JUDGMENT Bhawani Singh, J.—These two appeals (Criminal Appeal No 344 of 1988, Hem Raj and three others v. State of Himachal Pradesh and Criminal Appeal No. 106 of 1989, State of Himachal Pradesh v. Hem Raj and five others, are being decided by a common judgment since they arise out of the same judgment. 2. The prosecution case, in brief, is that in village Navahi, there was a fair on June 15, 1987. People from surrounding villages had come to attend it. Deceased, Partap Singh, was also there in the fair and at about 5 p. m he met Shri Naresh Kumar (PW 1) and they remained together till 11.30 p.m. and were enjoying 151m that was being shown in the open ground to the public by the Public Relations Department. 3. Accused Yashwant alias Yashpal came there with co-accused and knocked the deceased. Sensing some kind of quarrel, Naresh Kumar (PW 1) and the deceased ran away from the place and went towards the Talab. The accused followed them and pelted stones from behind. While fleeing, Naresh Kumar (PW 1) was ahead of the deceased. This incident was seen by others who were sitting there with the deceased and Hukam Chand was one of them. However, they continued enjoying the film. 4. The further case of the prosecution is that the deceased was first assaulted by accused Yashwant Singh with an iron rod (Ex. P 6) as a result of which he fell on the spot. Other accused, namely, Hen Raj and Om Parkash, also gave him beatings with Phattis (Ex. P-7 and Ex. P-8) and Khunta (Ex. P-9). Accused, other than these, also came there and they also gave beatings to the deceased, who had profused bleeding as result of these injuries The deceased, according to the prosecution, was seen by Kirlu (PW 2) and Smt Bohri (PW 3) in a seriously injured condition a few paces behind the Bowli on the following morning at about 6 a m. Shrimati Bohri (PW 3) informed the mother of the deceased Smt. Roshni Devi (PW 4) about the condition of her son. Villagers and the family members of the deceased came there and the deceased was shifted to the hospital at Sarkaghat by a truck where he was admitted at 7.45 a m. Dr. Villagers and the family members of the deceased came there and the deceased was shifted to the hospital at Sarkaghat by a truck where he was admitted at 7.45 a m. Dr. R S. Jamwal (PW 8) informed the police tele-phonically and A S. I. Sarwan Singh (PW 19) came to the hospital and submitted application (Ex PG) to the doctor for his opinion whether the injured was in a position to make a statement. The doctor declared the deceased unfit to make a statement (Ex PG/l). Similar request was made thrice but the condition of the deceased remained uncharged (Ex. PG/2 to Ex PG/4) At a later stage, the doctor found the deceased in a fit condition and permitted A. S. I. Sarwan Singh (PW 19) to record the statement of the injured (Ex. PG/15). In this way, statement (Ex PH) was recorded at 6.10 p. m. by A. S. I. Sarwan Singh (PW 19) in the presence of Dr R. S. Jamwal (PW 8) Signatures of the injured were also taken but when it was found that he was not in a position to append his signatures properly, his thumb impression was also obtained on the said statement. 5. At the first instance, a case was registered under section 307 of the Indian Penal Code against Yashwant Singh, Hem Raj and one of their relations stated by the injured in his statement (Ex. PH)and was converted to section 302 read with section 34 of the Indian Penal Code when Partap Singh died in P. G. I., Chandigarh on 21-6-1987 where he was shifted from the Referral Hospital, Sarkaghat, on 16-6-1987. 6. While investigating the case, A.S.I. Sarwan Singh (PW 19) gathered blood stained clothes of the deceased, i. e., pent (Ex. P. 1;, shirt (Ex. P. 2), and buniyan (Ex. P-3) vide recovery memo. (Ex. PA) in the hospital where they were produced by Udey Bhanu (PW 11). Inquest report (Ex. PC) was prepared by Mahabir Parshad (PW 9) and postmortem examination, report of which is Ex. PF was conducted by Dr. R. M. Singh (PW 7) of General Hospital, Sector 16-Chandigarh, on 22-6-1987 at the request of the police. A. S. 1. Sarwan Singh (PW 19) also visited the spot and prepared site plan (Ex. PW I9/A. He took into possession blood-stained pearth (Ex. P. 5) in a small tin besides blod stained piece of Phatti (Ex. R. M. Singh (PW 7) of General Hospital, Sector 16-Chandigarh, on 22-6-1987 at the request of the police. A. S. 1. Sarwan Singh (PW 19) also visited the spot and prepared site plan (Ex. PW I9/A. He took into possession blood-stained pearth (Ex. P. 5) in a small tin besides blod stained piece of Phatti (Ex. P-4) from the spot vide seizure memo. (Ex. PB). 7. Accused Yashwant alias Yashpal and Hem Raj were arrested on 17-6-1987 while their brother Om Parkash was arrested on 23-6-1987 from their house in village Tatahar During interrogation, they gave disclosure statements (Ex. PP, PQ and PR) on June 25, 1987 in the presence of Udey Bhanu (PW 11) and Brij Lal (PW 12) as a consequence of which iron rod (Ex. P-6), two broken pieces of Phattis (Ex. P-7 and Ex. P-8) and Khunta (Ex. P-9) were recovered in the presence of the aforesaid witnesses and they were taken into possession vide separate recovery memos Ex. P6, PT and PU). Other accused, namely, Sher Singh and Megh Singh, were arrested on 22-0-1987 and Partap Singh was arrested on 6-9-1987 from hit Unit. In pursuance of the disclosure statements by the former two accused (Ex. PV and Ex PW) recorded on 28-6-1987 in the presence of Kuldip Singh (PW 13) and Puran Chand, stick (Ex. P-10) and Khunta (Ex. P-11) were recovered and were taken into possession vide recovery memos. (Ex. PX and Ex. PY). After collecting the necessary evidence in this case, the accused were prosecuted for commission of offence under section 302 read with section 34 of the Indian Penal Code. They have denied the prosecution case and have alleged false implication. 8. The prosecution has examined as many as 21 witnesses to substantiate the charge. On the other hand, accused have produced two witnesses in defence. The trial ended in the conviction of the accused, who are appellants in Criminal Appeal No. 544 of 1988 since accused Yashwant Singh has been convicted under section 304-11, I P. C. while Hem Raj, Partap Singh and Om Parkash have been convicted under section 304-11 read with section 34 of the Indian Penal Code. The former accused has been sentenced to rigorous imprisonment for five years and a fine of Rs. 5,000 while the latter have been sentenced to rigorous imprisonment for four years and a fine of Rs. 3,000. The former accused has been sentenced to rigorous imprisonment for five years and a fine of Rs. 5,000 while the latter have been sentenced to rigorous imprisonment for four years and a fine of Rs. 3,000. All other accused have been acquitted. 9. The accused convicted by the trial Court have challenged their conviction while the State has challenged not only the acquittals of the accused but also the conviction of other accused under section 304-II of the Indian Penal Code since it claims that not only the acquittals are wrong but also that the convictions should have been recorded under section 02 read with section 34 of the Indian Penal Code and punished accordingly. On the other hand, the accused claim that they are innocent and the prosecution case against them is thoroughly false and concocted and has also remained unsubstantiated. 10. In view of the cross-appeals by the parties, it is desirable, therefore, to examine the matter exhaustively to know whether the impugned judgment is legally sustainable or deserves to be set-aside. 11. We have examined the matter quite carefully with reference to the legal evidence available on the file of this case. In our considered opinion, the prosecution has miserably failed to substantiate the allegations against the accused and the trial Judge has committed grave error in coming to the conclusion adverse to the accused. We proceed to give our reasons in support of our view. 12. The most important witnesses of the prosecution, on which great reliance was placed, are Naresh Kumar (PW i), Hukam Chand (PW 10), Udey Bhanu (PW 11), Dr. R. S. Jamwal (PW 8) and ASI Sarwan Singh (PW 19). Out of these witnesses, the first three are stated to be the eyewitnesses while Dr R. S. Jamwal (PW 8) is medical expert while ASI Sarwan Singh (PW 19) conducted the investigation in this case. Besides, the latter two witnesses are important to prove the dying declaration (Ex. PH). However, in addition to these witnesses, we examined some other witnesses also to test the matter more deeply. 13. Shri Naresh Kumar (PW 1) knew the deceased and says that he was with him in the fair. They were watching the film when the accused, namely, Yashwant Singh, Hem Raj, Parkash Chand alias Om Parkash, Shet Singh, Megh Singh and Partap Singh came there and knocked the deceased. 13. Shri Naresh Kumar (PW 1) knew the deceased and says that he was with him in the fair. They were watching the film when the accused, namely, Yashwant Singh, Hem Raj, Parkash Chand alias Om Parkash, Shet Singh, Megh Singh and Partap Singh came there and knocked the deceased. They went away from the place sensing some kind of quarrel and went towards the talab. The accused attacked them from behind by throwing stones on them. He was ahead of the deceased. Next day, he came to know that the deceased had been beaten near the spring and he went there. Family members of the deceased also reached there. The deceased was then taken to the hospital He was unconscious at that time He did not remember the name of the film which he had seen with the deceased in the fair nor did he know that the police of Sarkaghat was on duty in the fair and they were there till the film was over. The occurrence had taken place when the film had not finished- Many villagers of his village had gone to see the film. They did not talk to any person about the knocking of the deceased by the accused. The bowli is at a distance of 200 metres from his house and not 40 feet. He admits that the houses of Kirlu (PW 2) and Bohri (PW 3) and Bhagirath are just near the spring which is by the side of a common path There are about 20 houses between the bridge and his home and he did not tell to any of the inhabitants of those houses that the accused were after them in order to beat them. The deceased was his friend. He came to know from cries coming from the spot on the next morning at about or 7 30 a. m. that the deceased had been given beatings. He went there and saw that 20/22 persons had assembled there and admits that Amar Nath (DW 1) and Bidhi Chand lifted the deceased and took him to the road side. The deceased was unconscious, so there was no question of his having talked to Amar Nath and Bidhi Chand who lifted him from the spot. He was then taken to the hospital but he did not know that Shankar and Sob an Singh went to the police station from the hospital. The deceased was unconscious, so there was no question of his having talked to Amar Nath and Bidhi Chand who lifted him from the spot. He was then taken to the hospital but he did not know that Shankar and Sob an Singh went to the police station from the hospital. He has denied that ASl Swaran Singh (PW 19) and other police officials had reached the hospital before the deceased was admitted there but states that the police had reached the hospital after 3/4 hours after the admission of the deceased at 9 or 9.30 a. m. The Sub-Divisional Magistrate was accompanying the police at that time. He remained there for 20 to 25 minutes and he must have reached the hospital with the police at about or 2.30 p m. He remained in the hospital till the deceased was referred to P. G I at about 6 p. m. He had no enmity with the accused but he did not know why they attacked him. He did not receive any injury although the accused had been throwing stones at them for about five minutes. The deceased was known to him for the last 4/5 years and they used to meet each other since then He did not talk to the deceased till he was referred to P.G.I. Chandigarh, and was shifted to that place. 14. There are serious deficiencies in the version given by this witness. Besides, his conduct also appears to be of unique character. It appears that he is not an eye-witness to the occurrence nor he was with the accused on the day of occurrence. Even if for the sake of arguments it is admitted that he was present in the fair, as stated by Amar Nath (DW 1), that does not mean he is to be believed relating to the most crucial and fundamental aspects of the case. There was no past enmity between the deceased, this witness and the accused The incident was not proceeded by any altercation during the fair or while witnessing the film-show. There was no past enmity between the deceased, this witness and the accused The incident was not proceeded by any altercation during the fair or while witnessing the film-show. There was no cause for the accused to have knocked the deceased nor for these two persons to leave the place and cause pelting of stones at them when they followed these people Further, it is hardly acceptable that this witness, a friend of the deceased for the past 4/5 years would leave the deceased behind knowing fully well that the accused were not only throwing stones at them but were following them for the purpose of beating, He did not care to know whether the deceased had been hit and injured by the accused. He goes to his house without caring for his friend and comes to know on the next morning, that too, on hearing cries from the spot Moreover, he did not talk about this incident to anyone nor reports it to the police. Even at the hospital, his behaviour is all the more objectionable. He states that he remained there till the deceased was shifted to Chandigarh but did not talk to the deceased all through nor complained to the Sub-Divisional Magistrate or to the police present in the hospital. In these circumstances, his version is thoroughly incredible and cannot, therefore, be accepted in support of the prosecution case. 15. Hukam Cband (PW 10) states that in June, 1987 he was employed with Meera and Company at Mandi and had gone to his house at Sarkaghat on 15-6-1987 and was present at the fair at about 3.30 p m. on that day. After taking his meals at 8 30 p m. at his house, he returned to the fair to see the film. There for an hour before 8.30 p m., Naresh Kumar (PW 1) also remained with him in the fair At about 11.30 p m., some shouts were heard from one side of the fair. When he went there, he saw Naresh Kumar (PW 1) running, followed by the deceased and both of them were followed by the accused who were throwing stones at them. When he went there, he saw Naresh Kumar (PW 1) running, followed by the deceased and both of them were followed by the accused who were throwing stones at them. On seeing them, he returned to see the picture which was finished at 12 mid-night and thereafter, he purchased beedi and started towards his house When he reached near the bridge, he found the deceased concealing himself On inquiry, he was told that all the accused person were after him and wanted to beat him and so he had concealed himself from the accused who had gone ahead. They both started and reached near the next bridge where there was bifurcation to their houses. At this time, accused Yashwant, Hem Raj and Om Parkash came there. Yashwant was having a rod in his hand, Om Parkash a lathi and Hem Raj a wooden phatti. Yashwant gave a blow of rod on the head of Partap Singh, deceased, who fell down, while others also started beating him. In the meantime, remaining accused, Megh Singh, Sher Singh and Partap Singh, armed with lathis, came there and started beating the deceased. They also ran after him but he ran away from there and concealed himself ahead. He heard the cries of the deceased Bachao, Bachao9 three times. On hearing this, lights of the houses of Jaishi Ram and Mahantu were put on but none of the members of their family came out of their house. When there was no noise, he went to the spot but neither the accused nor the deceased was found there. He thought that the deceased must have rescued himself from the accused and must have gone to his house. He came to his house and next morning, he came to Mandi to join duty. He came to know about the death of the deceased at Mandi. He thought that the deceased must have rescued himself from the accused and must have gone to his house. He came to his house and next morning, he came to Mandi to join duty. He came to know about the death of the deceased at Mandi. The deceased had not met him in the fair on that day He denies that there were 30/40 persons with him while be was at the machine of Shankar but says that he was all alone and he could see the place where the accused were throwing stones at the deceased from a curve, thus, denying the suggestion that the place could not be seen from this curve When the deceased was being given beatings, he stayed there for 2/3 minutes and then he ran away from the place to conceal himself in a nallah at about 20 yards from the bridge. He came to know from Anit Kumar at Mandi that Partap Singh, deceased, had been injured and had died. He did not tell any of the members of his family about the incident nor he talked to any person at Mandi regarding the beating of the deceased by the accused Initially, he came to the rescue of the deceased, but when the accused bounced upon him, he fled away from that place. When he returned from the place of his concealment to the spot, he did not see blood lying there nor he could say as to how many blows were given by each individual to the deceased. 16. Like Naresh Kumar (PW 1), there is serious doubt about the presence of this witness also if we look to the nature of his statement and the manner of his behaviour. Even Bohri, his mother-in-law, denies his presence in the house on that day. Naresh Kumar (PW 1) has not talked of his presence in the fair and his coming to the place where some kind of shouting had taken place Although he states that the accused were pelting stones at Naresh Kumar (PW 1) and the deceased after following them, but he did not care to follow them to see the cause of the incident and the consequences. He did not bother about all this and continued watching the film till it finished at about 12 mid-night. He did not bother about all this and continued watching the film till it finished at about 12 mid-night. Now, it is absolutely impossible to believe that the deceased would conceal himself till after mid-night when he had been followed by the accused at about 1 i.30 p m The prosecution evidence discloses that the accused were running after Naresh Kumar (PW l) and the deceased and the incident had taken place at a short distance from the fair. How much time could it had taken? Hardly, a few minutes. Therefore, the version of this witness that the deceased was concealing himself from the accused and was found by him when he happened to cross that way after 12 mid-night and there he was told by the deceased that the accused were after him in order to beat him, is absolutely unbelievable. It is quite strange and the version is thoroughly concocted Naresh Kumar (PW 1) had already gone away and he had gone to his bed at 12 30 p. m and before doing so, he took his meals, his means, he may have reached before 12 at night- If this is so, there was no question of the deceased remaining there on the way frequented by everyone, more so, when the film show was over and large number of people must be passing through that way at that time. Then, he says that he did not tell any of the members of his family about the incident nor talked about it at Mandi. Added to this is his statement that he came to know from Anit Kumar at Mandi that the deceased had been injured and had died. This show his ignorance of the matter and his absence at the place of the occurrence. So, it is worthwhile to reject his testimony. 17. Udey Bhanu (PW 11) had also attended the fair and also saw the picture that finished at about 12 mid-night. He also, says that after seeing the picture, he was going to his house and when he reached near the house of Dhania, 2/3 persons shouted that the deceased had come. Accused Sher Singh and Megh Singh come there and when he inquired from them as to why they were searching the deceased, they said that they wanted to show their dadagiri to him. Accused Sher Singh and Megh Singh come there and when he inquired from them as to why they were searching the deceased, they said that they wanted to show their dadagiri to him. In the meantime, other accused, namely, Jaswant Singh, armed with Saria, Hem Raj, armed with phatti, Parkash Chand, armed with a Khunta, and Partap Singh, armed with a lathi, came there. He adviced them not to quarrel with the deceased, but they did not agree. He then went to his house next day when he came to Navahi and came to know that the deceased had been given beotings by the accused- He reached Sarkaghut hospital at about ? or 5 15 p m. and talked to the deceased in the hospital On his inquiry, the deceased stated that sons of Madho, namely, Hem Raj and Jaswant, had given him beatings white their relatives were also there. In his presence, the police took into possession pent (Ex. P-l), shirt (Ex. P-2) and Buniyan (Ex P-3) belonging to the injured. These were blood stained and were taken into possession by the police vide memo. (Ex PA) He also joined police investigation on 18-6-1987 and 25-6-1987 alongwith Brij Lal It was in their presence that accused Jaswant had made disclosure statement that he had kept the iron rod concealed at a place 50/60 yards ahead from the second bridge and could get the same recovered. It bears his signatures and that of the accused. Similarly, accused Parkash Chand also gave disclosure statement about Khunta concealed in bushes near Navahi at the first bridge and could get the same recovered, which is signed by him and the accused. Hem Raj also disclosed having concealed phattis near the second bridge and also stated that he could get the same recovered. It bears the signatures of the witness and also of the accused. All the three accused led the police party to the respective places as a result of which the articles were recovered and taken into possession vide separate recovery memos He inquired from the deceased at the hospital at about 5.30 p.m. By that time, he had been referred to PGI., Chandigarh. All the three accused led the police party to the respective places as a result of which the articles were recovered and taken into possession vide separate recovery memos He inquired from the deceased at the hospital at about 5.30 p.m. By that time, he had been referred to PGI., Chandigarh. He left the hospital at about 6.30 or 6 45 p m. His statement was recorded by the police on 18-6-1987 wherein he did not disclose the fact of the accused having met him on 15-6-1987 on the bridge since he was in a hurry to go to his house He denies the suggestion that the deceased was unconscious at the time when he was told that .be was given beatings by the sons of Madho There was no time to make further inquiries from the deceased since he was referred to PGI. and was being taken there. The attention of the witness was drawn to his statement recorded under section 161 of the Code of Criminal Procedure wherein be had stated that the deceased had made the statement in the State of unconsciousness and says that he did not State that injured at that time was unconscious. His statement was recorded in the verandah of Tehsil office at Sarkaghat where he had gone to attend the hearing of a case. ASI. Swaran Singh came there and recorded his statement. Finally, he admits that the place of recovery is an open place and people pass through that place and that he did not disclose the fact of the accused having met him on his way back from his house on 15-6-1987 to any person on 16th or i 7th June, 1987. 18. The version given by this witness is equally blameworthy for variety of reasons. No one has said that the deceased talked to this witness and gave the names of the sons of Madho responsible for the incident Naresh Kumar (PW 1), who claimed friendship with the deceased and had been there in the precincts of the hospital had also not inquired from the deceased nor has he said that this witness was able to talk to the deceased and the names of the accused were disclosed to him. Further, when he had been disclosed the names of the accused, naturally he should have reported the matter to the police. Further, when he had been disclosed the names of the accused, naturally he should have reported the matter to the police. It shows he has come up with a concocted version not only relating to the occurrence but also relating to the disclosure of the accused. Further, in case his version is attended to, the case set-up by the prosecution relating to their recording of dying declaration" (Ex. PH) becomes all the more doubtful Further, this witness stated that by 530 p.m. the deceased had been referred to Chandigarh and he remained there till 6.30 p m. or 6.45 p m. If this is so, he has not said anything about the recording of dying declaration by ASI Swaran Singh (PW <9j signed and thumb marked by the deceased and attested by Dr. R S Jamwal The prosecution story, as a matter of fact, becomes thoroughly doubtful by the version of this witness. On the point of recoveries, he has categorically pointed out that they are from an open place accessible by the people. 19. The evidence of other witnesses like Kirlu (PW 2), Bohri (PW 3), Roshni (PW 4) Gian Chand (PW5) and Balbir Singh (PW 6) is not of much assistance to the prosecution to support the fundamental version of the prosecution case. Then, Dr. R. M. Singh, (PW 7) who conducted the postmortem examination at Chandigarh, has opined that the deceased died due to shock and cardio respiratory arrest due to head injury No. 1, which was sufficient to cause the death of the deceased in the ordinary course of nature, though he has noticed as many as nine injuries on the person of the deceased. There is no doubt that the death of the deceased was homicidal, but the question is to find out as to who is responsible for the same. 20 We now turn to Dr. R. S. Jamwal, (PW 8), who admitted the deceased in the hospital on 16-6-lv87 at 7.45 a. m. He states that the police was informed by him telephonically and when it reached there, an application, to know whether the deceased was fit to make a statement, was moved (Ex PG) and he stated that the deceased was not fit to give the statement (Ex. PG/1). Another application was made at 4 p. m. to which similar was his reply (Ex. PG/2). PG/1). Another application was made at 4 p. m. to which similar was his reply (Ex. PG/2). Again, he was requested at 6 p.m. when he opined that the injured was fit to make the statement. This was done on the police prayer (Ex. PG/4) and his endorsement is (Ex. PG/5). Thereafter, ASF Sarwan Singh (PW 19) recorded the statement in his presence (Ex. PH)- Thumb impression of the deceased was obtained and the same bears his signatures. He noticed seven injuries on the person of the deceased before he was referred to PGI, Chandigarh On the crucial aspect, he states that the deceased was unconscious when he was brought to the hospital and being busy with his patients, be did not know whether at 6 p.m. or during day time the S. D. M. was present in the hospital. The injured was in the state of stuperous and drowsiness and by stuperous he meant that the deceased was heading towards coma. The patient was referred to Chandigarh at 6 p. m At the time he recorded the medico-legal certificate, the injured was conscious to make the statement, but when A. S. /. Sum an Singh (PW 19) asked for his statement, the injured was not fit to make the statement. He further states that he had mentioned the time of discharge of the patient at 4.15 p m, because the discharge slip was prepared at that time and the hospital was to close at 5 p. m. The conveyance for the patient could be arranged by 6 p m. the time was corrected to 6 p. m. and initialled by him. The statement (Ex PH) was recorded at 6.10 p. m. when only he was present in addition to ASI Swaran Singh. Finally, he states that Dr. Abbey was also treating the injured. The application was given in the name of the incharge of the hospital. He has denied that the deceased had not made any statement (Ex. PH) to ASI Swaran Singh before him. 21. In order to appreciate the version given by this witness, it is important to take note of the statement of AS 1. Swaran Singh (PW 19) on these essential aspects. He has denied that the deceased had not made any statement (Ex. PH) to ASI Swaran Singh before him. 21. In order to appreciate the version given by this witness, it is important to take note of the statement of AS 1. Swaran Singh (PW 19) on these essential aspects. His version is that he went to the hospital at 845 p. m. on receiving telephonic message from the doctor that the deceased had been admitted in the hospital and his statement may be recorded. He went there and applied to the doctor for giving his opinion as to whether the deceased was in a position to make the statement and the doctor said that the deceased was not in a fit condition to give the statement. The request was repeated thrice but the statement could not be recorded since the doctor bad opined that the deceased was not in a position to make the statement. Finally, when the doctor opined that his statement should be recorded, the same was recorded in the presence of Dr. R. S. Jamwal. It was signed by the deceased at point marked A. Since he could not properly append his signatures, his thumb impression was also taken on this statement. It was attested by the doctor and then sent to the police station for registration of a case under section 307 of the Indian Penal Code. He has denied that he was in the hospital at 7.45 p. m. when he was called there by Shankar Dass and Sohan Singh. He also denies that the deceased was got admitted by him. He has also denied that he remained in the hospital throughout the day but admits that he had been going and coming back to the hospital. He admits that the S. D. M. visited the hospital in his presence. He also admits that at 4.15 p m , it was written in the application by the doctor that the patient had been referred to Chandigarh and he returned to the police station from where he went to the hospital again on receiving a telephonic message. In the telephonic message he had been informed that the injured was in a position to make the statement and so he went to the hospital. 22. In the telephonic message he had been informed that the injured was in a position to make the statement and so he went to the hospital. 22. He admits that the residence of the Judicial Magistrate, Sarkaghat, falls on the way from the police station to the hospital and the residence of Sub-Divisional Magistrate is in the Tehsil building. He admits that the residence of Tehsildar comes on the way when one goes to the hospital from a short cut. 23. When he reached the hospital number of persons were sitting by the side of injured Partap Singh, but he did not know if they were his relatives. Doctor has also there in the room. The statement was recorded at 6 p. m. and was concluded at 6.30 p. m. He recorded whatever was stated by the injured and he stopped recording the statement when the injured stopped stating anything. When he inquired from the injured whether he would like to state anything more, he was told that nothing else was there. 24. None talked to him during the day regarding the occurrence. He denies that the deceased had been taken from the hospital at 6 p. m but his statement was attested by the doctor at 6.10 p m and thereafter he was taken. He has denied that the accused were handcuffed from the police station to the place of recovery but says that at the place of recovery, there was huge crowd and the accused were handcuffed. He has denied that at mark A9 on statement (Ex. PH), the signatures of the deceased did not appear and that the statement had been recorded by him of his own and was not a statement given by the deceased who was not in a position to make the statement, 25. There are material deficiencies in the statement of these two witnesses of the prosecution. According to medical certificate (Ex, PK), the deceased had been admitted at the instance of AS. I. Swaran Singh and the statement of the deceased had also been recorded before his medical examination was conducted. Dr. R. S Jamwal (PW 8) has appended a certificate of having recorded the statement of the deceased and has said that tbe deceased was in a fit condition to make the statement at that time. I. Swaran Singh and the statement of the deceased had also been recorded before his medical examination was conducted. Dr. R. S Jamwal (PW 8) has appended a certificate of having recorded the statement of the deceased and has said that tbe deceased was in a fit condition to make the statement at that time. If this was so, why the deceased did not tell the doctor the names of the accused responsible for assaulting him Further, the statement could have either been recorded by the doctor or by the police available there In addition to this certificate (Ex PK), there are other circumstances to show that the police was available in the hospital. The incident had taken place in the fair it was a local fair where large number of people had assembled from neighbouring villages It is celebrated for two days and takes place during night Obviously, presence of police, for the maintenance of law and order, has to be there. The fair took place on i5-6-1987. The occurrence took place during the night of 15th and 16th June, 1987. The police, therefore, knew very well about it and it can be safely concluded that on coming to know of the incident, it came to the hospital to admit the deceased and medical certificate (Ex. PK) records the presence of A. S 1. Swaran Singh who has also not disputed the same. All this takes the recording of statement (Ex. PH) into the zone of serious doubt. However, turning to this aspect, what was the justification of ASI Swaran Singh recording dying declaration. It could have been done by the doctor himself either with statement (Ex PH) or separate therefrom. Assume for the sake of argument that the second stage to record the statement developed. Sub-Divisional Magistrate, who had been coming to the hospital, or the Sub-Divisional Judicial Magistrate, or the Tehsildar could have been requested to record the same. There is no evidence to show that such an attempt was made. No explanation is forthcoming to show why they were not requested to do so. 26 Coming to statement (Ex. PH), it is a short statement but lacks authenticity In case the deceased knew the assailants, he could have mentioned their names instead of referring them through their father. There is no evidence to show that such an attempt was made. No explanation is forthcoming to show why they were not requested to do so. 26 Coming to statement (Ex. PH), it is a short statement but lacks authenticity In case the deceased knew the assailants, he could have mentioned their names instead of referring them through their father. Further, when he was fit to make the statement, he could have given a little more description of the circumstances, leading to the quarrel and the manner and method adopted by the assailants while assaulting him, The state of his health, as described by the doctor, in our opinion, was such which could easily be described to be one when the deceased could not have given the statement (Ex. PH) at all The explanation of ASI Swaran Singh PW 19) that since the deceased could not append his signatures properly, his thumb impression was taken, is not supported by the doctor who refers only to the fact that the deceased thumb marked the statement This is a material contradiction. Further, Dr. R. S, Jamwal (PW 8) states that the statement was recorded in his presence whereas ASI Swaran Singh says that the doctor was in the room, thus, excluding the presence of the doctor near the deceased when his statement was being recorded by ASI Swaran Singh. This goes to show that the doctor attested the statement afterwards and was not present at any time in case it is accepted that the statement was recorded in the hospital which is also doubtful for the reason that ASI Swaran Singh (PW ISO has said that many people were present by the bed side of the deceased when he went to record the statement while the doctor says that none was present there. In case we accept the version of A S. I. Swaram Singh {PW 19) that many people were present there, what prevented him from including them as attesting witnesses to this statement. This means, the document was not prepared there. In case we accept the version of A S. I. Swaram Singh {PW 19) that many people were present there, what prevented him from including them as attesting witnesses to this statement. This means, the document was not prepared there. It is not, therefore, unreasonable to conclude that it is a fake document prepared by ASI Swaran Singh, brought in surreptitiously and was got thumb marked from the deceased and attested by the doctor, exact time of which though cannot be ascertain-ed, but appears after his discharge from the hospital since none of the prosecution witnesses, who were present with the deceased, nave said about the giving of this kind of statement by the deceased. 27. Conviction can be based on the strength of dying declaration without corroboration provided it is found trustworthy. However, before it is acted upon, it has to be closely scrutinised since dying declaration given by a person before his death is a one sided affair and before placing reliance on it and closing case for seeking corroboration, it is not only desirable but also essential to eliminate the chances of suspicion after careful and close scrutiny. la this connection, Shri T. R. Chandel, learned Counsel for the accused places reliance on two decisions of the apex Court reported as AIR 1958 SC 22, Khushal Rao v State of Bombay ; AIR 1974 SC 2165, Balak Ram and another v. State of U.P. The cumulative effect of the assessment of all the attendant circumstances touching the execution of this statement is that dying declaration in this case is not at all worth reliable and this piece of evidence is, therefore, liable to be rejected. 28. Turning to recoveries made in this case, we see that the trial Judge has not accepted them. We confirm the conclusions of the trial Judge on this aspect and for ourselves we notice that these recoveries are liable to be discredited if we look to the circumstance that there is lack of cogent and convincing evidence showing that the accused possessed any of them for assaulting the deceased. Moreover, evidence points out that the accused were subjected to pressure when their statements were recorded and were also handcuffed while they were taken to the places of recovery. In addition to this, these are open places where people can go on moving frequently. Moreover, evidence points out that the accused were subjected to pressure when their statements were recorded and were also handcuffed while they were taken to the places of recovery. In addition to this, these are open places where people can go on moving frequently. There is no evidence pointing out the stage when the accused came in possession of these articles since it has been stated by the prosecution witnesses like Naresh Kumar (PW 1) and even by Hukam Chand (PW 10) that the accused were pelting stones. 29. No other point was argued by any of the Counsel while making their submissions in this case. 30. What emerges out of our careful and considered examination of the matter from the aforesaid discussion is that there is merit in Criminal Appeal No. 344 of 1988, Hem Raj and 3 others v. State of H. P., and the same is allowed. The accused are acquitted of the charge. They are stated to be on bail. Their bail bonds are hereby cancelled. 31. Criminal Appeal No 106 of 1989 State of Himachal Pradesh v. Hem Raj and 5 others, is hereby dismissed being devoid of merit for reasons recorded in this judgment. Appeal dismissed.