P. K. BAHRI, J. ( 1 ) VINOD Kumar aged 23 years, Suresh Kumar aged 21 years and Sushil Kumar @ Dabli aged 22 years, have been covicted of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code for having committed the murder of one Raj Kumar aged 26 years vide judgement dated January 6, 1988 and vide order of the even date have been sentenced to undergo life imprisonment and to pay a fine of Rs. 500. 00 each and in default to further undergo simple imprisonment for two months each. They have filed these appeals challenging their conviction and sentences. ( 2 ) IN Lajpat Nagar area there are some hillocks and on one of the hillocks Sant Ksbir Ashram is located and in that Ashram there is installed an idol of Sant Kabir on the western side and opposite to it a temple of Shiva is located. On the western and soutnern sides of the Ashram on the slopes, cluster of huts have come up wherein people from law strata of life are residing. Some distance away from the said Ashram on the slope towards the southern side in one of the huts bearing No. 61, Ram Chander Public Witness 7 alongwith his family members had been residing whereas his son Raj Kurnar (since deceased), who was of 26 years of age at the relevant time, was residing in the adjacent hut No. 60 with his family. Appellant-Suresh alongwith his family members including his mother Santro and sister Sharda were residing in hut No. 59 located opposite to the hut of Ram Chander. ( 3 ) AT 9. 55 P. M. on July 1, 1986, Santro came to the Police Station Lajpat Nagar and lodged a report which was recorded in Daily Diary No,9a, copy of which is Ex. Public Witness 1/da, in which she alleged that at 9. 30 PM when her daughter Sarda aged about 15 years was returning from the temple and was in the lane that Raj Kumar and Babu resident of Sitaram Bazar alongwith two more persons had given beating to her daughter and she was struck with something on her right temple which led to a bleeding wound and as soon as her husband s brother Banwari intervened he was also given injuries. Copy of this report was handed over to Shribhagan Singh, police officer, for inquiry and report. ( 4 ) AT 10. 05 P. M. on the same day Raj Kumar was got admitted in All India Institute of Medical Sciences by Om Prakash (sister s husband of Raj Kumar) with the alleged histroy of his being stabbed at Lajpat Nagar at 9. 30 P. M. at his house with immediate loss of. consciousness. Medico Legal Certificate Ex. Public Witness 11/a was prepared in that respect. Raj Kumar was in a very bad shape and immediate resuscitaion was started and he was operated upon but his life could not he saved and he died at about midnight. ( 5 ) AT 10. 10 P. M. a duty constable from the siad hospital had given the information to Police Station Lajpat Nagar which was recorded in Daily Diary No. IOA, copy of which is Ex. Public Witness 1/db, regarding admission of injured Raj Kumar in the hospital by Om Prakash. Copy of this report was handed over to SI Surya Prakash PW12who alongwith Constable Govind Ram reached the hospital and obtained the Medico Legal Certificate and as Raj Kumar was not found to be in any condition to make the statement as per endorsement of the doctor marked A on Ex. Public Witness 12/ A the Sub Inspector met Ram Chander at the hospital and recorded his statement Ex. Public Witness 7/a on the basis of which the case was registered under Section 307 read with Section 34 of the Inidan Penal Code. Statement of Om Prakash is stated to have been recorded after the registration of the case in which he was shown to be an eye witness of the occurrence but unfortunately for the prosecution Om Prakash did not support the prosecution case at all while coming in witness box. He was declared hostile witness but he despite being cross-examined by the prosecution kept to his resolve not to implicate the appellant for the murder of Raj Kumar. ( 6 ) THE learned Additional Sessions Judge had brought home the offence to the appellants on the statement of Public Witness 7 who is stated to have heard the dying declaration of Raj Kumar implicating the three appellants. No other evidence has been brought on the record by the prosecution for implicating the appellants in the said offence. ( 6 ) THE learned Additional Sessions Judge had brought home the offence to the appellants on the statement of Public Witness 7 who is stated to have heard the dying declaration of Raj Kumar implicating the three appellants. No other evidence has been brought on the record by the prosecution for implicating the appellants in the said offence. The short question which arises for decision in these appeals is whether the prosecution has been able to prove or not beyond reasonable doubt that Raj Kumar deceased had made a dyinng declaration to his father while being taken to the hospital in a scooter rickshaw implicating the three appellants. It is well settled position of law that if a dying declaration is proved to have been made and is shown to be true then conviction can be based on said evidence alone without seeking any corroboration. (See State of Uttar Pradesh Vs. Ram Sagar Yadav and others, AIR 1985 SC 416 ). The apex court had clearly held that there is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the court has to be to find out whether the dying declaration is true. If it is so, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declarion. ( 7 ) NORMALLY it would not be expected from a father to falsely implicate some innocent persons for the murder of his son and allowing the real culprits to go scot free. The facts of the case brought on the record in evidence show unmistakably that perhaps no dying declaration had been made by the deceased to the father and the testimony of the father bristles with contradictions and variations and improvements on material aspects of the case. There is possibility of father, on mere suspicion or may be convinced in his mind from some undisclosed source of implication of the appellants in the commission of the murder of his son, having concocted a dying declaration of his son. There is possibility of father, on mere suspicion or may be convinced in his mind from some undisclosed source of implication of the appellants in the commission of the murder of his son, having concocted a dying declaration of his son. In that situation it would not be safe to bring home the offence to the appellants only on the ground that father would not implicate innocent persons and allow the real culprits to escape. ( 8 ) IT is now the stage to examine the case of the prosecution closely in order to determine whether the charges have been brought home to the appellants beyond any reasonable doubt or not. Ram Chander in his statement Ex. Public Witness 7/a which is the basis of the FIR has narrated that on that day the women folk residing in the neighbouring huts in the evening had exchanged abuses and the appellants had come there and started giving filthy abuses and had threatened to set on fire thewhole Mohalla on which his son Raj Kumar intervened and objected to appellants giving such threat and abuses but the appellants retorted by giving abuses to Raj Kumar and as soon as his wife came some women folk of the Mohalla including Baby Sharda started beating her and he with great effort pacified them. He went on to narrate that after about 3-4 minutes the three appellants came and called away his son Raj Kumar and after 3-4 minutes again his son Raj Kumar came running in injured condition and fell down in liont of his hut bleeding from his wound in the abdomen. ( 9 ) HE and his son-in-law Om Prakash who is also residing in the nearby hut No. 62 brought Raj Kumar in a scooter to the hospital and while on the way, on query Raj kumar stated that his right hand was caught hold of by Duble and left hand by Vinod and Suresh had stabbed him in his abdomen with a knife and thereafter Raj Kumar asked for some water and he became unconscious and this occurrence took place at about 9. 30 P. M. ( 10 ) FROM the bare reading of the above statement of Ram Chander, the basis of the FIR, makes it evident that neither Ram Chander nor Om Prakesh have witnessed the actual stabbing of Raj Kumar. 30 P. M. ( 10 ) FROM the bare reading of the above statement of Ram Chander, the basis of the FIR, makes it evident that neither Ram Chander nor Om Prakesh have witnessed the actual stabbing of Raj Kumar. We are highlighting this fact because later on we find that Om Prakesh was proffered as an eye witness by the prosecution. As per the siteplan Ex. Public Witness 9/a, the prosecution case is that the occurrence took place just close to the enclosure where the idol of Sant Kabir Dass stands installed and after Raj Kumar was stabbed he had at first fallen near the temple of Shiva and the blood was found on a brick of the wall near that temple. As per the said siteplan, the hut of Ram Chander is located at a distance of more than 1900 sq. m. whereas Ram Chander and the Investigating Officer tried to show that the place of occurrence was about 12 yards or 40 paces from the hut of Ram Chander. At any rate, the short question which arises for consideration is whether Om Prakash is an eye witness of the occurrence or not? In the FIR he has not been shown as an eye witness but in his statement Public Witness 7 had made a vital improvement from the! FIR by deposing that when his son Raj Kumar was called away by the three appellants he suspecting some foul play asked Om Prakash to follow them. Om Prakash unfortunately, although being very close relation of Ram Chander and deceased Raj Kumar, has not thought it fit to toe the line of Ram Chander or of the police and he has categorically deposed that he had not witnessed the occurrence and he had not even heard the alleged dying declaration of Raj Kumar. So, according to Om Prakash s testimony he had heard about Raj Kumar being stabbed by Suresh and be had rushed to the Sant Kabir Ashram and had found Raj Kumar lying injured near the temple situated on the hillock and he and others brought Raj Kumar to the hut of Ram Chander and thereafter he was removed to the hospital after his wound was tied with a bandage. He in cross examination by the prosecution admitted that Ram Chander was present in his hut at the relevant time but he expressed ignorance about any quarrel having taken place amongst the ladies in the evening prior to the stabbing of Raj Kumar. According to him, he has not seen the appellants coming and giving abuses or quarrelling with Raj Kumar or taking Raj Kumar away. He denied that he had come out with a new fact that he and Ram Chander had brought Raj Kumar in injured condition from near Sant Kabir Dass Ashram to the hut of Ram Chander. Accordinng to his statement, Sant Kabir Dass Ashram is located only 40 paces from the hut. He gave a version which is not given by him earlier to the police that when Raj Kumar was being brought to the hospital in a scooter, the scooter had broken down and he alighted from the scooter-and had pushed it for some distance and he did not know whether Raj Kumar had told any facts to Ram Chander while in the scooter. It is obvious that Om Prakash is not a reliable witness. There is no support available in the testimony of Om Prakash to the prosecution to link the appellants with the crime in question. As far as the testimony