JUDGMENT 1. - Two appellants have been convicted by the learned Addl.Sessions Judge, Sri Karanpur, vide his judgment dated 25.6.2001 passed in Sessions Case No. 37/97, for the offences under Sections 302 and 302/34 I.P.C. respectively, and has further convicted them for the offence under Section 341 I.P.C. and sentenced to imprisonment for life on the first count, while on count sentenced them to simple imprisonment for a period of one month. Both the substantive sentences were ordered to run concurrently. 2. Brief facts of the case are that on 1.10.95 a Parcha Bayan of one Karnail Singh ( P.W.1) was recorded in the hospital Sri Karanpur by the A.S.I, wherein it was deposed that, at about 5 P.M. on that day his brother. Bhag Singh @ Bag Singh was going to his in laws house, to bring his wife from her village, in that process when he was going on foot, and reached near the house of Jamu Ram the two appellants came out from their house, stopped Bhag Singh and appellant Prithvi Raj inflicted injury with Lathi on the head of Bhag Singh, whereupon the victim raised a cry, then Gyan Chartd informed the deponent, whereupon deponent went, at that time Sohan Singh had also come on the spot. At that time the two appellants were beating the victim. Sukhdev Singh appellant was armed with Gandasi and he was also inflicting injuries to Bhag Singh. According to the deponent he and Sohan Singh intervened. It was also deposed that the two appellants. have bad relations with Bhag Singh, and therefore, incident has been committed. Thereafter the victim was brought to hospital and got admitted while he was unconscious. On these statements, a case under Sections 307/34 and 241 I.P.C. was registered. However, in the morning Bhag Singh expired, and the offence of Sec.302 I.P.C. was added. The Police after completing necessary investigation submitted a charge sheet against the appellant Prithvi Raj alone. The learned Magistrate committed the case to the learned trial Court who framed the charges for the offence under Sec.302, 302/34 and 34 11.P.C. It was on the application of the prosecution that vide order dated 25.5.96 cognizance was taken against the appellant Sukhdev Singh for the offence under Section 302, 307 and 341 I.P.C. and his attendance was procured. The learned Magistrate committed the case to the learned trial Court who framed the charges for the offence under Sec.302, 302/34 and 34 11.P.C. It was on the application of the prosecution that vide order dated 25.5.96 cognizance was taken against the appellant Sukhdev Singh for the offence under Section 302, 307 and 341 I.P.C. and his attendance was procured. Thereafter the charges were framed against both the accused persons, inasmuch as the appellant Prithvi Raj was charged for the offence under Sections 302 and 341, while Sukhdev was charged for the offence under Sections 302/34 and 341 LP.C. 3. The prosecution examined some 13 witnesses and tendered 20 documents in the evidence. In the statement under Section 13 Cr.P.C. accused persons adopted the stand of denial, and contended that they have been falsely implicated. Appellant Prithvi Raj of course stated that he is innocent and has been falsely implicated on account of party fractions. 4. It may be noticed here that Sohan Singh has not been examined by the prosecution, while Gyan Chand has been examined as P.W.3 who has not supported the prosecution story, and has been declared hostile, Likewise one P.W.4 Ram Niwas. has not supported the prosecution and has also turned hostile. Thus the case of the prosecution has rested on the testimony of P.W. 1 the eye witness, and P.W.2 the corroborative witness, and of course the other witnesses being necessary formal witness, like that of recovery, linking evidence of seal, sending of articles to Forensic Science Laboratory, the A.S.I. who recorded the Pareha Bayan, apart from the doctor P.W.7 Jaswant Singh and the Investigating Officer. 5. The learned trial Court has convicted the appellants by believing the statement of P.W.1. and 2, and has found their evidence being corroborated by the other circumstances, like recovery of weapon, being stained with human blood, and injuries having been found by the doctor on the deceased. 6. Assailing the impugned judgment the learned counsel for the appellants has contended that. the learned trial Court was in error in convicting the appellants. According to the learned counsel, the present in a case wherein there is absolutely no evidence to implicate any of the appellants. 6. Assailing the impugned judgment the learned counsel for the appellants has contended that. the learned trial Court was in error in convicting the appellants. According to the learned counsel, the present in a case wherein there is absolutely no evidence to implicate any of the appellants. It is contended that, a combined reading of statements of P.W.1 and 2, even by itself would show that the two witnesses cut across each other, and even from bare reading of these two statements it is more than clear that P.W. I had not at all seen any of the appellants inflicting any injury to Bhag Singh. Learned counsel also highlighted various other contradictions appearing in the statements of P.W. 1 and 2, so also that of P.W.5 Ramji Lal. A.S.I It is then contended that since P.W. 1 is not the eve witness of the incident, and since the prosecution seeks to rest its case on the evidence of eve witnesses, and Gyan Chand having not supported the prosecution case, and having been declared hostile, other circumstances whatever are appearing on record, like recovery of Lathi, or its being stained with human blood, or the Doctor having found the injuries on the person of the deceased. by themselves are not at all sufficient to bring home the guilt against the appellants. 7. Controverting the submissions it is contended by the learned Public Prosecutor that Karnail Singh, P.W.1 has clearly deposed that, he had himself seen the appellant Prithvi Raj armed with Lathi, and causing injury with Lathi on the head of Bhag Singh, so also the appellant Sukhdev Singh causing injuries with the reverse side of Gandasi on the leg of Bhag Singh, and he having intervened. According to the learned P.P., simply because there are some contradictions here and there, the testimony of eye witnesses cannot be brushed aside. It was then contended that P.W.2 Hajoor Singh has further deposed that when Karnail Singh brought Bhag Singh to the house, Bhag Singh had disclosed to him that, Prithvi Raj inflicted Lathi injury on the head, and Sukhdev Singh inticted Gandasi injury on the legs. It was then contended that P.W.2 Hajoor Singh has further deposed that when Karnail Singh brought Bhag Singh to the house, Bhag Singh had disclosed to him that, Prithvi Raj inflicted Lathi injury on the head, and Sukhdev Singh inticted Gandasi injury on the legs. Thus according to the learned P.P. it is a clear dying declaration of the victim, and that even by itself, is sufficient to sustain the conviction, more particularly when it is corroborated by the circumstances, like recovery of weapon of offence, which has been found to be stained with human blood, and the post mortem report. 8. We have considered the rival submissions had have gone through the record. 9. To start with, a look at the injury report of Bhag Singh, Ex.P.6 shows that he had, in all two injuries on his person first being a lacerated wound 21/4" x 1/411 bone deep with swelling of 2"x2" on the left parietal region, the other injury is a lacerated wound 1/2" x 1/4" muscle deep on the left big toe. Then in the post mortem report also these two external injuries have been noticed, and the first injury had corresponding internal injury, consisting of fracture of left parietal and temporal bone, blood clot on membrane, and laceration of brain. 10. In this round if the prosecution story is considered, according to Ex.P1, when Bhag Singh was going the two appellants stopped him, and appellant Prithvi Raj inflicted a Lathi blow on the head, obviously thereupon the victim raised a cry, thereupon Gyan Chand told him, and thereupon the informant went on the spot. It is with this preface that, the informant had deposed in Ex.P. 1 that at that time the two appellants were giving beating. Then a look at the statement of informant, who has been examined as P.W.1 shows that he has deposed that, Bhag Singh was. going to his in laws" place on toot to fetch his wife, and whets he reached to the house of Jamu Ram, the two appellants met him. Then a look at the statement of informant, who has been examined as P.W.1 shows that he has deposed that, Bhag Singh was. going to his in laws" place on toot to fetch his wife, and whets he reached to the house of Jamu Ram, the two appellants met him. At this time he witness claims to be at the house, at that time Gyan Chand is alleged to have come to the house, and told that the two appellants have stopped Bhag Singh ( ?ksj j[kk gSA ) thereupon he went on the spot, and saw the appellant Prithvi Rai armed with Lathi, who inflicted injury on the head of Bhag Singh, while Sukhdev was armed with Gandasi, who inflicted a blow with reverse side of Gandasi on the leg of Bhag Singh, he intervened, then he made Bhag Singh to lie down under the tree, and carried him to the house of Gyan Chand wherefrom he was taken to his own house, then carried to hospital on motorcycle, and lodged a report. Then the victim was referred to Ganganagar hospital where he died. The motive that has been deposed is the existence of some dispute relating to land as accused persons are in illegal' possession of their land. In cross examination he has deposed that, some 10-15 minutes after Bhag Singh had left the home, Gyan Chand came and told that his brother is being manhandled. He has deposed ignorance as to how many injuries were inflicted on Bhag Singh, before the witness reached the spot, but then he maintains that, when he went Bhag Singh was encircled ( Kku pan us crk;k fd Hkkxflag fd pksVsa ekjh nh gSA mls tkdj lEHkky yksA ) and he had seen Prithvi Raj inflicting injury on the head. He has further deposed that, when he raised cry nobody had reached on the spot to intervene. The witness, in cross examination, has denied the suggestion about the injuries having been inflicted in his presence. It is a different story that on the face of the things it cannot be believed that, if the two accused persons had stopped and encircled the victim when the accused persons are armed with weapon, they would not inflict injuries immediately, and would wait for arrival of either Gyan Chand or Karnail Singh, or anybody else for that matter. It is a different story that on the face of the things it cannot be believed that, if the two accused persons had stopped and encircled the victim when the accused persons are armed with weapon, they would not inflict injuries immediately, and would wait for arrival of either Gyan Chand or Karnail Singh, or anybody else for that matter. It is in this background that, as observed above, the victim had only two injuries on his person. However, before commenting on the aspect of reliability of version of this witness having actually seen the accused persons inflicting injuries, or even to be present on the site, we think it more appropriate to look at the statement of P.W.2, at this stage itself. This P.W.2 has deposed that, it was about 1-11/2 hour of Bhag Singh leaving for his in-laws' house, that Gyan Chand came and informed, that injuries have been inflicted on Bhag Singh, and take care of him The witness has further deposed that, Gyan Chand told him that, accused Prithvi Raj and Sukhdev are giving beating. However, even on learning of this incident the witness did not go on the spot. (though the witness is only 50 years of age at the time of "according of statement which were recorded after more than 2 years of the incident) but sent his other son Karnail Singh on the spot. He has further deposed that, when Gyan Chand came to the house, Karnail Singh was not available in the house, as he had gone to market, and he had returned to the house after one hour, then Karnail Singh brought Bhag Singh in injured condition. In this sequence the witness has further deposed that, Bhag Singh told him that appeal lam Prithvi Raj had intlicted Lathi injury on his head, and Sukhdev had inflicted Gandasi injury on his leg, then the victim was taken by Karnail Sing11 on motor cycle being driven by Ram Niwas. He has further deposed that there was no enmity between Bhag Singh and the accused persons. In cross examination he has deposed that despite information being received from Gyan Chand, about beating being given to Bhag Chand he did not go on the spot, he does not know as to how Karnail Singh went on the spot. He has further deposed that there was no enmity between Bhag Singh and the accused persons. In cross examination he has deposed that despite information being received from Gyan Chand, about beating being given to Bhag Chand he did not go on the spot, he does not know as to how Karnail Singh went on the spot. He is further categoric to the effect that, in his presence Gyan Chand did not tell anything to Karnail Singh, about the incident. Thus the reading of the statement or P.W.2 makes it unmistakably clear that, he completely demolishes the entire version of P.W.1, when lie deposed that Gyan Chand did not tell anything to Karnail Singh about the incident, and that Gyan Chand had told the witness that the injuries have been inflicted to Bhag Singh, so also that at that time Karnail Singh was not in the house, and had come from the market after one hour. This state of affairs, coupled, with the evidence of Gyan Chand, who has not been chosen to support the prosecution version, though he has been declared hostile, leaves no manner of doubt that, Karnail Singh did not, and could possibly not, see the two appellants inflicting injuries to Bhag Singh. 11. It clearly appears that Gyan Chand may have been seen the incident, and the appellants may have inflicted injuries, and he may have narrated the things to Karnail Singh, on which basis the first report may have been lodged, and believing this version of Gyan Chand to be correct, Karnarl Singh appears to have chosen to himself figure as the eye witness so as to make the Court believe with certainty that the accused persons had inflicted injuries. Likewise in an attempt, to be still on safer side P.W.2 has additionally gone to the extent of, Bhag Singh having made dying declaration to him, implicating the two appellants. In that view of the matter, in view of the inconsistencies that have appeared in the evidence of two witnesses, we possibly cannot believe the testimony of Karnail Singh, about having seen the two appellants inflicting injuries to Bhag Singh. 12. So tar as the theory of dying declaration is concerned, true is that conviction can be recorded, even on uncorroborated oral dying declaration, provided of course it inspires confidence of the Court. 12. So tar as the theory of dying declaration is concerned, true is that conviction can be recorded, even on uncorroborated oral dying declaration, provided of course it inspires confidence of the Court. But then, present is a case, where even the tactual of making of dying declaration itself is very much doubtful to us. In this regard firstly Karnail Singh, who is all through with the victim from the moment he claims to have witnessed intliction of injury, till he is taken to hospital, has not deposed a word about any such dying declaration having been made by the victlnl. Secondly, in the first report Ex.P.1, which was instantly lodged, also there is not even a whisper about any such dying declaration. On the other hand, it is definitely mentioned in Ex.P.1 that the victim is unconscious. In this sequence a look at the statement of P.W.5 the A.S.I., shows that he was told by the Doctor that the victim is unconscious. In Ex.P.6 it is mentioned that injured is unconscious. Then a look at Ex.D.2 the 161 statement of PW 2 shows that therein at portion A to B. he had clearly deposed that the victim did not name Sukhdev (in the dying declaration as one of the assailants). On being confronted with this part of his statement. P.W 2 has obviously disowned to have given this statement, and has chosen to describe it as wrong. The Investigating Officer P.W.12 has clearly proved this previous statement of P.W.2, and has deposed that he has recorded the statement as given by the witness. In the cross examination also, he has maintained this version. All these circumstances, cumulatively, create a serious doubt, as to whether the victim has at all made any dying declaration, or that he was in a position to make any such dying declaration, in view of the seriousness of injury No. 1, which had resulted in fracture of left temporal and parietal bone, and was found to have caused laceration of brain also. Thus, apart from the fact that even the learned trial Court has not pressed into service this dying declaration, as a piece of evidence against the accused persons, in any case we could not persuade ourselves to believe, the victim to have make any such dying declaration, so as to be a circumstances against the appellants. 13. Thus, apart from the fact that even the learned trial Court has not pressed into service this dying declaration, as a piece of evidence against the accused persons, in any case we could not persuade ourselves to believe, the victim to have make any such dying declaration, so as to be a circumstances against the appellants. 13. The obvious conclusion is that it may have been that the two appellants may have inflicted injuries to the victim, but then there is no evidence to show that, it is these two persons who had inflicted injuries. Thus, in absence of any evidence to cover the distance between "may have been" and "must be", we do not find it safe to sustain the conviction of the appellants. 14. Consequently, the appeal is allowed, the Impugned judgment is set aside, and the appellants are acquitted of all the charges. The appellant Prithvi Raj be released forthwith, if not required in any other case, the accused Sukhdev is on bail, his bail bonds are cancelled and need not surrender.Appeal allowed. *******