Judgment ( 1. ) THE above appeals arise out of judgment dated 7th October, 1999 of the learned Sessions Judge, Tikamgarh, in Sessions Trial No. 102/98 by which all the appellants have been convicted under Section 302/34 of the IPC and sentenced, to imprisonment for life and fine of Rs. 5000/-, in addition, appellant Channe has been convicted under Section 326/34, IPC and sentenced to rigorous imprisonment for 5 years and fine of Rs. 2000/-, appellant Veeran Gadariya has been convicted under Section 326, IPC and sentenced to rigorous imprisonment for 5 years and fine of Rs. 2000/- and appellant Devi has been convicted under Section 326/34, IPC and sentenced to rigorous imprisonment for 5 years and fine of Rs. 2000/ -. The judgment also directs them to suffer imprisonment of 5 months in default of payment of said amount of Rs. 5000/- and two months on failure to pay the amount of Rs. 2000/ -. The sentences awarded have been directed to run consecutively. ( 2. ) THE prosecution case before the Trial Court was that on 8-6-98 at about 6. 00 a. m. , on account of the enmity with reference to a land dispute, the accused persons attacked Adku, his wife Phulabai and his son Uttam with axe, lathi and lohangi (an iron shod stick) and caused death of Adku while grievous hurt was caused to Phulabai. P. W. 2 Ramprasad lodged the report Ex. P-2 within two hours of the incident. On the basis of the report, P. W. 16 Chanderiya proceeded to the spot and forwarded Adku and Phulabai to the hospital for examination of their injuries while inquest was held on the dead body of Uttam and report Ex. P-8 was prepared. Under seizure memo Ex. P-7, broken pieces of bangles from the spot were seized. On examination of the body of Uttam, P. W. 14 Dr. S. M. Tiwari found the following injuries as recorded by him in the post-mortem report Ex. P-25 : (i) Left upper arm : Lacerated wound in middle part size 1/2 x 1/2 x 3/4. Deformed and contused upper arm. On dissection clotted blood was present in between both the fracture end of bone. (ii) Left forearm : Deformity of left forearm and contusion size 5 x 2 1/2. P-25 : (i) Left upper arm : Lacerated wound in middle part size 1/2 x 1/2 x 3/4. Deformed and contused upper arm. On dissection clotted blood was present in between both the fracture end of bone. (ii) Left forearm : Deformity of left forearm and contusion size 5 x 2 1/2. On dissection clotted blood was present in between both the fracture end of bone (radius and ulna) and soft tissues. (iii) Right forearm : Deformity and contusion of right forearm. Contusion size 4 x 2. On dissection clotted blood was present between both the fracture end of radius and ulna and soft tissues. (iv) Left leg : Deformed left leg in lower part with contusion size 6 x 3. On dissection fracture of tibia and fibula. Clotted blood was present between both the fractured end of bones and soft tissues. (v) Right leg : Deformed and contused size 6 x 3 and lacerated wound on right leg size 1/4 x 1/4. On dissection clotted blood was present between both the fractured end of bones and soft tissues (fracture of tibia and fibula ). In the opinion of the Autopsy Surgeon, Uttam died on account of shock due to excessive haemorrhage on account of multiple fracture of bones . ( 3. ) BODY of Adku was also forwarded for post-mortem. P. W. 14 Dr. S. M. Tiwari performed autopsy. On the basis of his examination and the report Ex. P-23 given by him, the following injuries were found : (i) Lacerated wound on right leg size 1/2 x 1/4. (ii) Lacerated wound on right leg size 1/3 x 1/4. (iii) Contusion on right leg size 4 x 4. (iv) Contusion on left leg size 4 x 4. (v) Lacerated wound in left hand near index finger size 1/2 x 1/2. (vi) Contusion in left hand size 6 x 4 and lacerated wound on left forearm size 1/4 x 1/4. (vii) Lacerated wound on right forearm size 1/4 x 1/4. (viii) Lacerated wound in frontal part of head size 2 x 1/2 x 1/4. (ix) Contusion on right forearm size 1/4 x 1/4. Since condition of Adku was precarious, his dying declaration Ex. P-24 was also recorded by the Executive Magistrate . ( 4. ) P. W. 11 Phulabai was sent for medical examination. She was examined by P. W. 13 Dr. (ix) Contusion on right forearm size 1/4 x 1/4. Since condition of Adku was precarious, his dying declaration Ex. P-24 was also recorded by the Executive Magistrate . ( 4. ) P. W. 11 Phulabai was sent for medical examination. She was examined by P. W. 13 Dr. V. K. Bajpai who found on her person six injuries. According to him, there were following injuries on her body : (i) Lacerated wound 3 cm x 1 cm x 1 cm over back of left forearm. (ii) Lacerated wound 2 cm x 1 cm x 1 cm over back of right forearm. (iii) Lacerated wound 3 cm x 2 cm x 1 cm over right leg. (iv) Bruise 10 cm x 4 cm over left leg. (v) Bruise 14 cm x 3 cm over back of right side of chest and abdomen. (vi) Bruise of 8 cm x 3 cm over back of right side of abdomen. For X-ray, Phulabai was referred to Radiologist P. W. 15 Dr. N. R. Pandey who, vide Ex. P-26-A, gave his report . ( 5. ) IN further investigation, Investigating Officer P. W. 16 Chanderiya, prepared the spot map Ex. P-5 and took samples of blood stained and control earth Ex. P-7. On receiving the bundle containing clothes, he seized them under Ex. P-l and the clothes received from the hospital which Adku was wearing, were seized vide Ex. P-2. During investigation, accused were taken into custody and on interrogation, Veeranpal gave information about lohangi which was recorded in Ex. P-10, in pursuance whereof, he took the police and the witnesses to the place where the said weapon was concealed and it was seized vide Ex. P-14. Accused Devi also gave information with regard to axe which was recorded in memo Ex. P-l 2. He led the police and the witnesses to the place where it was concealed and after he had taken it out from the said place, it was seized from him vide memo Ex. P-l3. Channe was also interrogated from whom a bamboo stick was seized vide Ex. P-l3. After necessary investigation and forwarding all the articles to the Forensic Science Laboratory, charge-sheet was filed and the appellants were prosecuted. ( 6. ) THE appellants denied having committed any offence. According to them, they had been falsely implicated. P-l3. Channe was also interrogated from whom a bamboo stick was seized vide Ex. P-l3. After necessary investigation and forwarding all the articles to the Forensic Science Laboratory, charge-sheet was filed and the appellants were prosecuted. ( 6. ) THE appellants denied having committed any offence. According to them, they had been falsely implicated. The Trial Court, however, found the appellants guilty as hereinabove stated and convicted and sentenced them. ( 7. ) IN the appeal memo, the appellants have assailed the legality, correctness and propriety of the impugned judgment on the ground that the evidence of the prosecution is replete with contradictions, inconsistencies and improbabilities striking at the root of the prosecution case and without there being any independent corroboration the evidence of Phulabai (P. W. 11) and Ramprasad should not have been believed as they were interested witnesses. Learned Government Advocate has pointed out that in addition to the testimony of P. W. 11 Phulabai, who was herself injured in the incident, there was evidence in the form of dying declaration Ex. P-24 of deceased Adku and previous statement of Phulabai (Ex. P-20), recorded at that time as her dying declaration. The testimony of the witnesses also finds corroboration from the medical evidence and, therefore, the evidence of the prosecution fully establishes the guilt of the accused and no interference is, therefore, called for in these appeals. ( 8. ) BEFORE referring to the other evidence of the prosecution, we deem it proper to first analyze the statement of P. W. 11 Phulabai and to consider it in apposition with the dying declaration Ex. P-24 of deceased Adku. P. W. 11 Phulabai is the person to whom, undisputedly, all the accused persons were known from before. She was the mother of deceased Uttam and widow of deceased Adku. She stated that on the date of the incident, she was in the house when Lalaram (P. W. 3) knocked at her door and asked her husband to arrange the tiles of his roof. Her husband, therefore, went out leaving his wife and son in the house. After a short while, she went out to ease herself and when she stood up, she heard the cries of Adku from the side of Mahua tree and noticed that the three accused were assaulting him while he was shouting. Her husband, therefore, went out leaving his wife and son in the house. After a short while, she went out to ease herself and when she stood up, she heard the cries of Adku from the side of Mahua tree and noticed that the three accused were assaulting him while he was shouting. She, there fore, rushed to the place and saw that Veeran with an axe, Devi an iron shod stick and Channe with stick were, all, assaulting her husband. As she approached the place of the incident, accused Devi struck her on her leg by lohangi and thereafter all the accused ran away. She has further stated that they broke his arms and legs. Her son Uttam, aged 13 years, tried to hide behind the bushes but accused assaulted him too and she was also assaulted. The eyes of her son came out of the sockets. The accused then caught his head and rotated it with the result, he died. Ramprasad was dispatched to lodge the report. The police came and took them to Nivadi Hospital for treatment. Her son Uttam died on the spot while her husband Adku remained alive. Police took statements of her and that of her husband. While her husband was being transferred to Jhansi Medical College, he succumbed to his injuries. ( 9. ) DYING declaration of Adku. was recorded which is on record as Ex. P-24. In the dying declaration, there is certificate of Dr. S. M. Tiwari to the effect that he was possessed of the requisite mental alacrity to make a statement and throughout during the statement, the deceased was possessed of full mental faculties. It is in this state of her mental condition that dying declaration was recorded. P. W. 14 Dr. S. M. Tiwari has deposed that when Adku was brought, his dying declaration was recorded by Tehsildar Niwadi. The recording started at 5 past 11 a. m. and was completed at 11. 15 a. m. He has also referred to his certificate and the signatures. In this dying declaration, the deceased had said that there was deep- seated enmity with the accused because his father had transferred the land in the name of his son Uttam. He has, however, named only Devi s/o Channe Gadariya and Veeran Gadariya s/o Channe Gadariya as the assailants who caused him the injuries. ( 10. In this dying declaration, the deceased had said that there was deep- seated enmity with the accused because his father had transferred the land in the name of his son Uttam. He has, however, named only Devi s/o Channe Gadariya and Veeran Gadariya s/o Channe Gadariya as the assailants who caused him the injuries. ( 10. ) AT this stage, we may also refer to Ex. P-20, recorded as dying declaration of P. W. 11 Phulabai. She has duly been confronted by the defendant with this previous statement in which she had named only accused Devi and Veeran. ( 11. ) WHILE it is true that from the eye witness account of P. W. 11 Phulabai corroborated by various circumstances as recorded hereinabove and the declaration Ex. P-24 of deceased Adku and the previous statement which is recorded as dying declaration Ex. P-20 of Phulabai, there is omission of the name of Channe, appellant in Criminal Appeal No. 3055/1999, the ocular testimony, the medical evidence and the dying declaration clearly and without any ambiguity implicate the other appellants. The presence of P. W. 11 Phulabai, mother of deceased Uttam and wife of deceased Adku was natural at the place of the incident. It has not been shown that she has any animus against the accused persons and it is not a case where the assailants were unknown and the implication was by choice. The fact that Adku was alive till he reached the hospital where his dying declaration Ex. P-24 was recorded in which he has in no uncertain terms referred to the complicity of Veeran and Devi, there is no proof, not even a suggestion that the accused had been falsely implicated. ( 12. ) THE case of the accused Channe Gadariya s/o Soro Gadariya, appellant in Criminal Appeal No. 3035/1999, stands on a different footing. While during trial in the statement, the prosecution witnesses have made an endeavour to rope him in hut we find that absence of his name in the dying declaration Ex. P-24 and omission of his name by P. W. 11 Phulabai in her earlier statement Ex. While during trial in the statement, the prosecution witnesses have made an endeavour to rope him in hut we find that absence of his name in the dying declaration Ex. P-24 and omission of his name by P. W. 11 Phulabai in her earlier statement Ex. P-20 conspicuously suggest that had he been involved in the commission of the offence resulting in the said two murders and injuries to P. W. 11 Phulabai, there was no reason why Phulabai would not have stated his name also and why Adku would omit to mention his name in Ex. P-24. Channe, therefore, deserves the benefit of doubt. ( 13. ) IN the result, Criminal Appeal No. 3035/1999 (Channe Gadariya v. State of M. P.) is allowed. His conviction and the sentence passed against him is set aside and he is acquitted of all charges. He be released from custody forthwith if not required in any other matter. Criminal appeal No. 3036/1999 (Veeran Gadariya v. State of M. P.) and Criminal Appeal No. 692/2003 (Devi s/o Channe Gadariya v. State of M. P.) being bereft of any merit or substance, are dismissed except that the substantive sentences passed against the appellants are made concurrent.