Obul Reddy, J.- This appeal arises from the Judgment of the Additional Sessions Judge, Rajahmundry in S.C. No. 35 of 1964 convicting and sentencing A-1 to A-5 (the five appellants) for rioting and convicting the first appellant (A-1) under the Principal charge under section 302 Indian Penal Code and sentencing him to imprisonment for life. A-1 to A-5 have also been convicted and sentenced for minor offences of hurt. The case of the prosecution briefly stated is to the following effect: A-1 and A-2 are brothers and are the sons of one Tata Rao, the brother of the 5th accused. A-3and A-4 are the sons of A-5 and they all live joinly in the village of Kunchanapalli. P.W. 8 Kotipalli Saraswathi of Kunchanapalli was married to a person in Amalapuram Therefore, she wanted to sell her house and site in Kunchanapalli. The deceased Seelam Nadavapalli purchased the property belonging to P.W. 8, a day prior to the day of occurrence, the occurrence being on the evening of 18th July, 1964. The accused’s house is separated by a fencing from the house and site of P.W. 8. The accused having come to know that the property was purchased by Seelam Nadavapalli (deceased) removed the fencing completely on the morning of 18th July, 1964. The deceased, his wife P.W. 1, her father, P.W. 2 and another went to the shop of P.W. 10 at his request as he offered to mediate and settle amicably the dispute between the accused and the deceased. P.W. 2 told him (P.W. 10) that they were ever prepared to part with the house and site purchased from P.W. 8 provided the Moka people (accused) were willing to pay the sale consideration and expenses paid to P.W. 8. After that, the deceased and P.Ws. 1, 2 and 3 were returning home. On the way, they saw the five accused (A-1 to A-5) standing in front of the house which the deceased purchased the previous day from P.W. 8. Seeing them A-5 asked P.W. 2 as to from where they were returning and P.W. 2 told the accused that they were returning after talking to the elders. Then A-1 to A-5 followed P.Ws. 1, 2, 3 and the deceased from behind. By the time they reached a place in front of one Somaraju’s house, the accused surrounded them. Seeing them A-5 asked P.W. 2 as to from where they were returning and P.W. 2 told the accused that they were returning after talking to the elders. Then A-1 to A-5 followed P.Ws. 1, 2, 3 and the deceased from behind. By the time they reached a place in front of one Somaraju’s house, the accused surrounded them. A-1 was then armed with a spear and the rest were armed with sticks. A-1 stabbed Seelam Nadavapalli with a spear on his left abdomen and the other accused beat P.Ws. 2 and 3 with sticks. Nadavapalli and P.Ws. 2 and 3 were later taken to Amalapuram and were admitted in the Government hospital. The Medical Officer immediately after admitting the deceased Nadavapalli, questioned him as to the cause of the injuries and he was told that he was stabbed with a spear by Moka Subbarao (A-5) etc. He sent the intimation of the injuries, Exhibit P-8, to the Sub Inspector of Police, Amalapuram and also a copy of it, Exhibit P-5, to the Judicial Second Glass Magistrate at Amalapuram. Since the Doctor also sent a requisition to the Magistrate P.W. 13, to record the dying declaration of Seelam Nadavapalli (deceased), he came to the hospital at about 01-30 A.m. on 19th July, 1964 and recorded Exhibit P-7 dying declaration of the deceased. He also recorded a statement Exhibit P-1 from P.W. 2 as he was also injured. It may be stated here that A-5 was brought to the hospital and admitted at 4-30 p.m. on 19th July, 1964 and when examined by P.W. 14, he noticed five injuries on his person. The deceased Nadavapalli underwent an operation for the injury, but succumbed to the injury at 2-40 p.m. on 22nd July, 1964. The intimation of his death was sent to the Police and P.W. 21, the Head Constable of Mummidivaram police station altered the section of the crime in the F.I.R. to one under section 302 Indian Penal Code and sent express reports to the concerned superiors. Inquest was later held over the corpse of the deceased by the Head Constable. The Medical Officer, P.W. 14, conducted the autopsy and found two injuries on the body of the deceased. Inquest was later held over the corpse of the deceased by the Head Constable. The Medical Officer, P.W. 14, conducted the autopsy and found two injuries on the body of the deceased. In his opinion, the second injury which was an incised wound over the lateral side of abdomen on left side caused the death of the deceased and the injury was sufficient in the ordinary course of nature to cause death. The Inspector of Police (P.W. 25) completed the investigation and P.W. 24, the Sub Inspector laid the charge-sheet against the five appellants in the Court of the Additional Judicial First Class Magistrate, Amalapuram. The Additional First Class Magistrate committed the accused to take their trial in the Court of Session, East Godavari at Rajahmundry. The learned Additional Sessions Judge accepted the dying declaration, Exhibit P-7, of the deceased recorded by P.W. 13, the Magistrate as true and voluntary and also believed the evidence of the eye-witnesses P.Ws. 1, 2 and 3 and convicted and sentenced the accused (A-1 to A-5) as stated above. Mr.R.V. Rama Rao, the learned Counsel appearing for the appellants has argued that the deceased had made two inconsistent statements one Exhibit P-5, to P.W. 14, the Medical Officer and another, Exhibit P-7 to P.W. 13, the Judicial Second Class Magistrate on the same night and that in the earlier statement Exhibit P-5, the deceased named A-5 as the person who stabbed him with a spear and in the latter statement Exhibit P-7, he named only A-1 and ascribed the fatal injury to A-1 and therefore no reliance can be placed on the dying declarations. Mr. Rama Rao next contended that the evidence of P.Ws. 1, 2, and 3 is interested and that they have chosen to develop and improve the story upon the dying declarations by implicating three more assailants and that their evidence relating to the injuries on the deceased is not supported by medical evidence. Mr. Mr. Rama Rao next contended that the evidence of P.Ws. 1, 2, and 3 is interested and that they have chosen to develop and improve the story upon the dying declarations by implicating three more assailants and that their evidence relating to the injuries on the deceased is not supported by medical evidence. Mr. Rama Rao further contended that A-5 was injured in the course of the same transaction and that the prosecution has not been able to account for the injuries found on A-5 and it was A-5 after the wasstabbed by the deceased, in exercise of his right of private defence, apprehending death at the hands of the deceased, snatched the spear from the deceased and stabbed the deceased and that A-1 as borne out by the opinion of P.W. 14, the Medical Officer, was incapable of wielding a spear and stabbing any person. In short, it is his case that the appellants have all been falsely implicated. It is therefore necessary in the first instance to weigh and assess the evidentiary value of the two dying declarations, bearing in mind the scathing attack to which these two statements were subjected to by the learned Counsel for the accused. Section 32(1) of the Indian Evidence Act lays down: “When a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question”. The principle on which such statements are admitted in evidence is that they are the declarations made by a person in the throes of death with no kind of hope of living and therefore will not utter falsehood as the impending death is presumed to produce a powerful feeling that he must speak the truth. It is to quote Eyre, C.B. ‘a situation so solemn and so awful which is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice! It is to quote Eyre, C.B. ‘a situation so solemn and so awful which is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice! (per Eyre, C.B. in R. v. Woodcock1, the leading case approved in R. v. Perry2. It is in his view that a statement made by a dying person as to the cause of his death and the circumstances under which he came to be injured, is admissible and relevant under section 32(1) of the Evidence Act. It is now well settled that if the statement of the deceased person as to the cause of his death is found to be voluntary and true, no corroboration will be required and a conviction could be based on such uncorroborated dying declaration. The question as to how far a dying declaration could be made the basis for conviction came up for consideration before a Full Bench of the Madras High Court in Guruswami Tevar v. Emperor3, Sir Lionel Leach, C.J., who pronounced the opinion of the Full Bench stated“ “In my judgment it is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The Court must of course be fully convinced of the truth of the statement and naturally it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility.” The Supreme Court approved this view in Khushal Rao v. State of Bombay4, and observed as follows: “It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable in the; words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statements had been made at the earliest opportunity and was not the result of tutoring by interested parties. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination”. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination”. This view was subsequently relied upon by the Supreme Court in Harbans Singh v. State of Punjab1, and Muniappan v. State of Madras2. Therefore having regard to the pronouncements of the Supreme Court, it is neither a rule of law nor rule of prudence that a dying declaration requires to be corroborated by the other evidence before a conviction can be based thereon, but a duty is cast on the Court to be certain as to whether the statement made by the deceased person is true and can be relied upon. In order to pass the test of reliability, the statement of the deceased person made under section 32(1) of the Evidence Act has to be subjected to a very careful scrutiny bearing in mind the obvious fact that the statement has been made in the absence of the accused person who had no opportunity of testing the truth or the veracity of the statement by cross-examination. If the Court is satisfied after subjecting it to strict scrutiny that it is not reliable and it suffers from infirmities, then the necessity to seek corroboration in other evidence may arise, provided the Court does not reject the declaration as bristling with falsehood. It is open to the accused to always show that the dying declaration is not reliable and has been prompted or that it is replete with falsehood. In the instant case as has already been pointed out by us, there are two inconsistent, if not conflicting statements and it is useful to extract the two statements. Exhibit P-5 which was recorded by P.W. 14 the Medical Officer reads: “12-20 a.m., on 1st July, 1964. Intimation of accidents and injuries to police. Name of patient: Seelam Nadavapalli, age 32. 2. Address: Sex-Male Street: C/o. S. Nadavaputhamma, Door No................. Village: Kunchanapalli, Town: 3. Brought-in by: Alluri Satyanarayana Raju, V.M. of Nadavapalli. 4. Place at which the injury or accident occurred: Kunchanapalli. 5. Nature of injury or accident (simple or (grievous): Grievous. 6. Alleged Cause: Alleged to have been stabbed with a spear by Moka Subbarao, etc. 7. 2. Address: Sex-Male Street: C/o. S. Nadavaputhamma, Door No................. Village: Kunchanapalli, Town: 3. Brought-in by: Alluri Satyanarayana Raju, V.M. of Nadavapalli. 4. Place at which the injury or accident occurred: Kunchanapalli. 5. Nature of injury or accident (simple or (grievous): Grievous. 6. Alleged Cause: Alleged to have been stabbed with a spear by Moka Subbarao, etc. 7. Ward in which admitted: 8. Whether dying declaration necessary: Yes. (Urgent) Government Hospital, Dated: 19-7-64. Sd-/.............. M.O. Telephone at............ Time of despatch of intimation to the police and Magistrate: Patient is conscious". Exhibit P-7 which was recorded by the Judicial Second Class Magistrate is to the following: "Dying declaration of Seelam Nadavapalli, son of Veeranna of Kunchanapalli recorded in the Government Hospital commencing at 1-35A.M. Question: What is your name? Answer: My name is Nadavapalli. Question: How did you receive injuries? Answer: Subbarao’s sons, elder one and younger one, Surya Rao surrounded me and beat. They abused (me) as ‘son of a whore’. Surya Rao garu asked (me) ‘Why did you purchase the site’ (Doddi). Then Surya Rao stubbed me with a spear. I cannot say the name of 2nd person. I do not remember the name of 3rd person. Three persons beat me. The other two persons beat with sticks. Soon after Surya Rao stabbed with spear, my leg did not allow (me) to stand. Due to anger on account of our purchasing the land, they stabbed me. This is all that took place this day evening. Heard, read over. It is correct. (L.T.M. of) Seelam Nadavapalli. The patient said he can sign also. Hence his signature also is taken. Sd/-Seelam Nadavapalli (in Telugu) Recorded by me in the presence of M.O. and read over to the patient and admitted by him to be correct". These two statements are manifestly different and implicate two different persons. While Exhibit P-5 would show that Moka Subba Rao (A-5) is alleged to have been responsible for the stab injury. Exhibit P-7 specifically mentions A-1 as the person who stabbed him with a spear. In Exhibit P-7 he was unable to name the second person or the third person who beat him although according to him, three persons beat him. A careful scrutiny of Exhibit P-7 would show that the deceased was stabbed by A-1 with a spear and was beaten by two other persons with sticks and altogether three persons attacked him. In Exhibit P-7 he was unable to name the second person or the third person who beat him although according to him, three persons beat him. A careful scrutiny of Exhibit P-7 would show that the deceased was stabbed by A-1 with a spear and was beaten by two other persons with sticks and altogether three persons attacked him. Exhibit P-5 shows that he has been stabbed with a spear by Moka Subba Rao, A-5 etc., meaning ‘others’. The Medical Officer, P.W. 14 who noted down this information deposed that as he found the condition of the deceased serious, he sent Exhibit P-5 the intimation to P.W. 13 the Magistrate for recording the dying declaration and also sent a copy of it, Exhibit P-8 to the police. In his cross-examination the circumstances under which he recorded the statement, Exhibit P-5 are stated by him. "The deceased Nadavapalli was conscious when he was brought to me on the night of 18th July, 1964. To fill the column in Exhibit P-5, I asked Nadavapalli soon after he was brought to me on 18th night as to the person or persons who caused those injuries and he mentioned the name of A-5 and some others as responsible for the injuries. He did not give the names of others at that time. That is why I mentioned ‘Moka Subbarao, etc.‘, in the intimation Exhibit P-5". Therefore there is no doubt from P.W. 14’s evidence that the deceased was conscious when he (P.W. 14) questioned him and that he questioned him as to the cause of the injuries and that he (deceased) named A-5 as the person responsible for the injuries along with some ‘others’. A scrutiny of the aforesaid answer of the doctor would show that the deceased was unwilling to mention the names of others at that stage and was inclined to name only Moka Subbarao (A-5) as being responsible for the stabbing. It is not known why after an hour and 25 minutes later, the deceased should name A-1 alone leaving out A-5 altogether from the picture. Although he referred to ‘others’ in both Exhibits P-5 and P-7, he was unable to name even one when his statement (Exhibit P-7) was recorded by the Magistrate. His statement in Exhibit P-7 that apart from A-1 who stabbed him, two others beat him with sticks, is not supported or corroborated by the medical evidence. Although he referred to ‘others’ in both Exhibits P-5 and P-7, he was unable to name even one when his statement (Exhibit P-7) was recorded by the Magistrate. His statement in Exhibit P-7 that apart from A-1 who stabbed him, two others beat him with sticks, is not supported or corroborated by the medical evidence. The Medical Officer, P.W. 14 who admitted him found only two injuries when he conducted the postmortem examination. "1. A small contusion ½" X ½" over the dorsum of left palm at the base of the middle finger. 2. An incised wound over the lateral side of abdomen on left side 1" above the iliacreast 2½" X ½". It is obliquely situated from behind downwards and forwards. Small intestines mesentery and omentum are exposed by protruding outside through that opening from the abdomenal cavity. Small intestine was incised transversely at one place". In his opinion, injury 2 might have been caused with a sharp-edged weapon like a spear and injury 1 might have been caused with a blunt weapon. The other evidence of the eye-witnesses P.Ws. 1, 2 and 3 also does not find corroboration in the medical evidence. It may be mentioned in this connection that the Magistrate also recorded a statement, Exhibit P-1 from P.W. 2 at the instance of the Medical Officer, Since the person (P.W. 2) who made the statement has survived his statements is not admissible under section 32(1) of the Evidence Act, but it can be relied upon under section 157 for corroboration or under section 145 for contradiction, and in this case the prosecution relied upon it for corroboration and the defence for contradiction. It is relevant to note that Exhibit P-1 is the earliest statement given by P.W. 2 at about 1-10 a.m. on 19th July, 1964 and it has not been stated by him that A-1 stabbed the deceased. All that is stated by him is: "My son-in-law received severe injuries. A stab injury is received on the left side. Both of us fell down." Though it is stated by him that his son-in-law (deceased) received severe injuries, except one stab injury there is no other serious injury or injuries and injury No. 1 is an insignificant injury, a small contusion ½" X ½". A stab injury is received on the left side. Both of us fell down." Though it is stated by him that his son-in-law (deceased) received severe injuries, except one stab injury there is no other serious injury or injuries and injury No. 1 is an insignificant injury, a small contusion ½" X ½". This statement of P.W. 2 made at the hospital to the Magistrate, and relied upon by the prosecution for the purpose of corroboration would show that he (P.W. 2) had not by then made up his mind as to whom the fatal injury should be ascribed. There is another significant fact which needs notice. P.W. 2 only stated in Exhibit P-1 that "Subbarao’s (A-5’s) son was waiting with a stick and that he attacked". Later while giving evidence in Court, he (P.W. 2) implicated two of the three sons of Subbarao (A-3 and A-4) and also the father (A-5). None of the eye witnesses P.Ws. 1, 2 and 3 has ascribed any part to A-5 in this rioting except to say that he was physically present at that time. Mr.R.V. Ramarao, the learned Counsel appearing for the appellants has argued that A-5 had given a complaint (D-6) immediately after his admission in the hospital stating that he was stabbed by the deceased and attacked by P.W. 2 and others and that in exercise of his right of private defence, he stabbed the deceased. In this connection we may refer to the evidence of P.W. 14 the Medical Officer who examined A-5 at 430 p.m. on 19th July, 1964. The following five injuries were noticed by him: 2. An incised wound 1½" X 1/5" X 1" vertically situated over the left forearm on anterior aspect 3" below the cubital fossa. 3. A lacerated wound ½"X ¼" X ¼" over the scalp 3" above the left ear lobe. 4. An abrasion with contusion 1" X 1" around it over the spins of left scapula. 5. A contusion 3" X 1" over the back on the medial side of right scapula. A 5 told the Medical Officer that these injuries were inflicted on him at 6 P. M. on 18th July, 1964 by the deceased Nadavapalli who stabbed him with a spear and his father-in-law, P. W. 2 and another Subbanna who beat with sticks. 5. A contusion 3" X 1" over the back on the medial side of right scapula. A 5 told the Medical Officer that these injuries were inflicted on him at 6 P. M. on 18th July, 1964 by the deceased Nadavapalli who stabbed him with a spear and his father-in-law, P. W. 2 and another Subbanna who beat with sticks. Exhibit D-5 is the intimation sent by P. W. 14 relating to the injuries on A-5, to the police at Amalapuram. A-5 was admitted as an in-patient in the hospital and treated for the injuries. The Head Constable also examined A-5 in the hospital on receipt of the intimation Exhibit D-5 from the doctor and also registered a case as Grime No. 60 of 1964 and issued F.I.R. Exhibit P-24. After due investigation it was referred as false. The defence of the fifth accused from the beginning has been that the deceased came upon him and stabbed him and that his father-in-law P. W. 2 and another beat him with sticks. In the committing Court as well as in the Court of Session when examined under section 342, Criminal Procedure Code, A-5’s defence has been the same as was revealed in his complaint Exhibit D 6 to the police. We may usefully extract the statement made by A-5 in the Court of Session. "I have three sons, A-3 is my eldest son. His name is Reddi Naidu, not Veeraraju, Police people named as Veerraju after the case. A-3 studied up to IV Form. He signs as Reddi Naidu only. I have seen his statement Exhibit P-32 before the lower Court. He signed only as Veerraju. He did (sign) as the police asked him to do. I have seen the statement made by him previously in this Court. A-3 signed there in Court only." He signed as he signed before. It is true that A-4 is called as Rattayya and as Venkataratnam. Half an hour after lamps were lit on the evening of Saturday 18th July, 1964, I was sitting on the southern side of the pial of our house. Then Nadavapalli, Ganja Appalaswamy (P. W. 2), Dangeti Subbanna, their relation Vasamsetti Paparao, Seelam Veeranna i.e., the own brother of Nadavapalli, came. At a distance of 10 yards behind them were Tirukoti Narasimhulu, Karri Venkanna and Jonnada Swamy of Kundaleswaram (P.W. 11). Nadavapalli and others came abusing. Then Nadavapalli, Ganja Appalaswamy (P. W. 2), Dangeti Subbanna, their relation Vasamsetti Paparao, Seelam Veeranna i.e., the own brother of Nadavapalli, came. At a distance of 10 yards behind them were Tirukoti Narasimhulu, Karri Venkanna and Jonnada Swamy of Kundaleswaram (P.W. 11). Nadavapalli and others came abusing. I too abused saying ‘why do you abuse unnecessarily.‘ Thereupon, Nadavapalli stabbed me with a spear on my head. Blood was flowing. Being afraid I did not raise cries. Nadavapalli stabbed second time on my left hand. After I rose up, he again stabbed on my right calf. Thinking that he would kill, I pulled out the spear in his hand and hurled it this side and that twice or thrice. I do not know whom did it strike. Meanwhile, I fell down. The rest of four people beat me with sticks. My sister-in-law’s maternal uncle’s son named Subbarao of Uppalaguptam came to see my elder brother. That person and my wife took me into the house. I do not know what happened to Nadavapalli and others. Next day morning A-1 took me to the hospital. A-4 is my 2nd son. He is aged 19 years and running 20 years. 3rd son is aged 10 years old." It is therefore argued by Mr. Rama Rao that the deceased when he was first questioned by the doctor was conscious of the fact that he had stabbed A-5 and that A-5 in self-defence apprehending death at the hands of the deceased, stabbed him and therefore A-5’s name was uppermost in his mind and that accounts for the deceased mentioning A-5 as the person who stabbed him with a spear as evidenced by Exhibit P-5. According to the learned advocate, in between that statement (Exhibit P-5) and the next statement (Exhibit P-7) the relations of the deceased have prompted him to implead A-1. The Medical Officer’s (P. W. 14’s) evidence shows that the deceased was accompanied by some persons including the Village Munsif of Nadavapalli (not examined) although he was unable to remember whether they were talking to the deceased after he was brought to the hospital. There is another circumstance which requires to be examined as that would also throw considerable light as to the veracity or truth of the statement made by the deceased to the Magistrate. There is another circumstance which requires to be examined as that would also throw considerable light as to the veracity or truth of the statement made by the deceased to the Magistrate. A-1’s defence is that he was not in the village, Kunchanapalli, on the evening of 18th July, 1964, that he was working in the company of D.W. 1 and that he stayed, on till about 8-30 p.m. on that day at Kandikuppa and that he has been falsely implicated. In proof of his alibi he has examined D.Ws. 1 to 5. More important than his plea of alibi is his (A-1’s) defence that he cannot wield any weapon as he has a deformed palm and this fact is confirmed by the opinion of the Medical Officer. P.W. 14 the Medical Officer who examined A-1’s right forearm and palm, in the Sessions Court stated as follows: "It is not possible for the 1st accused to have wielded any weapon like a spear with right hand. I find a healed scar commencing from right palm extending 7" above over the forearm another healed scar about 4" X 1" on the medial aspect of right forearm 3" below the elbow joint. A healed scar 3" X 1" over the dorsum aspect of the right fore-arm 6" below the elbow joint. There is wasting of the muscles of right fore-arm and palm as well. He has developed contractures of the right palm." This evidence is sufficient to discredit the statement of the deceased in Exhibit A-7 made to the Magistrate that SuryaRao (A-1) stabbed him with a spear. The doctor’s opinion would also demolish the story developed by P.Ws. 1, 2 and 3, in conformity with the statement in Exhibit P-7 that it was A-1 who stabbed the deceased on his abdomen. It is therefore obvious that there has been a deliberate attempt to develop the story from stage to stage and from one accused (A-5) named by the deceased in his first statement (Exhibit P-5) it became A-1 and one of the sons of A-5 in Exhibit P-1 made by P. W. 2 and A-1 and another in the second dying declaration (ExhibitP-7) and subsequently the number was increased or raised to five (accused 1 to 5) by P.Ws. 1, 2 and 3. 1, 2 and 3. Although the eye-witnesses say that after A-1 stabbed the deceased the ‘others’ beat him, except a small contusion ½"X½" over the dorsum of left palm at the base of the middle fingers, no other injury was found by P.W. 14. Therefore, having regard to the aforesaid significant and glaring infirmities, it is difficult to hold that the dying declaration (Exhibit P-7) made to the Magistrate contains the truth. This declaration implicating A-1 is shown to be false when tested by the opinion of P.W. 14. The doctor’s opinion goes to show that it is not possible for the accused to wield a weapon like a spear and inflict a stab injury. In addition to this, there is the evidence of D.Ws. 1 to 5 to the effect that at the time of the occurrence, A-1 was working in the Firm of D.W. 1. It is true that a dying declaration recorded by a competent Magistrate in a proper manner stands on a higher footing than an oral declaration depending on the memory of the witnesses. But in this case, the first statements as to the cause of the death of the deceased was recorded by P.W. 14 an Assistant Surgeon-in-charge of the Government hospital at Amalapuram and he put a specific question as to the cause of the injury and the deceased who was then in a conscious state told him that he was stabbed by a spear by Moka Subbarao (A-5) etc. Therefore benefit of the two conflicting versions must necessarily go to the accused. We have no doubt, having regard to the medical opinion, that A-1 could not have wielded a weapon similar to spear and the dying declaration (Ex. P-7) implicating A-1 as the person who inflicted the stab injury is false and cannot be relied upon. Therefore not only the declaration made by the deceased to the Magistrate P.W. 13 but also the evidence of P.Ws. 1, 2 and 3 implicating A-1 as the person who caused the injury which later proved fatal is false and has to be rejected. P.Ws. 1 to 3 have travelled for beyond Exs. P-5, P-7 and P-1 and brought within their net A-2, A-3, and A-4 also in addition to A-1 and A-5 thus implicating ail the major male members of ‘Moka (accused’s) family’. P.Ws. 1 to 3 have travelled for beyond Exs. P-5, P-7 and P-1 and brought within their net A-2, A-3, and A-4 also in addition to A-1 and A-5 thus implicating ail the major male members of ‘Moka (accused’s) family’. Having regard to the forgoing discussion, we are unable to hold that the dying declaration Ex. P-7 contains the truth and it can be safely relied upon. We are unable to act upon Ex. P-5 the first dying declaration as it is inconsistent with the second dying declaration. Further, we see no reason to hold that the version of A-5 is less reliable than that of the eye witnesses and the deceased, when A-5 says that he has been attacked by the deceased, his father-in-law (P.W. 2) and another and that the deceased had stabbed him and that he wrested the spear from his (deceased’s) hands and stabbed him in order to save his own life. The prosecution has not been able to explain or account for the injuries and A-5. There could be no doubt from the injuries found on him by the doctor that A-5 would be entitled to exercise the right of private defence as a threat to his life was immediate and imminent if he had received the two stabs from the deceased. Undoubtedly, he had reason to apprehend danger to his life at the hands of his assailant who, according to A-5, was the deceased. In addition as stated by him he was beaten simultaneously by P.Ws. 2 and 3. The burden of proving everything essential to the establishment of the charge against the accused lies upon the prosecution, as every man is presumed to be innocent. The onus of proving the guilt beyond reasonable doubt never changes and it always rests on the prosecution. As has been lucidly stated by Viscount Sankey, L. G. in the oft-quoted Woolmington’s case Woolimington v. Director of Public Prosecutions1. “throughout the web of the English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said, as to the defence of insanity and subject also to any statutory exception. “throughout the web of the English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said, as to the defence of insanity and subject also to any statutory exception. If at the end of, and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case, and the prisoner is entitled to acquittal”. We are also unable to accept, for the reasons already recorded, the evidence of P.Ws. (wife of the deceased) 2 and 3 relating to the presence and participation of A-2. A-3 A-4 and A-5 in the occurrence. P.W. 2 has admitted in his evidence that he had failed to mention the names of the other accused A-2, A-3, A-4 and A-5 as having participated in the occurrence although he knew the names of all the accused even by them. The evidence of P.Ws. 1 and 2 is obviously false for the reason that they implicated A-1 who cannot undoubtedly hold a. spear as a weapon of offence. According to P. W. 3, he was also injured. At the time of his admission, when the Medical Officer questioned him, he was unable to say who beat him with a stick. We are therefore unable to find the appellants (A-1 to A-5) guilty of any of the charges under which they have been convicted and sentenced. In the result, the appeal is allowed and the convictions and sentences awarded by the Additional Sessions Judge are set aside and the accused are acquitted. G.S.M. ----- Appeal allowed; accused acquitted.