J. N. HORE, J. ( 1 ) ABU Samad, Jillar Rahaman, Mamtaz Sk. , Tamiruddin Sk. Rabid, Sk. Nasir alias Nasiruddin Sk.- the six appellants before us-were arraigned before the learned Sessions Judge, Murshidahad to answer the following charges; That you on or about the 16th day of July, 1983 at Kalidaspur, P 5. Hariharpara, District Murshidahad, were a memher of an unlawful assembly and did, in prosecution of the common object of such assembly, viz, in causing the death of Aftan Ali Mondal, commit the offence of rioting and at that time you were armed with a deadly weapon, such as, lathi, iron rod, bricks, etc. and thereby committed an offence punishable under section 148 of the I. P. C. and with in the cognizance of the Court of Sessions. Secondly: That you on or about the same date, time and place, were a member of an unlawful assembly in prosecution of the common object of which, viz, in causing death of Aftan Ali Mondal, some of the members of your assembly caused death of Aftan Ali Mondal and you arc thereby, under section 149 of the I. P. C. , guilty of causing the said death, an offence punishable under section 149/302, I. P. C. and within the cognizance of the Court of Sessions. ( 2 ) ON conclusion of the trial, the learned Sessions Judge convicted all the six appellants under both the charges. For their conviction under section 302/149, Indian Penal Code the appellants were sentenced each to imprisonment for life. No separate sentence was however passed for their conviction under section 148, Indian Penal Code. The appellants Beela to assail the. aid order of conviction and sentence in this appeal. ( 3 ) BRIEFLY stated, the prosecution case was as under; on 16-7-83 at or about 7. 00 p. m. Aftan Ali (the deceased) was returning home in village Tehatta. P. S. Hariharpara, District Murshidahad on a bi-cycle from his father-in-laws house at Mamudpur. Near Bhawanipur that he met his co-villagers Insan Sk. (P. W. 2) and Sk. ( 3 ) BRIEFLY stated, the prosecution case was as under; on 16-7-83 at or about 7. 00 p. m. Aftan Ali (the deceased) was returning home in village Tehatta. P. S. Hariharpara, District Murshidahad on a bi-cycle from his father-in-laws house at Mamudpur. Near Bhawanipur that he met his co-villagers Insan Sk. (P. W. 2) and Sk. Jahiruddin who were returning home on bi-cycles when they reached near the house of Mantu Hiswas at Katidaspur village the six appellants and one Latib Hiswas, since deceased, encircled Aftan, forcibly dragged him down from the bi-cycle, took him near the jack, fruit tree of Abdul Wahed and mercilessly assaulted him with lathi, iron rod, fists and, blows causing serious injuries. Insan and Jahuuddin who accompanied Aftan tried to intercept but they were also assaulted by the appellants with lathi, fists and blows and out of fear they fled away and informed Ummat Ali Mondal (P. W. 1), elder brother of Aftan of the occurrence. On receipt of the information, Ummat AU along with his two brothers Ajit Mondal (P. W. 5) and Naimuddin Mondal rushed to the place of occurrence and seeing them the appellants fled away. The three brothers then carried Aftan home. Aftan then made a dying declaration in presence of many villagers mentioning the names of the appellants as the assailants. Aftan was removed to Amtala Primary Health Centre where he was given first aid. As his condition was serious, he was transfered to Herhampore General Hospital where he succumbed to his injuries on the same night. ( 4 ) UMMAT Ali lodged the First Information Report on 17-7-83 at 11. 15 a. m. at Hariharpara P. S. on the basis of which Police registered a case against the appellants and took up investigation. After completion of Investigation, police submitted charge-sheet which in the usual course ended in committal of the case to the Court of Sessions. ( 5 ) IN defence, the appellants pleaded innocence alleging that they had been falsely implicated. ( 6 ) IN order to bring home the charges to the accused, the prosecution examined 9 witnesses while the defence examined none. ( 7 ) THAT Aftan died of injuries sustained at the hands of assailants is not disputed before us has been proved by overwhelming evidence. P. Ws. ( 6 ) IN order to bring home the charges to the accused, the prosecution examined 9 witnesses while the defence examined none. ( 7 ) THAT Aftan died of injuries sustained at the hands of assailants is not disputed before us has been proved by overwhelming evidence. P. Ws. 1 and 5 who rushed to the place of occurrence on receipt of information, saw Aftan lying on the ground with multiple injuries on the left leg. Aftan was removed to Amtala Primary Health Centre when P. W. 9 Dr. A. K. Banerjee. M. O. , Amtala Primary Health Centre, gave him first aid. As his condition was serious, he was transferred to Berhampur General Hospital where he died on that very night. P. W. 8 S. I. , A. Chakraborty held inquest on the dead body of Aftan. P. W. 9 found the following injuries on the person of Aftan: (1) Gross deformity of left knee joint and 8 punctured wounds adjoining the site of deformity about 1/2 X 1/2 (2) Two lacerated injuries on the upper third of right shin each about x 1/2 x 1/2. (3) Two punctured wounds Oil the lateral aspect of the lower third, lower end of the left thigh. (4) Two lacerated injuries on the lower third of right shin x 1/2 x 1/2. Dr. S. K. Halder who held the post-mortem examination on the body of the deceilsed is dead and the post-mortem report has been A marked Ext. 2 being proved by Dr. A. K. Maita (P. W. 4 ). Ext. 2 also corroborates the testimony of P. W. 9. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of the above injuries which were ante-mortem homicidal in nature. There is, therefore, no doubt that this is a case of homicide. ( 8 ) THE next question - and the most crucial one-for our consideration is whether the appellants or any of them were responsible for the death of the deceased. ( 9 ) THE prosecution case rests on the ocular evidence of the alleged eye-witness P. W. 1. Ummat Ali Mondal and the dying declaration of the deceased. Let us first advert to the testimony of the alleged eye-witness P. W. 1 Ummat Ali Mondal. He is the elder brother of the deceased. ( 9 ) THE prosecution case rests on the ocular evidence of the alleged eye-witness P. W. 1. Ummat Ali Mondal and the dying declaration of the deceased. Let us first advert to the testimony of the alleged eye-witness P. W. 1 Ummat Ali Mondal. He is the elder brother of the deceased. His evidence is that on receipt of information from Insan (P. W. 2, and Jahiruddin, he along with his brothers Ajit Mondal (P. W. 5) and Najimuddin rushed to the place of occurrence and he saw the appellants assulting Aftan. Seeing them the appellants fled away. The evidence of P. W. 1 that he actually saw the appellants assaulting the deceased does not stand a moments scrutiny. P. W. 1 is the author of the written complaint (Ext. 1/1) which has been treated as the First Information Report in this clue. There is no whisper within the four corners of the written complaint that he saw the appellants assaulting the deceased. This is an embellishment deliberately made by P. W. 1 during trial. Moreover, P. W. 5 Ajit Mondal who accompanied him to the place of occurrence does not at all support P. W. 1. He does not sped of the presence of the appellants at all. His evidence is that on receipt of information from Insan and Jahur be along with others went near the house of Mantu Biswas and brought injured Aftan to their house, obviously, none else was present there. We have, therefore, no hesitation in discarding the evidence of P. W. 1 referred to above as entirely false. ( 10 ) ACCORDING to the prosecution Insan Sk. and Sk. Jahiruddin were eye-witnesses to the occurrence. Sk. Jahiruddin has not been examined and no explanation for his non-examination has been offered by the prosecution. Insan Sk. (P. W. 2) does not support the prosecution case. According to him, he was returning home on a bi-cycle when he met Aftan and Jahiruddin at there and they started gossiping Thereafter he returned home and subsequently came to know that Aftan had been murdered. He was declared hostile and sought to be contradicted by his statement recorded under section 161, Cr. According to him, he was returning home on a bi-cycle when he met Aftan and Jahiruddin at there and they started gossiping Thereafter he returned home and subsequently came to know that Aftan had been murdered. He was declared hostile and sought to be contradicted by his statement recorded under section 161, Cr. P. C. But the statements with reference to which his testimony in court was sought to be contradicted by the prosecution were not put to the Investigating Officer (P. W. 7) who recorded the statement of P. W. 2 under section 161, Cr. P. C. and proved by him. The evidence of P. W. 2 therefore, remains uncontradicted. ( 11 ) LET us next consider the alleged oral dying declaration of the deceased P. W. 1 Ummat Ali, P. W. 3 Saleman Hiswas and P. W. 5 Ajit Mondal are the witnesses to the alleged dying declaration. Their evidence goes to show that the deceased made only one dying declaration after he was brought home. The evidence of P. W. 1 is that on his query, Aftan stated that Latib, Abu Samad, Jillar, Mantaj, Tasiruddin, Rabid, Nasir had assaulted him. P. W. 3 has deposed that being asked by his brothers Aftan stated that while he was returning from his father-in laws house, on the way Latib, Abu. Mantaj, Rahid, Jillar Rahaman in front of the house of Mantu Hiswas dragged him from his bicycle and took him near the jack-fruit tree and assaulted him by iron rod, lathi and dealt fists and blows. According to P. W. 5, the dying declaration of the deceased is to the effect that Latib, Abu Samad, Mantaj, Tamir, Rahid, Nasir assaulted him and had broken his left leg. In the First Information Report lodged by P. W. 1 the alleged the dying declaration is to this effect. The above- mentioned accused persons (appellants and Latib) have assaulted him causing bleeding injuries with lathi, iron rod, fists, blows and brieck. He further said, I am unable to breathe. My left leg has changed. I shall not live any longer. I have met this fate because I spoke against Latib dacoit. ( 12 ) IT is clear that there is considerable discrepancy in the testimony of these three witnesses with regard to the alleged dying declaration. He further said, I am unable to breathe. My left leg has changed. I shall not live any longer. I have met this fate because I spoke against Latib dacoit. ( 12 ) IT is clear that there is considerable discrepancy in the testimony of these three witnesses with regard to the alleged dying declaration. The evidence of P. W. 1 also varies considerably from what has been stated by him in the First Information Report with regard to the alleged dying declaration. It is indeed impossible to ascertain the exact statement made by the deceased if any. It is difficult to place any reliance upon the alleged dying declaration. As held by the Supreme Court in Ramnath Madhoprasad and others v. State of Madhya Pradesh, unless one is certain about the exact words uttered by the deceased, no reliance should be placed on verbal statements of witnesses and the oral declaration made by the deceased. ( 13 ) THE alleged dying declaration is not wholly consistent with the medical evidence. According to the dying declaration the deceased was assaulted with lathi, iron rod, fists and blows. The evidence of P. W. 9 shows that the deceased sustained as many as five punctured wounds and according to P. W. 9, these wounds could be caused by a sharp pointed weapon like a spear. The alleged dying declaration, if any, is not, therefore, wholly reliable and a material portion of the deceaseds version of the assault is untrue. It has been held by be Supreme Court in Thurukanni Pompiah and another v. State of Mysore, that if the court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. ( 14 ) P. W. 1 has stated in the cross-examination that he mentioned the names of the assailants as witnessed by him and as disclosed by Aftan to the doctors both at Amtala Primary Health Centre and Berbampore Hospital. This statement of P. W. 1 is falsified by the testimony of P. W. 9. P. W. 9 has deposed that there is no record that the names of the assailants were disclosed. This statement of P. W. 1 is falsified by the testimony of P. W. 9. P. W. 9 has deposed that there is no record that the names of the assailants were disclosed. P. W. 8 held inquest on the body of the deceased in connection with Berhampore U. D. Case 235/83 dated 17. 7. 83 presumably before starting of the present case. The evidence of P. W. 3 shows that both P Ws. 1 and 3 were present at the time of inquest. But they did not disclose to P. W 8 as to how Aftan had sustained injuries. They did not disclose the names of the assailants or the alleged dying declaration of the deceased. This fact also raises doubt as to whether the deceased made a declaration implicating the appellants. ( 15 ) FOR the aforesaid reasons, we are unable to place any reliance on the alleged dying declaration. In the absence of any other evidence, we are of the opinion that the prosecution has failed to prove the charges under section 148 and under section 302/149, Indian Penal Code beyond reasonable doubt. ( 16 ) IN the result, we allow the appeal and set aside the order of conviction and sentence against all the appellants. The appellants who are in jail be forthwith set at liberty, if not wanted in connection with any other case.