Judgment ( 1. ) BY this appeal, the appellants assail their conviction under Section 302 of the Indian Penal Code read with Section 34 thereof and the sentence of imprisonment for life awarded thereunder. ( 2. ) THE incident dates back to 13-3-1994when deceased Dulesingh had visited Nagda. It is alleged that on 14-3-1994, at about 8. 30, Fatta Bagri of Village Khajuria informed Nagu (P. W, 4) that Dulesingh was lying on the side of the pond. Nagu, Dulesinghs son Kunwarji (P. W. 2) and Gopalji (P. W. 5), therefore, rushed to the place and finding that he was lying in a badly injured condition, he was given water. On regaining consciousness, Dulesingh informed them that he was coming at about 8. 00 p. m. , the previous night alongwith accused Mangu, Jeevan, Bhagwan and Mohan to Nagda, but these people betrayed him and belaboured him with sticks and ran away. Mangu struck him with stick on his head. He kept lying there unconscious. He was taken to the Police Station in a bullock-cart. He had become unconscious on way. On reaching Police Station, Nagda, Nagu (P. W. 4) lodged report (Ex. P-6) in which he gave narration of the dying declaration made by Dulesingh. Requisition (Ex. P-7) was sent alongwith the injured and Dr. Jajoo (P. W. 1) examined Dulesingh at 10. 00 oclock in the morning and found following injuries on his body: (1) Lacerated wound 0x8 forehead central posterior 2 cm x 2 x 2 bony fracture. (2) Multiple bruises 0x8 left arm anterior surface in area size 10 cm x 10 cm middle l/3rd. (3) Abrasion left arm in middle and lateral 6 x 18, 2 1/2 x 2 cm. (4) Abrasion 7 cm x 1 cm left forearm middle l/3rd vertical. (5) Lacerated wound 2 cm x 1/2 x 1/2 over left forearm posterior side. (6) Abrasion 3 cm x 2 cm, 0x8 left writ posterior side. (7) Bruise 6 cm x 2 cm on left forearm upper l/3rd transverse. (8) Whole left forearm swells up suspected fracture radius ulna. (9) Abrasion 2 cm x 1 cm, 0x2 left palm posterior side. (10) Swelling over whole left palm suspected of fracture/dislocation of metacarpus bone. (11) Bruise 10 cm x 3 cm below left inquinal region near scrotum. (12) Bruises 20 cm x 10 cm on left hip overlapping each other. (8) Whole left forearm swells up suspected fracture radius ulna. (9) Abrasion 2 cm x 1 cm, 0x2 left palm posterior side. (10) Swelling over whole left palm suspected of fracture/dislocation of metacarpus bone. (11) Bruise 10 cm x 3 cm below left inquinal region near scrotum. (12) Bruises 20 cm x 10 cm on left hip overlapping each other. (13) Multiple bruises 0x8 whole left back. (14) Bruises 15 cm x 3 cm on left side chest vertical (15) Bruise 16 cm x 3 cm on left side of chest below nipple. (16) Bruise 12 cm x 3 cm on left side of abdomen. (17) Bruises multiple in area 15 cm x 10 cm over middle of left thigh ant. surface. (18) Abrasion 21/2 x 1 cm left thigh upper. (19) Abrasion 2 1/2x1 cm left thigh upper side. (20) Abrasion 2 x 2 cm over left knee. (21) Abrasion 2 x 2 cm below left knee. (22) Three lacerated wounds one above another in middle 1/3 area of left leg. Anterior surface each size about 2 cm x 1/2 x 1/2 cm each. (23) Lacerated wound 10 cm x 11/2 cm x 1 cm over right leg middle 1/3 anti surface. (24) Lacerated wound 5 cm x 1 cm x 1/2 right leg below knee anti surface. The medical report given by Dr. Jajoo is Ex. P-l . ( 3. ) DULESINGH succumbed to his injuries on the same day. Requisition (Ex. P-2) was sent by the police for his post-mortem of which post-mortem report (Ex. P-3) was given by Dr. Jajoo (P. W. 1 ). According to the report, there was a fracture in the frontal bone, also fracture of radius and ulna and metacarpals were also found fractured. According to the opinion of the Doctor, the death of Dulesingh occurred on account of haemorrhagic shock secondary to head injury and the death was homicidal. ( 4. ) IN further investigation, the police recorded the statement of Babu Geer (P. W. 7) and Shantilal (P. W. 3), Anil Kumar, S. H. O. (P. W. 9) proceeded to the spot and prepared spot map Ex. P-10. He also took samples of blood stained and control earth (Ex. P-ll ). The accused persons were arrested vide Ex. P-l6 and upon their disclosure, recorded in Exs. P-l7 to P-20, Lathi from each of them was seized vide memoranda Exs. P-10. He also took samples of blood stained and control earth (Ex. P-ll ). The accused persons were arrested vide Ex. P-l6 and upon their disclosure, recorded in Exs. P-l7 to P-20, Lathi from each of them was seized vide memoranda Exs. P-21 to P-24. From accused Mangusingh, as blood stained dhoti was seized vide Ex. P-25. The seized Article s were sent to the Forensic Science Laboratory from where reports (Exs. P-27 and P-28) were received. According to the report, the dhoti of accused Mangusingh was stained with human blood of b-Group. After completion of the investigation, the accused were prosecuted. ( 5. ) THE accused denied having committed any offence but, on trial, the learned Judge found them guilty and convicted and sentenced them as herein-above stated. It is against this conviction and sentence that the present appeal has been filed. ( 6. ) DURING trial, the prosecution placed reliance on the evidence of oral dying declaration of the deceased made to Kunwarji (P. W. 2), son of the deceased, Nagu (P. W. 4), his relative, who lodged FIR (Ex. P-6) and Gopalsingh (P. W. 5), brother of the deceased, and the evidence of last seen together for which the prosecution examined Shantilal (P. W. 3) and Babu Geer (P. W. 7 ). However, Shantilal (P. W. 3) and Babu Geer (P. W. 7) did not support the prosecution case and were declared hostile. The evidence of the last seen together thus excluded, the prosecution case hinges wholly on the testimony of the witnesses relating to the oral dying declaration made to Kunwarji (P. W. 2), Nagu (P. W. 4) and Gopal (P. W. 5 ). ( 7. ) BEFORE adverting to the testimony of the oral dying declaration and its implications, we may first refer to the objection raised by the learned Counsel for the appellant No. 4 - Munna alias Mohan. It is stated that the name of this accused is Mohan son of Bhagwan, but he has been described in the FIR (Ex. P-6) as mohna s/o Bhagga Gurjar. Nothing has been brought on record to show that he has such an alias or that he has ever been described as mohan s/o Bhagga Gurjar. It is stated that the name of this accused is Mohan son of Bhagwan, but he has been described in the FIR (Ex. P-6) as mohna s/o Bhagga Gurjar. Nothing has been brought on record to show that he has such an alias or that he has ever been described as mohan s/o Bhagga Gurjar. Kunwarji (P. W. 2) has stated that the deceased described him as munna Dibel Ka, but that does not take the case of the prosecution any further in fixing the identity of this accused. The testimony of Gopalsingh (P. W. 5) causes more damage to the prosecution than help it. Though Gopalsingh (P. W. 5) in his testimony states that the deceased had described appellant No. 5 as mohan Singh, he is confronted with the statement under Section 161 of the Cr. PC (Ex. D-3), where there is omission of the name of Mohansingh and instead munna has been mentioned. He has tried to improve by saying that Mohans name is Munna and that he had told the Police that Mohan was known as Munna also, there is omission of this fact also in his statement under Section 161 of Cr. PC. Under these circumstances, since the identity of appellant No. 4 - Mohan s/o Bhagwanji is in serious doubt as it has not been established that the name of Mohna s/o Bhagga in the FIR is in reference to the appellant No. 4, he deserves the benefit of doubt. ( 8. ) WHILE proving the dying declaration against the appellants, the prosecution has examined Kunwarji (P. W. 2), Nagu (P. W. 4) and Gopalsingh (P. W. 5 ). Kunwarji (P. W. 2) has stated that on learning from Nagu that his father had been belaboured, he went to the pond and found that his father was lying on the ground in badly injured condition. He was given some water with the result he gained consciousness. On regaining consciousness, he informed them that while he was returning with Mangu, Jeevan, Bhagwan and Munna; Mangu betrayed him and struck him on his head with a stick and the rest of them started beating him with the result he became unconscious. He was taken to the Hospital where during treatment, he succumbed to his injuries. Nagu (P. W. 4) corroborates his statement. He was taken to the Hospital where during treatment, he succumbed to his injuries. Nagu (P. W. 4) corroborates his statement. He has also stated that Dulesingh was found lying wounded and when he was given water, he informed them that Mangu, Bhagwan, Jeevan and Mohan had beaten him with sticks. Mangu had struck him over the head while others had caused injuries on his hand and legs. He, therefore, proceeded to the Police Station where he lodged report Ex. P-6. Gopalsingh (P. W. 5) has also confirmed that Dulesingh had stated that Mangu, Jeevansingh, Bhagwansingh and Mohansingh had caused him injuries with Lathi. He was taken to the Police Station and report was lodged. ( 9. ) LEARNED Counsel for the appellants has invited attention to Paragraph 10 of the testimony of Kunwarji (P. W. 2) to the effect that immediately after disclosing the names of the assailants, his father had become unconscious and had later gained back consciousness on reaching the Hospital. On the basis of the said statement, the contention of the learned Counsel is that these witnesses cannot be believed as the deceased who had as many as 23 injuries on his person, could not have been in a position to make any statement whatsoever. In this background, learned Counsel urges that the evidence with regard to the dying declaration should be discarded. ( 10. ) ATTENTION has also been invited to the testimony of Dr. D. D. Jajoo, Asstt. Surgeon (P. W. 1), who has examined the injured and later, upon his death, had performed autopsy. In Paragraphs 12 to 14, he has been pointedly asked questions about the condition of health of the deceased anterior to the period he was brought to the Hospital. In Paragraph 14, the Doctor has stated that though injury No. 4 on the head of the deceased was sufficient to cause his death, the other injuries found on his body were not individually sufficient to cause death. He has admitted that injury No. 4 had caused fracture which caused haemorrhage and shock, but death must not have resulted therefrom immediately. He has also stated that it was not possible to determine whether from this injury the person could have died immediately or after passage of time and it depends upon the rate of percolation (haemorrhage ). He has admitted that injury No. 4 had caused fracture which caused haemorrhage and shock, but death must not have resulted therefrom immediately. He has also stated that it was not possible to determine whether from this injury the person could have died immediately or after passage of time and it depends upon the rate of percolation (haemorrhage ). From the above statement of the medical expert, the learned Counsel submits that one should infer that the condition of the deceased was not such so as to enable him to make a dying declaration. He has also referred to the decision of Sabbita Satyavathi v. Bandala Srinivasarao and Ors. 2005 SCC (Cri.) 585, in support of his contention. The decision relied upon by the learned Counsel is quite distinguishable. In Sabbita Satyavathi (supra), vital organs such as heart and lungs had suffered injuries and Doctor had stated that with such injuries, the injured must have become unconscious immediately and would have died at any time. In the case in hand, except for the injury caused over the head and about that injury also the Doctor is very clear in his mind that death must not have been immediate, in fact, since the death has occurred much after, immediate death is ruled out, all other injuries are on hands and legs and though certain fractures have been caused of radius and ulna and metacarpal, no injury as such has been caused from which inference of unconsciousness or immediate death could be drawn. The argument overlooks the fact that the injured had reached the hospital when he was very much alive. ( 11. ) FROM the above evidence, therefore, the evidence of the dying declaration can be acted upon though not in the case of appellant No. 4 - Munna alias Mohan s/o Bhagwanji, on account of doubt about his identity. ( 12. ) THE question that survives for our consideration is as to what could be the effect of the statement made in the dying declaration against the appellants. Before proceeding to decide that question, we may also record that insofar as appellant Mangusingh is concerned, against him there is also evidence of the Forensic Science Laboratory Reports (Exs. P-27 and P-28) to the effect that his "dhoti" was found stained with human blood having b-Group, for which he has offered no explanation. ( 13. Before proceeding to decide that question, we may also record that insofar as appellant Mangusingh is concerned, against him there is also evidence of the Forensic Science Laboratory Reports (Exs. P-27 and P-28) to the effect that his "dhoti" was found stained with human blood having b-Group, for which he has offered no explanation. ( 13. ) IN the testimony of Kunwarji (P. W. 2), it has clearly come that it was appellant No. 1 -Mangusingh, as per the dying declaration of the deceased, who had betrayed the deceased and struck him a blow with stick over his head. According to Dr. Jajoo (P. W. 1), this injury was sufficient to cause death. Dr. Jajoo has, however, has not stated that it was sufficient in the ordinary course of nature to cause death. It is not clear that the death has occurred on account of this injury alone though agreed to his opinion in the Autopsy Report (Ex. P-3), death resulted on account of the haemorrhagic shock secondary to head injury. It is, therefore, clear that the injury has been caused by appellant No. 1 -Mangusingh with great force though by means of a Lathi with the intention of causing an injury that she was likely to cause death. Such an act of Mangusingh would be culpable under Part I of Section 304 of the IPC. ( 14. ) FROM the description given in the dying declaration, it appears that though the other persons have participated in the offence with the sticks, they had remained confined to cause injuries only to the lower limbs and have thereby caused fractures. It does not, therefore, appear that they shared any intention common with appellant No. 1 - Mangusingh. It also does not appear that they intended to cause the death of the deceased. From the opinion expressed by the Doctor, it does not appear that death has resulted from the injuries caused to the body of the deceased. Under these circumstances, the appellants No. 2 -Jeewansingh s/o Balusingh and No. 3 -Bhagwansingh s/o Narsingh can each be held liable for offence punishable under Section 325 of the IPC read with Section 34 thereof. ( 15. ) IN the result, this appeal is allowed in respect of appellant No. 4 - Munna @ Mohan s/o Bhagwanji and he is acquitted of the charge against him. He is on bail. ( 15. ) IN the result, this appeal is allowed in respect of appellant No. 4 - Munna @ Mohan s/o Bhagwanji and he is acquitted of the charge against him. He is on bail. His bail bonds shall stand discharged. ( 16. ) THE appeal in respect of other appellants is partly allowed. Appellant No. 1 - Mangusingh is convicted under Section 304 Part I of the IPC and he is sentenced to rigorous imprisonment for 7 (seven) years. Appellants No. 2 - Jeewansingh and No. 3 - Bhagwansingh are each convicted under Section 325 of the IPC read with Section 34 thereof, and each is sentenced to 2 (two) years rigorous imprisonment. The accused are on bail. They shall surrender to their bail bonds to serve out the sentence awarded to them. The appeal is thus disposed of.