ABHAY K. GOHIL, J. ( 1 ) THIS order shall govern the disposal of Criminal Appeals no. 16/95 and 98/95. ( 2 ) BEING aggrieved the appellants have filed this appeal and have assailed the judgment of conviction dated 23. 12. 1994 under Sections 302/34 IPC and sentence of imprisonment for life passed by Second Additional Sessions judge, Vidisha, in Sessions Trial No. 120/ 82. ( 3 ) PROSECUTION story in brief is as under:-that, on 4. 7. 82 complainant kaluram, resident of village shekhpur district Vidisha was at his home. Harnam came there crying that Toran Singh, kok Singh, Malkhan Singh and ummed Singh are beating gaurishankar near Pilia nala by farsas. Hearing this kaluram, Sultan Singh, mulayam, Prahlad Singh, harnam, Munshilal, Parasram and Kamal Singh reached at the place of occurrence. Gaurishankar was lying in the nala drenched with blood. Kaluram asked Gaurishankar, "what has happened". Gaurishankar in presence of all other persons stated that Kok singh, Toran Singh, Malkhan and Ummed Singh have beaten him by farsa. Thereafter, all those persons brought injured Gaurishankar in the village. When he was being taken to Police Station, he succumbed to the injuries in the way. Gaurishankar and Toran singh are real brothers and because of partition of the property relationship between toran Singh and Gaurishankar was inimical. First information Report was lodged by Kaluram at Police Station tyonda. Post-mortem of the deadbody was performed. Accused persons were arrested and on the basis of their information three farsas were recovered and seized from Kok singh, Toran Singh and ummed Singh and one lathi was recovered and seized from malkhan Singh and one kulhadi was recovered and seized from Laxman Singh. After investigation chargesheet was filed. During trial, appellants abjured their guilt. Prosecution examined as many as 12 witnesses. Trial court acquitted accused laxman Singh on the ground that the prosecution has not proved the charges against him beyond reasonable doubt for his participation in the commission of crime. Trial court also acquitted all the appellants from the charges under Sections 148 and 149 ipc, but found that Kok Singh, toran Singh and Ummed singh caused injuries by farsa and Malkhan Singh by lathi to deceased Gaurishankar, convicted and sentenced them as aforesaid; against which they have preferred this appeal. Trial court also acquitted all the appellants from the charges under Sections 148 and 149 ipc, but found that Kok Singh, toran Singh and Ummed singh caused injuries by farsa and Malkhan Singh by lathi to deceased Gaurishankar, convicted and sentenced them as aforesaid; against which they have preferred this appeal. ( 4 ) WE have heard Smt. Geeta bhadoriya, learned counsel appearing for the appellants in both the appeal and Shri c. S. Dixit, learned Public Prosecutor, appearing for the respondent-State and considered the evidence on record. ( 5 ) SURENDRA Singh (PW12), who was Incharge Police Station Tyonda, had prepared Panchayatnama Lash (Ex. P/12 ). Kaluram (PW5) is the independent witness of Panchayatnama Lash and according to this document, various injuries were found on the body of the deceased. Dr. V. D. Sharma (PW2) had performed autopsy of the deadbody and found 10 incised wounds, 2 lacerated "wounds and one abrasion on the body of the deceased. All these injuries were ante-mortem. The cause of death was shock and extensive haemorrhage because of the injuries on the body of the deceased. The doctor has admitted that all these injuries were on non-vital part of the body and there was no injury on the vital part of the body. As per opinion of the doctor, because of injury no. 12 which was incised wound between spine to medial part of the hip, the vessels and muscles were cut and this injury was sufficient to cause death. Trial court recorded a finding that the cause of death was due to shock and extensive haemorrhage because of the injuries and nature of injuries was homicidal. During the course of argument learned counsel for the appellants has also not disputed this fact that the death of the deceased was homicidal in nature and he died because of the injuries which were ante-mortem. Thus, we also do not feel any hesitation to hold that the deceased died because of the injuries and the death was homicidal in nature. ( 6 ) NOW the second question before us is who caused the injuries and whether the appellants are responsible for causing these injuries. ( 7 ) THE case is based on oral dying declaration made by deceased Gauri-shankar to Kaluram (PW5), who is the brother of the deceased. Harnam (PW7)has not supported the prosecution. ( 6 ) NOW the second question before us is who caused the injuries and whether the appellants are responsible for causing these injuries. ( 7 ) THE case is based on oral dying declaration made by deceased Gauri-shankar to Kaluram (PW5), who is the brother of the deceased. Harnam (PW7)has not supported the prosecution. He says that he had not seen the appellants but they were four unknown persons who caused injuries by lathi to Gaurishankar. Gaurishankar was lying unconscious and was not able to speak. He has also denied that Sultan Singh had not gone with him to see Gaurishankar, who was lying in the Nala. Lalaram (PW1) is the father of the deceased Gaurishankar. Admittedly, he was not present on spot. He had seen the injured when he was brought at his home. He says that he could not see his injuries due to darkness but when Gaurishankar was brought to the house, he was speaking and he had told him the name of assailants Laxman singh, Malkhan Singh, Ummed Singh, kok Singh and Toran Singh but there is also material omission in his statement ex. D/1 about the names of these assailants. He has admitted that Chunnilal and deceased Gaurishankar both had broken the legs of Kok Singh and for that a case is pending in the Court at Basoda. Toran singh and Kok Singh are friends. Toran singh is the son of Lalaram (PW1) and brother of deceased. Kamal Singh and kaluram are brothers-in-law of each other and Sultan Singh is a member of their family. Jagar Singh (PW4) is the son of deceased. He has stated that his father had gone on the field and he had also gone to give water to his father. When he was returning back, he had seen all five accused persons who were sitting on the Nala and they were carrying farsa, kulhadi and lathi in their hands and after sometime he heard the cries of harnam that Gaurishankar is being beaten. There is also omission in his case-diary statement Ex. D/2 that he had seen all the appellants who were sitting on the Nala. Prahlad (PW3) is the witness of arrest memo (Ex. P/3) and memorandum (Ex. P/4) of Malkhan Singh. Kaluram (PW5), who lodged the FIR, has turned hostile and he has not supported the prosecution story. There is also omission in his case-diary statement Ex. D/2 that he had seen all the appellants who were sitting on the Nala. Prahlad (PW3) is the witness of arrest memo (Ex. P/3) and memorandum (Ex. P/4) of Malkhan Singh. Kaluram (PW5), who lodged the FIR, has turned hostile and he has not supported the prosecution story. His statement was also not recorded on the same day but it was recorded on the next day. Though he has proved the FIR, Ex. P/10, but he has stated that when he along with others went to see Gaurishankar in the Nala, he was lying unconscious and was not able to speak. Harnam had also reached on spot but neither Gaurishankar nor Harnam has narrated the name of assailants to him. When he had lodged the FIR, gaurishankar had died. He was cross-examined and in the cross-examination he has denied that in presence of all gaurishankar had told him the name of appellants as assailants. He has also admitted in the cross-examination that for around 4 hours they remained in the village before lodging the FIR because they were discussing that how and against whom the report is required to be lodged. He has stated that the distance from the place of occurrence to the police station in a bullock cart takes one and half hour's time The incident took place around 7. 00 p. m. in the village but the fir was lodged at 12. 30 in the night. It is also admitted that as per the FIR the deceased died when he was being taken to the Police Station after 11 AM. Four hours delay for not referring the injured to the hospital has not been explained by the prosecution witnesses. Harnam (PW7)who is the servant of the deceased has also not supported the prosecution. Dayaram (PW8) was examined to prove seizure memo of bloodstained and plain soil (Ex. P/17), Naksha Mouka (Ex. P/18)and seizure memo of farsa from Ummed singh (Ex. P/ 19 ). Dayashankar (PW10) is the witness of memos under Section 27 of Evidence Act, of Ummed Singh (Ex. P/ 19 86 P/20); Malkhan Singh (Ex. P/4 and p/9); Kok Singh (Ex. P/5 and P/7); and, toran Singh (P/6 and P/8 ). P/17), Naksha Mouka (Ex. P/18)and seizure memo of farsa from Ummed singh (Ex. P/ 19 ). Dayashankar (PW10) is the witness of memos under Section 27 of Evidence Act, of Ummed Singh (Ex. P/ 19 86 P/20); Malkhan Singh (Ex. P/4 and p/9); Kok Singh (Ex. P/5 and P/7); and, toran Singh (P/6 and P/8 ). ( 8 ) NOW the material evidence on which the trial Court has placed reliance is of Mulayam Singh (PW9) and Sultan singh (PW 11 ). Mulayam Singh (PW9) is the witness of oral dying declaration. He says that after hearing the shouts of harnam he along with Kaluram, parasram and Kamalsingh went towards the Nala and saw that Gaurishankar was lying stained with blood and when he asked Gaurishankar "what happened", he stated that Ummed Singh, Kok Singh and toran Singh were carrying farsa and malkhan Singh was having lathi and he was beaten by them. He does not say that sultan Singh was also with him, though sultan Singh and Prahlad Singh both are brothers of Malkhan Singh. Therefore, it appears that Sultan Singh was not present on spot and he is a cooked up eye witness as well as witness of oral dying declaration. Admittedly Harnam was working as a servant of Gaurishankar and he has not supported the prosecution and in the cross-examination he has admitted that why in his case-diary statement Ex. D/3 it has not been mentioned that he heard the cries of Harnam, who was shouting that "run, Gauri is being beaten". He was confronted with his case-diary statement Ex. D/3. Why in his case-diary statement Ex. D/3 it has not been mentioned that he asked Gaurishankar that what happened, he cannot give any reason. He has denied this suggestion that he had lifted Gaurishankar and because of that his clothes were also stained with blood. At the time of incident there was no water in the nala, ( 9 ) SULTAN Singh (PW11) in the cross-examination has admitted that prahlad Singh and Mulayam are his real brothers. He was cross-examined at length on the question that in the evening he had gone to search his buffaloes towards the nala and there was omission of this fact in his case-diary statement. He was cross-examined at length on the question that in the evening he had gone to search his buffaloes towards the nala and there was omission of this fact in his case-diary statement. He has admitted that Chunnilal is his real maternal uncle and it is true that ummed Singh, Kok Singh and Toran singh had filed one case of altercation against his maternal uncle Chunnilal. Mulayam Singh (PW9) and Sultan Singh (PW11) both have admitted enmity between Chunnilal, who is their maternal uncle, with the deceased, therefore, their evidence cannot be treated as reliable. There is possibility that they may implicate the appellants because of the enmity between them. Sultan Singh has given contradictory statement about lifting of the body of injured Gaurishankar. If gaurishankar was bleeding extensively and if Sultan Singh had lifted the body on his shoulder then his clothes must have been drenched with blood and why the police has not seized his clothes the prosecution has not furnished any explanation. The evidence of Lalaram (PW1)and Mulayam Singh (PW9) on the question of dying declaration is also not consistent. If appellant Toran Singh is real brother of deceased Gaurishankar, why gaurishankar has not stated that brother Toran Singh has beaten him. At that time he has not also specified the reason for beating by his own brother. Looking to the injuries though on the non-vital part of the body but the doctor has specifically stated that he might have gone cold after extensive haemorrhage. Though he has denied whether he had become unconscious or not. One witness says that when he was taken to his house, Gaurishankar talked with his wife but why the prosecution has not examined the wife. Prosecution has also not examined Munshilal, Parasram and kamal Singh those who had accompanied kaluram to lodge FIR. Why the FIR was not lodged by Lalaram, father, or by jagarsingh, the son of deceased, or by wife of the deceased or by Mulayam Singh or Sultan Singh, when Sultan Singh was the eye-witness of the incident the prosecution has not answered all these questions. The trial court has recorded a finding that the prosecution has failed to prove that the diary which was seized was of Gaurishankar. The trial court has recorded a finding that the prosecution has failed to prove that the diary which was seized was of Gaurishankar. It was argued before the trial Court that Malkhan Singh was below 16 years of age at the time of commission of crime but the Court has discarded this question that no objection was taken or no evidence was adduced to demonstrate that Malkhan Singh was below 16 years of age. The trial Court has also acquitted the appellants under Sections 148 and 149 IPC and has only convicted them under Section 302/34 IPC. It was also vehemently argued that the FIR was lodged after much delay but the trial court find that FIR was not lodged after much delay. It was also vehemently argued that in the site plan Ex. P/18 the presence of Sultan Singh (PW11) from where he had witnessed the incident has not been shown and, therefore, it was argued that no reliance can be placed on the site plan, and the presence of Sultan singh is also doubtful. ( 10 ) AS discussed above, the evidence of mulayam Singh (PW9) and Sultan (PW11), those who are real brothers is not at all reliable. From the record it is clear that they are having enmity with the appellants. Mulayam Singh (PW9)appears to be a cooked up witness for oral dying declaration and Sultan (PW11) appears to be cooked up for eye-witness account as well as for oral dying declaration. In his cross-examination, Mulayam singh (PW9) has stated that he had not lifted Gaurishankar on his shoulders but it was Sultan Singh who had lifted him. In paragraph 14, he has admitted that until Gaurishankar made the oral dying declaration, they were not knowing the names of assailants. There is also omission the factum of asking from gaurishankar that who beat him and also about hearing of shouts of Harnam. In paragraph 17 of his cross-examination, he has stated that deceased did not tell them about fathers' names of appellants as well as to which village they belonged, nor in his case-diary statement (Ex. D/3), names of weapons carried by appellants has been mentioned. Sultan (PW11) has stated that he carried the deceased on his shoulder. In paragraph 17 of his cross-examination, he has stated that deceased did not tell them about fathers' names of appellants as well as to which village they belonged, nor in his case-diary statement (Ex. D/3), names of weapons carried by appellants has been mentioned. Sultan (PW11) has stated that he carried the deceased on his shoulder. But, if the investigation officer has not seized blood stained clothes and shoes of Sultan singh, it is fatal to the prosecution and on that ground testimony of the witnesses can be rendered untrustworthy. Moreso, when the son of the deceased was near him, why the deceased has not made oral dying declaration to him has not been explained. Kaluram (PW5) and harnam (PW7), both are independent witnesses but they have not supported the prosecution. They both have stated that gaurishankar was lying unconscious and was not able to speak. In the light of the aforesaid evidence, the evidence of mulayam Singh and Sultan cannot be treated as reliable. Sultan (PW11) has stated a different story before the Court then what he stated in his statement recorded under S. 161 of Cr. P. C. Thus, we do not find that the evidence of Mulayam singh and Sultan (PW11) is reliable. The presence of both the witnesses appears to be doubtful on spot and to this extent the findings recorded by the trial Court also appear to be doubtful. Therefore, the conviction of the appellants cannot be affirmed on the basis of evidence of mulayam Singh and Sultan (PW11 ). Admittedly, prosecution has not examined munshilal, Parasram and Kamal Singh and also the wife of deceased. It appears that because of enmity, Mulayam Singh and Sultan have tried to Implicate the appellants. Their evidence was also not found reliable for another co-accused babulal who has been acquitted. Appellant Toran Singh is the real brother of gaurishankar. It has not been explained by the prosecution that how the relations of the Toran Singh with his brother Gauri shankar were so enirnical that he killed his own brother. ( 11 ) IT is true that the conviction can be affirmed on the evidence of dying declaration, but for that the evidence of dying declaration should be trustworthy and it should inspire confidence. Normally, the dying declaration should be made to the family members when they are present. ( 11 ) IT is true that the conviction can be affirmed on the evidence of dying declaration, but for that the evidence of dying declaration should be trustworthy and it should inspire confidence. Normally, the dying declaration should be made to the family members when they are present. In this case none of the family members have come forward to prove the evidence of dying declaration except his father Lalaram whose evidence is not of clinching nature. Thus, it will not be safe to affirm the conviction on the evidence of witnesses, those who were having enirnical relations with the appellants. ( 12 ) UNDER these circumstances, we do not find that there is any reliable or clinching evidence on record to indicate that the appellants have committed the crime and to that extent the findings recorded by the trial Court are perverse. Thus, we allow these appeals and set aside the impugned judgment. Appellants are granted benefit of doubt and acquitted from the charges. They are on bail. Their bail bonds and sureties shall stand discharged. Appeal allowed. .