JUDGMENT 1. - This criminal appeal by appellants Madan Lai, Heera Lal, Kalyan, Kishan Gopal and Cheetar Lal arises out of the judgment and order dated 30.8.96 passed by the Additional Sessions Judge, Bundi, thereby holding the accused appellants guilty of having committed offence punishable under Sections 302/194 and 147 IPC and according convicting and sentencing them in the manner stated below : Appellant Madan Lal U/s. 302 IPC or 302/149 IPC. Life Imprisonment with a fine of Rs. 2000, in default thereof, each to further undergo rigorous imprisonment for one year. Appellants Madan Lal Heeralal, Kalyan Kishan Gopal and Chhittar Under Section 302/149 IPC Life Imprisonment with a fine of Rs. 2000, in default thereof, each to further undergo rigorous imprisonment for one year. Appellants Madan Lal Heeralal, Kalyan Kishan Gopal and Chhittar Under Section 147 IPC Rigorous imprisonment for one year. 2. On 3.11.90, on the report of PW 1 Ram Lal, police registered a criminal case against the accused appellants alongwith one Babu Lal (since died) for offence under Sections 147, 148, 149 and 307 IPC vide FIR, Ex.P1. In course of investigation, injured Dev Lal succumbed to his injury and accordingly police added Section 302 IPC. 3. As per report, Ram Lal left Keshorai-patan on a motor cycle and was on way to his village Gudla. When he reached near canal (nala), Dev Lal met him and he asked him as to where was his tractor as he had to bring bags of manure. Dev Lal, in turn, replied that his tractor was busy somewhere. He also told that tractor was about to come. After his conversation, both of them went on talking with each other at the canal. Meanwhile, accused Kishan Gopal came from the road side and proceeded towards Gudla. As per the complainants report, the accused had teased the wife of younger brother of Dev Lal about two months prior to this incident and a report to that effect was also lodged at the police station and since then the accused were keeping enimocity. 4. As per the prosecution case, Dev Lal asked complainant Ram Lal that let us wash our hand and face, to which complainant did not object. Dev Lal went towards machine for the purpose, while complainant stayed near by. 4. As per the prosecution case, Dev Lal asked complainant Ram Lal that let us wash our hand and face, to which complainant did not object. Dev Lal went towards machine for the purpose, while complainant stayed near by. When complainant Ram Lal came near to his motor cycle, his partner Rampal and his wife came there, whom the complainant discussed about his Soyabeen. The moment, Rampal and his wife left the place, accused Heera, Kalyan, Madan, Babu, Kishan Gopal and Chhittar Lal came from village side, duly armed with lathies in there hands and on seeing the complainant, asked to kill him. The complainant escaped form the scene. Then all the accused chased complainant Ram lal with a view to assault him. Ram Lal started running crying Dev Lal-Dev Lal. Dev Lal met him near the machine. Ram Lal asked Dev Lal also to run away. Thereafter Dev Lal went on running. At the time when accused came near the complainant, Madan inflicted a stick blow on the heard of Dev lal with an intention to kill him. According to the complainant, Dev Lal fell down and he continued to run to save his life and entered into the hut (tapara) of Kashmir Singh. Accused Heera then raised alarm to come back. Sardarji, who was present in the hut, made the complainant to drink water and thereafter the complainant narrated the entire happening to Sardarji. He then proceeded through Gudli road to lodge the report. At that time Banwari and Bajranga were passing through in a tractor and they found Dev Lal lying unconscious on the way, to whom both of them brought to Keshoraipatan in the tractor and admitted him in the hospital. The injured was reported to be unconscious in the hospital at the time of lodging the report. 5. In the course of investigation, Dev lal passed away. The police rushed to the place of incident and prepared site plan, Ex.R 4, inquest report Ex.R 2 and arrested accused Kalyan, Heera Lal, Cheetar, Madan Lal, Kishan Gopal and Babu Lal vide arrest memos Exs. P15 to P20. The police got conducted post mortem on the dead body of deceased. Dr. Prabhakar Vijay PW 13 who examined injured Dev Lal found following injuries on his body : 1. P15 to P20. The police got conducted post mortem on the dead body of deceased. Dr. Prabhakar Vijay PW 13 who examined injured Dev Lal found following injuries on his body : 1. Lacerated wound 2" X 1/2" X ⅓" on left posterial lateral part of left left antero parietal region of skull 2. Bruise 5"X21/4M oblique in direction on posterial literal part of left side of chest in lower region. 3. Abrasion 1"X 1/2" on antero lateral surface of middle of left arm. 6. PW 18 Dr. Kamlesh Kumar conducted autopsy on the dead body of deceased and found the injuries mentioned in the injury report Ex.R6. On internal examination, he found haemotoma under the scalp at fronto parietal region, fracture of left frontal and parietal bone and subdural haemorrhage at left fronto parietal and temporal lobe of brain. 7. In the opinion of Doctor, the cause of death was head injury (subdural haemorrhage) with laceration of spleen leading to shock. 8. On completion of usual investigation, police submitted a charge sheet against the accused persons in the court of Judicial Magistrate 1st Class, No. 1, Bundi. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case of the court of Sessions. 9. The learned trial court after hearing counsel for the accused and the learned Public Prosecution framed charges against the accused appellants for offence under Section 147, 148, 302 and 302/149 IPC. The accused denied the charges and claimed to be tried. 10. In the course of trial, the prosecution in order to prove its case, examined as many as 23 witnesses and exhibited some documents. Thereafter, accused appellants were examined under Section 313 Cr.PC. At the conclusion of trial, the learned trial court found the prosecution case as alleged, proved and accordingly convicted and sentenced the appellants as aforesaid. Hence the present appeal. 11. We have heard learned counsel for the accused appellants and learned Public Prosecutor and gone through the impugned judgment and the evidence and material on record. 12. Avoiding challenge to the judgment on merits of the case, learned counsel for the appellants has kept confined his argument that even if the entire prosecution case is taken to be true on its face value, no case worth-the-name is made out against appellants Heera Lal, Kalyan, Kishan Gopal and Cheetar Lal. 12. Avoiding challenge to the judgment on merits of the case, learned counsel for the appellants has kept confined his argument that even if the entire prosecution case is taken to be true on its face value, no case worth-the-name is made out against appellants Heera Lal, Kalyan, Kishan Gopal and Cheetar Lal. According to him, the learned trial court has committed serious error in recording finding of guilt against these four appellants, inasmuch as there is no allegation against these four accused appellants about their participation in the commission of crime, except that they were present at the time and place of occurrence. Mere presence of these appellants at the time and place occurrence is not at all sufficient to connect them with the commission of crime, in this back-ground, learned counsel for the appellants argued that these four appellants deserves to be acquitted of the offences charged with. 13. As regards accused appellants Madan Lal, learned counsel counsel for the appellants contended with vehemence that even as per the prosecution case, he inflicted a single blow by stick on the head of deceased Devi Lal, which unfortunately proved fatal and resulted in his death. He did not repeat the blow despite there being no restrain and he had ample opportunity of repeating blows. Therefore, it cannot be said that appellant Madan Lal had any intention to cause death of deceased. At the best, he can be said to have knowledge that infliction of such blow was likely to cause his death. In these circumstances, the case does not travel beyond Section 304 Part II IPC. 14. We have given our thoughtful consideration to the above submissions. 15. The trial court has recorded its finding of guilt against the accused appellants on the basis of oral dying declaration of deceased Dev Lal and the statement of PW 1 complainant Ram Lal, who happens to be the solitary witness of the incident. 16. As per the prosecution version, deceased Dev Lal made oral dying declaration before PW 3 Kanwar Lal, PW 4 Tilak Raj and PW 5 Jankilal. PW 3 Kanwar Lal and PW 4 Tilak Raj, both brothers of the deceased have deposed that Banwari and Bajranga raised on alarm and they came out of their house, They found their brother Dev Lal lying in the tractor in unconscious condition. He regained consciousness and asked to save Ram Lal. PW 3 Kanwar Lal and PW 4 Tilak Raj, both brothers of the deceased have deposed that Banwari and Bajranga raised on alarm and they came out of their house, They found their brother Dev Lal lying in the tractor in unconscious condition. He regained consciousness and asked to save Ram Lal. On being asked by these witnesses as to who belaboured him, the deceased in his disturbed voice (Atak-Atak kar) informed that accused appellants have belaboured him. Thereafter, Dev Lal again became unconscious. In cross examination, PW 3 Kanwar Lal and PW 4 Tilak Raj have admitted that Dev Lal was first brought home and then he was taken to hospital. He admitted that Dev Lal did not disclose as to which accused inflicted injury on which part of body and what was the weapon used. 17. PW 5 Jankilal has stated in his examination in chief that on the relevant day he had gone to Dev Lals house for his personal work. He saw Dev Lal lying unconscious and Talak Raj and Kanwarlal were trying to get him alert. After a short while, Dev Lal regained consciousness and then disclosed that Meenas have belaboured him and asked them to save Ram Lal. He also disclosed the names of the accused and thereafter again became unconscious. In cross examination, this witness has stated that he had seen Dev lal lying unconscious out side the house. He was taken from Gudla to Patan a tractor. The witness has admitted his relationship with deceased. He stated that deceased was his cousion. 18. Having scanned the evidence of these three witnesses before whom the deceased alleged to have made oral dying declaration, we are not prepared to rely upon the oral dying declaration on the ground of it being not worthy of acceptance and appears to be planted and concocted for the obvious reasons that PW 3 Kanwarlal and PW 4 Tilak Raj are the real brothers of deceased, while PW 5 Jankilal is cousin of deceased and PW 14 Rukmani wife of the deceased has not stated anything about dying declaration having been made by Dev Lal before her. The conduct of these witnesses also appears to be highly unnatural. According to these witnesses, the deceased when brought to the house was unconscious. The conduct of these witnesses also appears to be highly unnatural. According to these witnesses, the deceased when brought to the house was unconscious. It cannot at ail be believed that Dev Lal regained his consciousness only for the time being within which he disclosed the names of assailants and just thereafter he again became unconscious. In fact, not only that the deceased was unconscious but his condition was very critical and precarious when he was brought to the hospital in the tractor, as is evident from the statement of PW 13 Dr. Prabhakar Vijay who had examined the injuries of Devi Lal at about 8.30 PM on the same day i.e. within 1-2 hours of the incident. 19. In this view of the matter, we have no hesitation in holding that the oral dying declaration alleged to have been made before prosecution witness Nos. 3, 4 and 5 is not worthy of acceptance and learned trial court has erred in relying upon such untrustworthy oral dying declaration. 20. Now we come to the solitary evidence of PW 1 Ram Lal, who is also the author of first information report and stated to have witnessed the incident. PW 1 Ram Lal has stated that on the day of incident he was on way of his village on a motor cycle Dev Lal met him at the canal. He asked Dev Lal about his tractor. Dev Lal then informed that he was also waiting for tractor. Thereafter, both of them started smoking biri. At that time he found Kishan Gopal going towards village. The witness stated that he went towards his motor cycle for washing hand and mouth, while Dev Lal left for the same purpose towards machine. When he was standing near his motor cycle, Rampal and his wife came there from the sdie of Gudla. They asked him as to why he was standing there. He then replied that he was waiting for Dev Lal and will leave after his arrival. Then they talked for Soyabeen. Thereafter they left the place. At that time, Heera, Madan, Kishan Gopal, Babu, Kalyan and Cheetar came from the village. Heera, Madan and Kishan Gopal had lathis (sticks) with them, while Kalyan had a Gandasi. The witness could not state as to what weapon accused Cheetar had. Soon he saw the accused, Madan told "Ishko Niptao". Thereafter they left the place. At that time, Heera, Madan, Kishan Gopal, Babu, Kalyan and Cheetar came from the village. Heera, Madan and Kishan Gopal had lathis (sticks) with them, while Kalyan had a Gandasi. The witness could not state as to what weapon accused Cheetar had. Soon he saw the accused, Madan told "Ishko Niptao". He ran towards canal where Dev Lal was washing his hands. Soon after Dev Lal came out of the buses, he asked as to what happened. The witness further stated that accused Madan Lal inflicted stick blow on the head of Dev Lal. Thereafter he ran away and the accused chased him. He entered that hut (tapari) of Sardar Kashmir Singh and informed him that Devi Lal remained behind and the accused were beating him. When he came on the road, he found Dev Lal in a tractor along with Jankilal, Badri Lal, Kanwar Lal and Tilak Raj. He also travelled in the tractor. Dev Lal first brought to Police Station and then to Hospital. 21. Having discussed the evidence of the solitary eye witness PW 1 Ram Lal, we have now to examine whether his presence at the time and place of occurrence is established or not. For the purpose, we may refer to the evidence of Sardar Kashmira Singh, Rampal and Mooli. PW 2 Kashmira Singh has deposed that Ram Lal came to his house. He made him to drink water. Ram Lal then informed that Heera Lal, Madan, Cheetar, Kalyan, Babu (5-6 persons) were chasing him. According to this witness, Ram Lal left the place saying that he was going to place station. PW 11 Ram Pal has deposed that on the relevant day Ram Lal met him at the canal. He stated that nothing happened at the time when they were talking to each other and none was there. Thereafter he left for his village. PW 12 Mst. Mooli has supported the statement of her husband and has further stated she had heard some noise. Thus, in our considered opinion, the presence of PW 1 Ram Lal at the time and place of incident is fully established from the evidence of PW 2 Kashmira Singh PW 11 Ram Lal and PW 12 Mst. Mooli. There appears to be no reason to doubt his presence. 22. Thus, in our considered opinion, the presence of PW 1 Ram Lal at the time and place of incident is fully established from the evidence of PW 2 Kashmira Singh PW 11 Ram Lal and PW 12 Mst. Mooli. There appears to be no reason to doubt his presence. 22. On scanning the evidence of PW 1 Ram Lal, we are of the firm view that he is a witness of sterling worth and the learned trial court has correctly placed reliance on his testimony. This witness has described the incident in a true and graphic manner. Neither he has tried to make improvement nor has given any untrue version of the incident. He has stated the incident in the manner it took place. 23. The question which now emerges for our consideration is as to whether the conviction of the appellants as recorded by the trial court is sustainable and if not, what offence the accused appellants have committed? 24. As per the prosecution case, it was accused appellant Madan Lal alone, who struck single lathi (stick) blow on the head of deceased Dev Lal. PW 1 Ram Lal has categorically deposed that accused Madan Lal struck solitary blow on the head of Dev Lal, which ultimately proved fatal and he succumbed to that injury, this deposition as to the infliction of blow on the head stands fully corroborated by medical evidence. PW 13 Dr. Prabhakar Vijay who examined the injuries of Dev lal has stated in his statement that this injury on the head of deceased was grievous in nature, fatal and sufficient in the ordinary course of nature to cause death. There is not an iota of evidence to show that appellant Madan Lal repeated the blow. It is established form the prosecution evidence that there was non except PW 1 Ram Lal, deceased Dev Lal and the accused persons. Thus there was no body of restrain Madan Lal from inflicting further blows and that he had ample opportunity to repeat blow. In this view of the matter, it cannot be inferred that appellant Madan Lal had intended to cause death of deceased Dev Lal. We find much substance in the argument of learned counsel for the appellants that appellant Madan Lal had no intention to cause death of Dev Lal. In this view of the matter, it cannot be inferred that appellant Madan Lal had intended to cause death of deceased Dev Lal. We find much substance in the argument of learned counsel for the appellants that appellant Madan Lal had no intention to cause death of Dev Lal. At the best, it can be said that appellant Madan Lal had the knowledge that infliction of such injury was likely to cause death of victim. Thus, having regard to the weapon used and the inflicted of single blow on the head of Dev Lal, we hold accused appellant Madan Lal guilty of having committed offence punishable under Part II of Section 304 IPC. 25. As regards appellant Heera Lal, Kalyan, Kishan Gopal and and Cheetar Lal, sufficient it to say that even if the allegation of they being armed with weapons as per the statement of PW 1 Ram Lal is accepted to be true, they cannot be connected with the commission of crime. Even this solitary witness has simply stated their presence with weapons in their hands at the time and place of incident, but he has not attributed any role to any of these four accused appellants. Therefore, we are firmly of the view that the prosecution has not been able to prove that appellants formed an unlawful assembly with a common object to murder Dev Lal. It has also not been proved that appellants Heera Lal, Kalyan, Kishan Gopal and Cheetar Lal shared the common object, it is well settled that unless it is proved by the prosecution evidence that the accused shared common object of their unlawful assembly, it would not be safe to convict all the accused persons merely on proof of their presence or some overt act which did not cause the death of deceased. Reference in this regard may be made to a decision of the Apex Court in Anil Rai v. State of Bihar (2001) 7 SCC 318 ) , wherein their Lordships of the Apex Court have held as under: "Where the prosecution fails to prove the evidence of sharing of common object by all the members of the unlawful assembly, it is unsafe to convict all the accused persons merely on proof of their presence or some overt act which did not cause the death of the deceased." 26. In the present case, what is established is the presence of the above named four appellants along with appellant Madan Lal. Mere presence of these appellants is not sufficient to connect them with the commission of crime and to hold them guilty. The prosecution has failed to prove the sharing of common object by all the members of the unlawful assembly and therefore it would not be safe to convict all the accused persons merely on the proof of their presence at the time and place of incident. Accordingly, it must be held that the trial court has committed serious error in recording finding of guilt against these four appellants under Section 302 read with Section 149 IPC. The conviction of these appellants under Sections 302/149 and 147 IPC is not sustainable and they deserve to be acquitted of the offences charged with. 27. In the result, this appeal is partly allowed. The conviction of accused appellant Madan Lal under Sections 302, 302/149 and 147 IPC and the sentences awarded thereunder are set aside. Instead he is convicted under Section 304 Part II IPC and is sentenced to the period already undergone by him. The conviction of accused appellants Heera Lal, Kalyan, Kishan Gopal and Cheetar Lal under Sections 302/149 and 147 IPC and the sentences awarded to them thereunder are set aside and they are acquitted of the offences charged with. Appellants Heera Lal, Kalyan, Kishan Gopal and Cheetar Lal are already on bail. They need not surrender and their bail bonds stands discharged. Appellant Madan Lal is in Jail and he be set free forthwith, if not required in any other case.Appeal partly allowed. *******