Judgment Indu Prabha Singh, J. 1. The present appeal is directed against the judgment and order, dated 18th June, 1987, passed by 7th Additional Sessions Judge, Arrah, in Sessions Trial No. 359 of 1985, by which all the appellants have been convicted under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants Mutur Yadav and Bhurha Yadav have further been convicted under Sec. 148 of the Indian Penal Code and each of them were sentenced to undergo rigorous imprisonment for two years. The rest of the appellants have further been convicted under Sec. 147 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for one year. 2. The prosecution case, in short, is that on 05-11-1984 at 09.00 a.m. the informants brother Choudhary Yadav (deceased) started from his house for Arrah in connection of his case pending there and when he had reached east of his village and west to the house of one Laxman Yadav, all the accused persons surrounded him and they were armed with lathi, bhala and farsa and started assaulting him. It has been alleged that when the said deceased, Choudhary Yadav, fell down and became senseless, the accused persons dragged him from the place of occurrence field to the front of their house and laid him down there. It has been further alleged that the accused persons also assaulted the deceased in front of their house. The villagers, Sudama Mishra, Laloo Mishra, P.W. 6, and Indradeo Yadav, P.W. 1, arrived where Choudhary Yadav was lying injured, they carried the deceased on a cot to Saraiya. The informant has raised alarm going towards the village out of fear and, thereafter, he also reached Saraiya, The occurrence was seen by P.W. 2, Subedar Yadav, Sudama Mishra and Laloo Mishra, P.W. 6. It has been stated that P.W. 2, Subedar Yadav, Sudama Mishra (not examined), Laloo Mishra, P.W. 6 and P.W. 1 have seen the occurrence. The alleged motive of the occurrence is that there was some dispute between the parties with regard to the land in front of the house of the informant and prior to this occurrence the accused persons had also set fire to the palani of the informant for which a case had been lodged with the police. 3. The alleged motive of the occurrence is that there was some dispute between the parties with regard to the land in front of the house of the informant and prior to this occurrence the accused persons had also set fire to the palani of the informant for which a case had been lodged with the police. 3. The fardbeyan of the informant, P.W. 3, Manager Yadav, was recorded at Saraiya in the dispensary of one Dr. Krishna Mohan Singh (not examined), who was a private practioner, where the deceased was first examination treated. On the basis of the fardbeyan the case was initially instituted under Sections 147,148,324,323/ 341 and 307 of the Indian Penal Code but subsequently when Choudhary Yadav (deceased) succumbed to his injuries the Sec. 302 of the Indian Penal Code was further added in the case. After the completion of the investigation charge-sheet was submitted against all the accused persons showing co-accused, Mithilesh Kumar Yadav as absconder. 4. Accordingly, cognizance was taken and the case was committed to the Court of Sessions where trial concluded and the appellants were convicted, hence, this appeal. 5. The appellants have pleaded not guilty and have stated that they have been falsely implicated due to enmity. 6. In support of its case the prosecution examined seven witnesses. P.W. 1 is Indradeo Yadav. P.W. 2 is Subedar Yadav, the brother of the deceased. P.W. 3 is Manager Yadav, the informant. He is also the brother of the deceased. P.W. 4 is Rameshwar Singh. He is a formal witness. He has proved the fardbeyan and formal first information report, which has been marked as Exhibits 1 and 2 respectively, P.W. 5 is Dr. D.N. Akela. He had conducted the post-mortem examination on the dead-body of the deceased, Choudhary Yadav. P.W. 6, Laloo Mishra, has been declared hostile by the prosecution. P.W. 7 is the Investigating Officer, Md. Abdul Hannan. P.W. 1, Indradeo Yadav, who claimed to be the eye witness of the case and has seen the entire occurrence right from the field up to the house of the accused persons. According to him, on the date of occurrence at 9.00 a.m. he was cutting grass when he saw Choudhary Yadav coming out of the village and proceeding towards north after covering some distance towards east. According to him, on the date of occurrence at 9.00 a.m. he was cutting grass when he saw Choudhary Yadav coming out of the village and proceeding towards north after covering some distance towards east. In the meantime, all of a sudden the accused persons surrounded him 100 yards north east of the house of one Laxman Yadav. He has further stated that appellant Bhurha Yadav and Mutur Yadav were armed with bhala and the rest were armed with lathi. He has further stated that accused persons started assaulting Choudhary Yadav, who fell down, after which they dragged him to the west of their house and laid him down there in senseless condition. There also they assaulted the deceased, Choudhary Yadav. He has also stated that the deceased Choudhary Yadav was carried to Saraiya on a cot from where he was taken to Arrah Hospital where he died. In paragraphs 5 and 6 of his cross-examination he has stated that the deceased was assaulted in a field land then he was dragged through the field for about 10 to 15 minutes. He has also stated that the field had also plants of wheat, gram, peas and their lengths was about 6" in height where the deceased was dragged. According to him, the deceased was wearing cotton dhoti and tericotton kurta which were torn at places due to the dragging. According to him, the deceased had injuries all over his body except his head. All the injuries were not bleeding and blood was coming out of the only two wounds. The blood had also fallen down on the ground and about 30 to 35 persons had assembled on his alarm. But no body tried to save the deceased, Choudhary Yadav. He has also stated that his statement was not recorded by the police. P.W. 2, Subedar Yadav, has seen only the second part of the occurrence. According to him, on the date of occurrence at about 9.00 a.m. Choudhary Yadav had left his house with Rs. 1,005 to Arrah in connection with his case and also for purchasing manure and seeds. P.W. 2, Subedar Yadav, has seen only the second part of the occurrence. According to him, on the date of occurrence at about 9.00 a.m. Choudhary Yadav had left his house with Rs. 1,005 to Arrah in connection with his case and also for purchasing manure and seeds. It has been further stated that after about half an hour his brother, Manager Yadav, (P.W. 3) came running to his house and told that his brother, Choudhary Yadav, has been done to death by the appellants and on hearing this he came out of his house alongwith his brother, P.W. 3, saw the appellants dragging his brother Choudhary Yadav upto front of their house where he was laid down and was also assaultedthere with lathi and kicks: He has further stated that the appellants considering the Choudhary Yadav (deceased) to be dead went to their darwaza ten steps east from the place where Choudhary Yadav was lying down. He has also stated that 2 to 4 persons of the village assembled there and the deceased was carried to Saraiya and from their to Arrah Sadar Hospital where he succumbed to his injuries after four days and his statement was also recorded in the hospital itself at Arrah. In paragraph 8 of his cross-examination he has stated that when he had come out of the house the accused persons were at a distance of 300 yards and were dragging his brother Choudhary Yadav. He has said that out of fear no body dared to rescue his brother, Choudhary Yadav. He has also said that after half an hour of the occurrence his brother, Choudhary Yadav, was carried to Saraiya by the witnesses Sudama Mishra (not examined), Indradeo Yadav, P.W. 1, Laloo Mishra, P.W. 6 and Manager Yadav, P.W. 3, the informant, where they remain for about 15 minutes and, thereafter, the police of Arrah Muffasil Police Station reached there but his statement was not recorded there nor any bodys statement was taken there. P.W. 3, Manager Yadav, who is the informant of this case, has stated that while he was going to Badhur at about 9.00 a.m. he saw his brother, Choudhary Yadav, leaving his house for Arrah to attend the Court in connection with his case. P.W. 3, Manager Yadav, who is the informant of this case, has stated that while he was going to Badhur at about 9.00 a.m. he saw his brother, Choudhary Yadav, leaving his house for Arrah to attend the Court in connection with his case. He has further stated that when he had reached 500 yards south east of the village he saw the accused persons surrounding his brother, Choudhary Yadav, armed with lathi and bhala and were assaulting him. His brother fell down after receiving the lathi injuries and, thereafter, accused, Sahraj Yadav, get his knees on the chest of his brother and started pressing him resulting fracture of his ribs. He has said that appellant Ram Nagad Yadav got sat on the chest and abdomen of tiis brother, Choudhary Yadav and pressed him with his shoes while the rest accused persons were assaulting him by lathi and kicks. He had also stated that when the deceased became unconscious, the appellants lifte him and dragged him to the front of their house and laid him there and assaulted him with lathi and appellant Sahraj Yadav broke his leg. The accused persons left the deceased, Choudhary Yadav knowing him to be dead and, thereafter, he took the deceased to the dispensary of Dr. K.M. Singh at Saraiya where first aid had been given to the deceased, Choudhary Yadav. He has stated that Md. Abdul Hannan came their and recorded his statement which was read over to him on which he appended his left thumb impression. P.W. 3 in paragraph 7 of his cross-examination has stated that two of the accused persons were armed with bhala and one was armed with barchhi and those appellants were assaulting Choudhary Yadav with lathi portion of bhala and barchi. In paragraph 8 of his cross-examination he has stated that the assault took place for about half an hour but no body came their from the village. In paragraph 9 of the cross-examination he had stated that when the accused persons dragging his brother, he went running to his house and the accused persons gave 5 to 7 lathi blows to Choudhary Yadav even at .darwaza. In paragraph 10 of his cross-examination he has stated that the appellants were assaulting Choudhary Yadav with lathi and fists. P.W. 5 is Dr. In paragraph 10 of his cross-examination he has stated that the appellants were assaulting Choudhary Yadav with lathi and fists. P.W. 5 is Dr. D.N. Akela, who had held the post-mortem on the dead-body of the the deceased, Choudhary Yadav on 10-11-1984 at 11.30 a.m. According to him, while conducting the post-mortem he found the following ante mortem injuries on the dead-body of Choudhary Yadav. (i) Lacerated wound 1/2" x 1/4" x muscle deep on left leg below knee joint anteriorly. (ii) Bruise with swelling 2" x 2" on left knee. (iii) Lacerated wound 1/2" x 1/4" x muscle deep on right forearm. (iv) Abrasion with swelling 1(1/2)" x 1" on left elbow joint. (v) Bruise with swelling 4" x 1/2" on left side of chest. (vi) Bruise with swelling 2" x 2" on left side of chest anterior aucillary line below the left nipple. (vii) Bruise with swelling 2" x 2" on left scapular region. (viii) Bruise 1" x 1/2" on back of chest. (ix) Bruise with swelling 1" 1" on front of abdomen just below the umblius. 7. On dissection, P.W. 5, the medical expert, found the fracture of ribs of left side rib Nos. 2, 3, 4, 5, 6 and 7 and also found left side of lower lob of left lung were lacerated. The Peritorium cavity was found filled with blood. The heart, right lung, kidney, liver and spleen were normal urinary bladder was empty. In the opinion of the doctor, P.W. 5, all the injuries had been caused by hard and blunt substance and the cause of death was due to above mentioned injuries, following haemorrhage and shock. According to him, the injuries were sufficient in ordinary course of nature to cause the death of deceased. P.W. 6 has been declared hostile by the prosecution. P.W. 7, the investigating officer, Md. Abdul Hannan, has stated that he has investigated the case and has recorded the statement of P.W. 3 at Saraiya in the dispensary of private practioner, Dr. K.M. Singh (not examined). He had specifically stated that when he visited the place of occurrence he did not find any trampling mark in the field in which gram, wheat and pease were sown and the height of these plants were 6". 8. K.M. Singh (not examined). He had specifically stated that when he visited the place of occurrence he did not find any trampling mark in the field in which gram, wheat and pease were sown and the height of these plants were 6". 8. The learned Counsel appearing on behalf of the appellants has submitted that no fardbeyan was a manufactured document subsequently brough on record in conspiracy with P.W. 7, the investigating officer, in order to implicate the appellants on previous enmity. Thus, the learned Counsel has challenged the genuineness of the fardbeyan. He has also submitted that the appellants have been falsely implicated. From the deposition of P.W. 2, it appears that the injured and his brothers, including the informant, P.W. 3, stayed in the clinic of Dr. K.M. Singh for only 15 minutes and, thereafter, they moved to Arrah Sadar Hospital. It has been stated by P.W. 2 that no statement of any of them was recorded at the clinic. However, it is clear that fardbeyan on the basis of which first information report was said to have been recorded in the clinic of Dr. K.M. Singh (not examined) at 11.00 hours, but surprisingly the first information report has been shown to have been drawn at 15.30 hours. It is also very surprising that first information report was received by the Chief Judicial Magistrate on 7-11-85, i.e. two days after the occurrence and a day after the discharge shown from Arrah Police Station to Chief Judicial Magistrate, Arrah. The contention of the learned Counsel finds support from the delay in drawing the first information report and its receiving by the Chief Judicial Magistrate and strong possibility of false implication of the appellants could be inferred from the Act of the investigating officer. Such delay makes the first information report suspicious. The learned Counsel has next submitted that the so-called dying declaration is tendered document and no such statement of deceased was recorded. None of the persons is the witness to the dying declaration and the alleged dying declaration has not been properly recorded. Such delay makes the first information report suspicious. The learned Counsel has next submitted that the so-called dying declaration is tendered document and no such statement of deceased was recorded. None of the persons is the witness to the dying declaration and the alleged dying declaration has not been properly recorded. So far as the contention of the learned Counsel about the dying declaration is concerned, any dying declaration is considered as a piece of evidence only if it has been recorded in presence of a Magistrate after getting a certificate of the attending doctor that the person was in a fit mental and physical condition so as to give his statement. In this case the deceased was very serious and is said to have been unconscious, as such, in his case certificate of a doctor was must. In the evidence of P.Ws. 2 and 3 it has been stated that at about six in the evening the deceased came in sense and they ran to the investigating officer and brought the investigating officer on a car. He got recorded the statement of injured (deceased) and he left the place on that very car. It has been stated by P,W. 2 that the injured soon after recording of statement again became unconscious, as such, the statement has been recorded in a condition which is also doubtful and it does not have any evidentiary value. It has been also submitted by the learned Counsel that all the injuries were external and superficials no assault was inflicted by dangerous weapon on the vital part of the deceased. In this connection he has relied in a decision reported in -- , Parusuraman @ Velladurai and Ors. V/s. State of Tamil Nadu, in which it has been held that since injuries are on external part of the body the intention of the accused was to cause grievous hurt and not to commit murder. However, in this case, the doctor who held post-mortem case found that six of the ribs were broken. It has been further submitted that initially it has been alleged in the fardbeyan that the appellant assaulted the deceased with lathi only, Later on the prosecution case was developed and eye-witnesses further added that appellants assaulted the deceased with their knees and leg on his chest after he fell down on the ground. It has been further submitted that initially it has been alleged in the fardbeyan that the appellant assaulted the deceased with lathi only, Later on the prosecution case was developed and eye-witnesses further added that appellants assaulted the deceased with their knees and leg on his chest after he fell down on the ground. This detail of assault seems to be subsequent development made in the case of the prosecution to match with the findings of the post-mortem report. It has been also further submitted that except for the later development of giving jurk on the chest of the deceased the story of assault is vague and none of the appellants have been attributed to have given assault on particular part of the body of the deceased and it has simply been stated that all twelve persons variously armed started assaulting the deceased and when the deceased fell down all the three accused persons dragged him from the place of occurrence to their darwaza. I found that there is force in the submission of the learned Counsel for the appellants that none of the individual appellants has been actually attributed with any particular overt act. In this case it is also very surprisingly that why the appellants would bring the deceased near their darwaza specially when they assaulted him in the field outside the village. After assaulting, the normal conduct of the appellants should have to flee away and not to further engage in dragging the injured that too near the village at the risk of being protested and attacked by the co-village who by time gathered in number. In that view of the matter this portion of alleged behaviour of appellants makes the prosecution story itself improbable. In this case only interested witnesses have been examined even though so many villagers came at the place of occurrence but none from them has been examined as a witness. One of the first information witness, P.W. 6, Laloo Mishra, though examined, has not supported the case of the prosecution. However, he has stated that Choudhary Yadav got injured on that day of occurrence and he was in unconscious condition. 9. In this case the prosecution has not examined the doctors at whose clinic the deceased was first taken and also the doctor who later treated the injured (deceased) at Arrah Hospital. If Dr. However, he has stated that Choudhary Yadav got injured on that day of occurrence and he was in unconscious condition. 9. In this case the prosecution has not examined the doctors at whose clinic the deceased was first taken and also the doctor who later treated the injured (deceased) at Arrah Hospital. If Dr. K.M. Singh (not examined) would have been examined he would have narrated about the condition of the deceased and he could have also supported that fardbeyan was recorded by the police in his clinic. The other doctors, who had examined him at Sadar Hospital, Arrah, was also not examined. If they had been examined, the prosecution would have brought the truth and by not doing so the defence have been also deprived of non-examination of these witnesses to prove the nature and condition of injury. This prejudiced the case of the defence as well as the true prosecution version could not be brought. Even the investigating officer did not find any material finding at the place of occurrence. It is very pertinent that the deceased was said to have been dragged from placeof occurrence away from the village in field to the front darwaza of appellants and even the field was having wheat, gram and pease, plant of 6" height but the investigating officer did not find any trampling mark right from the alleged place of occurrence to the darwaza of the appellants. He only found some blood drop at the place of occurrence. He do not find even green stains on the cloth of the deceased. He had not supported that the informant and his brother had in his statement before the place mentioned about the pressing and giving jurk on the chest of the deceased by appellants after he fell down. As such the later development of the case of the prosecution gets falsified by the statement and observation of the investigating officer. 10. However, there is no dispute that the deceased died after sustaining injuries on his person caused by the hard and blunt substance. It is also not in dispute that the dead-body was found lying near the darwaza of the appellants. 10. However, there is no dispute that the deceased died after sustaining injuries on his person caused by the hard and blunt substance. It is also not in dispute that the dead-body was found lying near the darwaza of the appellants. However, the prosecution could not prove the story about the manner of occurrence and dragging of the body of Choudhary Yadav from the place of occurrence to Sahan of one Laxman Yadav without all reasonable doubt, there is also delay in forwarding the first information report to the Chief Judicial Magistrate and there is dispute about the place of the recording of fardbeyan as mentioned in the fardbeyan, giving suspicion of false implication of the appellants. The later development of the prosecution case to suit the report of the medical expert goes to show that the eye-witnesses were not, trustworthy and they cannot be relied upon. There was also enmity between the parties. 11. In view of the above discussion and facts and circumstances of the case, it is evident that the prosecution story is not free from doubts. That the prosecution could not prove its case beyond all reasonable doubt. It is well established that unless the prosecution establishes the guilt of the accused beyond reasonable doubt, a conviction cannot be passed on the accused. We cannot afford to deprive the liberty of the appellant without finding reasonable level of certainty that the deceased was assaulted by the appellants. We have doubt the involvement of the appellants and the appellants deserve benefit of doubt. 12. Accordingly, we are inclined to give the benefit of doubt to the appellants and, accordingly, they are acquitted of their charges framed against them. The conviction and sentence, passed by the Court below, are set aside. The appellants are discharged from the liabilities of their bail bonds. 13. Accordingly, this appeal is allowed.