Judgment :- V. Periya Karuppiah, J. This appeal is directed against the judgment of conviction and sentence passed by the Additional Sessions Judge/Fast Track Court No.1, Chidambaram, Cuddalore District in S.C.No.341 of 2004 dated 11.08.2005 against A.1 and A.2 sentencing A.1 to undergo life imprisonment for offence under Section 302 r/w 149 I.P.C., and to pay a fine of Rs.5,000/- and in default to undergo 6 months simple imprisonment; and A.2 guilty of offence under Section 302 I.P.C., and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- and in default to undergo for 6 months simple imprisonment. 2. A.1 is the father of A.2 and father-in-law of the deceased Mahalingam. A.5 Jyothi is the wife of the deceased. A.6 Kannan is the paramour of A.5. There was a dispute between the deceased and his wife regarding the illicit relationship of A.5 with A.6. There was also a dispute between the deceased and A.2 regarding the money transaction of Rs.80,000/- given by the deceased to A.2 to purchase a land. It is the case of the prosecution that on 27.08.1999, all the accused had hatched a conspiracy to kill Mahalingam. On this back ground, on 29.08.1999, at about 10.00 p.m., the deceased was sleeping in a cot in A.1’s house, all the accused gathered with deadly weapons. A.2 and A.3 with a common intention to kill the deceased stood in front of A.1’s house, A.4 and absconding accused Fakrudin Ali Ahamed stood near the cot where the deceased was sleeping in order to prevent him from moving and A.2 and A.3 cut the deceased on his face, hands, legs and at his back with Aruval and on sustaining several cut injuries, the deceased Mahalingam died at Government Hospital at Chennai on 01.09.1999. In continuation of the said incident, A.1 & A.4 had also participated in the offence as the members of unlawful assembly and had helped A.1 and A.3 in committing the murder of Mahalingam and therefore, all the accused are liable to be punished under Section 120 (B), 147, 148 and 302 r/1 149 I.P.C. 3. The trial Court had examined P.Ws.1 to 27 and had produced Exs.P.1 to P.24 and M.Os 1 to 7 in order to substantiate the case of the prosecution. The trial Court had examined P.Ws.1 to 27 and had produced Exs.P.1 to P.24 and M.Os 1 to 7 in order to substantiate the case of the prosecution. The trial Court had perused the evidence both oral and documentary and the material objects and had come to the conclusion of acquitting A.3 to A.6 from all the charges and A.1 to A.2 from the charge of conspiracy under Section 120(B) and the charges under Section 147 and 148 I.P.C. but had convicted A.1 for the offence under Section 302 r/w 149 I.P.C., and had convicted A.2 for the offence under Section 302 I.P.C to undergo Life imprisonment and to pay a fine of Rs.5000/- and in default to undergo six months simple imprisonment for each of the accused. 4. Mr.R.Karthikeyan, learned counsel for the appellant would raise an important point that the conviction of A.1 and A.2 could not be arrived on the sole basis of the dying declarations of the deceased, when all the other witnesses have turned hostile without substantiating the case of the prosecution and the conviction and sentence passed by the trial Court is also not in accordance with law and is in total contradiction with the prosecution case. He would further submit that the trial Court had disbelieved the unlawful assembly theory and had acquitted all the accused for the offence under Sections 147 and 148 I.P.C., whereas A.1 was convicted under Section 302 r/w 149 I.P.C., which is totally against law. Moreover, he would submit that the charges framed against A.2 was with specific overt act that he had also attacked the deceased along with A.3 whereas the dying declarations said to have been given by the deceased would implicate A.2 to the extent that he had only abetted the unknown three persons to come and finish the deceased Mahalingam which is contrary to the case of the prosecution. He would also submit that there was no implication of A.1 in the dying declaration of the deceased and still the trial Court had convicted A.1 for the offence under Sections 302 r/w 149 I.P.C., which is not correct. He has also submitted that the first dying declaration which is said to have been given in the form of complaint and the second dying declaration given before the Magistrate were marked as Exs.P.13 and P.15 respectively. He has also submitted that the first dying declaration which is said to have been given in the form of complaint and the second dying declaration given before the Magistrate were marked as Exs.P.13 and P.15 respectively. We could see number of contradictions between the prosecution witnesses and the dying declarations given by the deceased and therefore, it is not safe to follow the contradicted dying declarations and come to a conclusion of convicting the accused. Therefore, he would submit that A.1 and A.2 deserve to be acquitted since there was no case made out against them even on the basis of the dying declarations-Ex.P.13 and P.15. 5. The learned Additional Public Prosecutor Mr.V.R.Balasubramanian would contend that despite the witnesses of the prosecution turning hostile, the dying declarations given by the deceased Mahalingam in the form of complaint-Ex.P.13 and before the Judicial Magistrate as Ex.P.15 have no material contradictions and the cause of death of Mahalingam was also mentioned in Ex.P.1 that A.1 was speaking outside the room with the persons who were brought for attacking the deceased and therefore, the dying declarations-Ex.P.13 and P.15 would implicate all the accused and since both the dying declarations are not inconsistent with each other, the trial Court is also quite correct in coming to the conclusion of convicting A.1 and A.2. He has prayed for dismissal of the appeal confirming the judgment of conviction and sentence passed against A.1 and A.2 by the trial Court. 6. We have given our anxious thought over the arguments advanced by both sides. 7. It is not disputed that most of the witnesses have turned hostile and the case was decided only on the circumstantial and medical evidence. The eye witnesses who were examined to support the prosecution case did not support the prosecution case before the Court. The trial Court had relied upon the complaint given by the deceased by way of dying declaration-Ex.P.13 which is the first dying declaration and the actual dying declaration given by the deceased before the Judicial Magistrate, the second dying declaration-Ex.P.15 and had come to the conclusion of deciding the case against A.1 and A.2. 8. Now we have to carefully peruse both the dying declarations-Ex.P.13 and P.15 in order to decide the legality of the judgment of the trial court. 8. Now we have to carefully peruse both the dying declarations-Ex.P.13 and P.15 in order to decide the legality of the judgment of the trial court. In the complaint Ex.P.13, we could see that on 29.08.1999 at 10.00 p.m when the deceased Mahalingam was lying on a cot at the house of A.1, he saw his father-in-law, A.1 going outside and speaking to somebody, his brother-in-law -A.2 had instructed those persons to cut and kill him and immediately, the three persons cut him and caused injuries and when he made alarm, they went along with the weapons in their hands and A.1 and A.2 had planned to commit murder him. Whereas, the dying declarations given before the Magistrate in Ex.P.15, he did not speak about the conversation made by A.1 who went out side immediately on the arrival of A.2 with three persons. However, he would state that A.1 was fleeing away from the house and A.2 had pointed out the deceased to the persons he brought and immediately three persons had attacked with the Aruval in their hands and caused cut injuries on the head, face and hands of the deceased. Immediately A.2 and other persons had fled away from the scene of occurrence. The neighbours admitted the deceased in the hospital. 9. In both the dying declarations, we could see that there was no overt act spoken by the deceased Mahalingam against A.1 except, the plan to commit murder. The said plan was not spoken to by the deceased in the second dying declaration. Similarly, in both the dying declarations, the overt act of A.2 was spoken to as the abetment to kill the deceased Mahalingam and upon that abetment, three persons with weapon had attacked the deceased and caused injuries. Both the dying declarations did not show any concrete involvement of A.1 in the alleged occurrence. In both the dying declarations, there was no overt act of A.2 as spoken by the deceased Mahalingam to the effect that he had caused injuries with Aruval on him while A.4 and yet another absconded accused Fakrudin Ali Ahamed had caught the deceased in the cot as framed in the charge against A.2. In both the dying declarations, there was no overt act of A.2 as spoken by the deceased Mahalingam to the effect that he had caused injuries with Aruval on him while A.4 and yet another absconded accused Fakrudin Ali Ahamed had caught the deceased in the cot as framed in the charge against A.2. The evidence of prosecution would also go a long way to show that the weapon was seized in pursuance of the confession statement given by A.2 leading to recovery of M.O.6 as if A.2 alone had caused the injuries on the deceased. The recovery of M.O.6 was evidenced by the seizure mahazar-Ex.P.6. When we peruse the evidence of P.W.12 coupled with M.O.6, we could see that the said weapon-M.O.6 was recovered from Sthapadi Lake and A.2 had identified the same that it was used by him in the occurrence. The said evidence of P.W.12 and the recovery of M.O.6 that it was used by A.2 for the commission of the offence is totally contradictory to the case as spoken by the deceased Mahalingam in the dying declarations-Ex.P.13 and P.15. The charge framed as against A.2 also deadly against the incident spoken by the deceased Mahalingam against A.2 in the said dying declarations. It is a settled law that the dying declarations, being the last information given by the deceased, can be relied upon provided there is no contradictions in the previous dying declaration and to the case of prosecution. There is no doubt that the dying declarations if admitted, the accused had no opportunity to cross examine the deponent since the deponent would be a dead person. Therefore, much caution must be exercised before relying upon the dying declarations against the accused. We have already seen that the dying declarations given by the deceased on two occasions did not implicate A.1 and the overt act spoken by the deceased person against A.2 was totally against the case and evidence adduced by the prosecution. 10. Therefore, we are of the considered view that it is not safe to rely upon the dying declarations of the deceased Mahalingam given in Ex.P.13 and P.15 and to bring home the accused 1 and 2 that the charges framed against them are proved. 10. Therefore, we are of the considered view that it is not safe to rely upon the dying declarations of the deceased Mahalingam given in Ex.P.13 and P.15 and to bring home the accused 1 and 2 that the charges framed against them are proved. In the given circumstances, we are of the firm view that the benefit of doubt should have been given to the accused 1 and 2 since the dying declarations given by the deceased are totally contradictory to the case of the prosecution. Therefore, the judgment of conviction and sentence passed against A.1 and a.2 by the trial Court is not sound and legal. Therefore, it is necessary to set aside the conviction and sentence passed against A.1 and A.2 and accordingly the same is set aside. 11. In fine, the judgment of conviction and sentence passed against A.1 and A.2 by the trial Court in S.C.No.341 of 2004 dated 11.08.2005 are set aside and the appeal is allowed. The bail bonds executed by the accused, if any, shall stand cancelled.