JUDGMENT K. C. Bhargava, J. 1. This appeal is directed against the judgment and order dated 12-2-1977 delivered by the Ilnd Additional Sessions Judge, Kheri, in Sessions Trial No. A-410 of 1976. Learned Ilnd Additional Sessions Judge has convicted Amarjeet Singh alias Ambar Singh, Mahendra Singh and Manjeet Singh under section 302 IPC and sentenced each of them to under go rigorous imprisonment, for life. He further convicted these persons under section 302/34 IPC and sentenced each of them to undergo rigorous imprisonment for life. He also convicted Jogendra Singh under section 302/34 IPC and sentenced him to undergo rigorous imprisonment for life. He also convicted Amarjeet Singh, Mahendra Singh and Manjeet Singh accused persons under section 307 Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for seven years. He also convicted Amarjeet Singh alias Ambar Singh, Mahendra Singh, Manjeet Singh and Jogendar Singh under section 307 IPC read with section 34 IPC and sentenced each of them to undergo rigorous imprisonment for seven years. All these sentences were directed to run concurrently. 2. The facts of the prosecution case are as under : - Balbir Singh lodged an FIR Ext Ka 1 on 22-8-1973 at 7 13 P.M. giving out that the incident took place on the same day at 4.00 P.M. It will be convenient to mention the topography of the area. Towards the Nali on the western side is the field of Mahendra Singh having sugarcane crop. Towards east of Nali is another field of Mahendra Singh having sugarcane at that time. Towards south of this field of Mahendra Singh was the field of Karnail Singh. Towards west of Nali and towards south of the field of Mahendra Singh was the Parti field of Dhara Singh. Towards the west of the Parti field of Karnail Singh there is another Parti field of Karnail Singh. Towards the west of this field of Karnail Singh was another field of Karnail Singh having maize crop in it. Towards the north of Parti field of Karnail Singh and towards the west of the field of Mahendra Singh having been sugarcane crop, was the field of Mahendra Singh having paddy at that time. Towards the west of this field of Mahendra Singh was his Parti field and thereafter towards the west of it was another field of Mahendra Singh having maize crop in that year. Towards the west of this field of Mahendra Singh was his Parti field and thereafter towards the west of it was another field of Mahendra Singh having maize crop in that year. Towards the west of that field was another field of Mahendra Singh having maize crop at that time Towards the north of this field of Mahendra Singh was the field of Sheesha Singh. and towards the west of this field of Sheesha Singh was another field of Sheesha Singh having maize crop. On the date of the incident at about 4.00 P.M. Mukhtar Singh maternal brother of the complainant Balbir Singh was grazing his catties near the maize and Chari field of Balbir Singh. Adjacent to this was the field of Mahendra Singh son of Dewa Singh. The catties of Mukhtar Singh came on the Mend of the field of Mahendra Singh. On this Mahendra Singh assaulted Mukhtar Singh by means of slaps and drove his catties into the field of Sheesha Singh, maternal uncle of the complainant. In this field of Sheesha Singh, maize crop was standing. Mukhtar Singh, thereupon raised an alarm on hearing of which his maternal uncle Preetam Singh armed with Kanta came there and drove the catties of his field and thereafter Preetam Singh asked Mahendra Singh as to why he assaulted Mukhtar Singh and why his catties were driven into his fields. On this, abuses were hurled from both the sides. In the meantime, Amar Singh son of Mahendra Singh armed with gun, Manjeet Singh armed with a Sooja, Jogendra Singh, relation of Mahendra Singh, armed with Kripan and Mahendra Singh armed with a Ballam came on the spot. These persons started assaulting the complaint's maternal uncle Preetam Singh. On hearing the noise of the complainant's maternal uncle Sheesha Singh armed with Lathi, Gyan Singh servant of Preetam Singh armed with licensed gun of Preetam Singh, complainant, complainant's father Kartar Singh, Mukhtar Singh son of Gyan Singh, Baldeo Singh son of Nishan Singh also came there running. They saw Preetam Singh being assaulted. Thereupon Ambar Singh fired shot towards Preetam Singh. Preetam Singh fell down on the spot and died. Mahendra Singh and others as so assaulted Sheesha Singh and Gyan Singh. Complainant's father went to save but Mahendra Singh and others also assaulted them. They saw Preetam Singh being assaulted. Thereupon Ambar Singh fired shot towards Preetam Singh. Preetam Singh fell down on the spot and died. Mahendra Singh and others as so assaulted Sheesha Singh and Gyan Singh. Complainant's father went to save but Mahendra Singh and others also assaulted them. During this assault gun of Gyan Singh fell from his hand which was picked up by Mahendra Singh. These persons raised alarm on which Mahendra Singh took away the gun and other accused persons with their arms ran towards the Forest. Sheesha Singh, Gyan Singh and father of the complainant Kartar Singh received a number of injuries. The dead body of Preetam Singh was kept by them at the residence and thereafter the complainant with three other injured persons went to the Police Station on bullock cart. 3. On the basis of Ext Ka 1, chick report was prepared at 7.15 P. M. After usual investigation the police submitted charge-sheet against four accused persons namely Mahendra Singh, Amarjeet Singh alias Ambar Singh, Manjeet Singh and Jogendra Singh. Shisha Singh, Gyan Singh and Kartar Singh were medically examined by the Doctor. There-after Shisha Singh died and his post mortem examination was held. Similarly the post mortem examination of Pritam Singh was also conducted. It is not necessary to detail out the injuries received by the injured persons and the deceased persons. If and when occasion arises injuries will be considered in detail, in the later part of the judgment. 4. Mahendra Singh one of the accused lodged an FIR, Ext Ka 31, on 22-8-1977 at 6 30 P.M. stating that the incident took place at 400 P.M. These accused persons admitted the place and time of the occurrence. They have given a different version of this incident. MAHENDRA Singh, accused, in his FIR, Ext Ka 31, admitted the presence of Mukhtar Singh son of Pritam Singh, Pritam Singh, Shisha Singh, Gyan Singh and Kartar Singh. No mention is to be found in that report about Balbir Singh and Mukhtar son of Gyan Chand. On their side the presence of all the accused persons mentioned in Ext Ka 1 has been admitted by MAHENDRA Singh in his FIR Ext Ka 31. There is one dying declaration of Shisha Singh, Ext Ka 13, which was recorded by the Tahsildar Magistrate 11 Class. The prosecution examined witnesses in support of its case. 5. On their side the presence of all the accused persons mentioned in Ext Ka 1 has been admitted by MAHENDRA Singh in his FIR Ext Ka 31. There is one dying declaration of Shisha Singh, Ext Ka 13, which was recorded by the Tahsildar Magistrate 11 Class. The prosecution examined witnesses in support of its case. 5. After considering the entire evidence on record the learned Ilnd Additional Sessions Judge, Kheri, convicted and sentenced the accused persons as above. 6. Aggrieved from the above conviction and sentence the appellants have preferred this appeal. Both the learned counsel for the appellants and the State have been heard. 7. Learned counsel for the appellants has argued that in the present case according to the evidence led by the prosecution it is apparent that the FIR, Ext ka 1, lodged by Balbir Singh PW 4 is ante-timed, and no reliance can be placed on this report. A perusal of the record will go to show that Ext ka 1 is the FIR which was written at the dictation of Balbir Singh PW 4. According to the learned counsel the name of Jogendar is written in the FIR but according to the statement of Balbir Singh PW 4, who lodged this report, he did not get the name of Jogendar written in the FIR. Balbir Singh PW 4 has stated in examination-in-chief that Jogendar Singh was also present on the spot. In para 28, during cross-examination, he has stated that he got the names of all the persons written in the FIR and when he reached the Police Station, he did not remember the name of one accused. Thereupon the Investigating Officer asked Mahendra Singh accused the name of that person and as such his name came to be recorded in the FIR. In Para 51 this witness has stated that it is wrong to say that Jogendar Singh was not present at the spot. In para 52 he has mentioned that the name of the fourth accused which was not got written by him was Jogendar Singh. It may be mentioned here that Jogendar Singh is also a resident of the same village. Therefore, it is not possible to believe that the name of Jogendar Singh would not have been known to the complainant at the time of lodging of report. It may be mentioned here that Jogendar Singh is also a resident of the same village. Therefore, it is not possible to believe that the name of Jogendar Singh would not have been known to the complainant at the time of lodging of report. He no-where states that he did not know Jogendar Singh from before hence his name was not dictated by him at the time of writing the report. Sheo Murti Singh PW 5 who is S I. and investigated the case has stated that the report of this incident was written in his presence. He has stated in the examination-in-chief that he did not know Jogendar Singh from before and his name was incorporated in the FIR at the instance of the complainant. In the cross-examination by another accused towards the end, this witness has stated that it is wrong to say that he got the name of Jogendar Singh written in the FIR. Indarpal Singh PW 6 who was also S. I. and who wrote Ext. ka 1 on the dictation of Balbir Singh PW 4 has stated in examination-in-chief that he wrote in the FIR whatever was dictated to him by the complainant. This was read over to him and then he put his thumb impression. He further states in para 2, that on the same day Mahendar Singh accused also got a report lodged at 6.30 P.M. which is Ext ka 16. After lodging of this report Mahendar Singh was sent immediately for medical examination with Constable Tara Nath. In para 6, in cross-examination, he has stated that the Constable who was sent from the Police Station to arrest Mahendar Singh and an entry to this effect is mentioned in the G. D. the same Constable brought him after arrest at the Police Station This statement of his clearly goes to show that when the report Ext ka 1 was lodged by Balbir Singh PW 4 Mahendar Singh accused was not present at the Police Station because his report was lodged at 6.30 P.M. while the report Ext ka 1 lodged by the complainant Balbir Singh was written at 7.15 P.M. By that time Mahendar Singh accused had already left the Police Station for medical examination. When Mahendar Singh was not present at that place, how he could have told the name of Jogendar Singh accused to the Investigating Officer. When Mahendar Singh was not present at that place, how he could have told the name of Jogendar Singh accused to the Investigating Officer. Moreover the statement of Indrapal Singh PW 6 clearly goes to show that when Mahendar Singh came back after medical examination, Balbir Singh PW 4 was not present at the Police Station. Therefore, the statement of Balbir Singh PW 4 that the name of Jogendar Singh accused was written in the FIR at the instance of Mahendar Singh accused is proved to be false. This fact is also supported by the documentary evidence on record. Mahendar Singh was medically examined at 7-20 P.M. While report Ext ka 1 was lodged at 7-15 P.M. Therefore, this fact also goes to prove that Mahendar Singh was not present at the Police Station when the FIR. Ext ka 1, was lodged. All these facts which have come in the evidence of the prosecution clearly go to establish that when the report, Ext ka 1, is alleged to have been lodged by Balbir Singh PW 4, the name of Jogendar Singh was not got written by him. The name of Jogendar Singh is a subsequent insertion at the instance of some other person The only conclusion which can be drawn from this evidence is that the FIR, Ext ka 1, was not lodged at 7.15 P.M. as is stated by Balbir Singh PW 4 and other witnesses of the prosecution This FIR must have been lodged by some later time than stated by the prosecution. 8. This fact is also proved from other evidence which is also on record. The contents of the FIR Ext. Ka 1, lodged by Balbir Singh PW 4 also go to show that be did not get some details of the incident written in the FIR on his own but they were told to him by some other persons. A perusal of the FIR Ext. ka-1 would go to show that Balbir Singh PW 4 was present on the spot from the very beginning of the incident. In this FIR, it is no-where mentioned by Balbir Singh PW 4 came to the spot later on and some of the facts which have been mentioned by him in this FIR were narrated by some other persons and these facts were incorporated in the FIR at the instance of those persons. In this FIR, it is no-where mentioned by Balbir Singh PW 4 came to the spot later on and some of the facts which have been mentioned by him in this FIR were narrated by some other persons and these facts were incorporated in the FIR at the instance of those persons. Balbir Singh PW 4 has stated in examination-in-chief in answer to question no. 3 that he was cutting his crop at about 4-00 P.M. 40 ; steps towards the north of the Jhala of Sheesha Singh. His father Kartar Singh was also present there. He heard the noise of children. He and his father, Kartar Singh, reached about 100 paces towards the north-east of the field of Dhara Singh. He saw Jogendar Singh armed with sword, Amarjeet Singh armed with gun, Manjeet Singh armed with Sooja and Mahendar Singh armed with Bhala assaulted Preetam Singh after encircling him. THIS statement of his clearly goes to show that this witness reached the place of occurrence after the -Marpit had started and Preetam Singh, deceased, was being assaulted. In answer to question no. 20, he has stated that he was standing about 10 to >5 paces away from Gyan Singh and saw the incident from that place. He stated that he had told the Investigating Officer that he was 40 paces away from the Jhala of Sheesha Singh but if he had not written the same then he cannot tell any reason for it. Similarly also he got this fact written in the FIR but if it has not been written in the report then he cannot tell as to why it has not been written. This statement of his clearly goes to show that this witness was not present at the sport when the Marpit started. In answer to question no. 25 he has started that he got written in the report that Mukhtar Singh was grazing his catties and then Mahendra Singh came. He has stated that he got written these facts in the FIR on the basis of enquiry made from Mukhtar Singh PW 2. He also told this fact to the Investigating Officer on the basis of knowledge acquired from Mukhtar Singh PW 2. In answer to question no. 27 he has stated that he did not see accused persons at the place of occurrence. He also told this fact to the Investigating Officer on the basis of knowledge acquired from Mukhtar Singh PW 2. In answer to question no. 27 he has stated that he did not see accused persons at the place of occurrence. He was asked question no 29 that he reached the place of occurrence when Preetam Singh was being assaulted by the accused persons then how he got the incident before that written in the FIR. He replied that lie cannot say. Thereafter he stated that Mukhtar Singh had given him information about this incident. He has also stated that Mukhtar Singh told him that he was grazing catties in the field of Karnail Singh. He could not state any reason as to why this fact was not written in the FIR Ext. Ka 1, and in the statement recorded under Section 161 CrPC by the Investigating Officer. On further cross- examination he has stated that Mukhtar Singh PW 2 had told about this incident immediately before he went to lodge the report. When they were picking the dead body Mukhtar Singh told this fact which had happened before he came to the spot. Baldeo Singh PW 1 was also present at that time and he had a talk with him. He stated that Baldeo Singh PW 1 was also grazing his catties in the field of Mukhtar Singh and he did not get this fact written in the FIR because he did not remember it. He told this fact to the Investigating Officer and if has not written the same he cannot tell any reason He has also stated that when he reached the place of occurrence in the field of Dhara Singh, Mukhtar Singh and Baldeo Singh were present from before. In the FIR he got it written that Baldeo Singh also came there when Preetam Singh was being assaulted. He was asked as to whether Baldeo Singh came alongwith this witness to which he replied 'no,' as Baldeo Singh was present from before. He says that in confusion he might have got this fact written in the report. As a matter of fact Baldeo Singh was present from before. He also stated that he also got written in the report Ext. Ka 1 that Mukhtar Singh PW 2 was also present when Marpit took place- If it was not written then he cannot give any reason. As a matter of fact Baldeo Singh was present from before. He also stated that he also got written in the report Ext. Ka 1 that Mukhtar Singh PW 2 was also present when Marpit took place- If it was not written then he cannot give any reason. He also stated that he did not get this fact written in the FIR that Mahendar Singh ran with gun in the Forest. If this fact is written in the FIR then he cannot say as to bow it came in it. He further stated that he stated before the Investigating Officer that Manjeet Singh assaulted Sheesha Singh and Gyan Singh by means of Suja and if this fact has not been written in his statement then he cannot give any reason. Thus, the statement of this witness clearly goes to show that this witness was not present on the spot from the very beginning but he came there after the Marpit had started. Therefore, the facts narrated by him in the FIR before his coming to the place of occurrence are all hearsay and he did not witness the incident. He has also stated that he has mentioned certain facts for being written in the FIR but they have not been correctly written in the FIR. All these facts go to show that this witness was not present on the spot from the very beginning and the facts got written by him in the report were not witnessed by him on the spot but they were told to him by other witnesses. On account of this fact also the FIR loses its credibility and it appears that this FIR was written at a later time than mentioned in this report. Thus, the contention of the appellants' counsel that this FIR was not written at the time it is purported to have been written is borne out from the facts on record and it can safely be said that the FIR Ext. Ka-1 is ante timed. When the FIR was not written at the time stated in it, it loses its importance and the case of the prosecution falls to the ground only on this count. 9. There are other discrepancies also in the case of the prosecution which have been pointed out by the learned counsel for the appellants. In the FIR Ext. When the FIR was not written at the time stated in it, it loses its importance and the case of the prosecution falls to the ground only on this count. 9. There are other discrepancies also in the case of the prosecution which have been pointed out by the learned counsel for the appellants. In the FIR Ext. ka-1 it has been stated that Amarjeet Singh fired only one shot towards Preetam Singh deceased. There is no mention in the FIR about another shot being fired by Amarjeet Singh. Baldeo Singh PW 1 in answer to question no. 2 has now improved upon the prosecution story by stating that Amarjeet Singh fired shot towards Preetam Singh which hit him. Thereafter another shot was also fired towards Preetam Singh by him. This improvement has been done by the prosecution keeping in view the fact that in the postmortem examination report of Preetam Singh two gun shot injuries were found by the Doctor. Ext. ka-18 is the postmortem examination report of Preetam Singh. Injuries no. 7 and 8 are the fire arm injuries. In order to explain the second fire arm injury, the prosecution has improved its case and led evidence that Amarjeet Singh fired two shots towards Preetam Singh which hit him. Therefore, this is an after thought and no reliance can be placed on the case of the prosecution. The prosecution has failed to explain the existence of second gun shot injury on the dead body of Preetam Singh. 10. Similarly in the FIR Ex. Ka 1 use of Sooja by Manjeet Singh has not been alleged. It is mentioned that Manjeet Singh was having a Sooja while in the oral evidence the use of Sooja by Manjeet Singh has been stated by Baldeo Singh PW 1. In answer to question no. 2, he has stated that Manjeet Singh struck a blow to Sheesha Singh by means of Sooja and thereafter Manjeet Singh also struck a blow to Gyan Singh by means of Sooja. These statements of this witness are false. In the FIK. Ext. Ka-1 Mahendra Singh is alleged to have been armed with Ballam. No Sooja has been mentioned with Mahendra Singh. Post mortem examination report of Sheesha Singh is Ext. Ka-20. A perusal of it goes to show that he Sheesha Singh received two injuries. These statements of this witness are false. In the FIK. Ext. Ka-1 Mahendra Singh is alleged to have been armed with Ballam. No Sooja has been mentioned with Mahendra Singh. Post mortem examination report of Sheesha Singh is Ext. Ka-20. A perusal of it goes to show that he Sheesha Singh received two injuries. The first injury is a lacerated wound 1/2" x 1/10" while injury no. 2 is an incised stab wound (oblique) 1 1/4" x 2/5" x chest cavity deep. Injuries caused by Sooja will be circular in nature because Sooja is a round shaped weapon If an injury is caused by a Sooja then the wound would be circular in nature. As these wounds are not circular in nature they could not have been caused by Sooja. Similarly Ext. Ka-22 is the injury report of Kartar Singh. A perusal of the same will go to show that he had one penetrating wound 5 cm. x 1.2 cm. x 9 cm. The dimension of this injury goes to show that it could not have been caused by Sooja because it is not a circular one. Thus, the use of Sooja has been introduced in the prosecution case during the course of the evidence for the reasons best known to it. This also falsified the case of the prosecution. 11. Similarly Baldeo Singh PW 1 has stated in answer to question no. 1 that Preetam Singh was beaten by four accused persons by means of hands. Thereafter in answer to question no. 2 he has stated that two shots were fired at Preetam Singh which hit him and he died. Gun of Preetam Singh alongwith 'Jhola' were taken away by the accused persons. This statement goes to show that Preetam Singh was assaulted by the accused persons by means of hands and thereafter two shots were fired by him. A perusal of the postmortem examination report Ext. Ka 18 of Preetam Singh will go to show that injury no. 1 is an abraded contusion and the rest 2 to 6 injuries are abrasions. If Preetam Singh was assaulted by means of hands and two shots were fired then how injuries nos. 1 to 6 have been received by him has not been explained by the prosecution. Ka 18 of Preetam Singh will go to show that injury no. 1 is an abraded contusion and the rest 2 to 6 injuries are abrasions. If Preetam Singh was assaulted by means of hands and two shots were fired then how injuries nos. 1 to 6 have been received by him has not been explained by the prosecution. It goes to show that the incident did not happen in the way alleged by the prosecution and there is conflict between the medical evidence and the oral evidence. The case of the prosecution also suffers from this infirmity as well. 12. The evidence of the prosecution goes to show that Preetam Singh was beaten by all the accused persons. Naturally he would have been encircled at that time. It is not possible to believe that Amarjeet Singh would have fired shots towards Preetam Singh specially when the other accused persons were also by the side of Preetam Singh and there was also risk of shot fired by Amarjeet Singh to have hit any other person. Therefore the way in which firing of the shot by Amarjeet Singh is alleged by the prosecution cannot also be believed. According to the statement of Balbir Singh PW 4 in answer to question no. 14 Gyan Singh had a gun in his hand with his folded hands he was asking the accused persons not to assault him. When Preetam Singh fell down be also remained standing. He states that he did not get an opportunity to fire shot. This statement that he could not get an opportunity to fire is falsified by his statement given by him in answer to question no. 15. He has stated that when Preetam Singh was being attacked, Gyan Singh was not encircled and he was about 4 to 5 steps away. This shows that Gyan Singh was about 8 to 10 feet away from the place where Preetam Singh was being attacked. Gyan Singh who was holding a gun could have easily fired a shot towards the accused persons to save Preetam Singh when he had been fired upon by Amarjeet Singh. This act of Gyan Singh also does not appeal to reason and is against the human conduct. He would have certainly tried to fire shot towards the accused persons specially when Preetam Singh had been fired upon and he had fallen down. This act of Gyan Singh also does not appeal to reason and is against the human conduct. He would have certainly tried to fire shot towards the accused persons specially when Preetam Singh had been fired upon and he had fallen down. There was also risk that after Preetam Singh the shqts might have been fired towards the persons on the prosecution side and, thus, the action of Gyan Singh in not using his gun also discredit the evidence led by the prosecution. 13. The prosecution has also relied upon the dying declaration of Sheesha Singh. This dying declaration is Ext. Ka 30. This dying declaration was recorded by Tilak Raj Sabbarwal Tahsildar who has now retired. He is PW 10. According to him he recorded the dying declaration on 22-8-1973 at 9 20 P.M. He took Doctor's certificate about the mental condition of the deceased. Doctors certificate on this dying declaration is Ext. Ka 29. He recorded the statement of Sheesha Singh. Whatever he has written was dictated by Sheesha Singh. Thereafter it was read over to Sheesha Singh and after he had accepted the same he put his thumb impressions. According to the learned counsel for the appellants this dying declaration was not recorded at the instance of Sheesha Singh. According to the learned counsel Sheesha Singh came on the spot, according to the FIR when alarm was raised and at the time when Preetam Singh was being attacked, Before that Sheesha Singh was not present on the spot and he had not witnessed any occurrence before that. A perusal of the FIR will go to show that the Marpit had started much earlier and the accused persons had come on the spot and they started assaulting Preetaai Singh. On hearing noise, Sheesha Singh armed with Lathis and other persons came on the spot. A perusal of the dying declaration will go to show that in this statement every details of the incident which occurred before the arrival of Sheesha Singh have also been mentioned. How this part came to be recorded in his statement (dying declaration) has not been made clear. This part of the incident did not happen in the presence of sheesha Singh and it is merely a hearsay. How this part came to be recorded in his statement (dying declaration) has not been made clear. This part of the incident did not happen in the presence of sheesha Singh and it is merely a hearsay. It appears that somebody had told about these facts to Sheesha Singh and it supports the contention of the learned counsel for the appellants that this part was tutored to Sheesha Singh. In this during declaration it has been mentioned that Mahendra Singh was having a gun and a spear. But later on he stated that Mahendra Singh had a spear and Ambar Singh had a gun. According to the case of the prosecution Mahendra Singh had a Ballam. He did not possess any gun. Therefore, this part of the statement of Sheesha Singh becomes false. Thereafter it is mentioned in this dying declaration that Manjeet Singh used Sooja but as found in the earlier part of the judgment there is no Sooja injury on the person of Sheesha Singh. Therefore, this part of the dying declaration is also not correct. He has further mentioned in this dying declaration that Mahendra Singh and his sons attacked with Barchhas. There is no Barchha injury on the side of the prosecution. Moreover, two sons of Mahendra Singh have been mentioned in the FIR. It has been mentioned in the FIR that Ambar Singh and Manjeet Singh sons of Mahendra Singh came on the spot; Ambar Singh was armed with a gun and Manjeet Singh was armed with Sooja but in the dying declaration both of them have been stated to have used Sooja. There is no mention in this dying declaration that any other son of Mahendra Singh was armed with Barchha. Therefore, this part of the statement of Sheesha Singh in the form of dying declaration is also not supported by the evidence on record. 14. Learned Government Advocate has argued that in the dying delcaration Sheesha Singh had mentioned that the sons of Mahendra Singh came and started assaulting by means of Barchhas. According to the learned counsel this means that sons of Mahendra Singh, other than mentioned in the FlK, came on the spot armed with Barchhas, hence there is no discrepancy in the dying declaration and the allegations of the FIR. This argument of the learned Government Advocate cannot be acted upon. According to the learned counsel this means that sons of Mahendra Singh, other than mentioned in the FlK, came on the spot armed with Barchhas, hence there is no discrepancy in the dying declaration and the allegations of the FIR. This argument of the learned Government Advocate cannot be acted upon. If other sons of Mahendra Singh besides Ambar Singh and Manjeet Singh had come on the spot armed with Barchhas then their names would have been disclosed by Sheesha Singh in his dying declaration. There is no evidence on record, as has been seen in the earlier part of the judgment, that there are other sons of Mahendra Singh besides the two sons mentioned in the FIR. Unless it is proved by the prosecution on record that other sons of Mahendra Singh had come armed with Barchhas, no reliance can be placed on the statement of Sheesha Singh as contained in his dying declaration Ext. Ka 30. Learned counsel for the appellants has argued that the dying declaration does not appear to be a voluntary act of Sheesha Singh but it has come into existence at the instance of some other person. In support of this contention he Has placed reliance on the case of Sukhdev v. State of U. P., 1990 (27) ACC 415, in which a Bench of this Court held the voluntariness of the dying declaration is the only basis on which it can be relied upon against the accused in such serious cases as the instant one. II least embellishment is possible, the dying declaration cannot and should not be relied upon. Thus, we find that in the present dying declaration there are embellishments and material contradictions in facts which have been narrated in the FIR. Therefore, no reliance can be place on this dying declaration and the appellants cannot be convicted on the basis of this dying declaration. 15. In view of what has been said above, it is clear that the prosecution has failed to prove its case against the appellants that they caused the death of Preetam Singh and Sheesha Singh and are guilty for the offences punishable under Sections 302, 302/34, 307, 307/34 IPC. The findings of the learned II Additional Sessions Judge, sKheri, to the contrary cannot be accepted and are set aside. The appellants are, therefore, entitled to be acquitted. 16. The findings of the learned II Additional Sessions Judge, sKheri, to the contrary cannot be accepted and are set aside. The appellants are, therefore, entitled to be acquitted. 16. The appeal is allowed and the conviction and sentence of the appellants under Sections 302, 302/34, 307 and 307/34 IPC are set aside and they are acquitted of the same. The appellants are on bail. They need not surrender. Their bail-bonds are cancelled and sureties are discharged. Appeal allowed.