U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 2-12-1981 passed by 3rd Additional Sessions, Ghazipur in Sessions Trial No. 281 of 1980 convicting appellants Khedaru Yadav and Kalpnath Yadav under Section 302 read with Section 149 I. P. C. , 147 I. P. C. and 379 I. P. C. and sentencing each of them to under imprisonment for life under Section 302 read with Section 149 I. P. C. , 6 months R. I. under 147 I. P. C. and 6 months R. I. under Section 379 I. P. C. All the sentences were ordered to run concurrently. 2. The prosecution story, briefly stated, was as under: Badri Prasad Sonkar deceased was son of Vishwanath (P. W. 1) and original resident of village Takhania, P. S. Saidpur, District Ghazipur. He had enmity with Khedaru appellant who was resident of village Sharikpur, P. S. Saidpur, District Ghazipur. Badri Prasad deceased was a Constable in Police Department and was posted at Varanasi. On 27-12-1979 Badri Prasad deceased after performing his duties was purchasing vegetables at Mohalla Pandeypur Varanasi City. A son of Khedaru appellant met him at Mohalla Pandeypur and told him that his father had met with an accident and asked him to go and return after one hour. On the above information Badri Prasad deceased boarded a bus and got down at Saidpur Bus Station. Thereafter, he was going to his native place on foot. When he reached near boundary wall of the grove of Ramji, appellants Khedaru, his son Kalpnath alongwith two three unknown persons met him there, started causing lathi injuries on him and after causing injuries they snatched away his Seiko wrist watch. The deceased was lying in injured condition. Babu Lal (PW 2) was going to his house from Saidpur. When he reached near the grove of Ramji Pandey, he heard groaning voice and proceeded towards that side. Ramdhani and Ramdharik were also with him. When he reached near boundary wall of the grove of Ramji Pandey, he saw Badri Prasad deceased lying in injured condition and there were injuries on his head and leg. Badri Prasad belonged to his village. Babu Lal sent Ramdhani to the house of deceased to call his father and mother, and with the help of other persons took Badri Prasad deceased to the Hospital at Saidpur where he was medically examined by Dr. Badri Prasad belonged to his village. Babu Lal sent Ramdhani to the house of deceased to call his father and mother, and with the help of other persons took Badri Prasad deceased to the Hospital at Saidpur where he was medically examined by Dr. S. P. Singh (PW 7) at 8. 05 p. m. who noted his injuries in accident register. The doctor sent information to the police of P. S. Saidpur and referred the patient to the District Hospital, Ghazipur. The memo of the hospital was received at P. S. Saidpur at 10. 15 p. m. the endorsement of which was made at GD report Ext. Ka-5 by Head Constable Dhanush Dhari Singh (PW 6 ). On getting information Shri A. S. Jafri (PW 9) the then Sub- Inspector of P. S. Saidpur reached the Primary Health Centre Saidpur alongwith Constable Ganga Sagar, where he interrogated Dr. S. P. Singh (PW 7 ). He was informed by the hospital authorities that the patient has been referred to District Hospital, Ghazipur. He went to Ghazipur Hospital, but the deceased was not there. Babu Lal (P. W. 2) instead of taking the deceased to Ghazipur took him to Sri Shiv Prasad Gupta Hospital, Varanasi. He was admitted there. In Shiv Prasad Gupta Hospital, Varanasi, Vishwanath (P. W. 1) father of deceased came and deceased made dying declaration before him. Dying declaration (Ext. Ka-24) of the deceased was also recorded on 28-12-1979 at 9. 55 a. m. by Shri Ravindra Pathak (P. W. 10), the then Additional City Magistrate, Varanasi. In his above dying declaration the deceased named Khedaru, his 2-3 sons and 2-3 unknown persons as assailants. Subsequently Badri Prasad deceased succumbed to his injuries in the Hospital on 28-12-1979 at 12. 45 p. m. Information regarding death of deceased was sent to police of P. S. Kotwali, Varanasi. On getting the above information at 1. 40 p. m. Sub-Inspector Shiv Shankar Rai (P. W. 8) reached SSPG Hospital and conducted inquest of the dead body of deceased and prepared inquest report Ext. Ka-13 and other relevant papers. He sealed the dead body and sent it for post mortem. 3. The autopsy on the dead body of Badri Prasad deceased was conducted on 29-12-1979 by Dr. 40 p. m. Sub-Inspector Shiv Shankar Rai (P. W. 8) reached SSPG Hospital and conducted inquest of the dead body of deceased and prepared inquest report Ext. Ka-13 and other relevant papers. He sealed the dead body and sent it for post mortem. 3. The autopsy on the dead body of Badri Prasad deceased was conducted on 29-12-1979 by Dr. Kripa Shankar (P. W. 3), who found as many as 15 ante mortem injuries in the nature of stitched wounds, abrasions and lacerated wounds and cause of death as shock and hemorrhage as a result of ante mortem injuries. The doctor prepared post mortem report (Ext. Ka-1 ). 4. On receipt of the information regarding death of the deceased a case at crime No. 280 of 1979, under Sections 364, 304 and 325 IPC was registered at P. S. Saidpur. 5. Shri A. S. Jafri I. O. (P. W. 9) visited the place of occurrence on 29-12-1979 and interrogated Babu Lal (PW 2) and others. He inspected the place of occurrence and prepared site plan Ext. Ka-8. On 30-12- 1979 he interrogated Vishwanath (PW 1 ). He searched the appellants and other accused, but they were not traceable and processes under Section 82/83 Cr. P. C. were executed against them. Thereafter investigation was conducted by Shri Raj Narain Misra (PW 5), who completed the remaining investigation and submitted charge sheet against appellants Khedaru and Kalp Nath on 18-3-1980. 6. Cognizance of the case was taken by the Magistrate who committed the case of the Court of Sessions. Appellants Khedaru and Kalp Nath were charged with the offences punishable under Sections 364, 147, 302 read with Sections 149 IPC and 379 IPC. The appellants pleaded not guilty. 7. Appellant Khedaru contended that he was falsely implicated in connivance with the local police. He further contended that he has three sons Kalp Nath, Kailash and Narain. Narain was aged about 5-6 years, Kailash was aged about 15-16 years and Kalp Nath was aged about 21 years. He had enmity with Vishwa Nath and he was falsely implicated on account of above enmity. Appellant Kalp Nath contended that he was son of Khedaru and was serving in Nagar Palika, Mirzapur. 8. The prosecution in support of its case examined Vishwa Nath (PW 1), Babu Lal (PW 2), Dr. He had enmity with Vishwa Nath and he was falsely implicated on account of above enmity. Appellant Kalp Nath contended that he was son of Khedaru and was serving in Nagar Palika, Mirzapur. 8. The prosecution in support of its case examined Vishwa Nath (PW 1), Babu Lal (PW 2), Dr. Kripa Shankar (PW 3), Constable Ram Kailash Singh (PW 4), Raj Narain Misra IO (PW 5), Head Constable Dhanush Dhari Singh (PW 6), Dr. S. P. Singh (PW 7), S. I. Shiv Shankar Rai (PW 8), Sub-Inspector A. S. Jafri (PW 9) and Shri Ravindra Pathak, Executive Magistrate (PW 10 ). The appellants did not adduce any evidence in their defence. 9. On considering the evidence of the prosecution the learned Sessions Judge held that the prosecution has proved beyond reasonable doubt that accused Khedaru and Kalp Nath had committed the offences punishable under Sections 147, 302 read with Sections 149 and 379 IPC and the offence punishable under Section 364 IPC could not be established against them. With these findings he convicted and sentenced the appellants as mentioned above. 10. Aggrieved with their above conviction and sentence the appellants have preferred this appeal. 11. We have heard Shri K. S. Yadav, learned counsel for the appellants, the learned AGA for the respondent and have perused the entire evidence on record. 12. The appellants have not disputed the injuries on the person of Badri Prasad deceased, his death and cause of death. Babu Lal PW 2 stated that on the date of occurrence at about 7. 00 p. m. he was going to his village Takhnia from Saidpur and in the way near the grove of Ramji Pandey he heard groaning of a person and went near the boundary wall of the grove, where he saw Badri Prasad lying in injured condition. He along with Ram Dhani and Ram Dhari, who were with him took him to Primary Health Centre, Saidpur. Dr. S. P. Singh PW 7 stated that Badri Prasad Sonkar was brought to Primary Health Centre, Saidpur on 27-12-79 at about 8. 05 p. m. He medically examined him and found the following injuries on his person: (1) Lacerated wound 6 cm x 0. 5 cm x bone deep on left side of head 7. 5 cm above left pinna. (2) Abrasion 2 cm x 1. 5 cm on right upper lip at its middle. 05 p. m. He medically examined him and found the following injuries on his person: (1) Lacerated wound 6 cm x 0. 5 cm x bone deep on left side of head 7. 5 cm above left pinna. (2) Abrasion 2 cm x 1. 5 cm on right upper lip at its middle. (3) Abrasion 1. 5 cm x 1 cm with bruise 3 cm x 1. 5 cm just below it on the outer and lower part of right upper arm. (4) Bruise 7 cm x 1. 5 cm on the outer and upper part of right fore arm. (5) Bruise 11 cm x 3 cm on the back part of right fore arm just above wrist joint. (6) Lacerated wound 2 cm x 0. 2 cm x skin deep on the proximal phalanx of right index finger on its back part. (7) Lacerated wound 0. 5 cm x 0. 5 cm x 0. 5 cm on the outer and back part of left upper arm 10 cm above elbow joint. (8) Lacerated wound 0. 5 cm x 0. 5 cm x 0. 5 cm on the left upper arm 2. 5 cm below injury No. 7. (9) Bruise 7 cm x 2 cm on outer part of left elbow joint. (10) Bruise 6 cm x 2 cm on the back and middle part of left fore arm. (11) Bruise 3 cm x 2. 5 cm on the back part of left fore arm just above wrist joint. (12) Lacerated wound 1 cm x 0. 5 cm x 0. 5 cm on the back part of left hand 1. 2 cm above the root of index finger. (13) Painful swelling 10 cm x 8 cm on the back part of left hand. (14) Lacerated wound 2 cm x 1 cm x bone deep on medial side of left leg 4 cm above ankle joint. (15) Lacerated wound 2 cm x 1. 5 cm x bone deep on outer side of left leg 4. 5 cm above ankle joint. (16) Lacerated wound 1 cm x 0. 3 cm x bone deep on outer side of ankle joint. (17) Lacerated wound 1 cm x 0. 8 cm x bone deep on front of left ankle joint. (18) Multiple abrasion 14 cm x 1. 5 cm on front of left leg just above ankle joint. 5 cm above ankle joint. (16) Lacerated wound 1 cm x 0. 3 cm x bone deep on outer side of ankle joint. (17) Lacerated wound 1 cm x 0. 8 cm x bone deep on front of left ankle joint. (18) Multiple abrasion 14 cm x 1. 5 cm on front of left leg just above ankle joint. (19) Lacerated wound 2 cm x 1 cm x bone deep on medial side of right leg 4 cm above ankle joint. (20) Complain of pain all over body. He further stated that all the injuries were kept under observation, except injury Nos. 2, 3, 6, 13 and 18 which were simple. All the injuries were caused by blunt object and were about 1/4 day old. 13. Since the condition of the injured was serious, Dr. S. P. Singh referred to him to District Hospital, Ghazipur, but instead of taking of Ghazipur, Babu Lal and others brought him to SSPG Hospital, Varanasi, where he was admitted and ultimately died on 28-12-1979 at 12. 45 p. m. 14. The autopsy on the dead body of the deceased was conducted by Dr. Kripa Shankar (P. W. 3), who found following ante mortem injuries on his person: (1) Stitched wound 6 cm (about 8 cm) above left ear on the scalp. (2) Abrasion 2-1/2 cm x 3/4 cm on the right side of upper lip. (3) Abraded (contused wound) in area of 5 cm x 3/4 cm on right arm outer side. (4) Contusion in area of 25 cm x 5 cm on right fore arm and hand back side. (5) Lacerated abrasion in area of 3/4 cm x 1/2 cm in middle of right index finger. (6) Contusion in area 7-1/2 x 4 cm on right side of lower leg, just above ankle joint. (7) Lacerated wound in area of 2-1/2 cm x 1 cm with compound fracture of underlying right tibia, simple fracture of right fibula about 3 cm above ankle joint. (8) Stitched lacerated wound 1-1/2 cm x 3/4 cm x skin deep on inner side of left leg about 3-1/2 cm above left ankle joint. (9) Lacerated wound in area of 2. 5 cm x 1-1/4 cm x bone deep on the left side leg outer side about 4. 1 cm above ankle joint. (8) Stitched lacerated wound 1-1/2 cm x 3/4 cm x skin deep on inner side of left leg about 3-1/2 cm above left ankle joint. (9) Lacerated wound in area of 2. 5 cm x 1-1/4 cm x bone deep on the left side leg outer side about 4. 1 cm above ankle joint. (10) Lacerated wound 1 cm x 3/4 cm x bone deep on the frontal left ankle joint. (11) Compound fracture of both the bone (tibia & fibula) of left side lower end. (12) Multiple abraded contusion in an area of 11 cm x 3/4 cm on the left leg inner side. (13) Stitched lacerated wound 1/2 cm x 1/2 cm x skin deep on the left outer side of back of left upper arm. (14) Contused swelling in area of 37 1/2 cm x 9 cm on the back of side of left fore arm and hand. (15) Simple fracture of left ulna 1 cm above left wrist. He further stated that internal examination showed that there was contusion in an area of 10 cm x 7-1/2 cm on left parietal region, right chamber of hear contained blood left side was empty. Cause of death was shock and haemorrhage as a result of multiple injuries. 15. The above medical evidence has not been challenged by the appellants and therefore, it is established that Badri Prasad Sonkar, deceased sustained injuries and died on account of it. 16. The date time and place of occurrence is also not disputed. The prosecution alleged that the occurrence took place at about 7. 00 p. m. on 27-12-79 near the grove of Ramji Pandey, near Railway line and Kasba Saidpur at a distance of 16-20 lathas from Railway line. Babu Lal (P. W. 2) stated that he saw the deceased lying injured at the said place. No doubt the IO who visited the spot did not collect any blood from the spot, but the injuries of the deceased were not such that the blood would have fallen on the spot. Moreover, the place of occurrence was an open place and the IO visited the spot on the next day. The possibility of visiting other persons on the spot can not be easily ruled out. Thus, if some blood had fallen on the spot it would have been faded out or would have been soaked in the earth. Moreover, the place of occurrence was an open place and the IO visited the spot on the next day. The possibility of visiting other persons on the spot can not be easily ruled out. Thus, if some blood had fallen on the spot it would have been faded out or would have been soaked in the earth. Therefore, the absence of blood does not falsify the place of occurrence, specially when there is no challenge of the evidence of Babu Lal (P. W. 2) that he found the deceased lying injured at the said place. 17. In this case there is only evidence of dying declaration of the deceased recorded by the Executive Magistrate and told before Babu Lal (P. W. 2) and Vishwanath (P. W. 1 ). It is settled law that the conviction can be based on the basis of dying declaration if it is proved that it was voluntarily made by the deceased without being influenced by any body and without being tutored. It was held by the Apex Court in the case of State of Assam v. Mufi Uddin, AIR 1983 SC 274 , that the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner. 18. The Apex Court further held in the case of Laxman v. State of Maharashtra, 2002 (2) JIC 998 (SC) : JT 2002 (6) SC 313, that juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive of falsehood is silenced and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence, on account of the existence of many circumstances, which may affect their truth. The dying declaration should be of such a nature as to inspire full confidence of the Court in it truthfulness and correctness. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence, on account of the existence of many circumstances, which may affect their truth. The dying declaration should be of such a nature as to inspire full confidence of the Court in it truthfulness and correctness. The Court however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and the opportunity to observe and identify the assailants. 19. The question, therefore, which arises for determination in this appeal is whether the dying declaration relied on by the prosecution is truthful and was made by the declarant who was in a fit state of mind. 20. The oral dying declaration has been proved by Babu Lal (PW 2) and Vishwanath (PW 1 ). Babu Lal (PW 2) stated that when he saw the deceased lying in injured condition near the grove of Ramji Pandey, he alongwith Ramdhani and Ram Dhari took him to PHC Saidpur and sent Ram Dhani to the house of deceased to call his parents. The doctor enquired from Badri in his presence as to who caused injuries on him. Badri told to the Doctor that Khedaru, Kalpnath and two other persons had beaten him. He further stated that he had also asked from Badri as to who had caused injuries on him then he told that Khedaru, Kalpnath and two others had beaten him and they snatched his wrist watch and cash amounting to Rs. 200/ -. The next oral dying declaration has been proved by Vishwanath (P. W. 1), father of the deceased. Vishwanath (P. W. 1) stated that on the date of occurrence he had come to his relation (brother-in-law) at Khojawa, Varanasi City as his relative was ill. He stayed at the house of his brother-in- law (sisters husband ). At about 11. 45 p. m. he was informed that his son Badri Prasad was injured and was admitted in Kabir Chaura Hospital, Varanasi. Immediately thereafter he went to the hospital to see his son. He stayed at the house of his brother-in- law (sisters husband ). At about 11. 45 p. m. he was informed that his son Badri Prasad was injured and was admitted in Kabir Chaura Hospital, Varanasi. Immediately thereafter he went to the hospital to see his son. In the hospital he enquired from his son how he got injuries, then he told that two persons came to him to Varanasi to call him saying that his father had died. He took leave and came up to Saidpur in a bus. On getting down of the bus he was going to his house. When he reached near the boundary wall of the grove of Ramji Pandey, Khedaru and Kalpnath along with two others persons started beating him, they broke his hands and legs and snatched his wrist watch. 21. Babu Lal (P. W. 2) was known to Badri Prasad deceased as he was his pattidar. No doubt firstly he stated that the Doctor enquired from Badri Prasad as to who caused injuries to him and he told to the doctor that Khedaru and Kalpnath and two other persons caused injuries on him and subsequently stated that he also enquired from him and he told him that Khedaru and Kalpnath alongwith two other persons caused injuries to him and no dying declaration of the deceased was recorded by the doctor at PHC Saidpur and injuries of Badri Prasad deceased were noted down by Dr. S. P. Singh (P. W. 7) in accident register. But it has not been challenged that Babu Lal had taken the injured Badri Prasad to Primary Health Centre, Saidpur and if he had taken him there he must have enquired as to who caused injuries to him. No enmity, ill will or grudge has been suggested by the appellants with Babu Lal (P. W. 2) and, therefore, we find no ground to discard the testimony of Babu Lal, for omission of mentioning this fact in injury report Ext. Ka-11. 22. Vishwanath (P. W. 1) is admittedly father of the deceased. On the night of occurrence he was at Mohalla Khajwa Varanasi City where he had gone to see his ailing brother in law. On getting information about the fact that his son was injured and was admitted in Kabir Chaura Hospital, it was but natural for him to rush to the hospital to see his son. On the night of occurrence he was at Mohalla Khajwa Varanasi City where he had gone to see his ailing brother in law. On getting information about the fact that his son was injured and was admitted in Kabir Chaura Hospital, it was but natural for him to rush to the hospital to see his son. On coming to hospital it was also natural for him to enquire from his son as to how he sustained injuries. The witness further stated that at that time the deceased was in senses and was talking. Therefore, the oral dying declaration given by the deceased to his father Vishwanath (P. W. 1) was natural and probable. 23. It was suggested from the side of the appellant that Vishwanath (P. W. 1) had enmity with the appellant. Vishwanath (P. W. 1) admitted that he had previous enmity with Khedaru appellant regarding damaging his fruits but no marpeet had taken place between them. The enmity could also be the cause of murder of deceased and on the ground of enmity the evidence of Vishwanath (P. W. 1) cannot be discarded. In this way the oral dying declaration proved by Vishwanath (P. W. 1) is also reliable. 24. The next dying declaration of the deceased was recorded in the hospital by Shri Ravindra Pathak (P. W. 10) the then Addl. City Magistrate, Varanasi. He stated that on 28-12-1979 he had recorded dying declaration of Badri Prasad Sonkar son of Vishwanath Prasad in SSPG Hospital, Varanasi at 9. 55 p. m. and he had given following statement: "yesterday at about 5. 00 p. m. he was relieved from duty. He went to Pandeypur for purchasing vegetables. Son of Khedaru who was resident of Saidpur met him and told that his father met with an accident, go and return within an hour. He got down at Saidpur Bus Station and was going to his house. After going half furlong Khedaru and his two three sons and two three other persons whom he could not recognize started beating him with lathis and they also snatched his Seiko watch. He had nothing to say more and will tell later on. He had no power. " 25. Shri Ravindra Pathak (P. W. 10) stated that the above statement of the deceased was recorded in his handwriting and he obtained thumb impression of the deceased. Dr. He had nothing to say more and will tell later on. He had no power. " 25. Shri Ravindra Pathak (P. W. 10) stated that the above statement of the deceased was recorded in his handwriting and he obtained thumb impression of the deceased. Dr. Sunil Kumar has appended his certificate that the declarant was fully conscious and was able to speak. He proved the above dying declaration Ext. Ka-24. It was suggested that the deceased was surrounded by his family members and the deceased had not given any statement to him. It was further suggested that the family members of the deceased were tutoring him and the deceased was not in a position to speak. Shri Ravindra Pathak (P. W. 10) denied above suggestions. The certificate of the doctor shows that the deceased was fully conscious and was able to give statement. There is also certificate of Shri Pathak (P. W. 10) that none was present except the attending physician. 26. The learned counsel for the appellants contended that the doctor who gave certificate that the declarant (deceased) was in full senses and was able to give statement was not examined by the prosecution and, therefore, it is not proved that the declarant was in a fit state of mind, while making dying declaration. Non-examination of the doctor does not affect the truthfulness of the dying declaration. The Apex Court held in the case of Harjeet Kaur v. State of Punjab, 1999 (2) JIC 574 (SC) : JT 1999 (5) SC 317, that wherein the Magistrate in his evidence has stated that he had ascertained from the Doctor whether she (declarant) was in fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. 27. It was further held by the Apex Court in the case of Ravi Chandra v. State of Punjab, 1998 (2) JIC 732 (SC) : JT 1998 (8) SC 211, that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. 27. It was further held by the Apex Court in the case of Ravi Chandra v. State of Punjab, 1998 (2) JIC 732 (SC) : JT 1998 (8) SC 211, that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being disinterested witness and is a responsible officer and there being no circumstance or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration recorded by the Magistrate does not arise. 28. In the case of Laxman v. State of Maharashtra (supra) over ruling the ratio in the case of Paparambaka Rosamma and others v. State of Andhra Pradesh, 1999 (2) JIC 794 (SC) : JT 1999 (6) SC 585, it was held by the Apex Court that what is essentially required is that the persons who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. 29. Learned counsel for the appellant contended that there was every possibility that the alleged dying declaration of the deceased recorded by the Magistrate was tutored one. Except the above suggestion which was repelled by the Magistrate, there is nothing on record to show that the deceased was tutored. Perusal of the dying declaration shows that he had named only Khedaru and had not at all named his three sons. If at all it was a case of tutoring, none prevented the deceased from naming other sons of appellant Khedaru. There was no apparent cause to falsely implicate amongst the accused only Khedaru. It is also not the case of appellants that Khedaru was arch enemy of the deceased. In such circumstances there is no ground for discarding dying declaration treating it as not voluntary and an outcome of possible tutoring. There was no apparent cause to falsely implicate amongst the accused only Khedaru. It is also not the case of appellants that Khedaru was arch enemy of the deceased. In such circumstances there is no ground for discarding dying declaration treating it as not voluntary and an outcome of possible tutoring. (Vide State of Uttar Pradesh v. Ram Sevak, 2003 AIR SCW 161 ). 30. The above dying declaration are thus reliable and conviction can be based on the basis of above dying declarations. 31. It was contended by the learned counsel for the appellant that the deceased had named only Khedaru as one of the assailant and could not name the other sons of Khedaru, while Khedaru had three sons and he was knowing all of them by name. Therefore, the above dying declaration does not implicate appellant Kalpnath. It is true that the deceased had not named Kalpnath as one of the assailant and had not pin pointed as to which son of Khedaru was amongst the assailants. No doubt Vishwanath (P. W. 1) and Babu Lal (P. W. 2) have stated that the deceased told the name of Kalpnath also, but since the deceased had not named Kalpnath in his dying declaration Ext. Ka-24, we are of the view that appellant Kalpnath is entitled to benefit of doubt. 32. Learned counsel for the appellant further contended that except injury No. 1 all other injuries of the deceased were on non vital parts i. e. hands and legs and, therefore, the appellants had no intention to kill the deceased and the case falls under Section 304 Part II IPC. But having considered the evidence on record and other circumstances we find no force in the above contention. 33. Admittedly there was enmity between the parties. The deceased was a constable in Police Department and was posted at Varanasi City. On the date of occurrence the father of the deceased had gone to see his ailing brother-in-law. Two persons came to the deceased at Mohalla Pandeypur Varanasi City, where he was purchasing vegetable after finishing his duties and told him that his father had met with an accident and he should go to his house. The deceased immediately rushed to his house, boarded a bus and got down at Saidpur Bus Station. Two persons came to the deceased at Mohalla Pandeypur Varanasi City, where he was purchasing vegetable after finishing his duties and told him that his father had met with an accident and he should go to his house. The deceased immediately rushed to his house, boarded a bus and got down at Saidpur Bus Station. From there he was going to his village on foot and when he came at a distance of about half furlong the appellant Khedaru and other persons caused injuries on him. The above facts and circumstances indicate that the appellant and other persons chalked out a plan to call the deceased at the place of occurrence to fulfill their object of eliminating him. They sent two persons to the place of duty of the deceased who gave wrong information that his father had met with an accident as hearing this news he would come to his house immediately. The above information was also given to the deceased at about 5. 00 p. m. so that the deceased could come to the place of occurrence in the evening. Undisputedly, the place of occurrence falls between Saidpur Bus Station and village of the deceased and there was also a boundary wall of grove of Ramji Pandey to hide the assailants. As many as 20 injuries were caused on the deceased. These facts and circumstances indicate that the incident was committed in a planned way and it was not a sudden one. Moreover, injury No. 1 was on the head of the deceased and other injuries were on the hands and legs which indicate that the deceased tried his best to ward off injuries on his head. Therefore, the facts and circumstances in which the injuries were caused to the deceased clearly indicated that the intention of the assailants was to commit murder of the deceased and the medical evidence also shows that the death was the result of the cumulative effect of all the injuries. Causing as many as twenty injuries also indicated the intention of the assailants to kill the deceased. Therefore, the case falls under Section 302 IPC and not under Section 304 IPC. 34. Causing as many as twenty injuries also indicated the intention of the assailants to kill the deceased. Therefore, the case falls under Section 302 IPC and not under Section 304 IPC. 34. In view of our above discussions and observations we find that complicity of appellant Kalpnath is doubtful and he is entitled to benefit of doubt and that the prosecution successfully established the guilt of the appellant Khedaru for the offence punishable under Sections 147 I. P. C. 302 read with Sections 149 IPC and 379 IPC. 35. In the result the appeal preferred by appellant Kalpnath is allowed. His conviction and sentence are set aside and he is acquitted of the charges. He is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender. 36. The appeal preferred by appellant Khedaru is dismissed and his conviction and sentence awarded by the trial Court are confirmed. He is on bail. He shall surrender before the CJM concerned to serve out the sentence. 37. CJM Ghazipur is also directed to issue non bailable warrant against the appellant Khedaru to procure his arrest and to send him to jail to serve out the sentence. 38. A copy of this order by sent to CJM, Ghazipur for information and submission of compliance report within a month. Appeal dismissed. .