JUDGMENT D.P.S. CHOUDHARY, J.:- These three appeals arise out of the judgment and order dated 30.11.1994 passed in Sessions Trial No. 354 of 1987 by the 1st Additional Sessions Judge, Vaishali at Hajipur convicting the appellants for the offences under sections 307/149 of the Indian Penal Code and sentenced them to undergo R.T. for three years. It appears that Cr. appeal No. 377 of 1994 preferred on behalf of appellants Dilip Kumar and Shatrughan Rai, is redundant for the reason that in Cr. Appeal No. 374 of 1994, there are five appellants including Dilip Kumar and Shatrughan Rai. This judgment shall govern all the appeals. 2. The brief fact of the case is that the informant Ram Nandan Paswan, a village Chaukidar (P.W.3) gave his fardbeyan at Desari bazar Police Station on 27.4.1986 at about 23.15 hours stating therein that on that day after taking salary at the P.S. he was returning by evening train and boarded down at Sahdei station and was on way to home he heard hulla that some assault took place at Sahdei Bazar. He along with chaukidar Gauri Paswan went there and found that occurrence of assault was over. From the local people he learnt that Hira Lal Rai (P.W.5) was assaulted by Chhura in his stomach, who has been removed to Sahdei Hospital. He along with Chaukidar Gauri Paswan rushed to hospital and saw the B.D.O. of Sahdei Block enuiring from injured Hira Lal about the occurrence. He also saw the intestine of P.W.5 has come out due to injury in the stomach. He was in process to be removed to Patna hospital for treatment. He further stated that on enquiry by the B.D.O. Hira Lal stated before him that Jagdish Rai, Sudist Rai, Hare Krishna Rai, Newa Lal Rai, Sitab Rai, Dilip Rai and Shatrughan Rai had assaulted him. He further told that Jagdish Rai and Hare Krishna Rai had assaulted with Chhura at Sahdei Bazar towards west of the shop of Dhunmun Sah. The motive of the occurrence was old land dispute in between him and Hare Krishna Rai. In his fardbeyan the informant (Chaukidar) further stated that 'he found the condition of Hira Lal Rai critical, and his family members took him to Patna in a Jeep for treatment. The informant put his L.T.I. on the fardbeyan (Ext. 6). On the basis of the fardbeyan formal F.I.R. (Ext. In his fardbeyan the informant (Chaukidar) further stated that 'he found the condition of Hira Lal Rai critical, and his family members took him to Patna in a Jeep for treatment. The informant put his L.T.I. on the fardbeyan (Ext. 6). On the basis of the fardbeyan formal F.I.R. (Ext. 5) was drawn up in the next morning on 28-1986 at 4.15 P.M. It is also the case of the prosecution that dying declaration of injured Hira Lal Rai was recorded at Sahdei Hospital by the B.D.O. in presence of witnesses namely Jagdish Singh and Daroga Sah at 8.10 P.M. in which he has named all the appellants who assaulted him by Chhura. This dying declaration could not be signed by injured Hira Lal Rai nor his L.T.I. was taken on the ground that he became unconscious while giving dying declaration. After investigation charge-sheet was submitted and after commitment the trial proceeded in the court below. 3. The case of the defence is that they have been implicated in this case because of previous enmity due to land dispute and to save their skin from the counter case instituted by the appellants against injured Hira Lal Rai and others. 4. The prosecution in all examined 8 witnesses, out of which P.W.1 (Ram Prasad Sah) is a Tea-stall owner, PW.2 (Nasibi Rai) and P.W.3 the informant (Ram Nandan Paswan) Chaukidar of Desari turned hostile as they did not support the prosecution case. P.Ws. 1 and 2 stated that they do not know anything about the occurrence. P.W.2 also stated that he did not go to the hospital nor he found anyone injured. Surprisingly P.W.3 who is informant of this case Stated that he does not know anything about the occurrence and in cross-examination by the prosecution, he denied that before the police on 27.4.1986 on his statement the fardbeyan was recorded. 5. PW. 4 (Yogendra Rai) is brother of P.W.5 Hira Lal Rai (Injured). In examination-in-chief he stated that he was also injured at the time of occurrence at the hands of the accused persons. According to him, on the date of occurrence he was returning on duty after his holidays and he was posted in Assam rifle. 5. PW. 4 (Yogendra Rai) is brother of P.W.5 Hira Lal Rai (Injured). In examination-in-chief he stated that he was also injured at the time of occurrence at the hands of the accused persons. According to him, on the date of occurrence he was returning on duty after his holidays and he was posted in Assam rifle. He was carrying a suit-case at about 7.30 P.M. he went to the shop of his brother (P.W.5) where he found all the 7 accused appellants, whom he named surrounded his brother, He further stated that accused appellant Jagdish Rai and Hare Krishna Rai gave dagger blow to his brother Hira Lal Rai. He tried to save him, thereupon appellant Jagdish Rai assaulted him by Chaku causing injury on his left hand finger and left shoulder. He fell down after receiving the injuries. Thereafter, appellant Sudist Rai took out Rs. 500/- from his pocket. The accused persons also took away his suit-case. He further stated that he was removed to Sahdei Bujurg Hospital and from there he was brought to Hajipur Hospital in the jeep of local B.D.O. His brother who had severe injury in his stomach whose intestine has come out, was removed to P.M.C.H. for treatment. 6. In cross-examination in para 10 P.W.2 he stated that on the night of occurrence he was removed from Hajipur, Hospital to Patna Hospital (P.M.C.H.) but he was not admitted there. According to this witness he was not examined by the I.O. nor his statement was recorded by him. The I.O. recorded the statement of his injured brother Hira Lal Rai. He remained in hospital with his brother as his attendant for about 20 days, but he was not examined by the police. In paragraph 12 of his evidence he stated that before the G.R.P. officials he stated that on the date of occurrence when he was returning back from Patna, he learnt that on that day at about 10.00 P.M. the accused persons have assaulted his brother. In Paragraph 13 he admitted that a counter case instituted against him and his brother by the accused appellants in which he obtained bail, but he denied that he had seen any injury on the person of the accused appellants. 7. P.W.5 (Hira Lai Rai) is the star witness of this case being injured. In Paragraph 13 he admitted that a counter case instituted against him and his brother by the accused appellants in which he obtained bail, but he denied that he had seen any injury on the person of the accused appellants. 7. P.W.5 (Hira Lai Rai) is the star witness of this case being injured. He supported the prosecution case on all the material points and stated that on 27.4.1986 at about 7.00 P.M. after closing the shop he was returning home. By the side of his shop, he was surrounded by all the accused appellants whom he has named. The appellant Sitabi Rai ordered to kill, thereafter appellant Jagdish Rai gave a dagger blow near his naval of the stomach causing cut injury of about 8" in length. His intestine came out. Thereafter appellant Sudista Rai gave dagger blow on his chest. Appellant Newa Lal Rai assaulted him by dagger causing injury on his stomach. Appellant Dilip Kumar gave dagger blow on his left hand. Appellant Hare Krishna Rai assaulted him causing injury near his eye. He further stated that appellant Newa Lal again assaulted him causing injury near his neck and forehead. He had shown the mark of injury in the court. According to this witness, on his hulla several local persons including Nasibi Rai (P.W.2), Shiva Dayal Rai and Yogendra Rai arrived there (both of them not examined). He was first removed to the Block Doctor and his statement was recorded by the B.D.O. He was bandaged by the Block Doctor. According to him, he has signed on the statement recorded by the B.D.O. (Ext. 1) and thereafter he was removed to hajipur Hospital on the jeep of 'the B.D.O. From here he was referred to Patna for treatment at P.M.C.H. The Officer Incharge, Desari Police Station recorded his statement over which he signed (Ext. 1/1). He remained admitted in P.M.C.H. for about 23 days. In cross-examination in paragraph 9 on the question put by the Court he stated that Ext.1 on his dying declaration recorded by the B.D.O. is not his signature Therefore, he has denied the signature on his dying declaration. In paragrah 10 he gave further explanation that it is possible that after giving his dying declaration he might have become unconscious, therefore, he could not signed over it. In paragrah 10 he gave further explanation that it is possible that after giving his dying declaration he might have become unconscious, therefore, he could not signed over it. In paragraph 22 he admitted about the counter case instituted by appellant Hare Krishna Rai against him and others in which he obtained bail. 8. P.W.6 (Tarkeshwar Rai) is the B.D.O. who recorded the dying declaration of injured (P.W.5) on 27.4.1986. After receiving requisition from the Medical Officer he went to record the dying declaration. He has proved the dying declaration (Ext.2). In cross-examination in paragraph 3 he stated that at the time of giving dying declaration injured (P.W.5) was conscious but subsequently he become unconscious therefore, his signature could not be taken over it. 9. P.W.y (Daroga Sah) is a Compounder of Primary Health Centre, Sahdei Buzurg. he is a witness on dying declaration of P.W.5. He stated that at the time of recording dying declaration Dr. R.D. Singh was present but thereafter he died. He has proved the injury report written by Dr. R.D. Singh (Ext.4). In cross-examination he stated that Ext. 4 was not written in his presence. He further stated that when injured Hira Lal Rai was brought to the Hospital at that time Dr. R.D. Singh was not present there. When the injured was removed to Hajipur hospital, thereafter Dr. R.D. Singh arrived there. 10. P.W.8 (Dharampal Singh) is a formal witness, who has proved the formal F.I.R. and the case diary (Exts. 5 to 7). 11. On behalf of the appellants the learned lawyer submitted that from perusal of the evidence on record it is crystal clear that the evidence of injured (P.W.5) Hira Lal Rai has not been corroborated by any other witness including P.W.4 who is his brother. The evidence of P.W.4 should not be considered in view of his admission that he was not examined by the I.O. and for the first time he has deposed in the court. The prudence demands that the evidence of the witness, examined for the first time in the court should no be relied upon. He has given no reason as to why he was not examined by the police, though he claims that with his injured brother (P.W.5) he remained in the P.M.C.H. for about 20 days. There is no injury report of P.W.4 to corroborate his injury. He has given no reason as to why he was not examined by the police, though he claims that with his injured brother (P.W.5) he remained in the P.M.C.H. for about 20 days. There is no injury report of P.W.4 to corroborate his injury. P.W. 5 does not say that P.W. 4 also received injury in his presence. Therefore, there is no medical evidence to support that P.W.4 also received injuries in the same course of occurrence along with his brother (P.W.5). As referred to above, from, his evidence (paragraph 12) it appears that he is not an eye witness of the occurrence nor he was injured as claimed by him because before the G.R.P. he stated that on the date of occurrence when he returned back from Patna, he learnt that at about 10 P.M. some occurrence took place in which the accused persons assaulted his brother. P.W.4 admission that neither he was injured nor he has seen the occurrence. This was the reason he was not examined by the I.O. For the first time he appeared in the court and deposed as an eye witness but his own admission excludes his presence at the place of occurrence, nor injured in course of occurrence. His evidence is contradictory on the point of assault with that of the evidence of P.W.5, because he stated that only accused Jagdish Rai and Hare Krishna Rai assaulted with dagger whereas P.W.5 has named all the appellants who assaulted him by means of dagger. 12. Another point that has been raised on behalf of the appellants is that the evidence of P.W.5 is not corroborated either by the medical evidence or by any independent witness of the locality nor supported by the informant (P.W.3) who has been declared hostile. Since P.W.5 survived after his treatment, therefore, his dying declaration has no relevancy nor it should be used as corroborating evidence, besides his dying declaration has not been signed by him for which there is no valid explanation. In absence of his signature over the dying declaration no reliance should be placed or it. In support of this contention the learned appellants' lawyer relied on a decision reported in 1987 BL.J page 326 (Umar Mian alias Md. Umar Vs. In absence of his signature over the dying declaration no reliance should be placed or it. In support of this contention the learned appellants' lawyer relied on a decision reported in 1987 BL.J page 326 (Umar Mian alias Md. Umar Vs. The State of Bihar) in which it has been held that dying declaration recorded by the Magistrate not containing the signature of the deceased, not safe to be relied upon. The learned lawyer also placed reliance on another decision reported in AIR 1986 S.C. page 250 (State of Delhi Administration Vs. Laxaman Kumar and others) and stated that in this case the dying declaration was not relied upon as it was not signed by the deponent although literate. 13. The learned appellants's lawyer further submitted that non-examination of the I.O. is a serious lacuna in the prosecution case and it has caused prejudice to the accused-appellants. The appellants were debarred in pointing out the contradictions in the evidence of the P.Ws. particularly P.W.5, from their earlier statement made under section 161 of the Code of Criminal Procedure before the I.O. In cross-examination of P.W.5 his attention has been drawn towards the contradictions in his evidence in the court and his earlier statement before the police. As such it has caused serious prejudice to the defence case. The learned appellants lawyer further submitted that due to non-examination of the Doctor, the contents of the injury report is not to be used to corroborate the evidence of P.W.5. Beside in view of the evidence of the Compounder (P.W.7) a doubt is created whether this injury report was prepared by Dr. R.D. Singh after examining the injured at Desari Block because P.W. 7 stated that when the injured was brought to Desari Hospital the Doctor was not present there. It appears that this injury report was prepared subsequently at the instance of the injured (P.W.5). 14. In reply to the above contentions the learned A.P.P. submitted that the evidence of P.W.5 should be considered as a injured witness and even if his evidence has not been corroborated by any material witness, reliance should be placed on his testimony. He has received several injuries at the hands of appellants. Such injuries are not possible to manufacture. It was a chance that he survived. His dying declaration was recorded by the B.D.O. after seeing his condition critical. He has received several injuries at the hands of appellants. Such injuries are not possible to manufacture. It was a chance that he survived. His dying declaration was recorded by the B.D.O. after seeing his condition critical. Since he survived his dying declaration should be treated as statement which corroborates his evidence in the court. Since the Doctor who examined the injured is dead, hence injury report should be considered as a substantive piece of evidence to corroborate the evidence of P.W.5 who is injured. The learned A.P.P. further submitted that non-examination of the I.O. is only an omission on the part of the prosecution and it has not caused any serious prejudice to the accused appellants. In the last it was submitted by the learned A.P.P. that even on single testimony of injured witness there can be conviction if it is found reliable. The evidence of P.W.5 is consistent and reliable and there is no reason to disbelieve him. 15. From the submissions made on behalf of the parties, and after going through the evidence on record as discussed above, I find substance in the submissions made on behalf of the learned appellants' lawyer. The evidence of injured (P.W.5) has not been corroborated by any evidence either oral or documentary. P.W.5 has stated that at the time of occurrence P.W.2 and other witnesses had arrived and had seen the occurrence. Out of them only Nasibi Rai (P.W.2) has been examined but he was declared hostile by the prosecution. The material witness in this case is P.W.4 who happens to be the brother of P.W.5 but surprisingly in cross-examination he admits that he was not present at the time of occurrence and he heard about the occurrence when returned back from Patna. Thus the evidence of P.W.4 demolishes the prosecution case that he was also injured along with P.W.5 in course of the same occurrence. There is no injury report of P.W.4 to corroborate that he was also injured along with P.W.5. I also find substance in this contention of the learned appellants lawyer that his evidence should not be relied upon because for the first time he has• been examined in the court as a witness and not examined by the police or the I.O. nor there is any explanation for the same. I also find substance in this contention of the learned appellants lawyer that his evidence should not be relied upon because for the first time he has• been examined in the court as a witness and not examined by the police or the I.O. nor there is any explanation for the same. There was an opportunity for the I.O. to examine him as witness because P.W.4 remained in the hospital along with his injured brother (P.W.5) for about 20 days as stated by him and the police visited P.M.C.H. on several times during this period. Therefore, his evidence that he attended his injured brother in the hospital for about 20 days becomes doubtful. The injury report of P.W.5 has been marked Ext. 4 From the evidence of P.W.7 it appears that Dr. R.D. Singh who wrote the injury report (Ext.4) is dead. Therefore, the contents of the injury report that P.W.5 had injuries is admissible in view of the evidence of P.W.7 that when the injured Hira Lal Rai arrived Desari hospital Dr. R.D. Singh was not present there, and when he left for Hajipur hospital thereafter Dr. R.D. Singh arrived, a doubt is created whether this injury report was written by Dr. R.D. Singh after examining the injured (P.W.5) at Desari Block Hospital. As such it is not safe to put reliance on Ext.4 as a corroborating evidence on the factum of injury on the person of P.W.5. 16. There is also substance in this contention of the learned lawyer that non-examination of the I.O. has caused prejudice to the defence case. 17. In view of the discussions made above. I come to the conclusion that prosecution has miserably failed to prove its case beyond all reasonable doubts. In the result, all the appeals are allowed. The judgment and order of the trial court is hereby set aside. The accused persons are acquitted and discharged from the liabilities of their bail bonds.