conduct also does not appear to be above suspicion. It if different to believe him when he deposed that Dileshwar was in senses after receiving such a beating and asked to be removed to the police station. He contradicted his statement in first information report (Ex. P-13) at many places. Apart from Balbhadra the did not name any other accused for this omission. Being brother of the deceased, his evidence has to be accepted only after close scrutiny and with caution. We are of opinion that his sole testimony is not sufficient to hold the appellants guilty of the charge leveled against them. The prosecution has not called in aid any other evidence. Since the only evidence tendered is not acceptable according to us, we are unable to uphold the appellant conviction. We have demonstrated that the trial Court erred in accepting the testimony of oral dying declaration and placing reliance upon evidence of Bhukheram (P. W. 8) who has tried pretended to be an eye-witness. For the aforesaid reasons, the appeal must be allowed. ( 6 ) THE appeal is allowed. Conviction of the appellants under section 302, Indian Penal Code, and the consequent sentence of imprisonment for life is hereby set aside and they are acquitted. Appeal allowed. .