G.K. SHARMA, J.—This appeal has been preferred against the judgment dt 31-3-87 passed by the Addl. Sessions Judge Baran by which, the appellants were convicted and sentenced as under:— Janki Lal : Under Section 302 I.P.C. and all other under Sec. 302/149 IPC and sentenced to life imprisonment and a fine of Rs. 500/- and in default of payment of fine three months rigorous imprisonment. Heera Lal : Under Section 307 I.P.C. and all others under Sec. 307/149 IPC and sentenced to ten years rigorous imprisonment and a fine of Rs. 300/- and in default of payment of fine one month rigorous imprisonment. All the accused appellants u/s. 148 IPC sentenced to one year R. L All the sentences were ordered to run concurrently. 2. Banshi Lal (P.W 13) lodged a report on 22-10-85 at 4 p. m. at Police Station, Chhipa Barod alleging that in the day at 1 p. m. he and all the village people assembled at the Chabutra of Hanumanji for Pooja on the occasion of Vijay Dashmi. Previously some quarrel had taken place between him and Kishan Lal and his two sons and on account of that enmity Mathura Lal S/o Kishan Lal & Sri Lal S/o Manohar Lal started abusing them. He asked them not to abuse. Then Mathura Lal, Heera Lal, Srilal, Kishan Lal, Kanhaiya Lal, Ram Ratan, Banshi, Ram Singh and Ram Dayal uttered the words while, abusing that he should be finished today. Heera Lal inflicted ballam blow on his chest. Mathura Lal inflicted ballam blow on his buttock. Heera again inflicted another ballam blow on the left hand. Ram Singh & Ram Dayal inflicted lathi blows on his wrist. Kanhaiya Lal inflicted lathi blow on his fight hand. His son Murli came to rescue him but Sri Lal inflicted gandasi blow on his head, Heeralal inflicted ballam blow on the left side of the body and Ram Ratan inflicted gandasi blow on waist and right ribs. Thereafter, Sri Lal S/o Harlal Vaad also tried to rescue them but Banshi Lal and Sri Lal gave gandasi blows to him. On account of this beating ail the three fell down. Kedar S/o Prabhu Lal brought them to Chhipa Barod in a tractor. This incident was witnessed by Banshi S/o Onkar, Banshi s/o Laxman & Nathu s/o Deo Lal. On this report a case u/ss. On account of this beating ail the three fell down. Kedar S/o Prabhu Lal brought them to Chhipa Barod in a tractor. This incident was witnessed by Banshi S/o Onkar, Banshi s/o Laxman & Nathu s/o Deo Lal. On this report a case u/ss. 147, 148, 307, 323 and 149 IPC was registered. Murli later on died and the case was then converted into Section 302 IPC. 3. Dr. Laxman Singh (PW 6) examined the injuries of Sri Lal, Banshi Lal, Kedar, Kajod and Murli. Dr. Dev Dutt Sharma (PW 15) conducted the post mortem on the dead body of Murli on 23-10-85. The post mortem report is Ex. P. 37. According to this Dr. he died due to haemorrhage and shock as a result of injury to right lung. During investigation the Police arrested the accused persons and recovered blood-stained clothes and weapons. The recovered articles were sent to Forensic Science Laboratory for examination and its report is Ex. P. 63 and P. 64. After completing the usual investigation the Police submitted challan against 14 accused persons u/Ss. 302, 307, 147, 148 & 149 IPC. The trial Court framed charges against all the accused-persons u/Ss. 147, 148, 302, 302/ 149, 307 and 307/149 IPC. All the accused-persons have denied the charges and claimed trial. 4. The prosecution has examined 18 witnesses to establish its case. The version of accused is mere denial. No defence evidence has been laid by the accused persons. The trial Court found the appellant guilty of the charges, and sentenced them as mentioned above. 5. The learned counsel for the appellant argued that the learned trial Court has committed error in holding the accused appellants guilty. All the accused persons along with the villagers were present at the place due to festival of Dashera. This is an admitted position that the people had collected on account of the festival armed with weapons. So occurrence took place suddenly without premeditation and no case is made out u/s 148 IPC. There is no evidence to prove that the accused-persons had common object to commit murder of Murli. Banshi Lal who is injured and who has lodged the report has named only 9 persons in the F.l.R, and he did not mention the names Janki Lal, Dhanna Lal, Sheo Lal, Trilok Chand and Chanda @ Ram Chandra. There is no evidence to prove that the accused-persons had common object to commit murder of Murli. Banshi Lal who is injured and who has lodged the report has named only 9 persons in the F.l.R, and he did not mention the names Janki Lal, Dhanna Lal, Sheo Lal, Trilok Chand and Chanda @ Ram Chandra. It was also argued that the witnesses have changed their version intentionally and deliberately in the Court statement. The witnesses have also changed the sequence of beating. The witnesses have denied to have given certain portion of their statements in the Police. The oral evidence is not corroborated by medical evidence as far as Murli is concerned. The trial Court has committed error in believing the prosecution witnesses. It was further argued that the conviction has been passed on the dying declaration of Murli which is Ex. P. 8. The trial Court has placed much reliance on the dying declaration. The argument is that this dying declaration is not worth reliable and should not be believed. 6. The learned Public Prosecutor argued that the incident had taken place at 2 pm. on 22-10-85 and the report was lodged at 4 p.m. So, there was immediate report. It was argued that in F.l.R. only 9 accused persons have been named but this F.l.R. cannot be treated as conclusive and Banshi who was injured might have forgotten to name remaining 5 persons. Regarding dying declaration it was argued that this dying declaration was recorded by Dr. Laxman Singh (PW 6) in presence of Manna Lal (PW 5). Gulab Chand (PW 7), Banshi (PW 9) and Iqbal Ahmad PW 18). A.S.I. All these witnesses prove that Murli gave this dying declaration and the learned trial Court has not committed error in placing reliance of this dying declaration. Regarding contradictions in the statements of the prosecution witnesses it was argued that the contradic-tions are minor one and on such count their statements cannot be discarded. The accused persons formed an unlawful assembly and in furtherance of their common object they committed this offence. They were armed with deadly weapons hence, they were correctly found guilty. 7. We have considered the arguments at length and perused the statements of the prosecution witnesses minutely. Banshi Lal (PW 13) lodged the F.l.R. Ex. P. 17. In this F.l.R. he has mentioned the names of 9 accused, persons. They were armed with deadly weapons hence, they were correctly found guilty. 7. We have considered the arguments at length and perused the statements of the prosecution witnesses minutely. Banshi Lal (PW 13) lodged the F.l.R. Ex. P. 17. In this F.l.R. he has mentioned the names of 9 accused, persons. He did not mentioned the names of Janki Lal, Dhanna Lal, Sheo Lal, Trilok Chand and Chandu. These 5 accused persons were impleaded in the statements of the prosecution witnesses. Banshi Lal gave a detailed report at the police Station. In the report he has specifically mentioned about the individual act of the accused persons. Who inflicted injury to whom and with what type of weapon has been clearly mentioned in the report. It means that Banshi Lal was in full senses when this report was lodged. We see no reason that the person who gave such a detailed F.l.R in which he named 9 accused persons and also mentioned the individual act of these persons will fail to mention the names of other persons. It means that these 5 persons were added in the Police statements recorded u/s. 161 Cr.P.C. Even, no specific overt- act has been assigned to these 5 accused-persons, whose names were not mentioned in the FIR. This shows that they have been falsely implicated in this incident. Jankilal has been found guilty u/s. 302 IPC while others have been found guilty u/s. 302/149 IPC. Thus,, according to trial Court Janki Lal is the main accused who fatal blows to deceased Murli. We fail to understand that Banshi Lal would forget the name of Janki Lal who is main assailant. Jankilal is the person who inflicted fatal injuries to Murli which resulted in his death but he will not be named while the F.l.R. was lodged. This clearly shows that Janki Lal has been impleaded later on and a case has been concocted against him. Similarly the remaining 4 persons whose names have not been mentioned in the F.I R. have been falsely implicated by the witnesses in their statements u/s. 161 Cr.P.C. 8. The dying-declaration Ex. P. 8 is an important document, on which much stress has been laid by the learned counsel. We have perused the dying declaration Ex. P. 8. This dying declaration was recorded by Dr. Laxman Singh PW 6. The doctor has proved this document. The dying-declaration Ex. P. 8 is an important document, on which much stress has been laid by the learned counsel. We have perused the dying declaration Ex. P. 8. This dying declaration was recorded by Dr. Laxman Singh PW 6. The doctor has proved this document. In this statement Murli has stated that he was inflicted injuries by ballam by Heera, Shri Lal, Ratan and Jankilal. It means that these 4 persons inflicted ballam injuries to Murli. So there are four injuries on the body of Murli by ballam. But when we see the medical report Ex. P. 4, we find that there are only two incised wounds and one lacerated wound. So this statement is not corroborated by the injury report Ex. P. 4. This shows that the statement of Murli is not correct because the names of Heera, Shri Lal and Ratan had been mentioned in F.I.R. but he name of Janki Lal was not mentioned in the F.I.R. Mentioning the name of Janki Lal in this dying declaration Ex. P. 8 also indicates that he has been falsely implicated in this case. Janki Lal who inflicted ballam blow according to Murli Banshilal must have noticed Janki Lals presence. Why his name was not mentioned? This indicates that Janki Lal has been falsely impli-cated in this case and has been found wrongly guilty u/s 302 IPC simplicitor, We fail to understand how Janki Lal was found guilty by the learned trial Judge. 9. In the dying declaration the names of the persons who were present when it was recorded, have been mentioned. Banshi S/o Onkar (PW 9) was present when the dying-declaration Ex P 8 was written, but this witness Banshi has not stated in his statement that in his presence Murli gave the dying declaration Ex. P 8. This statement was recorded in the hospital. Other persons were also injured and their injuries were medically examined in the hospital but none of these injured has stated that dying declaration of Murli was recorded by Dr. Laxman Singh. When they were present in the hospital this dying declaration must have been recorded in their presence Dr. Laxman Singh has stated that he recorded this dying declaration at the request of Iqbal Ahmad, ASI. Laxman Singh. When they were present in the hospital this dying declaration must have been recorded in their presence Dr. Laxman Singh has stated that he recorded this dying declaration at the request of Iqbal Ahmad, ASI. Murli was in a fit condition to give his statement and when his statement was recorded Sarpanch Manna Lal, Banshi S/o Onkar, Gulab Chand S/o Harlal and Iqbal Ahmad were present. The time has been mentioned in this dying declaration Ex. P 8 and according to this statement it was recorded at 7.30 p.m on 22-10-85 Banshi Lal PW 13 in his statement has stated that they came in the tractor to Chhipa Barod Police Station and lodged the report and then they went to hospital. Murlis injuries were also examined along with his own injuries. At that time the condition of Murli was very serious and at the end of the day they took Murli in the car to Kota. It means that before setting the day Murli was taken to Kota hospital. The statement was recorded at 7.30 pm. In the month of October the sun sets nearly about 6 pm. Murli was taken in the car to Kota. He could not be present in the hospital at 7.30 pm. when the statement was recorded by the doctor. Banshi Lal PW 13 has not stated that the dying declaration of Murli was recorded by the doctor. Banshi Lal was the informant and he accom-panied Murli to Police Station as well as hospital. If the dying declaration Ex. P 8 was recorded in the hospital at 7.30 pm., then Banshi Lal PW 13 should have been present there. Another person Manna Lal PW 5 was present when Ex. P 8 was recorded. He has stated that as the condition of Murli was serious he was taken to Kola. He also accompanied him to Kota and after reaching Kota after 3-4 hours Murli died. He has not stated in his statement-in-chief that dying declaration was recorded in his presence. In the cross-examination this question was asked and he has stated that the doctor recorded the statement of Murli. This witness has signed at portions C to D of Ex.P.8 but his signatures were not proved by him when he was in the witness-box. All these discussions indicate that the dying-declaration Ex. P. 8 is a false document. In the cross-examination this question was asked and he has stated that the doctor recorded the statement of Murli. This witness has signed at portions C to D of Ex.P.8 but his signatures were not proved by him when he was in the witness-box. All these discussions indicate that the dying-declaration Ex. P. 8 is a false document. It was not recorded as stated by Dr. Laxman Singh PW 6 or as stated by the prosecution witnesses: The learned trial Court has not understood properly this dying declaration and it failed to arrive at the correct conclusion about the genuineness of this document. We are of this opinion that Murli was not in a position to give any dying declaration and this dying declaration could not be recorded by the doctor at 7.30 pm. because Murli had already left that place prior to sun set. So this dying declara-tion Ex. P 8 is a conected document and the learned trial Court has committed error in placing reliance on this document and convicting the accused persons on this basis. 10. On minute scrutiny of the statements of the prosecution witnesses given in the Court and the statements recorded u/s. 161 Cr. P.C, we find that there are number of material contradictions in them. If we read the statements of the witnesses recorded u/s. 161 Cr.P.C. we find that none of the witnesses has stated that Murli was beaten, but in the Court statement they have stated like this. Banshi Lal PW 1 stated that Murli was inflicted barchhi blow. His police statement was recorded on 25-10-85 but in this statement it is not stated that barchhi blow was given to Murli. Shri Lal PW 3 has stated that barchhi blow was inflicted by Janki Lal but in the Police statement Ex. D. 2, he has not stated as such. He being relative to Banshi has given a false statement and tried to support the prosecution story. Kedar PW 4 stated that Janki gave gandasi blow on the chest of Murli. This is difference in the statements of other witnesses who have stated about barchhi blow, while this witness says about gandasi blow. Even, in the Police statement Ex. D. 3 he has not stated as such. Banshi Lal PW 9 also stated that Janki inflicted barchhi blow to Murli but in the Police state-ment Ex. This is difference in the statements of other witnesses who have stated about barchhi blow, while this witness says about gandasi blow. Even, in the Police statement Ex. D. 3 he has not stated as such. Banshi Lal PW 9 also stated that Janki inflicted barchhi blow to Murli but in the Police state-ment Ex. D. 5 he has not stated so. Banshi Lal PW 13 who is the informant of F.I.R. Ex. P. 17 has stated that Janki Lal inflicted barchhi blow but has denied to have given the portions A to B in Ex. D. 6. He has stated that in the report Ex. P. 17 he had named 14 persons. This is a false statement. If he had mentioned the names of 14 persons the S.H.O. would have written those names. Why he will not write the names of 5 accused persons. Then in the report Ex.P. 17 about the portion marked as E to F this witness has stated that this portion is incorrect. In portion C to D of Ex. P. 17 he has stated that his son Murli came to rescue him and then he was also beaten. Thereafter Sri Lal came to rescue him and he was also beaten. So the sequence was that first of all Banshi Lal was beaten and then Murli was beaten and thereafter Srilal was inflicted injuries. Banshi Lal has denied to have given this statement in the report Ex. P. 17. How to believe such person. Similarly, Kajod P. W. 16 has stated that Janki Lal inflicted ballam blow to Murli, but in the Police statement Ex. D. 7 he has not stated as such. So what we feel is that all these witnesses who were examined by the Police u/s. 161 Cr.P.C. have not stated a single word about Janki Lal. They have not stated that any ballam blow was inflicted to Murli. So they have developed that statements in order to implicate the accused persons by giving false, state-ments in the Court. 11. This is also an important aspect that the sequence of beating as shown in the FIR Ex. P. 17 has also been totally changed by the witnesses in their Court statements. In the FIR Ex. P. 17 the case was that the accused persons started beating Banshi Lal with lathies and ballam. 11. This is also an important aspect that the sequence of beating as shown in the FIR Ex. P. 17 has also been totally changed by the witnesses in their Court statements. In the FIR Ex. P. 17 the case was that the accused persons started beating Banshi Lal with lathies and ballam. Nine persons inflicted blows by lathis and ballam to Banshi Lal and thereafter his son Murli intervened and tried to rescue him and at that time Murli was also given gandasi blow by Sri Lal. In the FIR Sri Lal gave gandasi blow but the witnesses have stated in their statements that barchhi was used. Gandasi and barchhi are two different weapons. So the sequence of beating has been changed by the witnesses. This shows that the witnesses are unreliable one. Why this sequence was changed is clear from this fact that the prosecution wanted to implicate Janki Lal. According to prosecution witnesses Jankilal inflicted barchhi blow to Murli and Murli was beaten first of all. To prove the case u/s. 302 that Janki Lal had intention to commit murder of Murli the witnesses have changed the sequence and stated that first of all Murli was beaten by Janki Lal Otherwise, if the FIR version is taken as correct then Banshi Lak was beaten first and Murli intervened in the beating and then he was inflicted injuries. The case of the prosecution is that accused persons had common object of murdering Murli and with that objects they formed as unlawful assembly and in furtherance of that common object Janki Lal inflicted ballam injury to Murli. But this is falsified by this fact that first of all Banshi Lal was beaten. So, if accused had any common object, it was beating to Banshilal. It can be assumed that the accused persons had common intention to commit, murder of Banshilal but it cannot be said that the accused persons had common object of killing. Murli was not in the picture when the occurrence took place. Murli arrived at the spot when Banshilal was beaten by accused persons. Murli intervened to rescue his father and in that process he was also inflicted some injuries. So it is incorrect to say that the accused persons had any common object and that common object was to commit murder of Murli. Murli arrived at the spot when Banshilal was beaten by accused persons. Murli intervened to rescue his father and in that process he was also inflicted some injuries. So it is incorrect to say that the accused persons had any common object and that common object was to commit murder of Murli. This is the reason that in order to prove their common object because Murli had died subsequently and prosecution in order to get conviction of the accused persons changed the story and the witnesses stated that the common object of the accused persons was to commit murder of Murli. Had it been in the evidence that Murli intervened in the quarrel and during that intervention he was inflicted barchhi blow, then a case u/s. 302 IPC would not have been established. The accused persons had no intention or common object before starting the beating to commit murder of Murli. Therefore, the learned trial Court has also committed error in coming to the conclusion that the. accused persons had formed an unlawful assembly and their com-mon object was to commit murder of Murli. So no case is made out of unlawful assembly. Actually the villagers including the accused persons had assembled at the Chabutra of Hanumanji on account of Dashera festival. At that moment some dispute took place between both the parties on account of pre-vious enmity and in that dispute, on a sudden fight this incident had taken place. The accused persons had no pre-plan and no premeditation for inflicting any blow to Banshi Lal and Murli or other injured persons. They collected at the spot in a usual manner to perform the Pooja on account of Dashera festival. So in absence of any preplan it cannot be inferred that the accused persons had any common object and in furtherance of that common object, they formed an unlawful assembly. But the prosecution tried to prove this fact by creating false evidence by asking the prosecution witnesses to change the sequence of beating and also changing the statements in the Court from the statements given in the Police u/s 161 Cr.P C. This aspect has not been considered by the learned trial Court. He has failed to appreciate the case in a right perspective manner. He has wrongly assessed the statements of the prosecution witnesses. He has failed to appreciate the case in a right perspective manner. He has wrongly assessed the statements of the prosecution witnesses. Even in the prosecution witnesses we find that there is no specific part played by Kanh-aiya Lal accused. Then no specific part has been assigned by the witnesses to Kishan Lal, Mathura Lal, Dhanna Lal, Banshi Lal S/o Champa Lal, Ram Singh, Sheo Lal, Ram Dayal, Trilok Chand and Chandu, @ Ram Chandra. To oblige the prosecution and the complainant party these witnesses stated against some accused persons. This shows that the witnesses are liar. The witnesses are unreliable and unbelievable and it would be very unsafe to punish a person in such a heinous offence on the testimony of such a liar and false witnesses. The story has been completely changed by the witnesses." 12. In view of our above discussion we are of this opinion that the learned trial court has totality failed to appreciate the evidence and has not correctly assessed the testimony of the prosecution witnesses. He did not even understand properly the circumstances by which the sequence of the beating was changed and why the names of some of the accused persons specially Janki Lal, has been changed in the F.I R. We are unable to maintain the conviction of the appellants as held by the trial Court. 13. As a result the appeal is accepted. The judgment and conviction of the trial Court are set aside. The accused appellants are not found guilty of the offences as held by the learned Addl. Sessions Judge, Baran in the judgment dr. 31-3-87. All the appellants are therefore, acquitted from all the offences. The appellants Janki Lal, Ram Ratan, Heera Lal and Sri Lal are in jail. They be released forthwith, if not required in any other case. The other appellants Kanhaiya Lal, Kishan Lal, Mathura Lal, Dhanna Lal, Banshi Lal, Ram Singh, Sheo Lal, Ram Dayal and Chandu @ Ram Chandra, Trilok Chandra; are on bail. Their bail bonds are cancelled and they need not surrender.