E. G. SHAH, J. The appellants, four in number, were charged for having committed offences, punishable under Sections 323, 325 and 302, I. P. C. , each read with Section 34, J. P. C. The learned III Additional Sessions Judge, Banda, in Sessions trial No. 133 of 1979, held them quilt of the offences for which they were charged. He sentenced each one of them to imprisonment for life for an offence under Section 302/34,i. P. C. He, however, did not inflict any separate punishment upon the appellants for the offences under Section 323/34 and 325/34, I. P. C. 2. The facts of the prosecution case may briefly be stated as follow. 3. Deceased Maiyadin belonged to Harijan Chamar community. He was leader of that community. He took up the causes of that community and asked his community people to demand proper wages for the labor work they did. On this account, according to the prosecution, the persons belonging to Thakur community of village Vihar were enraged at the deceased. The incident giving rise to this case occurred at about 5. 00 p. m. , on October 31, 1977. The deceased had just then come from the field and he was sitting at his house in village Vihar. His wife Golibya (PW 5) and his daughter-in-law Sukumariya (PW 1) were inside the house. At that time, according to the prosecution, the four appellants came to the house of the deceased. They were armed with weapons. Gajodhar, appellant No. 1, caught hold of the deceased and exhorted the other appellants to drag the deceased outside and kill him. Thereupon Ram Bhavan, appellant No. 3 and Naresha, appellant No. 4, assaulted the deceased by means of sticks. The deceased raised shrieks hearing which his wife and daughter-in-law came there and some others also came there. It is further the case of the prosecution that thereafter the deceased followed by his wife and daughter-in-law and others started for going to the stone crusher of Khajanchi Singh (DW 2) for having redressed of his grievances against the appellants. When the deceased and the persons who were accompanying him came near a place known as Pathariya (Pathariya Baba) at 7. 00 p. m. the appellants once again assaulted him by means of dangerous weapons and felled him down. On hearing the shrieks of the deceased, his brother Babu Lal and others also came there. When the deceased and the persons who were accompanying him came near a place known as Pathariya (Pathariya Baba) at 7. 00 p. m. the appellants once again assaulted him by means of dangerous weapons and felled him down. On hearing the shrieks of the deceased, his brother Babu Lal and others also came there. They intervened and challenged the appellants and thereupon the appellants took to their heels. Thereafter the wife and the daughter.-in-law of the deceased arranged to take the deceased at Shivrampur out-post. At that out- post, the deceased made a statement Ext. Ka-1 before Putti Lal (PW 6) at 9. 00 p. m. who was the officer Incharge of the Police out-post. After recording the statement, Putti Lal arranged to send the deceased as also Secularly who had sustained injury to the Primary Health Centre, Shivrampur which is situate in the same building in which the Police out-post, Shivrampur is situate. At the Primary Health Centre, Dr. P. N. Singh (PW 9) examined the deceased at 9. 20 p. m. The doctor found the following : (1) Lacerated wound 5 cm. X 1 cm X bone deep on the top of head right side, obliquely placed 10 cm. above right ear,-oozing of blood present. (2) Lacerated wound 4. cm. X 0. 5 cm. x scalp deep oblique on left side head 10 cm. above left ear, oozing of blood present. (3) Lacerated wound 3 cm. X 0. 5 cm. X scalp deep on left side head 2 cm. above injury No. 2 oozing of blood present. (4) Lacerated wound 2 cm. X 0. 5 cm. X scalp deep on right of head left side 2 cm. above injury No. 3 oozing of blood present. (5) Incised wound 2 cm. X 0. 4 cm. X muscle deep on right side face obliquely just below right lower eyelid margined cut, oozing of blood present. (6) Lacerated wound 2 cm. X 0. 5 cm. X muscle deep on left bide face 1 cm. below left lower eyelid, obliquely placed, oozing of blood present. (7) Reddish contused swelling in an area of 5 cm. x 4 cm. on the outer side of right elbow. (8) Punctured wound 1 cm. x 0. 5 cm. 2 cm. deep as far as easily probed going upward and medially on left arm lower part outer side 3 cm. below left lower eyelid, obliquely placed, oozing of blood present. (7) Reddish contused swelling in an area of 5 cm. x 4 cm. on the outer side of right elbow. (8) Punctured wound 1 cm. x 0. 5 cm. 2 cm. deep as far as easily probed going upward and medially on left arm lower part outer side 3 cm. above elbow, margins inverted and oozing of blood present. (9) Abraded contusion 5 cm. x 3 cm. reddish on the back of left fore-arm upper 1/3rd part. (10) Reddish abraded contusion 6 cm. x 3 cm. on the back of left fore-arm lower 1/3rd part. (11) Contused swelling in an area of 6 cm. X 2 cm. reddish on the back left hand upper and middle 1/3rd part. (12) Punctured wound 0. 5 cm. X 0. 5 cm. X 1. 4 cm. deep as far as easily probed going upward and medially on right leg upper 1/3rd part medial side 11 cm. below right knee, margins inverted and oozing of blood present. There is contused swelling in an area of 3 cm. X 2 cm, just above the ground. (13) Lacerated wound 2 cm. X 0. 5 cm. X muscle deep on left leg lower 1/3rd part medial side oblique, oozing of blood present. (14) Reddish contusion 8 cm. X 2 cm. on the back of chest left side lower 1/3rd. part, obliquely placed. 4. Dr. Singh also examined Sukumariya, daughter-in-law of the deceased at 10. 20 p. m. on that very day and found that she had a reddish contused swelling in an area of 5 cm. X 3 cm. on the lower 1/3rd part of right arm outer side. That injury was simple in nature and as stated by the doctor it was possible to be caused by a blunt object. The doctor found the injury to be fresh. It is the prosecution case that from the Primary Health Centre, the deceased was once again taken to Shivrampur out-post which, as stated, is situate in the same building in which the Primary Health Centre is situate. At the out-post, according to the prosecution, after about 10. 25 p. m. , the statement of the deceased Ext. Ka-17 was recorded by S. I. Mr. S. K. Dikshit (PW 8) who was ascend to investigate into the case. At the out-post, according to the prosecution, after about 10. 25 p. m. , the statement of the deceased Ext. Ka-17 was recorded by S. I. Mr. S. K. Dikshit (PW 8) who was ascend to investigate into the case. The doctor at the Primary Health Centre, finding the condition of the deceased to be critical, had advised that the deceased should be taken to Government Hospital at Banda. However, as no conveyance for taking the deceased to Banda was immediately available. Sukumariya, the daughter-in-law of the deceased and others wanted for a conveyance taking the deceased to Banda. However, in the meanwhile some time before 5. 00 a. m. on November 1, 1977, the deceased succumbed to the injuries that ho had sustained. 5. The Investigating Officer, Mr. Dikshit completed the investigation and submitted the charge-sheet against the appellants. In due course, they were committed to the Court of Sessions. The learned IIi Additional Judge, Bauda on an appreciation of evidence led before him, found the prosecution case to be acceptable and passed the impugned order of conviction and sentence. 6. We have heard Sri V. C. Tewari, learned Counsel for the appellants and Sri R. C. Deepak, learned Assistant Government Advocate for the respondent. It is the prosecution case that the four appellants at first at about 5. 00 p. m. went to the house of the deceased at village Vihar armed with weapons and assaulted him. At that time, according to the prosecution, all the four appellants were armed with weapons. It is further the prosecu tion case that at that time, appellants Nos. 3 and 4 gave stick blows to the deceased. The deceased raised shrieks, hearing which Sukumariya (PW 1), daughter-in-law of the deceased and Golibya (PW 5), wife of the deceased, came out from inside the house and thereupon the appellants left the place. This, according to the prosecution, happened at about 5. 00 p. m. A little while later on at about 7. 00 p. m. , the deceased was going to Khajanchi Singh, the owner of the stone crusher who, according to the deceased, was a just and reasonable man for the purposes of having redressed of his grievances against the appellants who had assaulted him. The deceased was then accompanied by Sukumariya and Golibya and they were followed by the brothers of the deceased and some others. The deceased was then accompanied by Sukumariya and Golibya and they were followed by the brothers of the deceased and some others. When they came near the place known as Pathhriya Baba, the appellants once again assaulted the deceased by means of weapons like sticks, Ballam (Kanta) and pharsa. Sukumariya and others tried to rescue the deceased from the assault that was launched upon him by the appellants and in the process, Sukumariya received a minor injury on her arm. According to the prosecution, the deceased was then taken to the police out-post Shivrampur where he lodged the First Information Report Ext. Ka-1. 7. The learned Counsel for the appellants very strenuously contended that the first information report Ext. Ka-1 is a fabricated document. According to him, as per the prosecution case, the deceased had sustained very serious injuries on the head and that head injury proved ultimately to be fatal. The head injury which is described by Dr. Singh as injuries 1 to 4, shown hereinabove, were serious and as per the evidence of Dr. R. N. Gupta, (PW 7) who carried out the post-mortem on the deadbody of the deceased, the right parietal bone had been fractured and the brain was congested. On the left side, cranial fossa of the skull had also been fractured. 8. According to the learned Counsel for the appellants, with these injuries received at about 7. 00 p. m. , the deceased could not have been conscious at 9. 00 p. m. to make a statement Ext. Ka-1 which has been treated in this case as the First Information Report. Having considered the matter from all relevant angles, we think that the submission of the learned Counsel for the appellants deserves to be accepted. 9. Dr. P. N. Singh (PW 9), as stated above, examined the deceased at 9. 20 p. m. He found on the body of the deceased the injuries noticed hereinabove. According to the doctor, when he examined the deceased, the deceased was capable to speak. However, he was semi-conscious. The doctor stated that a semi-conscious man can speak. The doctor was put a question whether the mental condition of the deceased at that time was normal and the doctor replied that there was possibility of understanding in the deceased. According to the doctor, when he examined the deceased, the deceased was capable to speak. However, he was semi-conscious. The doctor stated that a semi-conscious man can speak. The doctor was put a question whether the mental condition of the deceased at that time was normal and the doctor replied that there was possibility of understanding in the deceased. He was further questioned if on account of the injuries received by the deceased, he was rendered semi-conscious and the doctor said that on account of bleeding and hemorrhage, there was possibility of weakness and seem consciousness. He was further questioned whether 20 or 30 minutes before he examined the deceased, the mental condition of the deceased could have remained good and he said that the mental condition of the deceased could have been ordinary. He was asked as to why was it that he did not record the dying declaration of the deceased and he said that he did not record the dying declaration of the deceased as the deceased was not in full consciousness and that he was not fit for dying declaration. 10. Dr. Gupta who carried out the post-mortem examination on the deceased and who had particularly examined the internal injuries of the deceased, in cross-examination, stated that the right parietal bone and left middle fossa had been fractured. According to that doctor, it was possible the deceased could have been rendered unconscious immediately on receiving these injuries or within a short time of receiving these injuries. The doctor said that he could not positively state as to how much time after the receipt of the aforesaid injuries, the deceased could have become unconscious but then he said that there was a greater likelihood that within about half an hour or an hour of receiving of the aforesaid injuries, the deceased would have become unconscious. 11. Thus though Dr. Singh (PW 9) has stated that when he examined him, the deceased was capable of speaking but was semi-conscious and that a semi-conscious man may also be capable of speaking and that there was a possibility of understanding in the mental condition of the deceased, as clearly indicated by Dr. 11. Thus though Dr. Singh (PW 9) has stated that when he examined him, the deceased was capable of speaking but was semi-conscious and that a semi-conscious man may also be capable of speaking and that there was a possibility of understanding in the mental condition of the deceased, as clearly indicated by Dr. Gupta, (PW 7) who carried out the pos-mortem examination, there was a greater likelihood that the deceased might have been rendered unconscious within half an hour or an hour of receiving of the injuries to the head and the skull. It is in the light of this medical evidence that we are required to examine the other evidence on the record. 12. Sukumariya, the daughter-in-law of the deceased, has stated that the deceased was first taken to the police out-post where he made a statement Ext. Ka-1 and from there he was taken to the Primary Health Centre which is situated in the same building in which the police out-post is situate. Sukumariya has further categorically stated that immediately after the deceased was brought out from the Primary Health Centre, he was rendered uncon scious and thereafter he never regained consciousness. Even Golibya, wife of the deceased, has made a statement to that effect. Thus it is clear that as per these two witnesses Sukumariya and Golibya, soon after the deceased was medically examined at the Primary Health Centre, he was rendered un conscious and thereafter till his death, he never regained consciousness. 13. One more fact may be noticed. The head injuries which proved fatal to the deceased were possible to have been caused and as said by the prosecution were caused by means of a Pharsa by appellant No. 1. Now in the First Information Report Ext. Ka-1, though the deceased has described the other weapons said to have been used on him by the appellants he has no where stated Pharsa which is a sharp edged weapon having been used at him by any of the appellants. There is evidence to show that Ballam which is also called Kanta is quite different and distinct from Pharsa. Whereas Ballam is a pointed weapon which can cause a punctured wound, Pharsa is a sharp-edged weapon which can cause incised wound such as injury No. 5 noted hereinabove. 14. There is evidence to show that Ballam which is also called Kanta is quite different and distinct from Pharsa. Whereas Ballam is a pointed weapon which can cause a punctured wound, Pharsa is a sharp-edged weapon which can cause incised wound such as injury No. 5 noted hereinabove. 14. According to the prosecution, Gajodhar, appellant No. 1, was armed with a Pharsa, appellant No. 2 was armed with Ballam and the remaining two appellants were armed with sticks. It was Gajodhar who caught-hold of the deceased at his house and exhorted the other appellants to drag out the deceased and kill him. He was armed with a Pharsa. If that be so, the fact that Gajodhar was armed with a Pharsa would have been such a prominent fact that the deceased would never have failed to mention it in the First Infor mation Report Ext. Ka-1. However, in the First Information Report, we do not find any mention of Pharsa. That being the position, if we recapitulate the medical evidence discussed hereinabove, there is a strong probability of the fact that the First Information Report Ext. Ka-1 was never dictated by the deceased. 15. There is another angle of the matter also. Between Sukumariya (PW 1) and Golibya (PW 5), there are contradictions in terms as to the weapons used by a particular appellant. According to Sukumariya, it was appellant No. 1 who wielded the Pharsa and appellant No. 2 wielded Ballam. According to Golibya, it was appellant No. 2 who wielded a Pharsa and appel lant No. 1 wielded a Ballam. 16. There is yet another angle of the matter. We will presently come to discuss as regards Ext. Ka-17, the so-called dying declaration of the deceased, but at this juncture, it may be noticed that it is the prosecution case that after 10. 45 p. m. , the Investigating officer Mr. Dikshit recorded the statement of the deceased which is Ext. Ka-17. Now as discussed hereinabove, accord ing to the consistent evidence of Sukumariya and Golibya, no sooner the deceased was brought out from the Praimary Health Centre, he was rendered unconscious and never regained consciousness thereafter. If that of so, the so-called dying declaration Ext. Ka-17 said to have been recorded by the Investigating Officer, Mr. Dikshit must be branded as a manipulated document. 17. If that of so, the so-called dying declaration Ext. Ka-17 said to have been recorded by the Investigating Officer, Mr. Dikshit must be branded as a manipulated document. 17. Sri V. C. Tewari, the learned counsel for the appellants tried to rely upon this document Ext. Ka-17 for the purpose of pointing out that as per that document which is said to be the statement of the deceased, the deceased knew the fact that Sukumariya had also received an injury and yet in the First Information Report Ext. Ka-1, the deceased has not made any mention about Sukumariya having received any injury. In our opinion, Ext. Ka-17 can not be used in the manner the learned counsel for the appellants wanted us to use. 18. As pointed out hereinabove, as per the depositions of Sukumariya and Golibya, the deceased, soon after he was brought out of the Primary Health Centre, was rendered unconscious and thereafter he never regained consciousness. According to Mr. Dixit, the Investigating Officer, he took over the investigation of the case at 10. 45 p. m. on October 31, 1977. There is evidence to show that Putti Lal PW 6, Officer Incharge of the out-post, soon after he recorded the First Information Report Ext. Ka-1, sent the deceased to the Primary Health Centre for medical examination and treatment. The First Information Report is said to have been recorded at 9. 00 p. m. Dr. Singh PW 9 examined the deceased at 9. 20 p. m. and then he examined Sukumariya at 10. 20 p. m. According to Mr. Dikashit, Investigating Officer, he started investigation in the matter at 10. 45 p. m. Obviously, therefore, the statement Ext. Ka- 17 which is said to have been recorded by Mr. Dikshit must have been recorded by him after 10. 45 p. m. According to Mr. Dikshit, it was at the police out-post that he recorded the statement Ext. Ka-17. Now even at the cost of repetition, we would say that as consistently deposed by Sukumariya and Golibya, soon on being brought out from the examination room of the Primary Health Centre the deceased was rendered unconscious and thereafter he never regained consciousness. Therefore, Ext. Ka-17 could not have been recorded by Sri Dikshit after 10. 45 p. m. the statement said to have been made by the deceased. Secondly, though Mr. Therefore, Ext. Ka-17 could not have been recorded by Sri Dikshit after 10. 45 p. m. the statement said to have been made by the deceased. Secondly, though Mr. Dikshit has said that it was at the Police out-post that he recorded the statement Ext. Ka-17, Putti Lal has said that the deceased was never brought to the Police out-post after he was sent to the Primary Health Centre for examination and treatment. There fore the statement Ext. Ka-17 becomes highly doubtful and could not be used for any purpose. 19. Even if it may be assumed that Ext. Ka-17 is a statement made by the deceased, as aside by Dr. Singh, the deceased was not in full conscious ness and was not fit for dying declaration. Therefore, that statement Ext. Ka-17 cannot be used as a dying declaration. 20. Mr. V. C. Tewari, the learned counsel for the appellants while disputing the genuineness of this document Ext. Ka-17, wanted to use it for the purpose of the argument that in that document the deceased had spoken about Sukumariya having received an injury. That would mean that the deceased was aware of the fact that in the incident Sukumariya had received an injury and yet in the First Information Report, the deceased has not made any mention about Sukumariya having received injury. We think that even in law we cannot make use of this statement Ext. Ka-17 in manner the learned counsel wanted us to make. Our reasons for this are as follows : 21. The Investigating Officer S. K. Dikshit, PW 8, has proved the statement Ext. Ka-17 of Maiyadin deceased recorded under Section 161, Cr. P. C. In this statement, the deceased is shown to have said that the accused persons had caused injuries to Smt. Sukumariya, PW 1 in the incident which had taken place at Patharia Baba. This fact has not been mentioned in the First Information Report Ext. Ka-1 which was also lodged by the deceased. The learned counsel for the appellants has accordingly urged that 24. In view of what we have discussed above, it becomes clear firstly that in the First Information Report Ext. Ka-1 no mention has been made about Pharsa as a weapon used by any of the accused on the deceased. Secondly in that document, no mention is made about the injury of Sukumariya. In view of what we have discussed above, it becomes clear firstly that in the First Information Report Ext. Ka-1 no mention has been made about Pharsa as a weapon used by any of the accused on the deceased. Secondly in that document, no mention is made about the injury of Sukumariya. Thirdly, as the medical evidence shows, in all likelihood, the deceased could not have been in any fit mental state to make statement Ext. Ka-l. From all this, it appears to us that Ext. Ka-1 is a highly suspicious document and we cannot place any reliance upon it. 25. Once Ext. Ka-1 is kept out of consideration, what remains to be examined is the oral evidence of Sukumariya and Golibya. We have examined their deposition and we find a number of contradictions in the evidence of one vis-a-vis the evidence of the other. As slow above whereas Sukumariya ascribes Pharsa to appellant No. 1 and Ballam to appellant No. 2, Golibya ascribes Ballam to appellant No. 1 and Pharsa to appellant No. 2. Further more there are vital omissions in the police statements recorded under Section 161, Cr. P. C. as compared to the statements before the Court. These witnesses are of course very close relatives of the deceased, but that fact will not outweigh the discrepancies in their evidence which are, in our opinion, vital. It is also further required to be noticed that though the prosecution has examined Rampal PW 2 and Bhau Lal PW 3, full brothers of the deceased, they have not supported the prosecution version though according to the prosecution, they were eye-witnesses of the incident. Similarly Chunkona PW 4 who, according to the prosecution, was an eye-witness of the incident, has not supported the prosecution story. 26. Having considered the evidence from all relevant angles, we think that there are several features therein which create a reasonable doubt about the complicity of the appellants in the crime. True Maiyadin, a Harijan Chamar leader of his community; has been killed. Equally true the appellant are Thakurs, but then in view of the features of the evidence indicated by us hereinabove and more particularly in view of the fact that the Investigating Officers have attempted a manipulation of facts and documents, we think that the prosecution case becomes highly doubtful and the benefit of that reason able doubt should go to the appellants. 27. 27. The appeal, therefore, succeeds. The order of conviction and sentence passed by the trial court upon the appellants is set aside. The appel lants, if they are in custody, are ordered to be released forthwith, if not required to be detained for any other lawful cause. Appeal allowed. .