Judgment ( 1. ) THIS appeal has been preferred against the judgment dated 12th January, 1993 passed by First Additional Sessions Judge, Chhatarpur, in S. T. No. 36/1992, whereby each one of the appellants has been convicted under Section 302 of the ipc and sentenced to undergo life imprisonment. ( 2. ) IN all, six persons namely Parwata, Kallu, Kamta, Halke, Rajva @ rajaram and Bhau (hereinafter referred to as a1 to A6) were tried on the charge of murder of one Bitwa. Four of them, viz. , A2, A4, A5 and A6 were acquitted and no appeal against their acquittal has been preferred by the State. ( 3. ) THE prosecution case may briefly be stated as under:- (i) The relations between Bitwa (since deceased) and A6 were strained in view of the dispute relating to the agricultural land that was pending for decision in the Court of SDO, laundi. On 21-10-1991, after attending hearing of the case, bitwa was returning on his bicycle to his native place -Bisna Khera. When he reached the spot situated between balkora Tiraha (a junction of three paths) and Village jamra, all the six accused obstructed his way and brutally assaulted him with pharsas, ballams and lathis. Sustaining multiple injuries all over the body, Bitwa fell down. On hearing commotion, Jagbhan (P. W. 12), who was present in the nearby agricultural field, rushed to the spot and challenged the assailants who immediately fled away. At this point of time only, one Chandla-bound bus, driven by mohammed Sharif (P. W. 3), passed by the scene of occurrence. Jagbhan stopped the bus and with the help of driver and passengers lifted Bitwa from the spot and put him into the bus. The bus was straightway taken to the Police station at Chandla. During transit, Bitwa narrated the incident to co-passengers including Nand Kishore (P. W. 4)and Wali Mohammed (P. W. 1 ). (ii) It was upon the First Information Report (Exh. P-9) lodged by Bitwa that a case under Sections 147,148, 307 read with section 149 of the IPC and Section 3 (1) (x) of the scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 (hereinafter referred to as the Act)was registered against all the six persons named as accused therein. In the same bus, Bitwa was taken to the Primary health Centre, Chandla where Dr. In the same bus, Bitwa was taken to the Primary health Centre, Chandla where Dr. M. K. Prajapati (P. W. 10) examined him and found as many as 34 injuries, as described in his report (Exh. P-6 ). He advised radiological examination and referred Bitwa to the District Hospital at chhatarpur for further treatment. However,bitwa could not be shifted in view of his deteriorating condition. His dying declaration (Exh. P-4) was recorded by the Executive magistrate V. P. Rawat (P. W. 8) between 7 p. m. to 7. 20 p. m. Thereafter, his police statement (Exh. P-10) was taken down by ASI Laxmi Prasad (P. W. 11 ). Ultimately, Bitwa succumbed to the injuries at 8. 15 p. m. Information of his death was sent to the police station. Accordingly, the case was converted in to one under Section 302 of the IPC. (iii) After inquest proceedings, dead body of Bitwa forwarded for post-mortem that was performed by Dr. M. K. Prajapati only. He preserved clothes of the deceased for forensic examination. During investigation, ordinary and blood stained soil and bicycle were seized from the place of incident. All the six accused were apprehended and respective weapons were recovered at their instance. All the seized articles including a pharsa recovered from Al and a sang (barchhi) from A3 were sent to the FSL, Sagar alongwith clothes of the deceased for chemical examination but no report pertaining to such an examination could be produced during trial. (iv) After due investigation, charge-sheet was filed before the special Court (under Section 14 of the Act presided by the sessions Judge, Chhatarpur ). However, for the reasons recorded in the order dated 17-2-1992, he discharged the accused of the offence punishable under Section 3 (1) (x)of the Act and transferred the case to the First Additional sessions Judge for disposal according to law. ( 4. ) STRANGELY enough, the learned Trial Judge did not frame any charge under Sections 148 and 302 read with Section 149 of the IPC. All the accused were charged with the offence under Section 302 and in the alternative with the offence punishable under Section 302 read with Section 34 of the IPC. While denying the charges, they pleaded false implication due to enmity. All the accused were charged with the offence under Section 302 and in the alternative with the offence punishable under Section 302 read with Section 34 of the IPC. While denying the charges, they pleaded false implication due to enmity. In the examination, under Section 313 of the Code of Criminal Procedure (in short the code), although A6 admitted existence of dispute concerning agricultural land yet, none of other accused including the appellants raised any specific plea of defence. ( 5. ) TO prove the charges, the prosecution examined as many as 13 witnesses including Jagbhan Singh (P. W. 12) as the alleged eye witness to the incident. No evidence was adduced by the defence. ( 6. ) AS pointed out already, the case of the prosecution was based on the direct evidence of Jagbhan (P. W. 12) as well as more than one dying declarations made by Bitwa to various persons and authorities. However, none of the alleged assailants was previously known to Jagbhan. Moreover, as per his statement, he was not able to identify any one of the assailants, as they had covered their faces. In such a situation,, the learned Trial Judge critically analysed the dying declarations and for the reasons recorded in the impugned judgment found that they were only consistent with regard to complicity of the appellants only. In this view of the matter, holding that identity of the remaining four accused was not established beyond a reasonable doubt, he acquitted them and convicted both the appellants for the offence of murder as indicated hereinabove. ( 7. ) THE legality and propriety of the conviction have been assailed on the following grounds:- (i) The admission, made by Jagbhan Singh (P. W. 12) that the faces of the assailants were covered, created a serious doubt regarding their identification by the deceased. (ii) Since, Santosh Kumar (P. W. 2), the cleaner of the bus, was not declared hostile, the prosecution was bound by his admission that the injured, taken in to the bus from the spot to the police station, was unconscious. (ii) Since, Santosh Kumar (P. W. 2), the cleaner of the bus, was not declared hostile, the prosecution was bound by his admission that the injured, taken in to the bus from the spot to the police station, was unconscious. (iii) The nature and number of the injuries sustained by Bitwa were sufficient to indicate that he was not in a position to speak and remain in a fit state of mind at the time when the incident was allegedly narrated to Nand Kishore (P. W. 4)and Wali Mohammed (P. W. 1) and also when the written depositions in the form FIR (Exh. P-9), dying declaration (Exh. P-4) and police statement (Exh. P-10) were recorded. (iv) When all the dying declarations were not relied upon in respect of the other four accused, the same could not have formed basis of conviction of the appellants. ( 8. ) HOWEVER, it is not disputed that Bitwa had met with a homicidal death. Autopsy Surgeon Dr. M. K. Prajapati (P. W. 10) has proved relevant contents of the post-mortem report (Exh. P-6 ). According to him, in all 34 injuries, in the form of three incised wounds, nineteen contusions, seven stab wounds, one lacerated wound, four abrasions, were found on the body of Bitwa. In his opinion, the cause of Bitwas death was shock and excessive haemorrhage on account of incised and stab wounds. Incised and stab wounds described as under.-:-A. Incised wounds: (1) 1. 5" x. 4" x. 3" on the right frontal region of head bleeding present obliquely placed. (2 ). 5" x. 1" x. 2" on the medial side of right eyebrow. Above to downward bleeding present. (3) 1. 8" x. 2" x 31 on the head at middle of both parietal Antra posterior direction, bleeding present. B. Stab wounds: (4 ). 5" x. 4" x 1. 2" oval shaped on the antero lateral aspect of the left elbow, bleeding present, margins inverted. (5 ). 5" x. 4" x. 8" deep on the lateral aspect of left upper arm, 1" above the elbow. Bleeding present through injuries. (6 ). 5" x. 4" x. 9" on the lateral aspect of elbow of left arm, bleeding present. (7) 1. 2" x. 4" x 1. 5" on the skin of tibia of left leg, 6. 7" above the ankle found elliptical shaped, bleeding present, the margins in-versed. (8 ). Bleeding present through injuries. (6 ). 5" x. 4" x. 9" on the lateral aspect of elbow of left arm, bleeding present. (7) 1. 2" x. 4" x 1. 5" on the skin of tibia of left leg, 6. 7" above the ankle found elliptical shaped, bleeding present, the margins in-versed. (8 ). 8" x. 3" x. 5" on the medical aspect of left leg, 5" above the medial malleolus of ankle joint, bleeding present, elliptical shaped. (9) 1" x. 3" x 1. 6" on the medial aspect of left leg, 3. 5" above the medial malleolus, bleeding present, elliptical shaped. (10) 1. 1" x. 4" x. 8" on the poster lateral aspect of the left leg, 1. 5" above and posterior to medial malleolus of ankle joint, bleeding present. ( 9. ) IN his report (Exh. P-6), the medical expert clearly opined that the incised wounds could be caused by sharp object whereas the stab wounds could be inflicted by a sharp and piercing object. ( 10. ) IN order to prove that the above mentioned injuries could be caused by the appellants, the prosecution further placed reliance on recovery of pharsa (Article d) and sang (barchhi) (Article f) respectively at their instance. Ram kishore (P. W. 5) was examined as the panch witness, in whose presence, the appellants gave information leading to discovery of the alleged weapons of offences. The Investigating Officer Devesh Pathak (P. W. 13) proved the contents of the relevant memorandum (Exhs. P-22 and P-26) and corresponding lists of seizures (Exhs. P-23 and P-27 ). No material contradiction with reference to the contents of these documents could be elicited in their cross-examinations. ( 11. ) IT is true that Jagbhan Singh (P. W. 12), examined as the sole eye-witness of the incident, had clearly admitted that he could see only noses and eyes of the attackers who had concealed their identities by covering their faces, but even otherwise, being a stranger to the assailants, he was not supposed to identify them. But, as further deposed by him, Bitwa was able to identify the persons, involved in the alleged assault as A-1, A-2, A-3 and A-4. He also corroborated the fact that it was he, who had stopped the bus to facilitate immediate shifting of injured Bitwa to the police station. In the FIR (Exh. But, as further deposed by him, Bitwa was able to identify the persons, involved in the alleged assault as A-1, A-2, A-3 and A-4. He also corroborated the fact that it was he, who had stopped the bus to facilitate immediate shifting of injured Bitwa to the police station. In the FIR (Exh. P-9)recorded by Laxmi Prasad Pateria (P. W. 11), all the six assailants were specifically named with full description of their parentage and places of residence. Even assuming for the sake of argument that they had covered their faces while assaulting Bitwa, it was no possible to conclude that they were not correctly recognized by Bitwa as ordinarily it could not be difficult for him to identify the attackers, who were not strangers to him, by their voice; from their facial features such as colour of eyes and shape of the noses; their stature, gait; sizes and shapes of upper and lower limbs. ( 12. ) THIS apart, Nand Kishore (P. W. 4) was produced as the passenger of the bus, in whose presence injured Bitwa was questioned at the spot by jagbhan Singh (P. W. 12 ). He had categorically deposed that in reply to question as to who had beaten him, Bitwa told about participation of as many as four persons in the assault. According to him, after naming A-1 and A-3, Bitwa was rendered unconscious for a while and regaining consciousness, he further revealed that A-4 and one Ballu Lodhi were the other members of the band of attackers. ( 13. ) WALI Mohammed (P. W. 1) was examined as another passenger of the bus in which Bitwa was taken to the Police Station, Chandla. According to him, Bitwa had informed him about complicity of A-l, A-4, Sumaiya and two other persons in the attack. Although, Santosh Kumar (P. W. 2) admitted that injured person, viz. , Bitwa, at the time of being lifted from the spot was unconscious yet, no significance could be attached in view of the explanation given by Wali Mohammed that during journey to the police station from the spot, Bitwa was able to regain consciousness frequently. As per his statement, shortly after being put in an unconscious condition in the rear part of the bus, bitwa declared himself to be alive and asked the co-passengers to take him to the police station. ( 14. As per his statement, shortly after being put in an unconscious condition in the rear part of the bus, bitwa declared himself to be alive and asked the co-passengers to take him to the police station. ( 14. ) MOHAMMED Sharif (P. W. 3), driver of the bus, clearly deposed that he had taken injured Bitwa to the police station and from there, to the hospital. Corroborating this fact, ASI Laxmi Prasad Pateria (P. W. 11) testified that the fir (Exh. P-9) was recorded by him at the instance of Bitwa only who, according to him, was unable to put his signature due to injuries. He further stated that after sending Bitwa to the hospital, he also made a request to Executive magistrate for recording the dying declaration. ( 15. ) THE Executive Magistrate V. P. Rawat (P. W. 5) duly proved the dying declaration (Exh. P-4) recorded by him as per information given by Bitwa only. The declaration is preceded and succeeded by a certificate appended by the doctor to the effect-that the deponent was conscious and in a fit state of mind. It was also indicated that Bitwa was unable to put his signature. Thus, there is no apparent infirmity in the dying declaration of Bitwa (Exh. P-4) as recorded by Executive Magistrate V. P. Rawat (P. W. 5 ). Its contents further gave support to the fact that Bitwa had remained conscious while lodging the fir (Exh. P-9) and narrating the incident to Nand Kishore (P. W. 4) and Wali mohammed (P. W. 1 ). ( 16. ) IT is well settled that the statement recorded under Section 161 of the Code is a dying declaration within the meaning of Section 32 of the Evidence act (Tapinder Singh Vs. State of Punjab, AIR 1970 SC 1566 referred to ). Accordingly, the last one of the dying declarations, recorded in the form of diary statement (Exh. P-10), was also proved by ASI Laxmi Prasad (P. W. 11 ). ( 17. ) THE tongues of dying men enforce attention like deep harmony; where words are scarce, they are seldom spent in vain; for they breathe the truth that breathe their words in pain, (quoted with approval in In re : Arumuga thevan, 32 Cr. LJ 357 ). ( 18. ( 17. ) THE tongues of dying men enforce attention like deep harmony; where words are scarce, they are seldom spent in vain; for they breathe the truth that breathe their words in pain, (quoted with approval in In re : Arumuga thevan, 32 Cr. LJ 357 ). ( 18. ) HOWEVER, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. The Constitution bench in Laxman Vs. State of Maharashtra, AIR 2002 SC 2973 , has pointed out that great caution must be exercised in considering the weight to be given to this kind of evidence. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances. ( 19. ) BEFORE doing so, we may remind ourselves of the valuable guidelines as available in Nortons treatise on evidence :- "the human mind is so constituted as to be inclined to attach a very high degree of importance to dying declarations; and it is necessary that the Judge who has to decide should have present to his mind the arguments against their weight as well as in their favour. " ( 20. ) ACCORDINGLY, testing on the touchstone of consistency in the light of other evidence on record, the complicity of the accused persons in causing the fatal injuries as reflected in various dying declaration may be tabulated in the following manner:-Sr. No. Dying declaration made to names of the assailants 1. Jagbhan Singh parwata Dhobi, Kallu Lodhi, Kamta Chamar and Halke 2. Nand Kishore kamta Chamar, Parwata Dhobi, Ballu Lodhi and Halke Lodhi 3. Wali Mohammed parwata Dhobi, Halke Chamar, Sumaiyan and two unknown persons 4. ASI, Laxmi Prasad Pateria all the six accused 5. Executive Magistrate, V. P. Rawat all the six accused. Jagbhan Singh parwata Dhobi, Kallu Lodhi, Kamta Chamar and Halke 2. Nand Kishore kamta Chamar, Parwata Dhobi, Ballu Lodhi and Halke Lodhi 3. Wali Mohammed parwata Dhobi, Halke Chamar, Sumaiyan and two unknown persons 4. ASI, Laxmi Prasad Pateria all the six accused 5. Executive Magistrate, V. P. Rawat all the six accused. ( 21. ) IN this way, name of A-1 was common in all the dying declarations and the case against A-3 was almost similar as his name figured in all except one proved by Wali Mohammed. However, he categorically stated that he had forgotten the names of other two companions of A-1, Halke Chamar and sumaiyan. ( 22. ) LET us also examine the reasons, as ascribed by the learned Trial judge, for extending benefit of doubt to the other four accused named in the fir (Exh. P-9), Dying Declaration (Exh. P-4) and the case diary statement (Exh. P-10 ). The reasons may be summed up as under:- (i) For acquittal of A-2 Kallu:- His name did not figure in the fir, dying declaration and police statement. It also did not come in evidence that he was also known as Ballu, whose name was mentioned in these dying declarations. (ii) For acquittal of A-4 Halke:- In the FIR, dying declaration and police statement, A-4 was shown to be a resident of village Balkora whereas as per the address mentioned in the charge-sheet, he was a native of Bisna Khera. Further, in his cross-examination, under Section 313 of the Code, he had asserted that he is a resident of Village Charhipurwa only. It is also corroborated by the description given in his memorandum under Section 27 of the Evidence Act and a consequent seizure panchnama (Exhs. P-16 and P-17)respectively wherein he was shown to be permanent resident of Charhipurwa and a temporary resident of Bisna khera. Thus, he was not, in any case, resident of Balkora. Moreover, in the written dying declaration, caste of A-4 was described as Lodhi whereas according to Wali Mohammed (P. W. 1), caste of A-4 was given to be Chamar. However, in his police statement, name of A-4 did not figure. (iii) For acquittal of A-5 Rajva @ Rajaram :- Jagbhan Singh (P. W. 12), Nand Kishore (P. W. 4) and Wali Mohammed (P. W. 1) did not Utter his name. However, in his police statement, name of A-4 did not figure. (iii) For acquittal of A-5 Rajva @ Rajaram :- Jagbhan Singh (P. W. 12), Nand Kishore (P. W. 4) and Wali Mohammed (P. W. 1) did not Utter his name. (iv) For acquittal of A-6 Bhau :- It had come in the statement of Jagbhan Singh (P. W. 12) "that Bitwa had not taken name of A-6 despite the fact that there was a dispute concerning the agricultural land. Nand Kishore and Wali Mohammed also did not support the prosecution version against A-6. On the contrary, Nand Kishore had specifically admitted that a-6 was travelling in the same bus in which the injured Bitwa was taken to the police station. He further stated that A-6 also came along with other passengers and injured Bitwa to the police station. In such a situation, the presence of A-6 was established in the bus. ( 23. ) IT is true that the mere fact that their names figured in most of dying declarations, was not, by itself, sufficient to convict the appellants but the learned trial Judge had assigned cogent reasons for arriving at a conclusion regarding their complicity in the murder of Bitwa and for recording finding of not guilty in favour of the other accused. In our opinion also, there was nothing on record to doubt the correctness of the consistent dying declarations involving the appellants in the crime. The decision of this Court in Bahadur Singh Vs. State of M. P. , 2003 (4) MPLJ 243 , is not applicable to the facts of this case as the evidence against all the six accused persons was not identical. The other decision cited at the bar in Bhupan Vs. State of M. P. 2002 AIR SCW 482, is also of no avail to the appellants. Its benefit could be extended to A-4, whose caste was not correctly mentioned in any of the written dying declaration but the fact remains that in all dying declarations, the names of A-1 appeared consistently and that of A-3 was also available in the five out of six dying declarations. In the face of these consistencies in the dying declarations, the learned Trial Judge did not commit any error in holding the appellants guilty for the offence. In the face of these consistencies in the dying declarations, the learned Trial Judge did not commit any error in holding the appellants guilty for the offence. However, it is not possible to say with certainty as to whose blow ultimately proved to be fatal to Bitwa. In such a situation, they ought to have been convicted for murder of Bitwa with the aid of Section 34 of the IPC. ( 24. ) FOR these reasons, we do not find any merit or substance in the appeal. It stands dismissed with the only modification that impugned conviction of the appellants under Section 302 is altered to one under Section 302 read with section 34 of the IPC. As an obvious result, the sentence of life imprisonment is also affirmed. ( 25. ) THE appellants are on bail. They are directed to surrender to their bail bonds for undergoing remaining part of sentences. Criminal Appeal dismissed.