R.C. CHAVAN, J.:- Being aggrieved by his conviction by the learned Additional Sessions Judge, Amravati, for offence punishable under Section 302 of the Penal Code, accused No.1 Prabhakar in Sessions Case No.185/90 before the Additional Sessions Judge, Amravati, has preferred this appeal. 2. Facts, which led to prosecution of the appellant along with two others, are as under:- 3. On 18-5-1990, police received an information that one Tolaram Gobraji Chavan was lying in an injured condition in Yenkaiyapura, Amravati. A police van went to the spot and removed the said Tolaram to General Hospital. The Special Judicial Magistrate was informed in order to record the dying declaration of the victim, since he had serious injuries. The declaration recorded by the Magistrate revealed that one Prabhakar and his two friends had caused injuries to Tolaram. The police too recorded statement of the victim and on the basis of the information gathered, registered an offence. 4. Tolaram succumbed to his injuries on 21-5-1990. After performing an inquest, his body was sent for post-mortem examination. The police arrested the accused persons, recorded statements of witnesses, seized incriminating articles and after completion of investigation, sent charge-sheet to the learned Judicial Magistrate, First Class, Amravati, who committed the case to the Court of Sessions at Amravati. 5. The learned Sessions Judge, Amravati, charged the appellant and two others of offence punishable under Section 302 read with Section 34 of the Penal Code. The three accused pleaded not guilty and hence were tried before the learned Additional Sessions Judge, Amravati, to whom the case was assigned. After considering the prosecution evidence in the light of defence of denial taken, the learned Additional Sessions Judge proceeded to acquit Ishwar and Tukaram, who had been arrayed as accused Nos.2 and 3, but convicted the appellant and sentenced him to imprisonment for life. Aggrieved thereby, he has preferred this appeal. 6. We have heard Shri. R. P. Joshi, the learned counsel for the appellant, and Shri. D.B. Yengal, the learned Additional Public Prosecutor for the State. With the help of both the learned counsel, we have gone through the entire evidence on record and examined the reasons given by the learned Trial Judge for acquitting the two other accused and convicting the appellant. Out of the eight witnesses examined by the prosecution, four are doctors. PW-3 Dr. With the help of both the learned counsel, we have gone through the entire evidence on record and examined the reasons given by the learned Trial Judge for acquitting the two other accused and convicting the appellant. Out of the eight witnesses examined by the prosecution, four are doctors. PW-3 Dr. Mohod conducted the post-mortem examination and proved that the victim died due to septic, which was caused by the injuries inflicted upon him. PW-5 Dr. Gaikwad had examined the victim at the time of admission. PW-6 Dr. Kadu and PW-7 Dr. Umale are the Surgeons, who gave treatment to the victim. From the evidence of these Medical Experts', it is clear that the victim had suffered three incised wounds - first on the left side of abdomen, second on the left thigh and third on the middle side of the back. It is these injuries, which ultimately led to death of the victim. 7. The prosecution had also examined one Subrao as PW-2. Subrao was supposed to be an eye-witness to the incident, but turned hostile. Hence, his evidence is absolutely of no use in connecting the accused to crime. 8. The remaining three witnesses examined are PW -1 Special Judicial Magistrate Shri. Pathak, who recorded the dying declaration, PW-4 Head Constable Pralhad am PW -8 PSI Sayyed, who conducted investigation The dying declaration recorded by PW-1 Special Judicial Magistrate Shri. Pathak is at Exhibit· 33. It was recorded after one Dr. Sharma had examined the patient at about 6.45 p.m. on 185-1990 and certified that the patient was fit for recording dying declaration. The relevant part of the dying declaration shows that the victim knew one Prabhakar by face and had a quarrel with him prior to the incident, and that in order to take revenge, Prabhakar came to the house of victim with two accomplices and when the victim was standing on the road, Prabhakar dealt with a blow of knife on the abdomen without saying anything and his accomplices assaulted the victim by means of iron bars. He described Prabhakar as one residing at Bhuteshwar, 32 years in age and with a slim personality. The recording of the dying declaration was over at 7 p.m. and the doctor again certified at 7.05 p.m. that the patient was conscious and mentally fit to make a declaration. 9. He described Prabhakar as one residing at Bhuteshwar, 32 years in age and with a slim personality. The recording of the dying declaration was over at 7 p.m. and the doctor again certified at 7.05 p.m. that the patient was conscious and mentally fit to make a declaration. 9. The evidence of PW -1 Special Judicial Magistrate Shri. Pathak and this dying declaration at Exhibit-33 recorded by him leave no doubt that the victim did consciously make this dying declaration implicating one Prabhakar, aged 32 years and resident of Bhuteshwar, to be the assailant. The question is whether this Prabhakar is the same as appellant Prabhakar Vyankatrao Khadse before the Court. The learned counsel for the appellant submitted that the prosecution has not proved this. . 10. PW-4 Head Constable Pralhad had recorded another statement of the victim the same day that is on 18-5-1990. This statement is at Exhibit 67. PW-4 Head Constable Pralhad states that he had issued a requisition to the Medical Officer after the recording of statement, to give injury certificate. Thus, he cannot be heard to say that the Medical Officer was not present when he recorded the statement. He e stated that he recorded the statement after 7 p.m. may be at about 7.15 p.m. and claimed that on interrogating the victim, he found that he was the first person to record the statement. According to him, there was no Medical Officer on duty and he did not ask the Nurse to issue any certificate. This evidence is falsified by the evidence of PW-1 Special Judicial Magistrate Shri. Pathak, who concluded recording of statement at 7 p.m., which is duly attested by the doctor at 7.05 p.m. Thus, Pralhad's claim that there was no doctor present, is falsified. 11. Further PW-5 Dr. Gaikwad has proved at Exhibit-72 the bed head ticket of the victim, which refers to recording of only one dying declaration by the Special Judicial Magistrate, according to the entry made, at 7.10 p.m., on the reverse of page 6 of the bed head ticket. It is worthy of note that the statement at Exhibit-67 proved by PW-4 Head Constable Pralhad does not bear any time of recording and, therefore, cannot be said to be a reliable piece of evidence. 12. In this dying declaration at Exhibit-67, the name of the assailant is stated as Prabhakar Khadse, resident of Bhuteshwar. It is worthy of note that the statement at Exhibit-67 proved by PW-4 Head Constable Pralhad does not bear any time of recording and, therefore, cannot be said to be a reliable piece of evidence. 12. In this dying declaration at Exhibit-67, the name of the assailant is stated as Prabhakar Khadse, resident of Bhuteshwar. If the victim knew the assailant only by face and could only say that assailant was Prabhakar, aged 32 years and resident of Bhuteshwar area, just a few minutes before, when the dying declaration was recorded by the Special Judicial Magistrate, it is not clear as to how he came to realise that the surname of assailant was "Khadse" when PW-4 Head Constable Pralhad recorded the statement. 13. Conversely, if PW-4 Head Constable Pralhad's claim that he was the first person to record the statement is accepted and if the deceased had stated surname of the assailant before him, there is no reason why such surname was not stated before the Special Judicial Magistrate and why the victim chose to say that he knew the assailant by face. Therefore, it seems that the surname "Khadse" came to be attributed to the victim subsequently in a statement, which was later fabricated. It may be seen that in Exhibit-67, even the names of the two accomplices of the assailant are mentioned as Tukaram Gatne and Ganpat Mistry. The learned Trial Judge had, therefore, right held that it was not safe to rely on Exhibit 67. 14. The learned Trial Judge, however, held that the statement at Exhibit-33 recorded by the Special Judicial Magistrate gave sufficient indication to show that it was the appellant Prabhakar, who had assaulted the victim with knife and not any other Prabhakar. The learned Trial Judge held that the appellant had taken the stand that he was not the assailant and the assailant may be some other Prabhakar, only to save himself. The learned Trial Judge also relied on the address given by the appellant on the bail application, namely, Bhuteshwar Temple, to conclude that the appellant was Prabhakar, referred to by the deceased, though there was no dispute, according to the learned Trial Judge, the Garib Nagar area is adjoining Bhuteshwar Temple. The learned Trial Judge found that in Exhibit-33, the dying declaration, the assailant was shown to be Prabhakar, residing at Bhuteshwar. The learned Trial Judge found that in Exhibit-33, the dying declaration, the assailant was shown to be Prabhakar, residing at Bhuteshwar. There is no evidence on record to show that the appellant is the only person by name Prabhakar near Bhuteshwar Temple. The victim had stated that he knew Prabhkar by face because he had a quarrel with Prabhakar in the past. That quarrel could have been witnessed by someone. The prosecution could have brought some witness to say that the accused before the Court was the same Prabhakar, who had a quarrel with the deceased. 15. The appellant is supposed to have inflicted blow by a knife. The Investigating Officer had seized a knife vide Exhibits-79 and 80 at the instance of Ishwar Nathuji Gawande, the original accused No.2, who has been acquitted, and not the appellant. This knife was shown to PW-5 Dr. Gaikwad. Dr. Gaikwad said that the edges of the injuries were clean-cut and, therefore, could not have been caused by the weapon shown to her. In view of this, there is absolutely nothing to connect the appellant to the crime. According to the victim, the appellant had caused injuries with knife. Memorandum at Exhibit-77 of statement made by the appellant shows that he had agreed to produce the knife as well as the iron bar, but had not stated where he had concealed the same. Eventually, only an iron bar was seized at the instance of the appellant, which is not the weapon which the appellant had allegedly used. 16. In the result, the conclusion drawn by the learned Trial Judge, that Prabhakar, named in the dying declaration Exhibit-33, is the same Prabhakar Vyankatrao Khadse, is not conclusively deducible from the address given by the appellant and the location of Bhuteshwar Temple, and is not enough to conclusively hold that the appellant is the assailant. Therefore, in our view, this was a case where benefit of doubt should have gone to the appellant. Consequently, disagreeing with the conclusion drawn by the learned Trial Judge that the guilt of the appellant was established, we hold that the prosecution failed to prove the complicity of the appellant beyond reasonable doubt. 17. In the result, we allow the appeal and set aside the conviction of the appellant for offence punishable under Section 302 of the Penal Code and acquit him of the said charge. 17. In the result, we allow the appeal and set aside the conviction of the appellant for offence punishable under Section 302 of the Penal Code and acquit him of the said charge. Bail bonds, if any, furnished by the appellant shall stand cancelled.