JUDGMENT G.D. Patil J. - By the instant appeal the State is challenging the order of acquittal passed by the learned Additional Sessions Judge, Akola, acquitting the respondents-accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. The respondents-accused were prosecuted for the offence punishable under Section 302 read with Sec. 34 IPC for intentionally or knowingly causing the death one Vijay alias Baiju on 23.5.1989 at about 1 p.m. at Akola by means of spear, sword, dagger and knife. The only eyewitness to the incident, according to the prosecution, was P.W. l Raiu. In the opinion of P.W. 5 Dr. Ajay Javerkar, who conducted the post mortem examination of Vijay, who died on 28.5.1988, the injuries sustained by the deceased were possible by means of a Janibiya and injury no 6 alone or all the injuries together were sufficient in the online course of nature to cause the death. In his opinion, the probable cause of death was multiple stab wound especially on abdomen and chest besides the oral testimony of the eye - witness P.W. 1 Raju, the prosecution relied on the oral report (Ex. 39) lodged by deceased Vijay himself, which was treated as dying declaration since Vijay died. The prosecution further relied on the evidence of blood - stains found on the clothes of the accused persons as also on the discovery memorandum (Ex. 13) by the accused No. 1 Amarjitsingh and the recovery panchanama (Ex. 14) pursuant thereto, where under one iron dagger (Art 5) was recovered. The trial Court, however, did not accept all this evidence as reliable and held that the accused were entitled for benefit of doubt and resultantly recorded order of acquittal of all the respondents. 3. Heard Shri Agarwal, learned Additional Public Prosecutor appearing for the State and Shri M.R. Daga, learned counsel for the respondent and perused the evidence and the impugned order. 4. The learned counsel for the appellant could not seriously find fault with the order of acquittal of the respondent nos. 2 and 3, though he tried to urge that in that wake of the evidence of P.W. 1 Raju, corroborated by the oral report (Ex. 39), all the respondents were liable to be convicted for the offence of murder. 4. The learned counsel for the appellant could not seriously find fault with the order of acquittal of the respondent nos. 2 and 3, though he tried to urge that in that wake of the evidence of P.W. 1 Raju, corroborated by the oral report (Ex. 39), all the respondents were liable to be convicted for the offence of murder. The learned counsel for the appellant further submitted that in any case at least accused No. 1 Amarjit singh was liable to be convicted for the offence of murder, his clothes having been found stained with blood and the weapon of assault having been recovered at his instance and which was also found to have human blood stains. In his submission, no plausible explanation was put forth by the accused either in the cross examination of the prosecution witnesses or in their statement under Section 313 of the Code of Criminal Procedure as to why the prosecution witnesses were deposing against them and their defence being of simple denial without explaining the circumstances proved against them, they could not have been acquitted by the trial court Mr. Daga appearing for the respondents, on the other hand urged that none of the accused can be held guilty for the offence with which they are charged, as the prosecution has failed to prove tile charge against them as rightly held by the trial court and in any case, he further submitted, having regard to the nature of the evidence, adduced by the prosecution, the respondents accused were certainly entitled to the benefit of doubt and the order of acquittal as recorded by the learned Additional Session Judge was, therefore, perfectly justified. Shri Daga further contended that in any case the view taken by the learned Additional Sessions Judge was probable one having regard to the evidence on record and, therefore, no interference with the judgment and order of acquittal was warranted in this appeal against acquittal at the instance of the State. 5. Keeping in mind the contentions raised as hereinabove of the respective parties, we examined the evidence. The only eye - witness P.W. 1 Raju deposed that while he was passing from Madhu Agency on the date of the incident at about 12-30 noon, he saw all the three accused assaulting Vijay with Knife Jambiya and Gupti. They hit Vijay on his hand, abdomen and chest. The only eye - witness P.W. 1 Raju deposed that while he was passing from Madhu Agency on the date of the incident at about 12-30 noon, he saw all the three accused assaulting Vijay with Knife Jambiya and Gupti. They hit Vijay on his hand, abdomen and chest. He further deposed that he intimated this incident to the family members of Vijay and went along with him to the hospital. The cross-examination of this witness reveals that he is on cross-terms with the accused. It also further reveals that this witness was prosecuted in two criminal cases for assaulting one Tukaram's son. Although he denied the suggestion that the accused persons were having thick relations with Tukaram, the accused in their statements under Section 313 Cr. P.C. have stated that Tukaram's son Sunil was their friend, to whom this witness had beaten and due to that they were falsely implicated in the offence. The possibility of false implication of the accused by this witness, in the circumstances, cannot be totally ruled out Moreover, the testimony of this witness suffers from variance, omissions, improvements and contradictions in material particulars. This witness deposed that he had intimated to the family members of the deceased about the incident. However, this has been providing to be an omission. He has made an improvement that the aspect of the weapons with the respective accused persons as well. This witness further appears to be a chance witness. There was no reason for him to be on the spot of the incident at the time when it occurred. His statement was also recorded on the next day of the incident, though undoubtedly he was present in the hospital on the date of the incident itself, for a long time and thus was available for recording his statement The trial Court has considered the evidence of this witness and doubted about the presence of the witness on the spot of the incident, held him to be a parties on witness and consequently his evidence has been held to be unreliable. It cannot be said that the assessment of this evidence by the trial court and the ultimate finding holding the evidence unreliable is not proper one in the wake of the nature of evidence of this witness. P.W. 2 Ramcharan is a brother of the deceased. It cannot be said that the assessment of this evidence by the trial court and the ultimate finding holding the evidence unreliable is not proper one in the wake of the nature of evidence of this witness. P.W. 2 Ramcharan is a brother of the deceased. Ramcharan though in his examination in chief stated that P.W. 1 Raju came to his house and informed him that his brother Vijay was assaulted, this however was not stated by him to the police when his statement was recorded on 26.5.1988. 6. The prosecution relied on the statement made by the deceased in the Police Station (Ex. 39). This is how to be proved by P.W. 7 Mahadeo Dongre, Police Head-constable, who had recorded the statement in this statement at Ex. 39 deceased Vijay had stated that while he was going to the market near Madhu Agency, the respondents accused asked him to take out money, which he had. On it when he had told them that he had no money, the accused attacked him by means of spear, sword and knife, as a result of which he sustained injuries. This statement, however, is not signed by deceased Vijay. P.W. 7 Mahadeo Dongre - Police Head Constable admitted in his cross-examination that though he made an entry in the Station Diary to the effect that at 1:05 p.m. the deceased was referred for treatment, he did not station therein that he had recorded the oral report (Ex. 39) given by Vijay. He claims to have sent the deceased to the hospital. In the requisition sent to the Medical Hospital also there is no reference as to who had assaulted the deceased. This on report dying declaration (Ex. 39) is not attested by any witness. Though the names of the accused as per this oral report (Ex. 39) came to be referred to the police, undisputedly offence was not registered against the respondents immediately. In these circumstances, if the learned Additional Sessions Judge finds it doubtful as to whether at all this dying declaration (Ex. 39) was recorded by police Head Constable P.W. 7 Mahadeo Dongra in the Police Station, it cannot be said that the view was taken is improbable. In these circumstances, if the learned Additional Sessions Judge finds it doubtful as to whether at all this dying declaration (Ex. 39) was recorded by police Head Constable P.W. 7 Mahadeo Dongra in the Police Station, it cannot be said that the view was taken is improbable. P.W. 7 Mahadeo Dongre, though tried to explain the absence of signature of the deceased on the statement by saying that Vijay had sustained injury to one of his hands and his other hand was trembling, there is no explanation as to why the statement of injured Vijay was not recorded in the presence of two witnesses. 7. Another statement of deceased Vijay came to be recorded by P.W. 8 P.S.I Shaikh. It is at Ex. 42. This dying declaration, has rightly held by the learned Additional Sessions Judge, is suspicious for the reasons that (i) it was recorded after four days of the incident (ii) this is also not signed by the deceased or the witnesses, and (iii) no certificate has been obtained about the condition of the victim when this dying declaration Ex. 42 was recorded nor the time of recording of the same has been mentioned therein. The two dying declaration Ex. 39 and Ex. 42 are further in variance. Perusal of these two dying declarations reveals that in Ex. 39 Vijay stated that the respondent No 2 asked him to take out money and having told that he was having no money, they assaulted him, whereas in the dying declaration Ex. 42 he has stated that the responder its attacked him while asking as to why he was demanding the amount of interest from them. This variance on the aspect of cause of the assault if found by the learned Additional Sessions Judge sufficient to hold the two dying declarations unreliable, it cannot be said that such a view is not a probable one. The prosecution has not explained as to why though the deceased survived for 5 days, his dying declaration could not be recorded by the Executive Magistrate. P.W. 6 Dr. Deshmukh's deposition reveals that deceased Vijay did not disclose the names of the accused persons to him and he had merely stated that someone had assaulted him. The prosecution has not explained as to why though the deceased survived for 5 days, his dying declaration could not be recorded by the Executive Magistrate. P.W. 6 Dr. Deshmukh's deposition reveals that deceased Vijay did not disclose the names of the accused persons to him and he had merely stated that someone had assaulted him. P.W. 2 Ramcharan in his examination-in-chief though stated that on being informed by P.W. 1 Raju, which also as pointed out above is an omission in the police statement, he went near Madhu Agency, saw Vijay in injured condition and Vijay told him that the respondents assaulted him, this is an omission in the police statement All this evidence, in our view, has rightly been appreciated by the learned Additional Sessions Judge while raising a doubt as to whether at all Vijay had disclosed the names of the accused persons to anyone. 8. What remains to be seen is the effect of seizure of blood stained clothes of the accused, which is a weak piece of evidence. Mere fact that the clothes of the accused were found stained with blood cannot permit to raise an inference that all the stains were formed at the time of assault on the victim. Moreover, the blood group of the blood -stains could not be ascertained. Mere fact of finding of blood stains on the clothes of the accused Amerjit singh in the absence of any other evidence on record, cannot be held to be sufficient to connect the accused with the guilt, as sought to be urged by the learned counsel for the State. Accused No. 1 Amarjit singh has given an explanation about having the blood stains on his clothes, by saying that some days prior to the incident when he was carrying a child from whose nose blood was oozing, his clothes were stained with blood. If this explanation has been held to be plausible one by the learned Additional Session Judge, no fault can be found therewith. If this explanation has been held to be plausible one by the learned Additional Session Judge, no fault can be found therewith. Mere recovery of a dagger Article 5 at the instance of accused No. 1 Amarjit singh, which also was found to have been stained with human blood and the blood group of which could not be found, again could not be sufficient to connect the accused with the offence with which he was charged, more so when the panch witness Ramdas (P.W. 3) who has signed as Panch to Exhs. 13 and 14, viz. Discovery Memorandum and Recovery Panchanama respectively, has turned hostile and when the other weapons allegedly the police did not seize uses during investigation. The evidence of P.W. 8 P.S.I. Abdul Shakur on this aspect cannot be held sufficient one to connect the accused with the guilt. All the aforesaid aspects and the evidence on record has been considered by the trial Court minutely in the impugned judgment and the learned Additional Sessions Judge has come to the conclusion that the evidence on record cannot be held as sufficient to prove the guilt of the accused beyond reasonable doubt and that in any case having regard to the nature of the evidence on record, they were entitled for benefit of doubt. On appreciating the evidence ourselves, we think that the view taken by the learned Additional Sessions Judge, having regard to the nature of evidence, was probable one and it is in these circumstances we, do not think this one to be a case wherein interference is called for with the order of acquittal recorded by the learned Additional Sessions Judge. In the result, there is no substance in this appeal and it is dismissed. Bail bonds stand cancelled. Appeal dismissed.