B. C. VERMA, J. ( 1 ) IN all seven persons were prosecuted for causing murder of one Gulab Singh. Out of these five persons have been convicted under Section 302 read with Section 34 of the Indian Penal Code. They are the appellants in Criminal Appeal No. 76/83 and Cr. Appeal No. 128 of 1983. Remaining two namely, Nandi alias Nand Kishore and Bholanath were acquitted. The State has filed appeal against their acquittal and that appeal is Criminal Appeal No. 491/83. This judgment shall govern the disposal of all those three appeals. ( 2 ) ACCORDING to the prosecution, on 11/10/1980 at Nayagaon near a trisection of road known as Atrar the appellants beat Gulab Singh. Acquitted accused Nandi alias Nand Kishore had a double barrel gun while another acquitted accused Bholanath was standing there. They were telling others to kill Gulab Singh. Gulab Singh lay injured on the spot. The incident was seen by Deen, (P. W. 12) and Harbal Singh (P. W. 13 ). Gulab Singh was kept in a Bus and after his relatives were informed, he was taken to Palera Hospital, all injured. On Gulab Singh narrating the incident in the hospital, Roop Singh lodged a report (Ex. P-20 ). In the hospital Gulab Singhs dying declaration was recorded by Dr. S. K. Pathak (P. W. 15 ). It is Ex. P-21. Gulab Singh died in the hospital at night the same day. Post mortem examination of his body was performed by Dr. S. K. Pathak (P. W. 15 ). It is (Ex. P-28 ). According to Dr. S. K. Pathak, A. S. (P. W. 15), Gulab Singh died as a result of injuries sustained by him and his death was homicidal. ( 3 ) DURING investigation after the arrest of the accused, certain articles were recovered and seized at the instance of different accused. Blood stained earth was seized from the spot. Some of the articles seized were found stained with human blood. At the trial Gorelal (P. W. 11), Deen (P. W. 12) and Harbal Singh (P. W. 13) were examined as eye-witnesses. The dying declaration (Ex. P-21) recorded by Dr. Pathak was also relied upon. All this evidence has been accepted by the learned Additional Sessions Judge who tried the accused. At the trial Gorelal (P. W. 11), Deen (P. W. 12) and Harbal Singh (P. W. 13) were examined as eye-witnesses. The dying declaration (Ex. P-21) recorded by Dr. Pathak was also relied upon. All this evidence has been accepted by the learned Additional Sessions Judge who tried the accused. The learned Judge found that accused Nandi Nand Kishore and Bholanath did not share any intention with the others to cause death of Gulab Singh nor did they participate in the incident at all. He, however, accepted the evidence regarding the other five accused and convicted and sentenced them as aforesaid. ( 4 ) LEARNED counsel for the appellants, mainly submitted that a thorough scrutiny of the testimony of eye-witnesses would show that they are not reliable and that the dying declaration (Ex. P-22) is not acceptable because it is alleged to have been made by the deceased when he was practically unconscious. Learned counsel, however, did not dispute nor could he dispute in the face of evidence on record that Gulab Singh died. as a homicidal death as a consequence of the injuries sustained by him at the alleged time and date and that the injuries so sustained were sufficient in the ordinary course of nature to cause death. Dr. Pathak (P. W. 15) who performed the postmortem examination vide Ex. P-28 has found such injuries on the person of deceased Gulab, Singh. He has opined that the injuries were all ante-mortem and were sufficient to cause death in the ordinary course of nature. This question, therefore, need not detain us any further. Learned counsel for the defence, however, expressed that even if accepted the evidence on record can at best create some doubt as to the appellants being the culprits but that is not the same thing as proving guilt beyond doubt. We are unable to agree with the learnedcounsel. Gorelal (P. W. 11) at by the relevant time claims to be accompanied with the deceased who was going towards village Nayagaon. He deposed that when they reached the Atrar. crossing all the accused suddenly appeared on the scene and started beating Gulab Singh. He, however, deposed that Nandi and Bhola were just watching the incident but did not participate although they were encouraging the appellants to beat. Nandi had a double barrel gun. He deposed that when they reached the Atrar. crossing all the accused suddenly appeared on the scene and started beating Gulab Singh. He, however, deposed that Nandi and Bhola were just watching the incident but did not participate although they were encouraging the appellants to beat. Nandi had a double barrel gun. He also deposed that he saw Deen (P. W. 12) and Harbal Singh Thakur (P. W. 13) there. According to him, when he started on his bicycle to leave the spot one Dashrath wielded lathi which fell on his bicycle. The only thing worth mentioning in the cross-examination of this witness is that till before his examination he did not narrate the incident to anyone. The witness has explained that it was out of fear that he remained quiet since an attempt was also made to beat him. He made the statement only when was asked by the police. Deen (P. W 12) tried his bit to help the defence but also deposed that he saw the beating to Gulab Singh but named only a few of the assailants. He also deposed that Nandi had a flee and Bhola Yadav was there. He deposed that six persons were beating and two i. e. Nandi alias Nand Kishore and Bhola did not participate in the beating. True it is that questions were permitted to be put to this witness in the nature of cross-examination as he right from the beginning appeared to be inclined towards the accused. At the same time he deposed that he asked appellants to refrain from beating. In the First Information Report his name appears as an eye-witness. Again his cross-examination is more or less on the same line as that of Gorelal (P. W. 1) and he has also been criticised of not making the disclosure earlier than his statement was recorded by the police. Harbal Singhs (P. W. 13) examination and cross-examination are also similar to that of Gorelal (P. W. 11) and Deen (P. W. 12) we do see that all these three witnesses narrated the incident for the first time only to the police although did meet people including inmates of the house of the deceased. Harbal Singhs (P. W. 13) examination and cross-examination are also similar to that of Gorelal (P. W. 11) and Deen (P. W. 12) we do see that all these three witnesses narrated the incident for the first time only to the police although did meet people including inmates of the house of the deceased. Their explanation, however, is that they were all very much frightened and that the people at the house of the deceased was so confused and disturbed at the death that they, hardly had any time or occasion to narrate the incident to them. We, however, find that in the First Information Report names of Deen Dayal and Harbal Singh appeared as eyewitnesses. This first information report was lodged without any delay and no doubt of any kind was expressed as to the contents of the First Information Report made soon after the incident. There was hardly any time then to consult these two persons and falsely insert their names as eye-witnesses. This fact of mentioning their names in the first information report strengthens the truthfulness of their version in Court. About Gorelal (P. W. 11) it was also submitted that there is some contradiction in the dying-declaration (Ex P-27 ). In the dying-declaration the deceased has stated that the assailants captured Gorelal (P. W. 11) and removed him while Gorelal has stated that he went away on his bicycle. In our opinion, not much can be made of this contradiction. This is so because we find in the evidence of Gorelal (P. W. 11) that after beating Gulab Singh and felling him down on the ground, the assailants turned to Gorelal (P. W. 11) who was trying to escape and then wielded lathis on him also. Severely injured Gulab Singh was seeing this and this seems to have given him an impression that assailants caught hold of Gorelal and then removed him. Under these circumstances, the alleged contradiction really is quite insignificant. In fact, there does not seem to be such inconsistency as may tend to render Gorelals testimony unreliable. In our opinion, the aforesaid three witnesses seem to have given a true account of what they saw. The medical evidence also corroborates their version. In our companion, the learned Additional Sessions Judge committed no error in accepting their testimony. ( 5 ) THE prosecution has relied upon yet another strong circumstance. It is the dying. In our opinion, the aforesaid three witnesses seem to have given a true account of what they saw. The medical evidence also corroborates their version. In our companion, the learned Additional Sessions Judge committed no error in accepting their testimony. ( 5 ) THE prosecution has relied upon yet another strong circumstance. It is the dying. declaration made by the deceased in the hospital. This was recorded by Dr. S. K. Pathak, A. S. (P. W. 15 ). This dying-declaration is so recorded at 8. 45 P. M. In that the deceased has implicated all the appellants. The deceased had also said therein that Gorelal (P. W. 11) was then with him. The deceased also stated that he was making statement in complete sense. Since his hands were injured he could not sign. The Doctor put his note at the end of the statement that he was in a position to make that statement. Dr. Pathak (P. W. 15) has signed that statement as also attested the thumb impression of deceased Gulab Singh. The statement was attested by witnesses as well. On this question of recording dying-declaration he has been cross-examined in detail. Dr. Pathak (P. W. 15) deposed that some variation in the handwriting in the note appended to it is because of writing by a different pen and after the statement was over. He denied the suggestion that the deceased was in a delirious state when his statement was recorded. It was submitted by the learned defence counsel that the deceased was not in a position to make any such statement as he remained unconscious. He also submitted that the dying-declaration is a suspicious document because that fact of recorded dying declaration is not found in the Bed Head Ticket (Ex. P-29 ). Few minor infirmities were also pointed out. We are, however, not impressed with this criticism. We do not see any reason why the Doctor at that stage can be said to be interested in the prosecution. According to Dr. Pathak, when the patient was just brought and was lying on the table before other formalities were done, he found that the patient (Gulab Singh) was serious and therefore in his wisdom he thought fit to record his statement and send information to the police. Since only hospital employees were present there, he obtained only their signatures as attesting witnesses. Pathak, when the patient was just brought and was lying on the table before other formalities were done, he found that the patient (Gulab Singh) was serious and therefore in his wisdom he thought fit to record his statement and send information to the police. Since only hospital employees were present there, he obtained only their signatures as attesting witnesses. This accounts for non-attestation by any person other than those employed in the hospital. He clearly deposed that deceased Gulab Singh could make the statement and that he even put it to Gulab Singh if he could make such statement. The answer by Gulab Singh was in the affirmative. We are of opinion that dying-declaration is a genuine document. This Dying declaration, thus, lends all credence to the testimony of the three eye-witnesses mentioned above. ( 6 ) IN our opinion, the aforesaid acceptable evidence proves it beyond doubt that the appellants suddenly appeared and attacked on Gulab Singh duly armed with deadly weapons and intentionally caused such beating to him as resulted in his death. They active thus, been rightly found guilty of sharing common intention to cause Gulab Singh's death and that they carried that intention into action when Gulab Singh was assaulted to death. All of them have been rightly held guilty of the offence punishable under section 302 of the Indian Penal Code read with section 34 of the I. P. C. with this finding, both the appeals, Criminal Appeal No. 76 of 1983 and Cr. Appeal No. 128 of 1983 must fail. ( 7 ) THIS brings us to the appeal by the State Government against Nandi alias Nand Kishore and Bholanath. It has to be examined whether the assessment of the evidence by the lower Court is probable and on this basis the trial Court could reach a conclusion as to the innocence of the respondents in that appeal. This being an appeal against the judgment of acquittal even if the, assessment of evidence for the first time by us could prompt us to reach a different conclusion, we would not be entitled to interfere with such conclusion reached by the lower Court as if it is also a permissible conclusion. ( 8 ) WE have found from the testimony of Roop Singh (P. W. 10) that Nandi alias Nand Kishore is the leader of the opposite party. ( 8 ) WE have found from the testimony of Roop Singh (P. W. 10) that Nandi alias Nand Kishore is the leader of the opposite party. Deendayals (P. W. 12) statement was recorded by the Magistrate under section 164 of the Cr. P. C. He was confronted with the statement Ex. D-2 and asked why the names of these two respondents-Nandi and Bhola do not find place therein. He had no explanation to offer but only said that he did tell those names also but the Magistrate might not have recorded. Even otherwise all that we find is that the witnesses have only spoken that these two respondents were also on the spot and the act attributed is that they were asking the other assailants to beat. Nandi is also said to be possessed of a double barrel gun but he did not use it. We have the evidence of Hukum Singh (P. W. 2) then posted as Circle Inspector there. He investigated into a complaint made by respondent Nandi alias Nand Kishore that he was falsely implicated in the case. This witness made enquiry and found that this Nandi was traveling in the same Bus in which the injured Gulab Singh was taken to the hospital. Laxmi Prasad Richharipa (P. W. 7), conductor in that Bus also deposed that Nandi was sitting in that Bus. This evidence is sufficient to create a grave doubt if this respondent Nandi also was among the group of those assailants who emerged on the scene from a nearby spot. The learned lower Court has discussed this aspect of the matter in paras 22 to 26 of the impugned judgment. As regards the respondent Bholanath Deel (P. W. 12) did not implicate him in his statement under section 164 of the Cr. P. C. This Bhola was empty handed and the only evidence against him is that he was asking the appellants to beat. There is evidence that there was enmity between the parties and therefore the possibility of Bholas being implicated as Nandi alias Nandkishore also cannot be ruled out. If Bhola has also been there to attack Gulab Singh, one would normally find some weapon in his hand also as others are said to be possessed of. There is evidence that there was enmity between the parties and therefore the possibility of Bholas being implicated as Nandi alias Nandkishore also cannot be ruled out. If Bhola has also been there to attack Gulab Singh, one would normally find some weapon in his hand also as others are said to be possessed of. In our option the conclusion reached by the trial Court on this state of evidence is a permissible conclusion not liable to be interferred with in an appeal against the judgment of acquittal. We, therefore, find ourselves unable to interfere in this appeal (Cr. Appeal No. 491 of 1983) as well. ( 9 ) CONSEQUENTLY all these three appeals fail and are dismissed. Appeals dismissed. .