JUDGMENT M.L. VISA, J.:-Both these appeals which arise out of the same judgment and order dated 19.12.1987 passed in Sessions Trial No.20 of 1987/1 of 1987, have been heard together and are, therefore, being disposed of by this common judgment. 2. Doman Mahto, sole appellant of criminal appeal No. 20 of 1988 has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302, Indian Penal Code and remaining twelve appellants of criminal appeal No. 637 of 1987 have been convicted and sentenced to undergo rigorous imprisonment for life each under Section 302 read with Section 149, Indian Penal Code. Besides this, appellant Doman Mahato and Sita Mahato have also been convicted under Section 148, Indian Penal Code but no separate sentence has been passed against them under this section. 3. The case of prosecution, as disclosed by Fardbayan (Exhibit-3) of Nathun Manji, the deceased, in short, is that on the night between 25.3.1986 and 26.3.1986 at about 12 O'clock, three was Agja ceremony (a ceremony held on the eve of Holi festival) in his village and he alongwith his villagers played with Lukari (a torch of piece of wood with one end wrapped in cloth and socked in oil which is lit and held in the hand to give light). Some of Villagers of informant went towards Kunwarbigha with Lukaries and informant also, with his Lukari, went upto the border of village-Kunwarbigha. His villagers, namely, Karu Manjhi (P.W.1), Chandeshwar Manjhi (P.W.2), Ratan Manjhi (PW3). Badan Manjhi (P.W.4), Basudev Manjhi (not examined) and others were also there. After throwing Lukaries, informant and his villagers were returning to their village. In the way, residents of Yadav community of village-Kunwarbigha, who were sitting hidden in circle, surrounded the informant and his villagers and uttering that why they have thrown Lukaries in their area, ordered to kill them. Appellant Mita Chaudhari, a villager of informant changed his side and joined the residents of Kunwarbigha and instigated them to attack. The villagers of informant started running but the informant lagged behind and appellant Mita Chaudhari, pointing out him, said that he was escaping on which all the appellants surrounded the informant and appellant Sita Mahato hurled Garasa on informant but informant moved aside and, therefore, blow of Garasa could not hit him and in the meantime, Doman Mahato gave a Bhala blow on the abdomen of informant. The informant, after being injured, fell on the ground and other appellants assaulted him with Lathis and, thereafter, they fled away. Appellant Mita Chaudhary also fled away with appellant Doman Mahato. The informant anyhow managed to come to his village from where his villagers took him to Magadh Medical College and Hospital where his Fardbayan (Exhibit-3) was recorded by Sub Inspector of Police Ekram Alam (P.W.11) on 26.3.1986 at 3.30 a.m. in the Emergency Ward of Magadh Medical College and Hospital. On the basis of Fardbayan (Exhibit-5) was drawn against appellants under Sections 147, 148, 149, 326, 307, Indian Penal Code. Later on when the informant succumbed to injuries, Section 302, Indian Penal Code was added in the first information report. The police, after investigation, submitted chargesheet against all the appellants and co-accused Rajendra Mahaton and Maheshwar Mahato under Sections 147, 148, 149, 323, and 302, Indian Penal Code. After taking cognizance, the case was committed to the Court of Session where the charges under Sections 148 and 302/149, Indian Penal Code were framed against ail the appellants. In addition to this, appellant Doman Mahato was further charged under Section 302, Indian Penal Code. After trial, all appellants were found guilty and they were convicted and sentenced, as indicated above. Co-accused Rajendra Mahato and Maheshwar Mahato were not found guilty and they were acquitted. 4. The case of appellants is complete denial of charges framed against them and their false implication in this case. 5. In order to prove its case, prosecution has examined eleven witnesses. 6. Karu Manjhi (P.W.1), Chandeshwar Manjhi (P.W.2), Balkeshwar Paswan (P.W.5), and Jageshwar Dusadh (P.W.6) have not supported the case of prosecution and they all have been declared hostile. Ratan Manjhi (PW.3), Badan Manjhi (PW.4), Ganga Ravidas (P.W.7) and Baldeo Godait (P.W.8) are tendered witnesses. Dr. K.S. Ghani (P.W.10) is the doctor who, at the time of occurrence, was posted as Medical Officer, State Dispensary, Chakand were the deceased was first taken and he referred the deceased to Pilgrim Hospital, Gaya. Dr. Kapildeo Prasad (P.W.9) is the doctor who held post mortem examination on the dead body of deceased. Ekram Alam (P.W.11) is the Investigating Officer. 7. Dr. Kapildeo Prasad (P.W.9) is the doctor who held post mortem examination on the dead body of deceased. Ekram Alam (P.W.11) is the Investigating Officer. 7. Ekram Alam (P.W.11) has said that on 26.3.1986, he was posted as Officer-in-charge of Chandauti Police Station and that day was for celebrating Agja ceremony and about 3 a.m., he received information that a Marpit had taken place between the residents of Katakri Tola and Kunwarbigra and injured persons were in Magadh Medical College and Hospital and he then at about 3.30 a.m., went to hospital where he found deceased in injured condition but deceased was in conscious stage and he, in presence of P.Ws.1 and 2, recorded his Fradbayan (Exhibit-3), which was read over to deceased who, finding it correct, put his left thumb impression on the Fardbayan (Exhibit-3) and P.Ws 1 and 2 also, as witnesses, put their left thumb impressions on his Frdbayan (Exhibit-3). He has proved the Fardbayan (Exhibit-3) of deceased which, according to him, is in his handwriting. He was further said that he recorded the statement of P.Ws. 2, 3 and 4 also recorded the further statement of informant in para-3 of case, diary (Exhibit-4). He has also proved the formal first information report (Exhibit-5), which, according to him, was drawn at police station after his return from hospital. He took up the charge of investigation and visited the place of occurrence where he found some Lukaries and also blood stains. He has said that injured Nathun Manjhi died at Magadh Medical College and Hospital and has proved inquest report (Exhibit-6) in the pen of Jamadar Satya Narain Singh and has said that he sent the dead body for post mortem examination. Dr. K.S. Ghani (P.W.10) has said that on 26.3.1986, he was posted as medical officer, State Dispensary, Chakand and on that day at about mid night, he examined the deceased and referred him to Pilgrim Hospital, Gaya in view of grievous injury on his abdomen by a sharp cutting weapon. He has proved the injury report which is in his pen and signature and bears his official seal (Exhibit-2). He has said that he gave only first aid to deceased. He has proved the injury report which is in his pen and signature and bears his official seal (Exhibit-2). He has said that he gave only first aid to deceased. In cross-examination, he has said that he did not give the dimension of injury of deceased because he had not examined the deceased in view of the emergency of the case and there was no time to make entry in the injury register of the State Dispensary about the seriousness of case and deceased was found in semiconscious condition and was unable to speak. 8. Dr. Kapildeo Prasad (P.W.9) has said that on 28.3.1986, he held post mortem examination on the dead body of deceased and found following injuries on the dead body:- (1) Bandaged wound over abdomen. On removal of bandage, stitched wound was found over front of abdomen, 6" in length. On removal of stitches, there was stitched wound over stomach and small intestine. Drainage tube was found inserted over right ileum region of abdomen, tube was found inserted over right ileum region of abdomen. (2) Abrasion over right hand 1/2" x 1/2". According to him, aforesaid injuries were ante mortem and injury No.2 was simple in nature and was caused by hard and blunt substance and opinion about injury No.1 could not be ascertained by him and time elapsed since death was within twenty four hours and in his opinion, cause of death was shock and haemorrhage due to injury No.1. He has proved post mortem examination report which is in his pen and signature (Exhibit-1). In cross-examination, he says that he cannot say by what weapon, injury No. l was caused and he cannot say breadth and depth of injury No. 1 as it was an operated case and timely medical aid would have saved the patient. 9. From the evidence adduced on behalf of the prosecution, we find that there is no eye witness to the occurrence in this case. The appellants have been found guilty on the basis of Fardbayan (Exhibit-3) of deceased and his further statement recorded by the Investigating Officer in para No.3 of case diary (Exhibit-4) which, after his death, have been considered as dying declarations. P.W.11, admittedly a Police Officer, is said to be author of Fardbayan (Exhibit-3) of deceased which, as stated above, was considered by Court below as dying declaration. P.W.11, admittedly a Police Officer, is said to be author of Fardbayan (Exhibit-3) of deceased which, as stated above, was considered by Court below as dying declaration. In his examination-in-chief, PW.11 has said that he recorded the Fardbayan (Exhibit-3) of deceased in presence of P.Ws. 1 and 2 after recording his Fardbayan (Exhibit-3), he read it over to deceased who, finding it correct, put his left thumb impression and P.Ws.1 and 2 also put their left thumb impressions on the Fardbayan (Exhibit-3) As mentioned above, PWs. 1 and 2 have not supported the case of prosecution and they have been declared hostile and they have denied the suggestion of prosecution that in their presence. Fardbayan (Exhibit-3) of deceased was recorded by police. P.W.1 has also denied the suggestion of prosecution that he put his left thumb impression of Fardbayan (Exhibit-3) of deceased. No such suggestion has been given to PW.2. P.W.11 in para-6 of his cross-examination, has admitted that in the Fardbayan (Exhibit-3), there is no such endorsement that the Fardbayan (Exhibit-3) was read over to deceased. The Court below, after observing that in the Fardbayan (Exhibit-3), there appears an endorsement which reads "R.O, and A.C." which is in the signature of P.W.11 and the aforesaid abbreviation means "Read over and admitted to be correct" and, therefore, in this view of the matter, it appears that P.W.11, by mistake and without going through Fardbayan (Exhibit-3) recorded by him, has stated that he did not make any endorsement in the Fardbayan (Exhibit-3) that the same was read over to deceased. The Court below failed to take not of the fact that the endorsement of P.W.11 on Fardbayan (Exhibit-3) which, in this connection has been relied on by it has not been proved by P.W.11 because he has not, in his evidence, stated that after reading over the Fardbayan (Exhibit-3) of deceased and, thereafter, putting left thumb impression on it by deceased, he made any endorsement to this effect in the Fardbayan (Exhibit-3). Notwithstanding this discrepancy, we have to examine the question whether the Fardbayan (Exhibit-3) of deceased was recorded when the deceased was in fit mental condition. Dr. Notwithstanding this discrepancy, we have to examine the question whether the Fardbayan (Exhibit-3) of deceased was recorded when the deceased was in fit mental condition. Dr. K.S. Ghani (P.W.10), before whom the deceased was first taken at State Dispensary, Chakand has said that he referred the deceased to Pilgrim Hospital in view of grievous injury on his abdomen caused by a sharp pointed weapon and he only gave first aid to him. As stated above, in cross-examination, he has admitted that had not given the dimension of injury because he did not examine the deceased in view of urgency of case. His report (Exhibit-2), given by him, simply shows that injured was brought before him in last stage and, therefore, he gave first aid by bandaging the wound and referred the case to Pilgrim Hospital, Gaya for immediate medical treatment. The report (Exhibit-2) further says that on the casual look, it appeared to him a case caused by sharp pointed weapon and the injury was grievous in nature. This report does not inspire confidence because this witness, admittedly, had not examined the deceased and had not given the features like length, breadth, depth, etc. of the wound. His mere statement in the report (Exhibit-2) that on casual look, it appeared to him a case caused by sharp cutting weapon and injury was grievous in nature, cannot be taken into consideration for conclusively proving that injury on the abdomen of deceased was caused by a sharp pointed weapon and it was grievous. This we particularly say because in this case only on his report the Court below has come to hold that injury on the deceased was inflicted by Bhala because Dr. Kapildeo Prasad (P.W.9) who held autopsy on the dead body of deceased, in his evidence, has clearly said that he cannot say by what weapon, injury found on the abdomen of deceased was caused. It is true that he has said that cause of death was shock and haemorrhage as a result of injury found on the abdomen of deceased but then for holding appellants guilty, only this much evidence is not sufficient because it requires further evidence on behalf of prosecution to prove that injury was inflicted by one of the appellants in prosecution of their common object with Bhala as per the own case of prosecution. Non-examination of injury of deceased by Dr. Non-examination of injury of deceased by Dr. K.S. Ghani (P.W.10) before whom the deceased was first taken and merely adding in the last portion of his report that on casual look, it appeared to be a case caused by sharp cutting weapon and injury was grievous in nature, has got no evidentiary value to determine the nature of injury and the weapon used in inflicting such injury. We, therefore find that medical evidence in this case does not establish that deceased died of an injury inflicted on his abdomen by Bhala. Once the cause of death of deceased is not established beyond all reasonable doubts the so-called statement of deceased in his Fardbayan (Exhibit-3) or his further statement (Exhibit-4), which are now uttered by prosecution as dying declarations, that he was assaulted by one of the appellants with Bhala, cannot be considered to be dying declaration under Section 32, Indian Evidence Act because this statement cannot be said to be a statement as to the cause of death of deceased. 10. The learned counsel appearing on behalf of the appellants has argued that the Fardbayan (Exhibit-3) of deceased was recorded by police at Magadh Medical College and Hospital but there is no certificate of any doctor to show that deceased at the time of giving his Fardbayan (Exhibit-3) was in a fit mental condition to make such statement. The Court below, in this connection, has relied upon the evidence of P.W.11 that because he found the deceased in fit condition, therefore, he did not fell necessary to obtain any certificate from the doctor to the effect that deceased was in fit mental condition to give statement. It is true that P.W.11 recorded the Fardbayan (Exhibit-3) of deceased and because at that time he was not recording the dying declaration of deceased so it was not necessary for him to obtain certificate from any doctor that the deceased was in a fit mental condition to give statement but then the question still remains for consideration whether deceased in fact was in a fit mental condition to give his Fardbayan (Exhibit-3) recorded by police. The evidence of Dr. K.S. Ghani (P.W.10), before whom the deceased was first taken is that the deceased was at that time in semi-conscious condition and was unable to speak. He has said that he referred the deceased to Pilgrim Hospital, Gaya. The evidence of Dr. K.S. Ghani (P.W.10), before whom the deceased was first taken is that the deceased was at that time in semi-conscious condition and was unable to speak. He has said that he referred the deceased to Pilgrim Hospital, Gaya. There is nothing on the record to show that whether deceased was taken to Pilgrim Hospital, Gaya or not. The Fardbayan (Exhibit-3) of deceased was recorded in the Emergency Ward of Magadh Medical College and Hospital where deceased subsequently died. There is no evidence on record that at Magadh Medical College and Hospital, deceased reained his consciousness and was able to give statement. This evidence was necessary in view of the evidence of Dr. K.S. Ghani (P.W.10) that immediately after occurrence when deceased was taken to him at that time deceased was in semi-conscious condition and was unable to speak. Besides this, in the last line of Fardbayan (Exhibit-3), it is stated that the deceased after reading, perusing and hearing his Fardbayan (Exhibit-3) in presence of two witnesses, put his signature on it. There is a cutting on the words "put signature" and, thereafter, lastly, it is stated that deceased put his left thumb impression. The words "after reading, perusing and hearing" have been left intact. There is double left thumb impressions on Fardbayan (Exhibit-3) and explanation by Investigating Officer on this point is that first left thumb impression did not appear clearly, therefore, second left thumb impression was taken. The aforesaid facts create a very reasonable doubt that statement in Fardbayan (Exhibit-3) is, in fact, the statement of deceased. This doubt becomes more strong when P.Ws. 1 and 2, who are said to be witnesses in whose presence, Fardbayan (Exhibit-3) of deceased was recorded by police and who had put their left thumb impressions on it, have not supported that Fardbayan (Exhibit-3) was recorded in their presence. In a case, entirely depending upon a dying declaration which is written, the prosecution must prove that it contains the true account of statement given by declarant as to cause of his death and at the time of giving statement, the declarant was in a fit mental condition. In the present case, as discussed above, we find that cause of death of deceased has not conclusively been established and it is also not proved that statement in Fardbayan (Exhibit-3) is of deceased himself. In the present case, as discussed above, we find that cause of death of deceased has not conclusively been established and it is also not proved that statement in Fardbayan (Exhibit-3) is of deceased himself. In view of this fact, the conviction of appellants cannot be sustained only on the basis of such type of dying declaration. 11. In the result, both the appeals are allowed and the appellant are acquitted. The judgment and order of Court below convicting and sentencing the appellants is hereby set aside. The appellants who are on bail, are discharged from the liabilities of their bail bonds. B.K. JHA, J.:-I agree.