Judgment :- K.M. NATARAJAN, J. ( 1 ) THE accused in S. C. No. 161 of 1985 on the file of the First Additional Sessions Judge, Salem, have preferred this appeal challenging the legality and correctness of their conviction under Section 341 I. P. C. and the sentence to pay a fine of Rs. 500/-each in default to undergo simple imprisonment for one week and also the conviction under section 302 I. P. C. read with Section 34 I. P. C. and the sentence to suffer imprisonment for life. The appellants were tried for the above two charges on the allegation that on 18/2/1985 at about 1 A. M. at Karumapuram village, the fourth accused caught hold of the cycle of the deceased Ramu while the first accused beat him with an iron rod and accused 2 and 3 each beat him with a stick and thereupon threw him into a well and as a result of the same he died later in the Government General Hospital, Salem, on 13/4/1985. To substantiate the above two charges, the prosecution examined P. W s. 18, filed Ex. P. 1 to 16 and marked M. Os. 1 to 3. ( 2 ) THE case of the prosecution as disclosed from the oral and documentary evidence can be stated briefly as follows: P. W. 2 is the President of Karumapuram Milk Society. He appointed the deceased as tester in the said society. P. W. 6 is the Supervisor and P. W. 7 is the Secretary of the said Society. They along with P. W. 3 Natesan, who is a teacher of that village, were arranging on the night of 17/2/1985 for opening a society in the said village on the next day and were cleaning the room in the Panchayat Office and decorating the same. While they excepts were in the office at about 12 midnight, all the accused came there and demanded P. W. 2 to give them a job in the said society. Even at 10 P. M. P. W. 3 had been to his house in order to take his meal. P. W. 2 replied that already the post was filled up and there was no vacancy. The deceased was also there. The deceased questioned them as to why they came during night time and shouting. Even at 10 P. M. P. W. 3 had been to his house in order to take his meal. P. W. 2 replied that already the post was filled up and there was no vacancy. The deceased was also there. The deceased questioned them as to why they came during night time and shouting. Thereupon they went to the house of P. W. 3 in order to put forth their demand with him. While they left the place so saying, the deceased also took his cycle and was proceeding to his house saying that P. W. 3 alone was in his house and the accused may quarrel with him and that he would go and see him. Thereupon, P. Ws. 2, 6 and 7 after bolting the office of the Panchayat Board, were sleeping inside. The accused went to the house of P. W. 3, woke him up and requested him to provide them employment in the said society. He told them that appointments were already made and there is no vacancy. The deceased also come there in his cycle. Thereupon the accused left his house. The deceased also latter on left the house of P. W. 3 saying that he was proceeding to his house. ( 3 ) THE next day morning (18. 2. 1985) at about 5 AM. P. W. 1 when he was proceeding near the Panchayat School to answer calls of nature heard some noise inside the well north of the Panchayat Road. There upon he raised a hue and cry. On hearing her noise. P. Ws 4, and 5, followed by P. Ws. 2 and 6, came there. They found that the deceased was inside the well and he was raising noise. Thereupon P. Ws. 4 and 5 lifted him from the well and carried him to the Panchayat School. A taxi was brought. In the meantime, according to the prosecution, the deceased told the persons who were present there that the accused be at him with iron rod and stick and pushed him inside the well. ( 4 ) THE injured Ramu was taken in the taxi by P. W. 2 to the Government Hospital, Tiruchengodu at about 7 AM. P. W. 10 is the Civil Assistant Surgeon attached to the Government Hospital, Tiruchengodu. ( 4 ) THE injured Ramu was taken in the taxi by P. W. 2 to the Government Hospital, Tiruchengodu at about 7 AM. P. W. 10 is the Civil Assistant Surgeon attached to the Government Hospital, Tiruchengodu. He examined the injured Ramu who was brought by P. W. 2, for certain injuries said to have been caused at 1 A. M. on 18. 2. 1985 due to assault by four known persons. He examined the injured Ramu at 9 A. M. and found on him the following injuries. 1. A lacerated wound over the left front parietal region 5 c. m. x 2 c. m. x 1 c. m. 2. A contusion over the back of right upper arm 6 c. m. x 4 c. m. 3. A contusion over the outer aspect of left elbow 6 c. m. x 4 c. m. 4. Scratches over the back of left shoulder irregular c. m. x 3 c. m. He entered the same in the Accident Register Ex. p. 3 and sent intimation of accident to the police under Ex. p. 1. Later on, he issued the wound certificate Ex. P. 4. He was of the opinion that those injuries could have been caused at the time alleged. The information regarding the injuries was given by the injured himself. The injury on the head could have been caused by beating with iron rod. Injuries 2 and 3 could have been caused by beating with stick and the injuries on the back of the left shoulder could have been caused by coming into contact with rough surface or falling in well. After receipt of the injury on the back side of the neck, he could have lost sensation in the parts below his neck. He was unable to use his hands and legs. He was admitted as an inpatient. Later he was referred to the Government Hospital Salem. ( 5 ) ON receipt of Ex. P. , P. W. 8, Grade I constable attached to Tiruchengodu Police Station, went to the Government Hospital, Tiruchegodu and recorded a statement from the injured Ramu at about 12 noon and obtained his thumb impression. That statement is marked as Ex. P. 2. Thereupon he instructed P. W. 9 to send Ex. P. 1 and P. 2 to Mallasamudaram police station. That statement is marked as Ex. P. 2. Thereupon he instructed P. W. 9 to send Ex. P. 1 and P. 2 to Mallasamudaram police station. P. W. 9 who was in charge of writer and Grade I Police station sent Ex. P. I and P. 2 on the next day to Mallasamudram Police station. P. W. 17 was the Head Constable attached to the Mallasamudram Police Station. On receipt of Ex. P. 1 and P. 2 through a constable at about 9 A. M. on 19. 2. 1985 he registered a case in Crime No. 4 7 of 1985 under Sections 341, 324 and 323 Indian Penal Code and prepared the First Information Report, Ex. P. 11. Thereupon he sent Ex. P. 11 and P. 2 along with intimation of accident Ex. P. 1 to the Judicial Second Class, Magistrate, and their copies to the higher officials and took up investigation. He reached the scene place at 11 A. M. and inspected the same. He prepared observation mahazar Ex. P. 9 attested by P. W. 2 Venkatachalam and P. W. 15. He examined witnesses. He drew rough sketch Ex. P. 12. He went to the Government Hospital and examined Ramu under section 161 Cr. P. C. It is Ex. P. 13. He searched for the accused; they were not available. But later on he came 10 know that the accused surrendered before the Judicial Second Class Magistrate, Tiruchengodu, on 26/2/1985. ( 6 ) P. W. 11 is the Civil Assistant Surgeon attached to the Government Headquarters Hospital, Salem. It is his evidence that on 20/2/1985 at 5. 10 P. M. he admitted the injured Ramu as an inpatient and X-Rays of the injuries found on him were taken through P. W. 16. He would further state that on examination of the injured Ramu on 26/2/1985, he noticed that on account of the injury to the spinal cord, he was unable to use his hands and legs. Ex. P. 5 is the case-sheet. P. W. 16 is the. Radiologist and he had deposed about taking photographs of the 4th cervical vertebra and he noticed fracture. M. O. 3 series are the X-ray photos and Ex. P. 10 is his report. ( 7 ) THE injured Ramu expired on 13. 4. 1985 at 4. 15 P. M. P. W. 12, medical Officer, sent intimation Ex. Radiologist and he had deposed about taking photographs of the 4th cervical vertebra and he noticed fracture. M. O. 3 series are the X-ray photos and Ex. P. 10 is his report. ( 7 ) THE injured Ramu expired on 13. 4. 1985 at 4. 15 P. M. P. W. 12, medical Officer, sent intimation Ex. P. 6 to the Salem out-post Police Station attached to the Salem Government Headquarters Hospital. P. W. 17 got Ex. P. 6. He altered the section of the offence into one under Section 302 I. P. C. and prepared express report Ex. P. 14 with copies and sent Ex. P. 14 and P. 6 to the Judicial Second Class Magistrate. Tiruchengodu and the copies to the higher officials P. W. 18, Inspector of Police, Tiruchengodu, got a copy of the altered express First Information Report at 6 A. M. on 14/4/1985 and took up investigation. He went to the Government Hospital, Salem and held inquest on the dead body of Ramu between 11 A. M. and 2 P. M. and during the inquest, he examined P. Ws. 2, 3 and others. Ex. P. 15 is the inquest report prepared by him. He caused Photos of the dead body to be taken. He entrusted the dead body with the constable Rajamanickam, P. W. 14, alongwith the requisition Ex. P. 7, for being taken to the Medical Officer to conduct autopsy. ( 8 ) P. W. 13 is the Medical Officer attached to the Government Head quartets Hospital, Salem. In pursuance of the requisition Ex. P. 7 received from P. W. 18, he conducted autopsy over the dead body of Ramu at about 2. 45 p. m. He found the external injuries: Bed sore present on the back both buttocks posterior aspect of thighs and posterior aspect of legs. Pus present in the above ulcers. Generation organs and scrotum bleated due to decomposition. On internal examination, he noticed the heart 350 gm. congested. Lungs, spleen and kidneys decomposition present. The stomach weighed 250 grams. The bladder was empty. He noticed the spinal column partially healed and fracture of the body of the 4th cervical vertebra present. He was of the opinion that the deceased would appear to have died of injured of cervical spine and its sequelax, about 18 to 24 hours prior to post mortem examination. Ex. The stomach weighed 250 grams. The bladder was empty. He noticed the spinal column partially healed and fracture of the body of the 4th cervical vertebra present. He was of the opinion that the deceased would appear to have died of injured of cervical spine and its sequelax, about 18 to 24 hours prior to post mortem examination. Ex. P. 8 is the post-mortem certificate issued by him. ( 9 ) P. W. 18 seized M. D. 1 cycle on being produced by P. W. 2 from the milk society, under cover of mahazar Ex. P. 15. He searched for the accused and later he came to know that they got anticipatory bail even on 20/4/1985. After completing the investigation, he laid the charge-sheet against the accused on 14/6/1985. ( 10 ) WHEN the accused were examined with reference to the incriminating pieces of evidence against them, they totally denied the prosecution case. In addition, the first accused would stage that he used to sit on the bench in the bus stop as well as in temple. P. W s. 2 and 3 used to go through that side and they did not like his sitting on the bench and they also questioned him, as to how dare he can sit like that, to which he replied how is it possible for him to raise daily when they pass through that way. The first accused would further state that they challenged him that they would see to the accused when time comes and that it is only on account of this enmity, they foisted this case against him. The second accused would state that he was living in Pallar Street about two furlongs away from the Gounders street and the Goundars used to pass through their street. Since he used to sit on the bench by the side of the road, they questioned him and when he replied, they challenged him and they waited for the opportunity to wreak their vengeance. Further, there is enmity between the father-in-law of P. W. 2 and the second accused for about one year prior to the occurrence and on account of the same, P. Ws. Further, there is enmity between the father-in-law of P. W. 2 and the second accused for about one year prior to the occurrence and on account of the same, P. Ws. 2 and 3 and the father-in-law of P. W. 2 implicated him falsely in this case in order to wreak vengeance and that he does not know anything about the opening of the society and he never what and asked for any job and that he does not know the deceased at all. Further, he has studied up to B. Sc. and that he has got lands. Accused 3 and 4 adopted the statement given by accused 1 and 2 and submitted that the case has been falsely foisted against them also. On the side of the accused, one witness was examined as D. W. 1 would state that the bus stand for their village is located at Karumapuram Pallar Street. P. W. 2 and other caste Hindus used to pass through their street in order to board bus and that time the accused used to sit on the bench and they thought that the accused were not giving any respect to them by sitting over the bench and in spite of their questioning, they did not stop sitting and on account of the same, there was enmity. Further, P. W. 2 and other Goundars challenged and threatened to take action. The first accused was employed in the Water Board. The fourth accused was employed as a postman. Accused 2 and 3 are having lands and doing agricultural work and there was no necessity for them to seek any job in the society. ( 11 ) THE Sessions Judge after taking into consideration of the oral and documentary evidence and for the reason stated in the judgment, came to the conclusion that the prosecution has proved the guilt of these appellants and consequently convicted and sentenced them as stated in the opening para of the judgment. Hence the convicted accused have preferred this appeal. ( 12 ) LEARNED counsel for the appellants, Mr. K. Y. Sridharan took us through the recorded evidence and advanced his arguments. He would submit that the trial court mainly relied on Ex. p. 2 and the oral dying declaration said to have been given by the deceased to P. Ws. 2 to 7. He submitted that while P. Ws. ( 12 ) LEARNED counsel for the appellants, Mr. K. Y. Sridharan took us through the recorded evidence and advanced his arguments. He would submit that the trial court mainly relied on Ex. p. 2 and the oral dying declaration said to have been given by the deceased to P. Ws. 2 to 7. He submitted that while P. Ws. 2 and 4 to 7 did not support the case of the prosecution and they were treated as hostile, there is absolutely nothing to accept the evidence of P. W. 3. The medical evidence adduced in the case also did not support the case of the prosecution and that of the ocular testimony. Further, there is absolutely no motive for the accused to commit the crime as alleged. He would submit that Ex. p. 2 could not have been given by the deceased and that it could have been given only by P. W. 2 who accompanied him and that too, long after the alleged occurrence and on account of the inordinate delay, of more than 3 days in despatching the report to the court, no reliance could be placed on the same. As regards Ex. p. 13, 161, statement said to have been given by the deceased, even the trial court did not rely on the said statement and a perusal of the said statement clearly shows that the deceased would not have given the same and as such, no reliance could be placed on the same. The learned counsel also vehemently argued that even as regards Ex. p. 2, in the light of the medical evidence, the deceased would not have affixed his thumb impression and in the absence of any attestation by the Medical Officer to Ex. p. 2, no reliance could be placed. He would submit that even with regard to Ex. p. 13 the same reasoning is applicable as it has not been attested by the Medical Officer who treated the deceased and under whose care the deceased was at the time of the treatment. The learned counsel vehemently argued that P. W. 3, who is the only witness who supported the case of the prosecution with regard to oral dying declaration, is not mentioned in Ex. p. 2 and p. 13 as one to whom the oral dying declaration was made by the deceased. The learned counsel vehemently argued that P. W. 3, who is the only witness who supported the case of the prosecution with regard to oral dying declaration, is not mentioned in Ex. p. 2 and p. 13 as one to whom the oral dying declaration was made by the deceased. No reliance could be placed on the evidence of P. Ws. 2 and 3 in the light of the enmity put forward by the accused and as has been spoken to by the defence witness. He would submit that the deceased could not have stated to the doctor about the time and the manner of attack of the injuries sustained by him but, on the other hand, P. W. 2 who accompanied him alone could have given such information, and as such no reliance could be placed on the same. According to the learned counsel, the deceased died only about two months later. The failure on the part of the investigating agency to get a judicial dying declaration recorded through a magistrate falsifies the alleged dying declaration said to have been given to police. The learned counsel also submitted that the seizure of M. O. 1 cycle itself is doubtful. The presence of protruding stones in the well would make it possible for the deceased having sustained the injuries in an altogether different fashion during darkness. According to the learned counsel, the trial court ought not to have relied on the evidence of hostile witnesses and that too when their evidence was not put to the accused in their 313 statements. Lastly, he would submit that there is no acceptable evidence to establish the guilt of the accused beyond reasonable doubt and the conviction rendered by the trial judge purely based on surmises and presumptions cannot be sustained in the absence of any acceptable evidence. Per contra the learned Additional Public Prosecutor would submit that if once Ex. P. 2 coupled with the oral dying declaration to P. W. 3 and that of the evidence of the hostile witnesses are accepted, certainly it cannot be said that the conviction is not sustainable and there is no legal evidence to connect the accused with the crime. Per contra the learned Additional Public Prosecutor would submit that if once Ex. P. 2 coupled with the oral dying declaration to P. W. 3 and that of the evidence of the hostile witnesses are accepted, certainly it cannot be said that the conviction is not sustainable and there is no legal evidence to connect the accused with the crime. The trial court has considered all the aspects in a proper perspective and came to the correct conclusion and as such, no interference is called for ( 13 ) THE question that arises for consideration in this appeal is whether the prosecution has proved the charges against these appellants beyond all reasonable doubt and whether the conviction rendered by the trial judge is sustainable. 13 (a) It is the case of the prosecution that accused 1 to 4 are the residents of Karumapuram and that they went to the Panchayat office on the night of 17/2/1985 at about 12 midnight and demanded P. W. 2 to provide them job in the said society which is to be opened in the same village on the next day. P. W. 2 replied that already appointments were made and that if any vacancy arises in future, their request would be considered. Thereupon it is stated that they went to the house of P. W. 3, teacher, who was also responsible for the opening of the milk society in the village. It is stated that the deceased was appointed as a tester in the milk society and he questioned the accused for having come in the late hours and making demand for job and subsequently he proceeded to the house of P. W. 3 apprehending that the accused might have quarreled with him as he was alone in his house. It is stated that the accused went to the house of P. W. 3 and when P. W. 3 gave the same reply as given by P. W. 2, they returned. The deceased Ramu went to the house of P. W. 3 and he too returned. On the next morning, the deceased was found floating inside the well near the Panchayat Office and raising noise. That was noticed by P. W. 1 at about 5 A. M. who went there to answer calls of nature and thereupon on hearing her noise, P. Ws. 4 and 15 lifted him from the well. P. Ws. On the next morning, the deceased was found floating inside the well near the Panchayat Office and raising noise. That was noticed by P. W. 1 at about 5 A. M. who went there to answer calls of nature and thereupon on hearing her noise, P. Ws. 4 and 15 lifted him from the well. P. Ws. 2, 3, 6, 7 and others came there subsequently and thereupon he has taken in a taxi to the Government Hospital; Tiruchengodu and from there he was sent to the Government Headquarters Hospital, Salem, and later on died on 13. 4. 1985. ( 14 ) THE prosecution mainly relied on the evidence of P. W. 3, Ex. P. 2 and the oral dying declaration made by the deceased to witnesses spoken to by P. W. 3 coupled with the medical testimony. The contention of the accused was that no such occurrence took place as spoken to by these witnesses and that the deceased might have fallen accidentally into the well and taking advantage of the enmity, the case was foisted and there was no demand for any job, as the first accused was employed in the Water Board and the fourth accused was employed as Postman and accused 2 and 3 are agriculturists. It was also pointed out that the deceased was not a resident of that place and even according to him, he came just a few days prior to the occurrence and there is absolutely no motive for them to commit his murder and on account of the enmity the case has been foisted on them. Now let us consider the contentions raised on behalf of the appellants challenging the material evidence relied on by the prosecution to connect these accused with the crime. According to the prosecution, the next day morning the deceased was taken in a taxi to the Government Hospital, Tiruchengodu accompanied by P. W. 2. The doctor P. W. 10 examined him at 9 A. M. and he sent intimation of accident and injuries, Ex. P. 1 to Tiruchengodu Police Station. P. W. 8 Grade I constable of Tiruchengodu Police station, got Ex. P. 1 at 11. 15 A. M. and went to the Government Hospital and recorded the statement from the injured Ramu (since deceased ). P. 1 to Tiruchengodu Police Station. P. W. 8 Grade I constable of Tiruchengodu Police station, got Ex. P. 1 at 11. 15 A. M. and went to the Government Hospital and recorded the statement from the injured Ramu (since deceased ). It is stated that he was in a position to talk and thereupon he returned to the police station along with Exx. P. I and P. 2. According to P. W. 9, Ex. P. 1 and P. 2 were sent to Mallasamudram police station only on the next day. It is the evidence of P. W. 17 that he registered a case on the basis of Ex. P. 1 and P. 2 in Crime No. 47 of 1985 under Sections 341,324 and 323 I. P. C. and prepared First Information Report Ex. P. 11 and Sent them to the Judicial Second Class Magistrate on the same day through a constable. But the endorsement of the magistrate shows that they were received only on 22. 2. 1985. The learned counsel vehemently argued that the evidence of these witnesses that Ex. P. 2 came into existence on the next day and on the basis of the same, a case was registered on 19. 2. 1985 cannot be accepted in the face of the endorsement made by the magistrate that they were received only on 22. 2. 1985 and the delay of nearly 5 days in launching the First Information Report on the basis of Ex. P. 2 clearly throws suspicion with regard to the existence of Ex. P. 2 on 18. 2. 1985 and no reliance could be placed on account of the same. It was further pointed out by the learned counsel that in Ex. P. 2 the time of recording the statement was not mentioned by P. W. 8. According to P. W. 8, when he went to the hospital, the injured was seated in a chair and he obtained the left thumb impression of the injured in Ex. P. 2. First of all, it is admitted that the injured Ramu was literate and why his thumb impression was affixed. It was commented upon by the learned counsel for the appellants, according to P. W. 8 the injured Ramu himself affixed his thumb impression. P. 2. First of all, it is admitted that the injured Ramu was literate and why his thumb impression was affixed. It was commented upon by the learned counsel for the appellants, according to P. W. 8 the injured Ramu himself affixed his thumb impression. But the evidence of the Medical Officer P. W. 10 clearly shows that the deceased was not in a position to use his hands fingers and legs and he could not have affixed his thumb impression as in view of the injuries sustained by him. His nervous system was affected and he lost his senses in the organs below the neck. Even though it is the case of the prosecution and the evidence of P. W. 2 and P. W. 10 (Doctor) that P. W. 2 took the injured Ramu to the Government Hospital, Tiruchengodu and admitted him in the hospital and from there he was taken to the Government Hospital, Salem, P. W. 8 would state that since nobody was there, he could not get any attestation in Ex. P. 2. According to the learned counsel, if really Ex. P. 2 was recorded in the presence of P. W. 10, Medical Officer, the attestation of the Medical Officer could have been obtained in Ex. P. 2, Though P. W. 8 would state that it was recorded in the presence of P. W. 10, P. W. 10 Medical Officer did not that Ex. P. 2 was recoded in his presence. ( 15 ) NEXT it was pointed out by the learned counsel that in Ex. P. 2 the names of the fathers of accused 1 and 3 are furnished. It is vehemently argued by the learned counsel for the appellants that when admittedly the deceased was a stranger to the village, he could not have given the names of the accused and that too the names of the fathers of the accused. It was also vehemently argued by the learned counsel that the basis of the prosecution case was that since the deceased went to the house of P. W. 3 in order to prevent any quarrel, the occurrence took place. Significantly nothing is mentioned about the deceased going to the house of P. W. 3 or even any reference about P. W. 3 in Ex. P. 2. Significantly nothing is mentioned about the deceased going to the house of P. W. 3 or even any reference about P. W. 3 in Ex. P. 2. The entire case of the prosecution is now relied on the alleged oral dying declaration said to have been made by the deceased to P. Ws. 2 to 7 and even that has not been referred to in Ex. P. 2. The learned Counsel after pointing out all these things strenuously urged that Ex. P. 2 could not have been the one given by the deceased and that too as alleged by the prosecution in the hospital on the next day and that on the other hand it has been fabricated subsequently at the instance of P. Ws. 2 and 3 and others who are inimically disposed towards the accused and his thumb impression was taken by them and not affixed by the injured and as such no reliance could be placed. We find every force in the said contention. Yet another circumstance pointed out by the learned counsel for not accepting Ex. P. 2 is that in the 161 Cr. P. C. statement Ex. P. 13 when the deceased was examined by P. W. 17 at the hospital after wife was examined it is stated that the deceased was living away from his wife for about 1-1/2 months prior to the occurrence as his wife quarreled with him and left for her parents house and the deceased was staying alone. But, in Ex. P. 2 it is specifically mentioned that the deceased is living with his wife at Karumapuram and that he has a daughter and that he is attending to the milk society as a tester. This clearly shows that the deceased could not be the author of Ex. P. 2. The learned counsel would further submit that the scene place is 15 K. M. away from Mallasamudram police station. Even though it is stated by P. W. 17 that he registered a case on 19/2/1985 and sent the same through a constable, it was received by the magistrate only on 22/2/1985. According to him, the occurrence took place on the night of 17/2/1985. If really Ex. P. 2 was given on the next day morning at 12 noon it will reach the magistrates court which is located in the next compound of the police station, immediately on the same day. According to him, the occurrence took place on the night of 17/2/1985. If really Ex. P. 2 was given on the next day morning at 12 noon it will reach the magistrates court which is located in the next compound of the police station, immediately on the same day. But, even though it was sent to the concerned police station on the next day and that the concerned police registered a case on the next day, yet there is a delay of 3 days and this also probabilises the contention of the defence that Ex. P. 2 could not have come into existence as alleged on 18/2/1985, but only on 22/2/1985, long after the alleged incident and the delay is also fatal. We find every force in the contention of the learned counsel for the appellants and in view of the various infirmities pointed out by the learned counsel certainly no reliance could be placed on Ex. P. 2 for convicting the appellants. As regards Ex. P. 13, which is the 161 statement said to have been recorded by P. W. 17 from the deceased and which is a very lengthy statement, in view of the various particulars including the alias names of the accused given in the statement, the deceased could not have been the author of this statement. According to the defence, P. W. 2 is the author of this statement also. Further, the statement also reached the court about two months after the alleged recording of the statement and that too, two days after the death of the deceased. Even the trial Court did not place any reliance on Ex. P. 13 for arriving at a conclusion with regard to the charge of guilt. In this connection it is also pointed out that no attestation of the Medical Officer was obtained even though it was said to have been recorded at the hospital while he was undergoing treatment. It is also vehemently argued by the learned counsel that at the end of the statement, purposely the oral dying declaration which is now relied on by the prosecution, has been inserted and under these circumstances, that cannot be relied on by this court for deciding the point whether the charge has been established against the accused beyond reasonable doubt or not. The learned Additional Public Prosecutor also did not rely on the said statement. The learned Additional Public Prosecutor also did not rely on the said statement. Hence that statement is of no use to the cause of the prosecution. ( 16 ) THE remaining piece of circumstance is only the alleged oral dying declaration said to have been made by the deceased to P. Ws. 1 to 7 after he was lifted from the well and brought to the Panchayat Board Office and before ever he was taken to Tiruchengodu hospital in a taxi and when he was questioned by P. W. 2 as to how the occurrence took place. The learned counsel for the appellants vehemently argued that among the witnesses except P. W. 3, the rest of the witnesses were treated as hostile. The alleged oral dying declaration has not been referred to in the very earliest report Ex. P-2, said to have been given by the deceased. Even the presence of P. W. 3 or the deceased going to the house of P. W. 3 on the night after the accused left the Society after meeting P. W. 2 and the deceased was lost seen at the house of P. W. 3 were all not referred to in Ex. P. 2. Even in the 161 statement which is now marked as Ex. P-13, with regard to which we already discussed and found that no reliance could be placed, no specific reference is made to the or a dying declaration to these witnesses, including P. W. 3. Though P. W. 3 has now deposed about the alleged oral dying declaration of the deceased that he was attacked by these accused, when P. W. 2, questioned him as to how the occurrence happened, in view of the evidence of P. W. 2 that P. W. 3 came long after the deceased was brought to the Panchayat Board office and long after questioning him, no reliance could be placed on his evidence. P. W. 2, the President of the Milk Society to whom the deceased is alleged to have made the oral dying declaration, did not support the case of the prosecution. According to P. W. 3, the deceased mentioned the names of all the four accused and said that they beat and pushed him into the well. However even ill Ex. P-2, the deceased has not mentioned the names of all the four accused. According to P. W. 3, the deceased mentioned the names of all the four accused and said that they beat and pushed him into the well. However even ill Ex. P-2, the deceased has not mentioned the names of all the four accused. But he mentioned only the profession of the fourth accused as postman. Even though it is now stated that the deceased has given the names of these accused with their alias names, the alias names are not mentioned by P. W. 3. Though it is the case of the Prosecution that the deceased had made the oral dying declaration to the effect as to which accused beat with which weapon. But these witnesses have stated that he did not say as to who beat and with what weapon. The learned counsel pointed out of the statements of these witnesses and that of the statements of the deceased and the case of the prosecution, and submitted that the alleged oral dying declaration, are not in the same words as that of the deceased and as such, no reliance could be placed on the evidence of P. W. 3 with regard to the alleged oral dying declaration. Significantly, the other hostile witnesses did not say that the deceased had given oral dying declaration and specifically denied that the deceased gave oral dying declaration, particularly P. Ws. 1, 4,5 and 6 have specifically denied the deceased having given any oral dying declaration. In this connection, the learned counsel submitted that the prosecution has not given any explanation for not recording the dying declaration of the deceased by any magistrate or any doctor from 18. 2. 1985 to 13. 4. 1985, for about two months if really the deceased had given such a dying declaration to these witnesses and he was aware of the assailants and was in a position to give such statement. The learned counsel for the appellant) drew the attention of this court to the following decisions of the apex court and other courts in respect of the value of the dying declaration and the circumstances under which it could be the basis for conviction. In The State of Gujarat v. Mohan Bhai Raghbhai Patel and Anr. the Supreme Court has held:the High Court has adverted to number of these details and doubted the prosecution case. In The State of Gujarat v. Mohan Bhai Raghbhai Patel and Anr. the Supreme Court has held:the High Court has adverted to number of these details and doubted the prosecution case. The High Court has rightly held that these features would not lend any corroboration to the dying declaration but, on the other hand, cause suspicion. There is no other corroboration coming forth. The conduct of the accused in throwing the mattress over the burning woman is an important circumstances which creates a doubt about the prosecution version. Having regard to these circumstances the High Court has given the benefit of doubt to the accused. We have also gone through the details of the dying declaration recorded by the police Officer. We are unable to persuade ourselves to disagree with the finding of the High Court particularly when this is an appeal against acquittal. The decision in Kake Singh v. State of M. P. was relied on for the proposition that where there is a dying declaration recorded by a Head Constable showing suspicions features and where there is medical evidence showing possibility of the deceased becoming unconscious on sustaining the injuries, it has to be held that the dying declaration is not reliable. Further, when that declaration is the solitary evidence in the case, a conviction cannot be founded solely thereon. The learned counsel submitted that consequently the appeal was allowed and the accused was acquitted in the case. The learned counsel relying on the said decisions submitted that in the instant case, the possibility of tutoring the deceased was not ruled out as he was accompanied by P. W. 2 and also his relatives and friends at the time of the alleged oral dying declaration said to have been made and the statements made to police. Further it IS clear that dying declaration is a very weak type of evidence as the accused does not get an opportunity to cross-examine the declarant. In State of V. P. v. Raj Bahadur and Ors. it has been held as follows: 1137 P. W. 5 is Sri Jaipal Singh, the then Sub Divisional Magistrate who recorded the statement of the deceased. In paragraph 2 of his cross-examination, he has admitted that he asked all those persons present to quit from the place where he recorded the dying declaration. it has been held as follows: 1137 P. W. 5 is Sri Jaipal Singh, the then Sub Divisional Magistrate who recorded the statement of the deceased. In paragraph 2 of his cross-examination, he has admitted that he asked all those persons present to quit from the place where he recorded the dying declaration. It means that the declarant was surrounded by a host of his well-wishers, friends and relations right till before the arrival of the learned Executive Magistrate. Therefore, it is quite likely that these persons availed every possible opportunity to tutor and brain wash the deceased. In these circumstances, it has become difficult to hold that the statement Exhibit Ka-4 is an un-tutored version given by the deceased at the time the statement was recorded in anticipation of his death. This is another reason why we feel difficulty in placing reliance upon the dying declaration. 41. Dying declaration is a very weak type of evidence, because the opposite parties, i. e. the accused do not get an opportunity to cross examine the declarant Uncrossed version of the declarant is thrust upon the accused and they can be held guilty of the crime alleged in the declaration. Under these circumstances, the courts are expected to be very circumspect and cautious in accepting the dying declaration. They have to examine very cautiously and particularly so a dying declaration of the present type. With this acid test applied to the present dying declaration we find that it is not worthy of reliance. That was a case where the dying declaration was given to the Executive Magistrate and the learned Judges rejected the said dying declaration as unworthy of acceptance. The learned counsel fur the appellants submitted that the dying declaration which was not recorded in the form of questions and answers cannot be relied on. In the instant case, there is no exceptable evidence with regard to oral dying declaration and even the dying declaration which is oral is not in the words of the deceased and as such, no reliance could be placed on it. ( 17 ) THE learned counsel for the appellants would cite certain decisions with regard to the value of the hostile evidence. ( 17 ) THE learned counsel for the appellants would cite certain decisions with regard to the value of the hostile evidence. In Keshoram v. State of Assam it has been held: While it is true that merely because a witness is declared hostile his evidence cannot be rejected on that ground alone, it is equally well settled that when once a prosecution witness is declared hostile, the prosecution clearly exhibits its intention not to rely on the evidence of such a witness, and hence his version cannot be treated as the version of the prosecution itself. In Sat Paul v. Delhi Administration it has been held Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed of the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge find s that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he find s to be creditworthy and act upon it. If, in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence discard his evidence in toto. The learned Additional Public Prosecutor relied on the decision in State of V. P. v. Chet Ram, wherein it was held. The High Court has failed to bear in mind that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. The learned counsel for the appellants vehemently argued that in the instant case the entire case rests on the oral dying declaration said to have been given by the deceased to the witnesses, besides Ex. P. 2 and P. 13, and except P. W. 3, the outer witnesses were treated as hostile. The learned counsel for the appellants vehemently argued that in the instant case the entire case rests on the oral dying declaration said to have been given by the deceased to the witnesses, besides Ex. P. 2 and P. 13, and except P. W. 3, the outer witnesses were treated as hostile. He submitted that unless the evidence of the hostile witnesses is put to the accused in their 313 Cr. P. C. statements, they cannot be used because the accused must begin opportunity to explain the incriminating peace of evidence on which the court proposes to rely provided it is consistent with the case of the prosecution and which is otherwise acceptable. According to the learned counsel, the evidence of the hostile witnesses was not put to the accused in their 313 statements. When once it was not put in their 313 statements, they cannot be used against the accused. In this connection he relied on the decision of the apex court reported in Sharad v. State of Maharashtra wherein Head note (c) is to the effect: The said contention is not disputed by the learned Additional Public Prosecutor. ( 18 ) IT was vehemently argued by the learned counsel for the appellants that in the instant case P. W. 2 accompanied the deceased to Tiruchengodu Government Hospital and he was present at the time when the doctor examined the deceased Ramu. It has not been specifically stated that the information with regard to the time of occurrence and the manner of attack has been stated by the injured himself. It is only stated, was sent with one Venkatachalam, Society President and accompanied by him for report as to certain injuries alleged to have been caused on 18. 2. 1985 at 1. 00 A. M. and to be due to assault by 4 known persons with stick and iron rod near the village well adjoining the road leading to the Society. Though the doctor P. W. 10 in the examination in chief has stated that the information was given by the injured, he has admitted that he has not stated so specifically in the wound certificate or Accident Register that the deceased was in a position to talk and he gave the information. In the circumstances, his evidence in court nearly after one year after the occurrence, out of memory cannot be accepted. In the circumstances, his evidence in court nearly after one year after the occurrence, out of memory cannot be accepted. In this connection the learned counsel for the appellants relied on the decision of the apex court reported in Surinder Kumar and Ors. v. State of Haryana, wherein in para 3 it was held:it was accused Surinder Kumar who brought his wife Sheema to the hospital and he remained present while the deceased was examined by the doctor. It is nowhere mentioned in the record that what was recorded by the doctor was stated by the deceased. It is evidence that what was recorded by Dr. Tandon could not be the version or Sheema herself. Had it been so the motor may not have used the word alleged while recording that the patient received injuries while cooking food on gas-stove. Dr. Tandon did not mention anywhere on Ute record about the state of mind of Sheema. It was nowhere recorded whether she was conscious or not. It is difficult to believe that the doctor made his deposition in the court on the basis of his memory. It is more probable that what was recorded by Dr. Tandon was at the instance of the husband who was accompanying his wife at the time of her examination by Dr. Tandon. The learned counsel relying on the above decision submitted that in this case also the information that P. W. 2 accompanied the injuries in mentioned and that it is nowhere stated that the injured was in conscious state and that the injured himself gave the statement to the doctor as now deposed only on memory after a lapse of one year. Hence, that version cannot be the version of the deceased but that of P. W. 2. The learned counsel submitted that suspicion, however grave, cannot take the place of proof. In this connection, he relied on the decision of a Division Bench of this Court reported in Mahesh and 5 Ors. v. State of Tamil Nadu, wherein it was observed that Suspicion, however grave it may be, is no substitute for legal proof to base a conviction. The learned counsel pointed out that these accused surrendered in court on 26. 2. 1985, a week after the occurrence and in their petitions they have given their alias names. v. State of Tamil Nadu, wherein it was observed that Suspicion, however grave it may be, is no substitute for legal proof to base a conviction. The learned counsel pointed out that these accused surrendered in court on 26. 2. 1985, a week after the occurrence and in their petitions they have given their alias names. Based on the above particulars; the subsequent statements were recorded and the deceased was alleged to have given the alias names of the accused even though they were not given in his earlier statements. He would submit that after registering the case that too for 5 days after the occurrence, no investigation was done in this case and only after the death of the deceased on 13. 4. 1985 everything was prepared and the case was built up against the accused. But the prosecution has miserably failed to establish the same. ( 19 ) THE learned counsel vehemently argued that the medical evidence adduced in this case does not support the case of the prosecution and on the other hand, it supports the plea of the defence. P. W. 10 who examined the deceased immediately after the occurrence on the next morning and who noted four external injuries, has categorically admitted that those injuries could have been caused by falling from a cycle while riding on a cycle, to a depth of 20 feet into a well and hitting against hard substance and there is a possibility of recovering from those injuries. Even the injury on the 4th cervicle vertebra was due to the accidental fait. The learned counsel for the appellants vehemently argued that if the deceased was beaten with iron rod forcibly on the head, the injuries could have been more serious and they would not have been simple injuries as seen by the doctor. The doctor did not find any fracture. There was also no external injury on the nape of the neck even though it is stated that two of the assailants beat the deceased on the back with stick. In the instant case even the cycle which is said to have been driven by the deceased at the time of the occurrence was not seized by the prosecution till. 14/4/1985. In the instant case even the cycle which is said to have been driven by the deceased at the time of the occurrence was not seized by the prosecution till. 14/4/1985. When P. W. 17 was cross-examined, he would state that it did not strike to him that cycle is to be seized and that he did not think it important. It is the evidence of P. W. 18 for the first time that he seized M. O. 1 cycle on being produced by P. W. 2 after taking it from the society on 14/4/1985 and he seized it under cover of mahazar Ex. p. 16. He seized the cycle long after the death of the deceased and about two months after the occurrence. According to the evidence of the prosecution witnesses, the cycle was also found lying in one portion of the well inside. It is not the case of the prosecution that the cycle was on the road. The failure to seize the cycle immediately, that too when P. W. 2 was examined and the fact that it was seizer only on 14/4/1985 shows considerable doubt on the version of the prosecution and on the other hand, it probablises the version of the accused that the deceased would accidentally have fallen into the well adjourning the road while riding during night time as he was a stranger to that place and he sustained the injuries and taking advantage of the same, this case has been foisted on account of enmity between them and the caste Hindus, particularly P. Ws. 2, 3 and others who are the leaders of the casts Hindus. Their version is also corroborated by the evidence of the defence witness. Thus, on a careful consideration of the entire materials, we have no hesitation in coming to the conclusion that the prosecution has not proved the guilt of these appellants beyond all reasonable doubt and there is no legal evidence to connect them with the charge alleged and as such their conviction is not sustainable. ( 20 ) IN the result, the appeal is allowed, the conviction and sentence awarded to the appellants and set aside and they are acquitted of the charges for which they were convicted. Their bail bonds shall stand cancelled. Fine amount, if already paid by them under charge No. 1, is directed to be refunded to them. Appeal allowed.