JUDGMENT Sunil Kumar Sinha, J. [1] This appeal is directed against the judgment dated 1-8-1994 passed in Session Trial No. 262/92 by the Fourth Additional Sessions Judge, Raipur. By the impugned judgment, appellants Heerendra Kumar Sahu and Balli alias Pramod Kumar Sahu have been convicted under Section 302, IPC and appellant Naresh Kumar has been convicted u/Ss. 302/34, IPC and they have been sentenced to undergo imprisonment for life. [2] The facts, briefly stated, are as under :- On 7-11-1991 at about 20.30 hours, deceased - Raju alias Rajkumar was going towards Bhimnagar talab (tank). He was accompanied by Shankar Sahu (PW-8). The allegations are that the appellants came there and assaulted the deceased by knifes. The incident was witnessed by Shankar Sahu (PW-8). Somebody told about the incident to the mother of the deceased namely Girja Bai (PW-1). She went towards the place of occurrence and met her son (deceased) in front of the house of Roop Singh (PW-9). The deceased was badly injured. The deceased made oral dying declaration that he was assaulted by the above 3 appellants (accused persons). Girja Bai (PW-1), on the basis of oral dying declaration, lodged dehatinalishi (Ex. P-l) on the same day at about 21.30 hours. Dehatinalishi (Ex.-P/l) contains the names of all the appellants. The deceased was admitted to the hospital in unconscious condition, where he died during the course of treatment on 8-11 -91. Information was sent to the police station and inquest (Ex. P/7) was prepared on the dead body of the deceased after giving notice to the Panchas (Ex. P/6). The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. D. C. Jain (PW-10) who found as many as 13 incised wounds on different parts of the body of the deceased. All the injuries were ante-mortem. On internal examination, he found that there was cut injury on right lung. In fact, the sac of right lung was cut. There were injuries on intestine and membrane of the intestine. There was also injury on the liver. Marks of stitches were there. The post-mortem report is Ex. P/ 13. When the deceased was alive, he was examined by Dr. Sanjay Pandey (PW-11). He had also noticed external injuries which were found in the post-mortem examination. His Medico Lego report is Ex. P/24. There was also injury on the liver. Marks of stitches were there. The post-mortem report is Ex. P/ 13. When the deceased was alive, he was examined by Dr. Sanjay Pandey (PW-11). He had also noticed external injuries which were found in the post-mortem examination. His Medico Lego report is Ex. P/24. In further investigation, the memorandum statements of Heerendra Kumar & Balli alias Pramod Kumar (Exts. P/18 & P/19) were recorded u/S. 27 of the Evidence Act and knives were seized from their possession vide Ext. P/20 & P/23. Regular F.I.R. was recorded vide Ex. P/25 and site plan was prepared under Ex. P/ 26. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar vide Ex. P/27, but F. S. L. report could not be filed. The case of the prosecution was based on oral dying declaration before Girja Bai (PW-1) and Roop Singh (PW-9) as also eye-witness account of Shankar Sahu (PW-8). The Sessions Judge relied on the testimonies of these witnesses and held that the appellants caused multiple injuries to the deceased by knives, therefore, they were liable for punishment u/Ss. 302 & 302/34, IPC. 3. Mrs. Renu Kochar & Mr. Pawan Kesharwani, learned counsel appearing on behalf of the respective appellants, argued that the testimonies of Girja Bai (PW-1) and Roop Singh (PW-9) were not reliable. Shankar Sahu (PW-8) was also not reliable, therefore, the conviction based on their testimonies cannot be sustained. 4. On the other hand, Mr. Ajay Dwivedi, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the Sessions case. 6. Girja Bai (PW-1) deposed that in the fateful night, she was present in her house. Her son, deceased - Raju, had gone towards the tank. He was accompanied by Shankar Sahu (PW-8). When her son did not return for a long time, she went to call him. On the way, one Tiju alias Munna and Sahdev met her. Near Shiv Temple a boy namely Raju met her and told that Rajkumar (deceased) was assaulted by knife by Heerendra, Naresh and Balli (the 3 appellants). She went towards the place of occurrence and found her son in injured condition. On the way, one Tiju alias Munna and Sahdev met her. Near Shiv Temple a boy namely Raju met her and told that Rajkumar (deceased) was assaulted by knife by Heerendra, Naresh and Balli (the 3 appellants). She went towards the place of occurrence and found her son in injured condition. Her son made oral dying declaration taking the names of the 3 appellants that they had assaulted him by knives. Thereafter her son was taken to Sundernagar police chowki. Her son told the names of the appellants to the police officer who met them in Sundernagar police chowki. The police persons of police chowki, Sundernagar told her that the incident had taken place in Aminpara area, therefore, she should go to the concerned police station. Thereafter they went to Aminpara police station, where they met S. I. Ambika Prasad Pathak (PW-15). They narrated the story to S. I. Pathak. They had told the names of the accused persons to Mr. Pathak who told them to take the boy to the hospital. Thereafter the boy (deceased) was taken to the hospital, where he died during the course of treatment. 7. Roop Singh (PW-9) deposed that in the fateful night, the deceased came before his house in injured condition and sat on a chabutra. The deceased told him that he was assaulted by Naresh and Heerendra by knives. Mother of the deceased also came there. Thereafter the deceased was taken to Sundernagar police chowki, where the report was lodged. The deceased had told the names of Naresh and Heerendra as his assailants in police chowki Sundernagar. He further deposed that later on the deceased told the names of all the 3 accused persons as his assailants. He had stated their names to his mother before him. 8. On appreciation of evidence of these two witnesses of oral dying declaration, we find their evidence to be shaky. No records have been produced relating to the facts that the deceased was taken to Sundernagar chowki and he made oral dying declaration before the police officer sitting in chowki who directed them to go to police station Aminpara. Even there is no record to show that the deceased was taken to police station injury on right lung. In fact, the sac of right lung was cut. There were injuries on intestine and membrane of the intestine. There was also injury on the liver. Even there is no record to show that the deceased was taken to police station injury on right lung. In fact, the sac of right lung was cut. There were injuries on intestine and membrane of the intestine. There was also injury on the liver. Marks of stitches were there. The post-mortem report is Ex. P/ 13. When the deceased was alive, he was examined by Dr. Sanjay Pandey (PW-11). He had also noticed external injuries which were found in the post-mortem examination. His Medico Lego report is Ex. P/24. In further investigation, the memorandum statements of Heerendra Kumar & Balli alias Pramod Kumar (Exts. P/18 & P/19) were recorded u/S. 27 of the Evidence Act and knives were seized from their possession vide Ext. P/20 & P/23. Regular F.I.R. was recorded vide Ex. P/25 and site plan was prepared under Ex. P/ 26. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar vide Ex. P/27, but F. S. L. report could not be filed. The case of the prosecution was based on oral dying declaration before Girja Bai (PW-1) and Roop Singh (PW-9) as also eye-witness account of Shankar Sahu (PW-8). The Sessions Judge relied on the testimonies of these witnesses and held that the appellants caused multiple injuries to the deceased by knives, therefore, they were liable for punishment u/Ss. 302 & 302/34, IPC. [3] Mrs. Renu Kochar & Mr. Pawan Kesharwani, learned counsel appearing on behalf of the respective appellants, argued that the testimonies of Girja Bai (PW-1) and Roop Singh (PW-9) were not reliable. Shankar Sahu (PW-8) was also not reliable, therefore, the conviction based on their testimonies cannot be sustained. [4] On the other hand, Mr. Ajay Dwivedi, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. [5] We have heard learned counsel for the parties at length and have also perused the records of the Sessions case. [6] Girja Bai (PW-1) deposed that in the fateful night, she was present in her house. Her son, deceased - Raju, had gone towards the tank. He was accompanied by Shankar Sahu (PW-8). When her son did not return for a long time, she went to call him. On the way, one Tiju alias Munna and Sahdev met her. [6] Girja Bai (PW-1) deposed that in the fateful night, she was present in her house. Her son, deceased - Raju, had gone towards the tank. He was accompanied by Shankar Sahu (PW-8). When her son did not return for a long time, she went to call him. On the way, one Tiju alias Munna and Sahdev met her. Near Shiv Temple a boy namely Raju met her and told that Rajkumar (deceased) was assaulted by knife by Heerendra, Naresh and Balli (the 3 appellants). She went towards the place of occurrence and found her son in injured condition. Her son made oral dying declaration taking the names of the 3 appellants that they had assaulted him by knives. Thereafter her son was taken to Sundernagar police chowki. Her son told the names of the appellants to the police officer who met them in Sundernagar police chowki. The police persons of police chowki, Sundernagar told her that the incident had taken place in Aminpara area, therefore, she should go to the concerned police station. Thereafter they went to Aminpara police station, where they met S. I. Ambika Prasad Pathak (PW-15). They narrated the story to S. I. Pathak. They had told the names of the accused persons to Mr. Pathak who told them to take the boy to the hospital. Thereafter the boy (deceased) was taken to the hospital, where he died during the course of treatment. [7] Roop Singh (PW-9) deposed that in the fateful night, the deceased came before his house in injured condition and sat on a chabutra. The deceased told him that he was assaulted by Naresh and Heerendra by knives. Mother of the deceased also came there. Thereafter the deceased was taken to Sundernagar police chowki, where the report was lodged. The deceased had told the names of Naresh and Heerendra as his assailants in police chowki Sundernagar. He further deposed that later on the deceased told the names of all the 3 accused persons as his assailants. He had stated their names to his mother before him. [8] On appreciation of evidence of these two witnesses of oral dying declaration, we find their evidence to be shaky. He further deposed that later on the deceased told the names of all the 3 accused persons as his assailants. He had stated their names to his mother before him. [8] On appreciation of evidence of these two witnesses of oral dying declaration, we find their evidence to be shaky. No records have been produced relating to the facts that the deceased was taken to Sundernagar chowki and he made oral dying declaration before the police officer sitting in chowki who directed them to go to police station Aminpara. Even there is no record to show that the deceased was taken to police station Aminpara, where a report was made to S. I. Pathak (PW-15) and then he was taken to the hospital. According to S. I. Ambika Prasad Pathak (PW-15), the deceased was not at all brought to the police station and no report, as stated by the above witnesses, was lodged prior to the dehati nalishi (Ex.-P/l) which appears to be lodged in D. K. Hospital where the deceased was admitted for treatment. Roop Singh (PW-9) had initially deposed that the deceased had told the names of 2 accused persons i.e. Naresh Kumar and Heerendra Kumar Sahu as his assailants and he later on added the name of accused Balli. In cross-examination, in para-4, Roop Singh (PW-9) has admitted that during the course of investigation, he was given notice for making him an accused, but later on he was exonerated. If the deceased, in fact, was taken to the police station first and the oral dying declaration was made before S. I. Ambika Prasad Pathak (PW-15), there is no reason that Ambika Prasad would conceal these facts and not depose all this and would also not support the evidence of Girja Bai (PW-1) and Roop Singh (PW-9) that the deceased was brought to the police station in injured condition where he made oral dying declaration, and then he was taken to the hospital. Even in dehati nalishi (Ex.-P/l) such facts have not been mentioned and it is simply mentioned that the deceased had made oral dying declaration before his mother that he was assaulted by the above 3 appellants. [9] Shankar Sahu (PW-8) is an eye-witness. He deposed that on the fateful night, he was accompanying the deceased. They were cleaning their teeth by gadaku near Bhimnagar tank. All of a sudden accused -Balli came there. [9] Shankar Sahu (PW-8) is an eye-witness. He deposed that on the fateful night, he was accompanying the deceased. They were cleaning their teeth by gadaku near Bhimnagar tank. All of a sudden accused -Balli came there. Nobody was accompanying him. Balli asked the deceased as to where his brother is? The deceased replied in negative. Balli started abusing the deceased. The deceased objected to it. On this Balli slapped the deceased. Thereafter Balli took out a knife and assaulted the deceased by knife. Accused - Heerendra and Naresh also came there. Shankar Sahu (PW-8) did not depose that appellants - Heerendra and Naresh also participated in assaulting the deceased by knife. According to his evidence, they came later on, therefore, there is no question of sharing common intention also. In fact no overt act has been attributed to appellants -Heerendra and Naresh. Though Shankar Sahu (PW-8) has been declared hostile by the prosecution, but his evidence to the effect that he saw appellant Balli assaulting the deceased by knife is intact. Presence of Shankar Sahu (PW-8) at the place of occurrence cannot be doubted because Girja Bai (PW-1 - mother of the deceased) has deposed that the deceased was accompanied by Shankar Sahu (PW-8) and both had gone to tank for cleaning their teeth by gadaku. On due consideration of evidence of Shankar Sahu (PW-8), we find that his evidence to the effect that deceased - Rajkumar was assaulted by appellant - Balli cannot be disbelieved. In light of the above evidence of Shankar Sahu (PW-8), testimonies of Girja Bai (PW-1) and Roop Singh (PW-9) relating to oral dying declaration made by the deceased involving all the 3 appellants becomes suspicious. [10] There is yet another reason to disbelieve the evidence of oral dying declaration. According to medical evidence, the deceased had sustained 13 incised wounds on different parts of the body. There was cut injury on the lung-sac and there were also deep injuries on intestine and liver. Dr. D. C. Jain (PW-10), who performed the autopsy, has admitted that after receiving such injuries if a patient goes in coma and becomes unconscious, ordinarily he would not regain consciousness without any medical aid. Dr. Sanjay Pandey (PW-11), who did Medico-Lego examination of the deceased, has also admitted that the deceased was brought to the hospital in badly injured condition. His condition was critical. Dr. Sanjay Pandey (PW-11), who did Medico-Lego examination of the deceased, has also admitted that the deceased was brought to the hospital in badly injured condition. His condition was critical. The condition of the deceased was so critical that he did not make mention of general observation in the relevant document. According to him, the deceased was full unconscious. Looking to the injury report as also post-mortem report of the deceased and considering the evidence of the 2 doctors, it appears to be reasonable to accept the arguments of learned counsel for, the appellants that after sustaining the injuries the deceased was not in a position to make oral dying declaration to his mother Girja Bai (PW-1) and Roop Singh (PW-9). Therefore while relying on the testimony of Shankar Sahu (PW-8) to the extent he saw that the deceased was assaulted by appellant-Balli, we do not rely on the testimonies of Girja Bai (PW-1) and Roop Singh (PW-9) to the effect that the deceased made oral dying declaration before them involving all the 3 appellants. [11] For the foregoing reasons, the conviction awarded to appellants - Naresh Kumar and Heerendra Kumar Sahu cannot be sustained and the same deserves to the set aside. [12] Accordingly, Criminal Appeal No. 869 of 1994 is allowed in full and Criminal Appeal No. 1052 of 1994 is allowed in part. The conviction and sentences awarded to appellants - Naresh Kumar and Heerendra Kumar Sahu are set aside. They are acquitted of the charges framed against them. However, the conviction and sentence awarded to appellant - Balli alias Pramod Kumar Sahu is maintained and the appeal filed on behalf of appellant- Balli alias Pramod Kumar Sahu is dismissed. Order accordingly.