B. L. YADAV, N. L. GANGULY, J, J. ( 1 ) LALLA, son of Prabhu Dayal, is the appellant in this criminal appeal. He has been convicted under section 302 I. P. C. and sentenced to undergo life Imprisonment in an occurrence which took place on the 16th of May, 1988, at 4. 30 p. m. The report was lodged the same day at 6. 30 p. m. The distance of police station from the scene of occurrence was about 4 furlongs. There was another co-accused named Subhash charged under section 302/3241 I. P. C. but he has been acquitted. ( 2 ) THE prosecution story is that Lalla, appellant, and Subhash were on friendly terms and they were on visiting terms with Suresh, deceased, the son of the infermant Smt. Keola (P. W. 1 ). The appellant Lalla had borrowed Rs. 50/- from Suresh, deceased. When the latter went to demand the same, there was some scuffle. Lalla said to the deceased that he was unable to pay the money. Subhash, younger brother of Lalla, appellant, exhorted him (Lalla) to beat the deceased Suresh drive him away. Thereupon, Lalla, appellant, took out his knife and stabbed into the abdomen of suresh, deceased, who ran away to the north. Lalla chased him and gave another blow of knife which hurt in his arm. Suresh ran to some distance but fell down. Some persons reached the place of occurrence. In the meantime, two police constables arrived. They helped the informant, Smt. Keola, in carrying the injured Suresh to the hospital. Smt. Keola (P. W. 1) went to the police station and lodged the report (Ext. Ka 1 ). The F. I. R. was taken down under section 307. However, when the deceased died later on, it was converted into under section 302 I. P. C. The deceased was taken to U. H. M. Hospital on the 16th of May, 1978 and he was attended in Emergency Section, by Dr. H. C. Prasad (P. W. 4), at 5. 05 p. m. The injured was presented before him by constable by Mumtaj Ali and Ramayan Rai. The doctor, Sri H. C. Prasad, proceeded to medically examine the patient and found the following incised wounds on his person:1. Stitched wound 3 cm with 3 stitches obliquely in epigestrim 4 cm above the umblicus. 2. Stitched wound 15 cm. 05 p. m. The injured was presented before him by constable by Mumtaj Ali and Ramayan Rai. The doctor, Sri H. C. Prasad, proceeded to medically examine the patient and found the following incised wounds on his person:1. Stitched wound 3 cm with 3 stitches obliquely in epigestrim 4 cm above the umblicus. 2. Stitched wound 15 cm. with 11 stitches on the right paramedium upper part 3. Incised wound 1/2 cm x 1/4 cm x subcutaneous tissue deep on the medial aspect of right arm in middle. 4. Surgical cut open wound 1. 5 cm x 1/2 cm above the right medial Nelbeolus with long ephanoum veinlingated. The deceased made a dying declaration which was recorded on the 16th May, 1978 at 8. 10 p. m. (Ext. Ka. 31 ). It was recorded after doctor certified that the injured/deceased was in a fit mental condition to make a dying declaration. The dying declaration was recorded by Executive Magistrate, Sri N. K. Misra. The dying declaration was proved by Dr. H. C. Prasad (P. W. 4) The Executive Magistrate wast however, not examined. The dying declaration was recorded when the doctor certified that the injured was in a fit mental state to make the statement. Suresh died on the 18th May, 1978, at 2 p. m. in the hospital. The postmortem report was conducted on the 19th May, 1978 by Dr. V. D. Ravi (P. W. 5 ). ( 3 ) THE prosecution has examined Smt Keola (P. W. 1 ). Dr. H. C. Prasad (P. W. 4), constable Jyotidhar Dubey (P. W. 3) Dr. V. D. Ravi (P. W. 5), Sri Abrar Ali, P. W. 6, the Investigating Officer and Dr. Dinesh (P. W. 2), Smt. Keola (P. W. 1) and Dinesh (P. W. 2) are the eye-witnesses. The learned Sessions Judge has acquitted the other co-accused Subhash and convicted the appellant, Lall, after relaying upon the prosecution case. ( 4 ) THE learned counsel for the appellant urged that there was discrepancy in the statements of P. W. and P. W. 2 and the Executive Magistrate was not examined to prove the dying declaration. There was conflict in the prosecution case as stated in the F. I. R. and in the dying declaration to the affect that in the dying declaration a different story was set up about the scuffle. There was conflict in the prosecution case as stated in the F. I. R. and in the dying declaration to the affect that in the dying declaration a different story was set up about the scuffle. In the dying declaration it was stated that there was some scuffle with Prabha, father of Lalla and Lalla caused injury with the knife, whereas in the F. I. R. it was stated that the mother of deceased, P. W. 1, Smt. Keola, and Dinesh, P. W. 2, reached the place of Lalla and Subhash and demanded the money that was paid by the deceased. Thereupon, Subhash directed the deceased to leave the place but the deceased said that without taking the money, he would not go back. Thereafter, Subhash exhoned Lalla, appellant, to give a beating. Thereafter, Lalla gave wounds on the person of Subhash with a knife. The deceased ran away and thereafter Lalla gave another blow and caused injuries as stated above. It was further submitted that no blood-stains were found on the spot and there was no explanation for injury No. 2 which was caused by an abrasion and it was not possible to be caused by a knife. Smt. Keola has also made contradictions in her statement while she was examined as witness. It was further urged that on the same evident another co-accused Subhash has been acquitted. ( 5 ) ON behalf of the State the learned A. G. A. urged that the prosecution version was reliable. Injury No. 2, an abrasion, would have been caused by the knife and even if the Executive Magistrate was not examined who has recorded the dying declaration, the dying declaration cannot be said not to have been proved as Dr. H. C. Prasad was examined and he has supported the statements given by the deceased and had certified that the deceased was in a fit mental state when he made dying declaration. About the contradictions in the F. I. R. and the deposition of Smt. Keola, P. W. I, while she was examined, it was stated that was natural that after a lapse of considerable time, if the witnesses are examined, the contradictions are bound to occur. It was further urged that the discrepancies would not belie the prosecution case. Consequently, the conviction revorded was correct and the appeal deserves to be dismissed. It was further urged that the discrepancies would not belie the prosecution case. Consequently, the conviction revorded was correct and the appeal deserves to be dismissed. ( 6 ) HAVING heard the learned counsel for the parties, we are of the opinion that there are certain infirmities about the nature of the injuries and how they were caused. The injury No. 2 was an abrasion 2 cm x 1 1/2 cm over the right upper arm on the deceased, Suresh. In the F. I. R. it was stated that the second injury was also caused by knife. The correct version is: Hindi matter. This indicates that the second injury was caused by the knife, whereas the abrasion was not caused by the knife. Similarly, there were also discrepancies in the manner in which the injuries were caused; It has come in the statement of Smt. Keola (p. W. 1) that he accompanied her Son Suresh and Dinesh to the residence of Lalla and Subhash in Chamanganj mohalla. Suresh and Lalla met her on their door and she demanded the money that was paid by the deceased. Lalla said that he has no money nor he would pay, whereas Suresh said that he would take the money and only thereafter would go back. Thereafter a scuffle started and Subhash exhorted Lalla to give a beating. thereafter, Lalla gave a knife wound in the abdomen of the deceased and gave a second knife blow when the deceased was running. Second blow was received by the deceased on his right hand. This shows the contradiction in the dying declaration as also how the deceased received injuries. In the F. I. R. scuffle commenced when Subhash said that the money would not be paid and Suresh said that he would not go back without taking the money. Thereafter Subhash exhorted Lalla to give the beating to the deceased, whereas in the dying declaration the deceased has said that, Hindi matter This was entirely different version. Similarly, there is another contradiction about how the deceased was taken to the hospital into the police station and also in the house. We have also examined the statement of Dr. H. C. Prasad (P. W. 4) who had stated that only two injuries were caused and injury No. 2 could have been caused by friction. Similarly, there is another contradiction about how the deceased was taken to the hospital into the police station and also in the house. We have also examined the statement of Dr. H. C. Prasad (P. W. 4) who had stated that only two injuries were caused and injury No. 2 could have been caused by friction. This means that the prosecution story about the injury being caused while the deceased was running away is incorrect. By overall consideration of the entire prosecution version and the prosecution witnesses, are of the opinion that there appears to be some embellishment in the prosecution version and the prosecution has not come with clean hands and the prosecution version appears to be doubtful. ( 7 ) THERE is another aspect of the matter, i. e. the another accused has been acquitted by the learned court below. ( 8 ) TAKING cumulative effect of the entire prosecution evidence, we have great doubt about the prosecution version. Consequently we are of the opinion that the appeal deserves to be allowed. ( 9 ) IN the result, the appeal succeeds and is allowed. The conviction of the appellant recorded under section 302 I. P. C. by the learned court below is set aside. The appellant is on bail. He needs not surrender. The bail bonds are cancelled. Sureties are discharged. Appeal allowed. .