N. S. GUPTA, J. ( 1 ) ACCUSED Appellant Brijendra and Rajveer were convicted under Ss. 148, 324/325/149 IPC and appellants Harish Shukla, Jagdish Kumar and Suraj were convicted under Ss. 147/324/325/149 IPC and were sentenced to undergo R. I. for one year under Sec. 148, one year under Sec. 324, three years under Sections 325/149 IPC and six months under Section 147 I. P. C. and one year under Section 324, three years under Secs. 325/149 IPC vide judgement and order dated 20-8-1983 by Sri Jagdish Singh, VIIIth Addl. Sessions Judge, Ghaziabad. They all have come up in appeal-before this Court. ( 2 ) THE prosecution claimed that an 27-7-1982 at about 5-6 p. m. near Shiv Mandir, Muradnagar Estate P. S. Muradnagar, District Ghaziabad, appellants Brijendra and Rajvir duly armed with knife, appellant Jagdish armed with hockey, appellants Harish Shukla and Suraj armed with Lathi and Danda had formed an unlawful assembly and in prosecution of the common object of the said unlawful assembly, they assaulted Dharam Pal by means of their respective weapons and had caused injuries to him. ( 3 ) BRAHMAPAL PW 1, brother of the deceased came to know about this incident and he immediately came to the scene of occurrence and took his brother Dharampal to police station Muradnagar, where he lodged the report Ex Ka 1. Dharampal was thereafter taken to M. M. Hospital at Ghazibad, where he was medically examined by the Medical Officer on duty at 8. 45 p. m. on 27-7-82, who found the following injuries on his person :1. Abraded contusion 15 cm x 7 cm on the outer part of right upper arm, C swelling in area of 13 cm x 16 cm, 5 cm above the right elbow joint. K. U. O. Ad. Xray right upper arm. 2. I. W. 1 cm x 1/2 cm x muscle deep on the back of right upper arm 2 cm above the elbow joint Margins clean cut, bleeding present. 3. Abrasion 2 cm x 1 cm on the back of right forearm upper part 3 cm below the right elbow joint. 4. CONTUSION 3 cm x 3 cm back of right forearm middle part, Red in colour. 5. CONTUSION 3 cm x 4 cm on the back of wrist joint. 6. I. W. 5 cm x 1. 5 cm muscle deep on the back of left forearm middle part. 4. CONTUSION 3 cm x 3 cm back of right forearm middle part, Red in colour. 5. CONTUSION 3 cm x 4 cm on the back of wrist joint. 6. I. W. 5 cm x 1. 5 cm muscle deep on the back of left forearm middle part. Margins clean cut, bleeding p0resent. 7. CONTUSION 3 cm x 4 cm on the left elbow joint (Back part ). 8. CONTUSED swelling 6 cm x 2 cm on the left side of cheek 3 cm away from the angle of mouth. Red in colour. 9. LACERATED wound 1. 5 cm x 5 cm x bone deep on the front of the lower part of the left leg C swelling in an area 7 cm x 4 cm K. U. O. 10. LACERATED wound 2. 5 cm x. 5 cm muscle deep the front of middle part of the right K. U. O. 11. CONTUSED swelling 13 cm x 12 cm on the front the right ankle joint. 12. CONTUSION 6 cm x 2 cm on the back of right chest 3 cm below the angle of right scapula13. ABRADED contusion 3 cm on the terminal and middle phalange of right hand middle of K. U. O. Dharampal was thereafter taken to Safdarjang Hospital where he died on 31-7-1982. ( 4 ) AFTER needful investigation into the matter, the police submitted its chargesheet against the accused appellants under Section 302 I. P. C. ( 5 ) AFTER framing necessary charges, the trial Judge found the accused appellants guilty under Secs. 147, 148, 324, 325/149 IPC and he accordingly convicted and sentenced the appellants as said above. Hence this appeal. ( 6 ) IT was vehemently argued by the learned counsel for the accused appellants that Shankar and Om Prakash were cited as eye witnesses of the fact in the F. I. R. They were never examined by the prosecution before the court below, rather Deep Chandra PW 2 and Sewaram PW 5, who were not cited as witnesses of the occurrence were examined. Both these witnesses, namely, Deep Chandra PW 2 and Sewaram PW 5 were chance witnesses. They were the persons of shady antecedents, inasmuch as, they were both convicted in criminal cases and their evidence was wholly unreliable. The court below, therefore, grossly erred in placing reliance upon their testimony in convicting the accused appellants. Both these witnesses, namely, Deep Chandra PW 2 and Sewaram PW 5 were chance witnesses. They were the persons of shady antecedents, inasmuch as, they were both convicted in criminal cases and their evidence was wholly unreliable. The court below, therefore, grossly erred in placing reliance upon their testimony in convicting the accused appellants. ( 7 ) IT was further argued that the evidence of dying declaration relied upon by the learned trial Judge was a got up one. ( 8 ) THERE appears to be force in the contention put forward by the learned counsel for the appellants. ( 9 ) P. W. 1 Brahmapal, who is brother of deceased Dharampal stated in his statement on oath before the court below that he came to know about the incident after about an hour of the incident. He thereafter rushed to the spot and took his brother to police station where he lodged the following first information report :it was stated by Sri Brahma Pal that because of the inquiries his brother was in semi-conscious state. He further stated during the course of his cross examination that on the next date viz. 28-7-1982, his brother Dharampal regained some consciousness. He stated that for about ten minutes he used to feel better and after ten minutes, his condition used to become precarious. He stated that at Delhi hospital his brother remained unconscious. ( 10 ) IF it was a fact that the injured deceased Dharampal remained unconscious when he was taken to police station and that he remained unconscious throughout, I am of the opinion that the dying declaration of the kind relied upon by the prosecution and recorded by the Sub Inspector Sri V. K. Singh could not have been given by the deceased. It is important to note here that the said dying declaration reads as under : ( 11 ) A perusal of the aforesaid dying declaration reveals that it was an elaborate statement, which could have been made by a man in full conscious state. The learned A. G. A. has contended before me that since the various injuries found on the person of the injured were simple, the deceased could have very well given the statement before the investigating officer. I am unable to agree. The learned A. G. A. has contended before me that since the various injuries found on the person of the injured were simple, the deceased could have very well given the statement before the investigating officer. I am unable to agree. If it was a fact that the deceased was in a position to make the statement, in all probability, the investigating officer should have obtained the certificate from the medical officer attending the injured regarding condition of the injured. He should have called the Magistrate or at least the doctor or some staff working in the hospital before recording the statement of the deceased. Since according to the statement of the brother of the injured himself the deceased became semi conscious after sustaining the injuries and that at Delhi hospital he remained throughout unconscious, it is not possible to believe that the elaborate statement of the kind reproduced above could have been given by the deceased to the investigating officer. ( 12 ) I am accordingly of the opinion that the said dying declaration is a tainted one. ( 13 ) SINCE the two witnesses of the fact, namely, Deep Chand PW 2 and Sewaram PW 5 were not cited as witnesses of the occurrence in the first information report and since the witnesses who were cited as eye witnesses of the occurrence were not examined by the prosecution before the court below for the reasons best known to it, I am of the opinion that the court below grossly erred in placing reliance upon their statements. ( 14 ) IT would suffice to state that according to their statements, these two witnesses had stated from their village at about 2. 30. After purchasing some house-hold articles like salt and Mircha etc. they have claimed to have reached the scene of occurrence. The distance of village of these two witnesses being only 1 km from the scene of occurrence, I am of the opinion that they should have reached at the market much earlier and could not have been in a position to witness the real occurrence. I am accordingly of the opinion that the testimony of both these witnesses viz. Deep Chandra PW 2 and Sewaram PW 5 was incredible and the learned court below grossly erred in placing reliance upon their testimony. I am accordingly of the opinion that the testimony of both these witnesses viz. Deep Chandra PW 2 and Sewaram PW 5 was incredible and the learned court below grossly erred in placing reliance upon their testimony. ( 15 ) WHEN the testimony of PW 2 Deep Chandra and PW 5 Sewaram falls short of credence and when the dying declaration Ex. Ka 6 relied upon by the prosecution becomes incredible, there remains no evidence on record to sustain conviction of the appellants. ( 16 ) I accordingly find that the appeal deserves to be allowed and the accused appellants are liable to be acquitted. ( 17 ) THE appeal is accordingly allowed. It is directed that the appellants shall be set at liberty forthwith, if they are in jail and if they are on bail, their bail bonds shall stand cancelled and sureties discharged. Appeal allowed. .