JUDGMENT 1. - These two appeals arise out of the judgment of Sessions Judge, Jaipur City, Jaipur, acquitting accused Binno, Vinay Kumar, Ballu and Sushil of the offence under section 302 and 302 r/w 34 IPC, and convicting accused Dharma @ Dharam Chand under section 302 r/w 34 IPC and sentencing him to imprisonment for life and a fine of Rs. 500/-, in default of payment of fine, to further undergo six months simple imprisonment. Hence, these appeals are being disposed of by this common judgment. 2. On the basis of Parcha Bayan (Ex. P. 1) recorded on 9-5-1978 at 1.40 AM of Kundu Mal (PW 1), FIR (Ex- P. 22) was registered at 2.15 AM on 9-5-1978. In the Parcha Bayan it had been mentioned that nephew of Kundu Mal(PWl), namely Bhagwan Das, was inflicted a knife blow by accused Dharma, Binno and Ballu and one more person near the shop of Prabhu Pan Wala Bhagwan Das was taken to the Hospital where he died and his dead body was kept in mortuary. 3. The police registered a case against the accused persons under section 302 read with Section 34 IPC. The Parcha Bayan was sent to the Police Station through Shri Ram, Head Constable and a report (Ex. P. 22) was chalked out at 2.15 AM. 4. After usual investigation, the police submitted challan against the accused persons in the court of Magistrate. The fourth accused un-named, could not be apprehended. The Magistrate committed the case to the court of Sessions Judge after trial, convicted and sentenced accused appellant Dharma as aforesaid, whereas acquitted Binno and Ballu. 5. Dharma accused has preferred Appeal No. 466/79, whereas State of Rajasthan has filed appeal against acquittal, being appeal No. 392/1980, against accused Binno and Ballu. 6. We have heard Mr N.L. Tibrewal, learned counsel for the appellant Dharma and Shri H.M.K. Wali, on behalf of accused Ballu; Shri Z. Naqvi, on behalf of Binno and learned Public Prosecutor. We have gone through the judgment of the trial court as also record of the case. 7. Prosecution has placed reliance on three eye witnesses viz., Prabbu Singh (PW-4), Raghuveer Vijay (PW-5) and Jasveer Singh (PW-6). Out of them, PW-5 Raghuveer Vijay and PW-6 Jasveer have not supported the prosecution evidence and they have been declared hostile. 8. We have gone through the judgment of the trial court as also record of the case. 7. Prosecution has placed reliance on three eye witnesses viz., Prabbu Singh (PW-4), Raghuveer Vijay (PW-5) and Jasveer Singh (PW-6). Out of them, PW-5 Raghuveer Vijay and PW-6 Jasveer have not supported the prosecution evidence and they have been declared hostile. 8. Prabhu Singh (PW-4) stated on oath that PW-5 Raghuveer Vijay was employed at his betel shop and PW-6 Jasveer Singh used to reside close to his shop Accused Dharma came to his shop at about 1115 PM when he and his servant Raghuveer Vijay were sitting at the shop, while Jasveer was standing near the shop Accused Dharma and three others came to his shop. Accused Dharma had a hockey stick in his hand. He (Prabhu Singh) could not see anything in the hands of other three accused persons He identified the two boys who had come with Dharma to be Ballu and Binnu. The four accused persons surrounded Bhagwan Das and inflicted blows by fists and kicks. Dharma put the hockey-stick under the chin of Bhagwan Das. Bhagwan Das cried and went away The accused persons also went away. Prabhu was unable to say as to how deceased Bhagwan Das got injury on his left side. He has been cross-examined at great length, and he has stated that he had seen accused Dharma only putting the hockey stick under the chin of the deceased and did not see His statement was recorded in the same night at about 2:30 A.M. by the Police. 9. Prosecution has placed reliance on the evidence of dying declaration alleged to have been made by the deceased Bhagwandas in the presence of PW-11 Kundu Mal, PW-2 Ashok Kumar, PW-7 Ishwar Das and PW-8 Vanajmal. 10. In this regard PW-l Kundumal has stated that he was at his house and after hearing the cries of his brother Vanajmal. he came down and saw his nephew Bhagwan Das lying unconscious on the ground He was complete unconscious. He could speak and he told Kundu Mal and other persons present that he had been inflated knife blow by Dharma and h.s three companions Binno and Ballu Sindh, were his two companions and he did no disclose the name of the third a companion. He could speak and he told Kundu Mal and other persons present that he had been inflated knife blow by Dharma and h.s three companions Binno and Ballu Sindh, were his two companions and he did no disclose the name of the third a companion. He (Kundu Mal) is alleged to have further been told by Bhagwandas that knife blow was inflicted near the shop of Prabhu Pan Wala. Thereafter they took Bhagwan Das to hospital and the hospital personnel informed the police on telephone The dead body of Bhagwan Das was kept in the mortuary. Thereafter, police came and recorded the statement of Kundumal (Ex P.l). 11. In cross-examination. Kundumal stated that Bhagwan Das had told i him about the incident and thereafter he did not speak He further stated the when somebody asked in the hospital m the Emergency Ward as to what hit happened, he had replied that Bhagwan Das had been stabbed S disclose the names of the accused persons because he was not asked remain the names of the accused persons. He was confronted with his statement recorded in Panchnama (Ex. P.2). wherein also he had not disclosed the names of the accused persons. He of course.denied the suggestion made on behalf o the accused persons that he had signed Ex.P.l in the afternoon of 9.5.1978. 12. On further cross-examination, he stated that Bhagwan Das had only told him that Dharma and his three companions including Binno and Ballu had inflicted the knife blow and after saying so, he had become unconscious therefore, Kundunlal could not ask the deceased as to which one of the companions of Dharma inflicted the knife blow. 13. PW-2 Ashok Kumar, who is the real younger brother of the deceased has stated that on hearing cry of his father, he and his uncle Kundumal PW-l) 11 and his cousin Ishawardas came down and saw that his brother Bhagwan Das was lying in the ground near the cot of his father. On his a kine Bhaewan Das, told him that Dharma and his three companions had inflicted knife blow. He only named Ballu and Banno and did not name the third companion. 14. On cross-examination, he told that Bhagwan Das did not tell him as to at which place in the city he was inflicted knife blow He further admitted that at that time, 10-15 persons had assembled. He only named Ballu and Banno and did not name the third companion. 14. On cross-examination, he told that Bhagwan Das did not tell him as to at which place in the city he was inflicted knife blow He further admitted that at that time, 10-15 persons had assembled. One of them was Shahid Miyan. He was also confronted with his earlier statement in the police (Ex D2) wherein he had not stated that the knife blow was inflicted near the shop of Prabhu Panwala He also further admitted that in the hospital none asked him about the name of the persons who had inflicted the knife blow to Bhagwandas. He had returned from the hospital to the house at about 2 A.M. in the night and he was not aware whether police had come there or not because he had been thinking as to why Bhagwan Das was assaulted and who had beaten him. He further stated that Kundumal and Ishwar also returned to house after 5-10 minutes of 1.30 A.M. 15. Thus, we find that there are several contradictions between the statements of these two witnesses PW-1 Kundumal has stated that the deceased Bhagwan Das gave out the place of incident at the time when he was asked, whereas PW-2 Ashok Kumar says that Bhagwan Dns did not tell the place of incident where he was inflicted the knife blow. Similarly PW-1 Kundumal says that none of the neighbours had come there at that time whereas PW-2 Asbok Kumar says that 10-15 persons had assembled there. PW-1 Kundumal has stated that it was he who had asked the question and on his question, the deceased had replied, whereas PW-2 Ashok Kumar asserts that it was he, who had asked the question and than the deceased Bhagwan Das replied. The name of PW-7 Ishwar Das who is cousin of the deceased has not been mentioned cither in Ex. P. 1 or in Ex. D.1 or Ex. D. 2 or even in Ex. P.2. His statement (Ex. D.4) was recorded under section 161 Cr. P.C. after nine days on 17.5.1978. The other witness PW-8 Vanajmal is the father of the deceased and he has also asserted that it was he who had asked Bhagwan Das as to who had inflicted knife injury to him- He has also stated that none of the neighbours came there at that time. P.C. after nine days on 17.5.1978. The other witness PW-8 Vanajmal is the father of the deceased and he has also asserted that it was he who had asked Bhagwan Das as to who had inflicted knife injury to him- He has also stated that none of the neighbours came there at that time. Several contradictions and omissions from his earlier police statement (Ex. D.5) were also brought on record, Even he has admitted that Bhagwan Das did not tell as to which of the companions of Dharma had inflicted the knife blow. 16. Thus, we find that the story of dying declaration by Bhagwan Das is also very doubtful and no reliance can be placed on the evidence of these witnesses who have deposed about the dying declaration. There are several contradictions between the evidence of these eye witnesses. Presence of PW-7 Ishwar Das is otherwise also very doubtful. Moreover, it appears that the Parcha Bayan itself was not recorded at 1.40 AM on 9.6 1978 as has been mentioned in Ex. P. 1 It must have been prepared later on as it has come in prosecution evidence that as soon as Bhagwan Das was taken to the hospital, the Compounder Nihal Chand attended and informed the police on phone and entered in the Roznamcha (Ex P. 1) at 12.45 AM wherein name of any accused person is not there. It has only been stated that someone had inflicted the knife blow to him. Therefore, it is obvious that upto 12.45 AM. the names of any of the accused persons were not disclosed to Nihal Chand. Nihal Chand has appeared as a witness on behalf of defence as DW-6 and his evidence is corroborated by Roznamcha(Ex.D.l) In the Inquest Report (Ex.P.2t the time is given 6 AM and therein also, the statements of some of the witnesses had been recorded including that of Kundumal (PW-1) but none of them have disclosed the name of the accused persons at the time when the Panchnama was being prepared. In the beginning of Ex.P.2 i.e. Panchnama. the number of the FIR has not been noted in the first page, though it is written that the date and time of the report is 9.5.78 and 1.40 AM respectively. In the beginning of Ex.P.2 i.e. Panchnama. the number of the FIR has not been noted in the first page, though it is written that the date and time of the report is 9.5.78 and 1.40 AM respectively. It is significant that the number of the FIR has not been noted though at the later stage, the number of the FIR has also been noted in Ex. P. 2. Generally, FIR is reproduced in the Panchnama but in the present case, the FIR was or the Parcha Bayan has not been reproduced in Ex. P. 2. 17. Thus, from all this evidence, it is very doubtful whether Ex. P. 1 was recorded at 1.40 AM on 9.5.1978, as is mentioned therein. 18. Learned counsel for the appellant has placed reliance on Krishna Govind Patel v. State of Maharashtra, ( AIR 1963 SC 1413 ) and Bai Kuntha Nath Chaudhary v. State of Orissa, ( AIR 1973 SC 2337 ) and has submitted that since two other accused persons have been acquitted, aid of Section 34 IPC cannot be taken to convict appellant Dharma for offence under section 302/34 IPC. Moreover, Dharma bad a hockey stick in his hand. He never used the same for inflicting any blow to the deceased. Therefore, he could not have any intention to cause death or even bodily injury to the deceased. Moreover, it has come in evidence of PW 4 Prabhu Singh that he had not Seen the knife in the hand of any of the three companions of Dharma. The third companion who.has not been named, was not apprehended. 19. Thus, we are of the opinion that the prosecution has miserably failed to bring home the guilt to the accused persons and accused Dharma is also entitled to benefit of doubt as the two other accused persons Binno and Ballu were also given benefit of doubt by the trial court. 20. In the result, we accept D.B. Cr. Appeal No. 466/79 filed by Dharma Dharma is also acquitted of the offences levelled against him and he is also given benefit of doubt. 21. We dismiss D.B. Cr. Appeal No. 392/80 filed by the State. Accused Dharma is also on bail. Accused need not surrender. Their bail, bonds are hereby discharged.Accused Appeal allowed. *******