JUDGMENT This appeal is directed against conviction of the appellants - original accused Nos. l, 17 and 19 to 26 for the offences punishable under Sections 148, 304 (Part II) read with Section 149, 452 read with Section 149 of the Indian Penal Code and under Section 27 of the Arms Act and sentence of rigorous imprisonment for seven years with a fine of Rs.1,000/- or in default further rigorous imprisonment for one year; one year with a fine of Rs.200/- or in default further rigorous imprisonment for one month; one year with a fine of Rs.500/- or in default further rigorous imprisonment for three months; and one year with a fine of Rs.500/- or in default further rigorous imprisonment for one month respectively, on these counts imposed on each of them, on conclusion of Sessions Case No.55 of 1992 before the learned Sessions Judge, Raigad, Alibaug. 2. Facts which are material for deciding this appeal are as under: Village Bokadvira is divided by factional strife amongst villagers. The appellants belong to Peasants and Workers Party. Victims seem to belong to Congress party. On 8th December, 1991 at about 7:30 a.m. when victim Madhukar was going for answering call of nature, the miscreants allegedly attacked Madhukar by sticks, iron bars and swords near the School building. Victim Madhukar rushed towards the house of Janardan Harishchandra Patil which was near by. The mob chased Madhukar in that house and assaulted the victim in Janardan's house. The miscreants pelted stones and then left shouting slogans. One Namdeo Patil, victim's brother informed the police that some fight was going at village Bokadvira. Station House Officer made an entry in the station diary and informed Police Sub-Inspector Rane, who immediately rushed by police Jeep to the village. But before Police Sub-Inspector Rane could reach the village, most of the miscreants had fled. However, police apprehended accused No.17 Laxman Ambu Patil while he was trying to run away towards creek. On learning that the victim had been taken to the hospital, Police Sub-Inspector Rane went back to the hospital at Uran where the victim had been taken. The investigating officer made inquiry with the victim and recorded his FIR. The victim was then shifted to Sion hospital for further treatment where he died in the same afternoon. 3. On learning that the victim had been taken to the hospital, Police Sub-Inspector Rane went back to the hospital at Uran where the victim had been taken. The investigating officer made inquiry with the victim and recorded his FIR. The victim was then shifted to Sion hospital for further treatment where he died in the same afternoon. 3. After the victim's statement was recorded, Police Sub-Inspector Rane went back to village Bokadvira, drew up panchanama of spot and seized incriminating articles from the spot. He and police party chased other miscreants and caught about 17 of them. The investigating officer arrested the remaining accused persons, recorded statements of witnesses, sent incriminating articles to the Forensic Science Laboratory, obtained notes of postmortem examination in respect of victim Madhukar after performing an inquest and on completion of investigation, charge sheeted 27 accused persons for the offences punishable under Sections 147, 148, 302, 326, 336, 452, 427 of the Indian Penal Code, Section 25 of the Arms Act and Section 37(1) read with Section 135 of the Bombay Police Act. The learned Judicial Magistrate F.C., Uran committed the case to the Court of Sessions at Alibaug. The Sessions Judge charged the accused persons for the offences punishable under Sections 147, 148, 302, 326, 336, 452, 427 of the Indian Penal Code and under Section 25(1)(b) of the Arms Act and under Section 37(1) read with Section 135 of the Bombay Police Act. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 16 witnesses in its attempt to bring home guilt of the accused persons. After considering the prosecution evidence in the light of defence of false implication, the learned Sessions Judge convicted and sentenced the appellants as aforementioned and acquitted the other accused persons of all the offences charged. Aggrieved by their conviction, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor for the State. With the help of both the learned counsel I have gone through the entire evidence on record. PW-1 Anant Gangaram Patil is a witness, who claims to have been himself injured in the incident. He is brother of victim Madhukar. He stated that appellants belong to Communist party whereas he and his family members belong to Congress party. With the help of both the learned counsel I have gone through the entire evidence on record. PW-1 Anant Gangaram Patil is a witness, who claims to have been himself injured in the incident. He is brother of victim Madhukar. He stated that appellants belong to Communist party whereas he and his family members belong to Congress party. Since about one month before the incident, members of the Communist party disliked activities of Madhukar and wanted Madhukar to join Congress party but Madhukar resisted. According to the witness, CIDCO was to Jay a road which was to pass through salt pan lands which were tenanted by 21 villagers. The construction contractor, one Jayant Mhatre, had agreed to pay some amount to the tenants and actually handed it over to Ramdas Gharat, Ghanashyam and accused Nos. l, 17 & 26. When the witness and other inquired about the amount paid by the contractor, they were told that the amount would be utilized for developmental activities in the village. This led to a quarrel. The matter had been reported to police and a charge sheet had been submitted in respect of that incident about 15 days or one month before the incident in question. He states that on 8th December, 1991 at about 7.00 a.m., his wife woke him up and told him that there was a crowd near the School building and that the crowd was armed with iron bars and sticks. He claims to have come out of the house and noticed his brother Madhukar going towards School building on a bicycle. He states that he followed Madhukar to the School building. The crowd rushed at Madhukar. Accused No.19 Dnyaneshwar Kisan Patil gave a blow by iron bar on the head of Madhukar. Madhukar fell down. PW-l Anant claims to have gone to the rescue of Madhukar and asked as to why the miscreants were beating Madhukar. He saw accused Nos.1, 16, 17, 20, 21, 23, 24, 25 and 26 beating Madhukar with iron bars and sticks. He states that PW-3 Janardan Damodar Patil, PW-4 Vasanti Ramesh Patil as also one Leeladhar Ram Thakur came to his help Madhukar rescued himself and ran towards house' of Jandaran Harishchandra Patil. Madhukar was chased by accused No.22 Raghunath Kisan Patil with a Sword in his hand. Accused Nos. l, 16, 17, 24, 25 and 26 also chased Madhukar. He states that PW-3 Janardan Damodar Patil, PW-4 Vasanti Ramesh Patil as also one Leeladhar Ram Thakur came to his help Madhukar rescued himself and ran towards house' of Jandaran Harishchandra Patil. Madhukar was chased by accused No.22 Raghunath Kisan Patil with a Sword in his hand. Accused Nos. l, 16, 17, 24, 25 and 26 also chased Madhukar. Accused No.22 Raghunath gave a blow by Sword to Madhukar on the left leg. The others were beating Madhukar by iron bars and sticks. He states that accused No.25 Mangal Ramdas Gharat gave a blow by Gupti on his chest. Accused No.17 Laxman Ambu Patil gave a blow by iron bar on his left leg. Accused No.1 Vijay Lahu Patil gave a blow by iron bar on his left shoulder. Accused No.21 Kisan Gangaram Patil hit him on his right shoulder whereas accused No.20 Liladhar Kisan Patil gave a blow by iron bar on his head. He states that he fell down. According to him, PW3 Janardan Damodar Patil, PW-4 Vasanti Ramesh Patil and his wife PW-2 Shantabai Anant Patil as also Liladhar (Who has not been examined) were also assaulted. The miscreants allegedly left the spot while giving slogans about the victory of Red flag (Lal Bavta). He states that Naresh Harishchandra Patil, Naresh Kashinath Pati!, Gangadhar Maruti Patil and Chandrakant Ram Thakur shifted them to hospital at Uran. They went to Uran by a truck and at Uran they went to the hospital by Auto Rickshaw. Police Sub-Inspector Rane came to the hospital and the complaint of Madhukar was recorded, He states that he and Madhukar were then transferred to Sion hospital where Madhukar died. 5. The witness was cross examined extensively about the disputes in the village. It was suggested to the witness that Madhukar was required to attend his duties in ONGC for 15 days in a month. He denied that Madhukar was a member of Site Inspection Committee of Gram Sudhar Mandal or that Madhukar used to visit different contract sites, construction sites and used to collect protection money (khandani) from the contractors by giving threats. He denied the suggestion that the contractors had given a report against Madhukar to the police as also that the contractors had their own gundas at their sites. He stated that victim Madhukar used to go to answer call of nature everyday around the same time towards the same site. He denied the suggestion that the contractors had given a report against Madhukar to the police as also that the contractors had their own gundas at their sites. He stated that victim Madhukar used to go to answer call of nature everyday around the same time towards the same site. According to him, the first blow was given to Madhukar when Madhukar had crossed a distance of 20 feet from the corner of the School and that he had seen Madhukar first when the crowd was about 5-10 feet away from Madhukar. He states that the assault on Madhukar lasted about two minutes before Madhukar stood up and crossed a distance of 40-50 feet towards the house of Janardan. Assault inside the house was also over within about two minutes. 6. He stated that Madhukar was actually lifted by Naresh, Gangadhar and another person by same name Naresh, and brought to the highway from where Madhukar was carried in a truck along with him and others. He admitted that he had not seen his brother Namdeo Gangaram Patil anywhere at the time of incident. (It appears from the evidence that Namdeo had, in fact, first informed the police of the incident). He states that he met Namdeo at 8:30 a.m. in Uran Hospital but had no discussion or talk with Namdeo. He denied that after reaching the place where Maharashtra Bank is situated at Uran, they sent their brother Namdeo to police station. He stated that medical officer started examination of victim Madhukar at 8.00 a.m. and that he himself was examined after 15 minutes. According to the witness, the police were, in fact, informed by the Doctor. Police completed recording of statement of Madhukar by 8.15 a.m.. He states that Madhukar died in Sion hospital at about 12.00 noon to 12.30 p.m. and that he returned to Bokadvira by a taxi at about 4.00 p.m.. The dead body of Madhukar was brought by other villagers at 10.00 to 11.00 p.m. and funeral took place on the next day at 12.00 noon. He states that Police Sub-Inspector Rane came to his house on the very day at about 4.30 p.m. after he returned from Mumbai. The witness denied the suggestion that the victim, in fact, was beaten by (gundas) of contractors whose names he did not know. 7. He states that Police Sub-Inspector Rane came to his house on the very day at about 4.30 p.m. after he returned from Mumbai. The witness denied the suggestion that the victim, in fact, was beaten by (gundas) of contractors whose names he did not know. 7. PW-2 Shantabai Anant Patil is the wife of PW-l Anant, who generally supports the version given by her husband. She too claimed that one Dharmendra Mangal Gharat gave a stick blow on her back in the course of incident. She stated that she had been discharged from the hospital on the same day. In her cross examination, she stated that Madhukar had fallen down and was surrounded by assailants and then Madhukar ran away from the spot. She could not succeed in reaching Madhukar. She stated that when Madhukar was lying on the ground in front of the School, he had not sustained any bleeding injury on his legs or arms. She stated about house of PW-3 Janardan Damodar Patil and PW-4 Vasanti Ramesh Patil being near by. 8. PW-2 Shantabai admitted that deceased Madhukar and her husband PW-l Anant were on friendly terms with one Gopi from Kerala, who had taken contract for drainage of BPCL- a Company. She stated that two galas (blocks) had been constructed in the land sold by them to Gopi. Gopi had left those shops before the incident. She denied the suggestion that her husband and Madhukar were on inimical terms with Gopi or that Madhukar was murdered by Gopi. 9. PW-3 Janardan Damodar Patil states that on 8th December, 1991, he had left his house at about 6:55 a.m. to visit a temple of Lord Ganesha. He heard commotion from the side of School building and a call by Shantabai. He returned to the School building within two minutes and saw that the crowd had assembled to beat Madhukar. He stated that accused Nos. l, 19, 20, 21, 23, 24, 25 and 26 were giving blows to Madhukar. Madhukar then went to the house of Janardan Harishchandra Patil where accused No.22 chased Madhukar with Sword in hand. Vijay Lahu Patil, accused No.1, and others rushed towards Madhukar. He stated that accused No.18 Kishor Gajanan Patil gave a blow by Gupti on his chest just near the left shoulder. Then he stated that the miscreants left, hailing red flag. Madhukar then went to the house of Janardan Harishchandra Patil where accused No.22 chased Madhukar with Sword in hand. Vijay Lahu Patil, accused No.1, and others rushed towards Madhukar. He stated that accused No.18 Kishor Gajanan Patil gave a blow by Gupti on his chest just near the left shoulder. Then he stated that the miscreants left, hailing red flag. He admitted that he had not gone to the Sion hospital. He seems to have been some sort of postman at the village. He admitted that after the accused were released on bail, he had moved an application for cancellation of bail granted to them. He stated that he left his house at 9:30 a.m. by Auto Rickshaw and reached hospital at about 10:00 a.m. and denied that police constable buckle No.1119 took him to the hospital. He denied that he was not assaulted and that his shirt was not stained with blood on that day, but admitted that he had not produced the shirt before the police, claiming that his wife had burnt the shirt. He then admitted that he committed a mistake in telling that the shirt was burnt by his wife but the shirt was not forthcoming. He admitted that a case of dacoity was pending against his sons Manohar and Kishor. He stated that he had shown the spot to police on the same day between 10.30 & 11.00 a.m.. 10. PW-4 Vasanti Ramesh Patil is another eye witness. She claims that at about 7:00 a.m. when she was standing in front of her house, she heard some commotion, noticed a crowd near the school building and therefore, started for the school building. She then found that Madhukar was beaten and then Madhukar ran away towards the house of Janardan followed by accused No.22 Raghunath Kisan Patil. She stated that PW-1 Anant Gangaram Patil and PW-2 Shantabai Anant Patil also followed Madhukar as also accused Nos.20 and 21. She stated that she had seen accused No.22 giving a blow by Sword to Madhukar on his legs. She states that she was also assaulted and sustained a fracture on her left hand wrist but could not state as to who assaulted her. Since she had not supported the prosecution case in its entirety, she was declared hostile but still seems to have deviated from the prosecution story during her cross examination by the learned Assistant Public Prosecutor. She states that she was also assaulted and sustained a fracture on her left hand wrist but could not state as to who assaulted her. Since she had not supported the prosecution case in its entirety, she was declared hostile but still seems to have deviated from the prosecution story during her cross examination by the learned Assistant Public Prosecutor. She admitted in her cross examination that she had been appointed by Block Development Officer's office where victim's brother Y.G. Patil was serving and that Y.G. Patil had helped her in filling up her application. She denied that her husband's death was suspicious but added that the villagers were suspecting that the Congress party workers were responsible for the death of her husband. She denied that her family members got Rs.1,00,000/- from Congress party workers for keeping quiet in that matter. She admitted that she had not actually seen the incident of beating in front of the School building. She contradicted several parts of her police statement. 11. PW-5 Manjula Baban Patil is a daughter of Janardan Harishchandra Patil (not PW-3 Janardan Damodar Patil), who had come to Janardan's house for delivery about 28 days before the incident. She states that when she was lying on a cot inside house and her father was taking tea in the shop, the miscreants entered the house after Madhukar. She claims that she and her father requested the miscreants not to beat Madhukar but the miscreants beat Madhukar in the house and then went away. She admitted in her cross examination that her husband Baban was brother of PW-2 Shantabai. She stated that on the incidental morning at about 7.00 a.m. to 7.15 a.m., her father left the house and went away. She too claims to have left the house and gone to her own house. She stated that she witnessed the incident inside her house for about two to three minutes. 12. PW-6 Jaywant Gangaram Patil did not see actual assault but saw stone pelting possibly after the incident. He stated that the miscreants went shouting slogans towards the creek and were chased by police officers. He stated about 7:45 a.m., police came towards his house which may be an accurate version. 13. PW-7 Dr. Vasant Rakhamaji Dhakane conducted post mortem on the body of Madhukar. He found the following injuries on the person of Madhukar. He stated that the miscreants went shouting slogans towards the creek and were chased by police officers. He stated about 7:45 a.m., police came towards his house which may be an accurate version. 13. PW-7 Dr. Vasant Rakhamaji Dhakane conducted post mortem on the body of Madhukar. He found the following injuries on the person of Madhukar. "Three incised wound over backside of the head. One incised wound over right parietal region ½ cm x ½ cm x bone deep. One incised wound over left eye brow 1½cm x 1½ cm x bone deep. One incised wound 4 cm x ¼ cm x deep over right shoulder posterior side. One incised wound over medial aspect of left elbow joint 3 cm x ½ cm x muscle deep. One incised wound over lateral aspect of right leg just above ankle joint 1½ cm x ½ cm x muscle deep. One 'V' shape incised wound over right leg just below ankle joint lateral aspect. Four incised wound over left leg medial aspect above ankle joint. Abrasions seen over face anterior chest bone lateral abdominal wall, both elbow joint, right leg below knee joint. Bruises been over right side posterior shoulder both elbow joint, right knee joint over the anterior andominal wall, lateral side multiple bleeded lose mark seen. Then pallar plus are the external findings. On internal examination scalp shows hematoma over occipital region right parietal region and left frontal region. Skull shows no fracture. Brain shows no extra dural haemorrhage. Mild congestion on cut section unremarkable. On cut section shows congestion heart nothing abnormal is detected. Stomach shows 20 cc of brown colour fluid no specific smell. Flucosa nonnal, liver splin kidney nothing abnormal detected. Bruises seen over right shoulder posterior side both elbow joint, right knee joint on incision of the bruises blood clots seen weight 100 grams." He stated that the cause of death was shock due to multiple injuries and that visceral organs were sent to Chemical Analyzer. He proved notes of post mortem examination at Exhibit 52. He stated that after the receipt of report from the Forensic Science Laboratory, he confirmed the provisional cause of death to be the final cause of death. He stated that incised wounds were caused due to sharp weapons and that they were sufficient in ordinary course of nature to cause death. He stated that after the receipt of report from the Forensic Science Laboratory, he confirmed the provisional cause of death to be the final cause of death. He stated that incised wounds were caused due to sharp weapons and that they were sufficient in ordinary course of nature to cause death. He admitted in his cross examination that death occurred due to excessive loss of blood. He admitted that there was no hemorrhage in the brain. He stated that if fluid replacement could have been given immediately, patient could have survived. 14. PW-8 Atmaram Gangaram Patil is a panch at spot panchanama recorded vide Exhibit 55. He also witnessed panchanama of seizure of clothes of the victim vide Exhibit 56. 15. PW-9. Shantaram Damodar Patil is a panch at several memoranda of statements made by the accused persons and seizures effected vide panchanamas at Exhibit Nos.58 to 80, which have not been believed by the trial Court. 16. PW-10 Dr. Ganesh Parshuram Narayankar, a Medical Officer at Uran hospital had examined Madhukar on 8th December, 1991 at 8:10 p.m.. He found several injuries on the person of the victim, which match with those eventually found by the autopsy surgeon, PW-7 Dr. Dhakane. He stated that cumulative effect of the injuries could lead to death. He stated that police had come to the hospital, obtained his permission for recording statement of victim, who was in a condition to give statement. However, the statement itself was not recorded in his presence. The police then produced the statement before him and he endorsed that the victim was conscious. According to him, it was a decision of police officer to record dying declaration of Madhukar and not his suggestion. He admitted that he had not made an endorsement about Madhukar's fitness when recording of statement began. Dr. Ganesh Narayankar had observed that some injuries observed on Madhukar were fresh whereas some were caused within four hours and therefore, he was asked whether he suggested that those injuries were caused at different point of time. He stated that it was not his intention to so suggest. 17. He also stated about examination of PW-1 Anant, PW-2 Shantabai, PW-3 Janardan, PW-4 Vasanti as also one Liladhar and proved Medico-legal Certificates of those persons at Exhibit Nos.82 to 87. He stated that it was not his intention to so suggest. 17. He also stated about examination of PW-1 Anant, PW-2 Shantabai, PW-3 Janardan, PW-4 Vasanti as also one Liladhar and proved Medico-legal Certificates of those persons at Exhibit Nos.82 to 87. In cross examination, he stated that as many as 7 patients were brought to the hospital and he was busy in treating them. He stated that the patients had been referred to him by the police and produced the requisitions at Exhibit Nos.88 and 89. He stated that patients had been brought by Police Constable Buckle No.1119. He stated that along with the patients, there was a crowd of their relations. 18. PW-11 Harishchandra Rambhau Patil is a panch at the panchanama recorded vide Exhibit 92 which showed that brickbats were lying at the spot. It is about damage caused to the house of Jaywant Gangaram Patil - PW-6. 19. PW-12 Ramesh Krishna Patil is a panch, who refused to support the prosecution case about any seizure effected from accused persons at the time of their arrests. 20. PW-13 Deepak Bhalchandra Patil claimed to be a panch at the recovery of sticks at the instance of accused Narendra Janardan Patil, Dattatraya Gajanan Patil, Padmakar Hiraji Patil, Manohar Mangal Gharat vide Exhibit Nos.95 to 108. 21. PW-14 Hareshwar Bhaskar Patil is another panch, who states about memorandum of statement of accused Liladhar Kisan Patil, Dharmendra Mangal Gharat, Raghunath Budhaji Patil and recoveries made. He proved memoranda of statements and panchanama at Exhibit Nos.110 to 115. 22. PW-15 Assistant Sub-Inspector Shivaji Dhondu Pawar states that he was on duty at Uran police station on 8th December, 1991 in the morning. He had received a report by Madhukar from Police Sub-Inspector Rane for registration of crime and accordingly, registered Crime Registration No.131 of 1991. He states in his cross examination that on 8th December, 1991, ASI Mase made an entry at about 8:05 a.m. in the station diary stating that Namdeo Gangaram Patil had come to the police station and informed that some quarrel is going on at village Bokadvira. The entry records that the information was passed on to Police Sub-Inspector Rane, who proceeded to village Bokadvira by police jeep by taking several staff members. The entry records that the information was passed on to Police Sub-Inspector Rane, who proceeded to village Bokadvira by police jeep by taking several staff members. He admitted that the endorsement at Exhibit 119 of Police Sub-Inspector Rane forwarding complaint of Madhukar is undated and he has also not put any date below his signature about registration of offence. 23. PW-16 Police Sub-Inspector Arjun Shankar Rane stated that he was attached to Police Station, Uran. On 8th December, 1991, in the morning at about 8:15 a.m., Police Head Constable Pawar sent police jeep to his residence. The driver disclosed to him that a quarrel was going on at village Bokadvira and four to five persons had sustained injuries. He claims to have gone by jeep to village Bokadvira along with other staff members. When he took a round in the village, he spotted accused No.17 Laxman Ambu Patil running towards the creek. Laxman was rounded up. Since Jaywant Gangaram Patil (PW-6) reported about stone pelting, he claims to have deputed two police constables to the residence of Jaywant Patil. He received wireless messages that injured persons were referred to the hospital at Uran and therefore, he claims to have immediately returned to Uran. He stated that he told Dr. Ganesh Narayankar that he wanted to record statement of Madhukar and the doctor accordingly asked him to record the statement. He stated that since Madhukar was found to be fit to make statement, he recorded Madhukar's statement which is at Exhibit 118 and which was duly endorsed by Dr. Ganesh Narayankar. He sent that statement for registration of offence. He states that Janardan Damodar Patil (PW-3) met him in the hospital and accompanied him to village to show the spot where panchanama of spot was drawn up. A bicycle found on the spot was seized. That panchanama is at Exhibit 55. At that time, when he and his staff members were in search of other miscreants, one of the staff members told him that other miscreants were running towards the Creek and therefore, 17 accused persons were chased, arrested, brought back to the police station and kept in the lock up. He proved arrest panchanama of those 17 accused persons as also accused No.17 Laxman Ambu Patil, who was earlier rounded up. This panchanama is at Exhibit 120. He then stated about recovery of weapons, searches carried out etc.. He proved arrest panchanama of those 17 accused persons as also accused No.17 Laxman Ambu Patil, who was earlier rounded up. This panchanama is at Exhibit 120. He then stated about recovery of weapons, searches carried out etc.. The witness stated that "I recorded their memorandum statements. As their statements. Weapons were discovered and said were seized by recording separate panchanamas at Exhibits 58, 59, 60 and 61, are the statements of discovery panchanamas. On 12.12.1991 search of other accused was made but they were not traced." He deposed in the same manner about discoveries at the instance of other accused persons. It is possible because this type of evidence given by the witness about recoveries made that the learned trial Judge had rightly refused to believe the evidence about recoveries. He was categorical in his cross examination that the injured persons had not been referred by police to Uran hospital but in fact, it was the Doctor, who had sent a message to Assistant Sub-Inspector Mase that the injured persons were already in the hospital. He admitted that he did not record statement of Namdeo Gangaram, who was the first person to report about the incident to police. In the statement of Madhukar at Exh.118, names of accused Nos.24 and 25 are mentioned as Dharma Mangal Patil and Mangal Ramdas Patil who, according to the witness are not Patils but Gharats. He, however, stated that their surnames were stated by deceased Madhukar as Patil and so he recorded. He admitted that there were Mamlatdar, Additional Mamlatdar and Executive Magistrates at Uran. Yet he did not make any request to any Executive Magistrate to record statement of Madhukar. He proved contradictions in the statements of witnesses vide Exhibits 124 to 129. 24. The learned Senior Counsel for the appellants submitted that the learned Sessions Judge was not justified in convicting the appellants after having found that the evidence about discoveries of weapons at the instance of appellants was discrepant & unreliable (para 24 of judgment); disbelieving the injured eye witnesses PW-No.1 Anant, PW2 Shantabai about the injuries suffered by them (para 29 of judgment), & disbelieving other eye witnesses PW-3 Janardan, PW-4 Vasanti and PW-5 Manjula (paras 20, 21 and 22 of the judgment). Curiously witness Manjula's father, who too was allegedly present, was not examined, though a part of the incident in fact allegedly took place inside his house. Curiously witness Manjula's father, who too was allegedly present, was not examined, though a part of the incident in fact allegedly took place inside his house. One Liladhar who too was allegedly injured was not examined at the trial. If the injured eye witnesses could not be believed about their own injuries, the learned counsel wondered as to how they could be believed in respect of injuries sustained by Madhukar. 25. The learned APP on the other hand submitted that this court need not go by the trial Court's rejection of evidence of eye witnesses or evidence about discoveries by the learned trial judge and the evidence of these witnesses may be independently evaluated to find out if it could support the conclusions drawn by the trial judge. She submitted that there are bound to be some discrepancies in the evidence of witnesses examined over 5 years after the incident. For this purpose she relied on the following judgments. 26. In Sukhdev Yadav And Others Vs. State of Bihar, reported in (2001) 8 Supreme Court Cases 86 the Supreme Court held as under: "It is now well-settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence ...." 3. It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account....." 27. In Leela Ram (Dead) Through Duli Chand Vs. State of Haryana And Another, reported in (1999) 9 Supreme Court Cases 525 the Supreme Court held as under : "9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony: (1985) 1 SCC 505 : AIR 1985 SC 48 . In para 10 of the Report, this Court observed: (SCC pp.514- 15) "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals." 28. Even the learned trial judge had observed that the maxim falsus in uno falsus in omnibus is not applicable in India while relying on the evidence of PW-Nos. l and 2 about assault on the victim, as he did not accept their evidence about injuries suffered by themselves. PW- 1 Anant had sustained 8 injuries and PW-2 Shantabai had sustained 2 injuries as per the evidence of PW-10 Dr. Narayankar. The learned judge had refused to believe PW-l Anant because he attributed incised wound on his chest to have been caused by accused No.25 Mangal by a gupti, when there was no evidence to show that Mangal had a gupti with him when he entered the house of Janardan where Anant was assaulted. Also while he claimed that accused No. 17 Liladhar gave a blow by iron bar on his left leg or claimed that accused No.1 Vijay gave a blow on his left shoulder, Dr. Narayankar did not find any such injuries. As for PW-No.2 Shantabai, she attributed a blow by iron bar on her left leg to accused No. I Vijay, but this was not to be found in her statement. She stated that accused No.9 Dattatraya gave blow on her back when according to Dr. Narayankar, there was no injury on her back. Narayankar did not find any such injuries. As for PW-No.2 Shantabai, she attributed a blow by iron bar on her left leg to accused No. I Vijay, but this was not to be found in her statement. She stated that accused No.9 Dattatraya gave blow on her back when according to Dr. Narayankar, there was no injury on her back. If a witness cannot correctly remember who were the authors of injuries caused to him/her, obviously the learned judge could not have believed such witness. True, the maxim "falsus in uno falsus in omnibus" does not hold good in India. But in my view when a witness does not remember correctly the author of injury to him, his version about injuries caused to victim Madhukar would at least become suspect and could not be accepted without corroboration. This is why possibly the learned judge too sought to either corroborate the evidence of these witnesses by the dying declaration or vice versa. 29. As for the evidence of PW No.3 Janardan his evidence was rightly rejected by the learned trial judge first because he attributed injury to him as having been caused by accused No.18 Kishore, about whose presence at the first incident, the witness himself does not state anything. Apart from this, there are glaring discrepancies in his evidence about his having accompanied victim Madhukar to Sion Hospital at Mumbai, as also his claim to have shown the spot in the village to the investigating officer at the same time. He claimed that his shirt was torn due to the blow by gupti, and then went on to make contradictory statements about the shirt. His evidence was rightly discarded by the learned trial judge. 30. PW-No.4 Vasanti's contradictory evidence has also been correctly assessed by the learned trial judge. She had, in fact, admitted not having seen the incident in front of school building, and had been declared hostile. 31. PW-No.5 Manjula's presence at the house of her father, where the second incident took place, and her evidence about leaving her father's house have been correctly dealt with by the learned trial judge to conclude that her testimony had to be rejected. Curiously, her father Janardan Harishchandra Patil, who should have been a natural witness of the incident in his house, has not been examined. 32. Curiously, her father Janardan Harishchandra Patil, who should have been a natural witness of the incident in his house, has not been examined. 32. Thus, it cannot be said that the learned trial judge erred in rejecting the evidence of PW Nos. 3 to 5, and refusing to base his conclusions on the evidence of PW Nos. 1 and 2 alone. He had accepted their evidence in so far as it was in consonance with the dying declaration. The question therefore is whether he could have done so. 33. As to the contention about non-examination of PW-No.5 Manjula's father Janardan Patil, injured person Liladhar and independent witnesses, the learned Additional Public Prosecutor, relied on judgment in Ambika Prasad and another Vs. State (Delhi Admn., Delhi) with Ram Chander Vs. State (Delhi Admn.) with Rajinder Singh Vs. State (Delhi Admn.), reported in AIR 2000 Supreme Court 718, where the Supreme Court held as under:" 12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW-5 and PW-7. This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose truth before the Court. Independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case, if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with similar contention in State of U.P. v. Anil Singh, ( AIR 1988 SC 1998 : 1989 Cri.L.J.88) (supra) this Court observed (para 13): "......In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. Dealing with similar contention in State of U.P. v. Anil Singh, ( AIR 1988 SC 1998 : 1989 Cri.L.J.88) (supra) this Court observed (para 13): "......In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of collaboration by independent witnesses if the case made out is otherwise true and acceptable." 13. The learned counsel for the accused further raised the contention that there was delay in recording the statements of injured witnesses, therefore, their evidence should not be accepted, also requires to be rejected. 34. The learned Additional Public Prosecutor submitted that it is not the defence case that Madhukar was not murdered. The defence contends that Madhukar had other enemies, who murdered him. In this context, the learned Additional Public Prosecutor relied on judgment in Ram Swaroop and others Vs. State of U.P., reported in AIR 2000 Supreme Court 715 where the Supreme Court held as under: “5..... It may be stated that in the trial court accused did not challenge the factum of murder but the place and time of the incident, as according to accused some unknown persons committed murder of deceased Raja Ram during night and also caused injuries to Jagannath and Rameshwar but as the assailants could not be recognised accused were falsely implicated due to previous enmity." Therefore, according to the learned Additional Public Prosecutor, non-examination of some witnesses need not result in rejecting evidence of relations of the deceased about authors of the assault on the deceased. 35. The learned Senior Counsel submitted, and rightly in my view that implications of non-examination of material witnesses would differ from case to case. Also, it need not be held as a rule that when factum of murder is not disputed, the account of assault given by victim's relations should be accepted for its face value. 35. The learned Senior Counsel submitted, and rightly in my view that implications of non-examination of material witnesses would differ from case to case. Also, it need not be held as a rule that when factum of murder is not disputed, the account of assault given by victim's relations should be accepted for its face value. The learned Senior Counsel for the appellants submitted that non-examination of Namdeo, who was the first person to report the incident to police, during investigation and at the trial would cast a doubt on the whole case. 36. The learned counsel for appellants submitted that the learned trial judge seems to have relied on the alleged dying declaration of the deceased as corroborated by the account given by PW Nos. 1 Anant & 2 Shantabai. This dying declaration is not in form of questions and answers, and not signed by the deceased who could sign, but bears a thumb mark of the deceased which is not attested by anyone. Further though the Executive Magistrate could have been requested to record the dying declaration, no Magistrate was so requested. The dying declaration does not bear any endorsement of the Medical Officer at the beginning. It is recorded in language which only a police officer could use and therefore, ought to have been rejected. In Akbari Begum And Ors. Vs. State, (Criminal Appeal No.371 of 1997), reported in MANU/DEJ2014/2011 which was cited by the learned counsel for appellants, the Delhi High Court held as under: "17. Even the contents of dying declaration do not inspire much confidence in as much as according to the said EX.PW-8/C the incident took place because Shahjahan's son had been pushed by her sister-in-law Rabia's son and that she had accordingly complained to the mother-in-law Akbari Begum who instead of controlling the situation scolded her and therefore a quarrel ensued. Thereafter, all the Appellants poured kerosene oil upon her from behind. Akbari Begum lit the match stick. The incident of one small child being pushed by another small child escalating into such a serious event also does not seem to be probable. In the same light, we may also notice the fact that Ex. PW-8/C ropes in all the female members of the house, which are the four Appellants before us. Akbari Begum lit the match stick. The incident of one small child being pushed by another small child escalating into such a serious event also does not seem to be probable. In the same light, we may also notice the fact that Ex. PW-8/C ropes in all the female members of the house, which are the four Appellants before us. We may also point out that the language in which dying declaration is recorded is clearly not that of Shahjahan but is that of a police officer." 37. The learned counsel for the appellants relied on the judgment of this Court in State of Maharashtra Vs. Maheshsingh s/o. Harishsingh Thakur, reported in 2006 ALL MR (Cri) 1438 wherein it is held as under: “13. The object of having a statement recorded by a Magistrate is to ensure an uninfluenced recording of the declaration as to the cause of injuries sustained by a victim. When a police Officer takes an active part in recording of the statement, possibility of pushing up his own theories about the incident would remain open. Therefore, the Dying Declaration, which seems to have been recorded by A.S.I. Trivedi himself and merely endorsed by Smt. Bopulkar cannot be enough to conclude that the respondent was the author of injuries which led to his wife's death. In any case, this Dying Declaration, recorded in the circumstances enumerated above, does not outweigh the effect of the evidence of victim's sons Mangesh and Rajesh." 38. In State (Delhi Administration) Vs. Laxman Kumar And Others And Indian Federation Of Women Lawyers And Others Vs. Smt. Shakuntala And Others, reported in (1985) 4 Supreme Court Cases 476 on which too the learned counsel for appellants relied; the Hon'ble Supreme Court held as under: “22. The other part of the dying declaration is the written one in the handwriting of PW 17 and said to have been attested by DW 1. This is claimed to have been written at the hospital a couple of hours after Sudha had been taken there. PW 17 approached the doctor for requisite permission and DW 1 after examining the condition of Sudha and after being satisfied that she was in a fit condition to make a declaration, permitted the same to be recorded. It has admittedly been written by PW 17. It has not been signed by Sudha though she was literate enough. PW 17 approached the doctor for requisite permission and DW 1 after examining the condition of Sudha and after being satisfied that she was in a fit condition to make a declaration, permitted the same to be recorded. It has admittedly been written by PW 17. It has not been signed by Sudha though she was literate enough. As the evidence shows, there is a partial impression of a finger tip said to be of Sudha on the document. This is said to have been put with the assistance of the Investigating Officer who recorded the statement and DW 1. When the doctor was available there was no justification for the police officer to record the statement. PW 17 was specifically asked by the prosecution as to why the statement was not got recorded by a Magistrate or a doctor. He gave the following answer: "So far as the magistrate is concerned, I thought that during the night the Magistrate might not be easily available and in the mean time the injured might die. So far as doctor is concerned, generally they refuse to record a statement and in this case he had so refused to record the statement himself. He had, however, asked me to write the same under his permission". The doctor, DW 1 on the other hand stated: "I did not suggest or impress upon the police officer that he should call a Magistrate to record the statement or her own relation to be present, at the time of her statement, nor I volunteered to record the statement myself. It would be incorrect that the police officer had requested me to record the statement of Sudha and that I had refused to do so. The explanation of the police officer is, therefore, not accepted by the doctor. The justification advanced by the police officer for not looking for a Magistrate does not appear to be easily convincing. At any rate, when the doctor was available, he should have been requested to record the dying declaration and PW 17 should not have taken the job on himself. We are prepared to prefer the evidence of the doctor to the police officer in this regard and we, therefore, hold that the police officer did not request the doctor to record the statement and had volunteered to do so all by himself." 28. We are prepared to prefer the evidence of the doctor to the police officer in this regard and we, therefore, hold that the police officer did not request the doctor to record the statement and had volunteered to do so all by himself." 28. We also find that under the relevant Rules applicable to Delhi area, the investigating officer is not to scribe the dying declaration. Again, unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the Court. Considered from these angles, the dying declaration in question is not acceptable. The High Court obviously lost sight of all these aspects when reversing the conclusion of the trial Court with regard to the document and agreeing to act upon it." 39. The learned counsel submitted that the dying declaration contains elaborate details which a person who in fact died within two hours of making it could not have given. The dying declaration contains names of Dhanna and Mangal from the village who were well known to the deceased and therefore he could not have told their surnames as Patils when they were in fact Gharats. The learned counsel, therefore, submitted that the dying declaration itself was suspicious & could not have been the foundation of appellants conviction. In support of his contention, he relied on judgment in Mohar Singh and Ors. Vs. State of Punjab, reported in 1981 Supp. (1) SCC 18 where the Hon'ble Supreme Court held as under: “3. The central evidence against the appellants consisted of the dying declaration recorded by the Investigating Officer, ASI Nirmal Singh (PW-12) which was said to have been corroborated by the ocular testimony of P.Ws. 3 and 4. PW- 3 was the wife of Kartar Singh, deceased and PW- 4 was a ten year old son. Both the High Court and the trial Court based the conviction mainly on the dying declaration recorded by PW- 12. The evidence of P.Ws 3 and 4 were used by the Court below to corroborate the evidence furnished by the dying declaration. 5. We have, however, been taken through Ext. Both the High Court and the trial Court based the conviction mainly on the dying declaration recorded by PW- 12. The evidence of P.Ws 3 and 4 were used by the Court below to corroborate the evidence furnished by the dying declaration. 5. We have, however, been taken through Ext. P-19, the statement of the deceased Kartar Singh and we find that he has given a very detailed and graphic narration of the entire history of the case, starting from the motive, the enmity and minutest features of the assault excluding the individual acts committed by the appellants. He has also mentioned that the appellants assaulted him with Kassi. The ocular evidence however is that the deceased was attacked not by Kassi but by spade. In view of the detailed and extremely coherent nature of the dying declaration, we find it impossible to believe that the deceased even if conscious would have made such a detailed statement. We are, therefore, inclined to think that this statement smacks of concoction of fabrication in order to make the present case foolproof. At any rate, we find it wholly unsafe to rely on the dying declaration, particularly, when PW-12 did not take the necessary precaution of getting the dying declaration attested by the wife who was stated to be present there or the doctor who was alleged to be present in the hospital. Thus, the dying declaration has to be excluded from consideration. That being the position the only evidence which we are left with consists of the statements of P.Ws. 3 and 4. The evidence of these witnesses also cannot be relied upon. They are in direct conflict with the medical evidence. While both the witnesses categorically state that the appellants assaulted the deceased with spades with which the earth was being dug out either from the sharp or the blunt side, the doctor (PW-1) who held the autopsy of the deceased has clearly stated that the injuries could be caused only by a Kassi. No question was put by the prosecution to the doctor whether any or all of the injuries on the deceased could be caused in the manner alleged by the witnesses i.e. by a spade." 40. The learned counsel for the appellants also relied on judgment in Laxmi (Smt) Vs. No question was put by the prosecution to the doctor whether any or all of the injuries on the deceased could be caused in the manner alleged by the witnesses i.e. by a spade." 40. The learned counsel for the appellants also relied on judgment in Laxmi (Smt) Vs. Om Prakash And Others, reported in (2001)6 Supreme Court Cases 118, where the Supreme Court held as under: "29. A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of here say. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances. [see Tapinder Singh Vs State of Punab reported in 1970 SCC (Cri) 328. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das Vs State of Rajasthan reported in A.I.R. 1957 SC 589 the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh Vs State of M.P, reported in 1981 Supp SCC 25, the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made a coherent statement. In Darshan Singh Vs. State of Punjab - reported in (1983) 2 SCC 411 , this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh Vs State of Punjab reported in 1981 SCC 18 , the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present. 30. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers to avail the services of a Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer, later on relied on as dying declaration. In Munnu Raja and Anr. Vs The State of Madhya Pradesh reported in (1976)3 SCC 104 , this Court observed (SCC p.108, para 11) "Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to be encouraged". The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as the failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh Vs. The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as the failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh Vs. State of Punjab reported in [1979] SCC (Cri) 968, this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful." 41. The learned counsel for appellants, therefore, submitted that the learned trial Judge should not have based conviction on such a dying declaration. 42. The learned APP countered by submitting that the Investigating Officer recorded statement of the victim without calling an Executive Magistrate because he may not have, at that stage, felt that the victim would succumb to his injuries. He was simply recording a report, which, on account of the victim's demise became a dying-declaration. Therefore, the learned APP wanted the objections to the dying declaration to be rejected, and for this purpose placed reliance on two judgments. 43. In Tellu and another Vs. State, reported in 1988 CRI.L.J. 1062 the Delhi High Court placing reliance on Section 162 of the Code of Criminal Procedure, held as under: "S.162. Therefore, the learned APP wanted the objections to the dying declaration to be rejected, and for this purpose placed reliance on two judgments. 43. In Tellu and another Vs. State, reported in 1988 CRI.L.J. 1062 the Delhi High Court placing reliance on Section 162 of the Code of Criminal Procedure, held as under: "S.162. Statements to police not to be signed: Use of statements in evidence- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when was made: xx xx xx xx xx xx (2) Nothing in this section, shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act." "20. So, the plain reading of this provision of law makes it abundantly clear that such a statement made by person to police officer is not to be signed by the maker thereof nor such a statement can be used for any purpose but it can be used if it falls within the provision of clause (1) of section 32 of the Indian Evidence Act as is the position in the case in hand in respect of statement Ext.PW22/E of Ram Karan injured who died subsequently. It is also a matter of wide knowledge that when statements of witnesses are recorded by the investigating police officer during investigation under section 161 of the Code, they are recorded not in the presence of any Magistrate or any Doctor. It is only under peculiar circumstances that such a statement subsequently gets converted into a dying declaration under subsection (1) of section 32 of the Evidence Act when the maker there of who is the victim of the crime dies subsequently after the making of the statement to the police officer who did not record it as a dying declaration. It is only under peculiar circumstances that such a statement subsequently gets converted into a dying declaration under subsection (1) of section 32 of the Evidence Act when the maker there of who is the victim of the crime dies subsequently after the making of the statement to the police officer who did not record it as a dying declaration. For these reasons, the above quoted observations of the learned trial Judge from the impugned judgment appear to be of no consequence." 44. In Babu Lal and others Vs. State of M.P., reported in AIR 2004 SUPREME COURT 846 : [2005 ALL MR (Cri) 1269 (S.C.)] the Supreme Court held as under: "7. The pivotal point which was pressed into service with some amount of vehemence was acceptability of dying declaration. There is no legal bar for the information given by the deceased to be treated as a dying declaration....." 45. I have carefully considered the rival contentions in the light of the judgments relied on. There can be no doubt about the proposition that even a report may eventually become a dying declaration. The question, therefore, is whether the officer was recording an F.I.R. or statement of a victim, who was seriously injured. 46. The learned counsel for the appellants submitted that the first report about the incident was in fact given to the police by victim's brother Namdeo Gangaram Patil, which was received by ASI Mase. Though both Namdeo Patil and ASI Mase, were thus important witnesses, the investigating officer had not recorded their statements & they were not examined at the trial. Therefore, according to the learned counsel, the learned trial judge should have seen that there was sufficient room for doubt that real story was being suppressed and appellants were being falsely implicated due to the fact that they belonged to a rival faction. Non-examination of Namdeo and ASU Mase by the investigating officer and their non-examination at trial indeed cast a doubt on the prosecution case. 47. This takes me to the question of reliability of the dying declaration according to PW-10 Dr. Narayankar, the victim was brought to the hospital by police at 8:10 a.m.. He examined the victim. The police then asked whether the patient was in a position to make a statement. He answered that the patient was in a position to give a statement. Narayankar, the victim was brought to the hospital by police at 8:10 a.m.. He examined the victim. The police then asked whether the patient was in a position to make a statement. He answered that the patient was in a position to give a statement. The statement was however not recorded in his presence. After the statement was recorded the officer brought the statement to him and he endorsed that the patient was conscious. The investigating officer PW-16 P.S.I. Rane stated that when he had gone to village Bokadvira he received a message that the injured persons had been taken to hospital. He therefore went to the hospita1. He stated that Madhukar Ganga ram Patil was lying on a stretcher in the dressing room. The doctor asked him to record statement of Madhukar. He recorded the statement of Madhukar, obtained endorsement of the doctor, and sent the statement to the police station officer for registering a crime. This statement is at Exhibit 118. It does not show the time at which it was actually recorded. The statement shows that an offence was registered at 10:00 a.m. on that day bearing Crime Number 131 of 91. PW-16 P.S.I. Rane states that he immediately proceeded to village Bokadvira with PW-3 Janardan Damodar Patil. Janardan too stated that on that day he showed the spot of offence to the police at about 10:30 to 11:00 a.m.. In cross examination Janardan first denied having gone with Madhukar to Sion Hospital. However, he later stated that he had accompanied the injured persons to Sion hospital and returned to the village after the death of Madhukar. PW-8 Atmaram Patil was the panch at the panchanama of spot recorded vide Exhibit 55. In his cross examination he stated that he got the knowledge of death of Madhukar at about 4:00 p.m.. He did not know whether Madhukar died at 12:25 p.m.. He stated that when the panchanama was recorded he did not have the knowledge of death of Madhukar. The panchanama, however, refers to Madhukar as "the deceased" in penultimate para. The witness stated that this reference to deceased in the panchanama was incorrect. PW-16 PSI Rane states that at 12:00 noon he received the message of death of Madhukar. Thus, when the panchanama Exhibit 55 was concluded at 11:30 a.m. the officer as also the panch did not know of death of Madhukar. The witness stated that this reference to deceased in the panchanama was incorrect. PW-16 PSI Rane states that at 12:00 noon he received the message of death of Madhukar. Thus, when the panchanama Exhibit 55 was concluded at 11:30 a.m. the officer as also the panch did not know of death of Madhukar. Therefore, the reference to "deceased" in the panchanama is intriguing. As rightly submitted by the learned senior counsel for the appellants, if when panchanama was recorded till 11:30 a.m. Madhukar was already dead, his elaborate statement recorded by PSI Rane at 8:30 a.m. would become suspicious. 48. In this context, the evidence about dying declaration at Exhibit 118 has to be examined. Apart from the language used for recording the statement as also wrong reference to surname of 2 appellants it would appear that the statement was recorded soon before the victim was shifted to hospital at Mumbai where he succumbed to his injuries within 4 hours. If PW-3 Janardan had indeed accompanied the victim to the hospital at Mumbai and returned only at 4:00 p.m. he could not have shown the spot when the panchanama was recorded by 11:30 a.m. If he was indeed present when the panchanama was recorded it would imply that the time mentioned thereon was not correct. The reference to deceased in the panchanama would show that by that time the officer had come to know of death of the victim. Therefore, the question as to whether the victim was indeed in a position to make any elaborate statement evidenced by Exhibit 118 arises. If there are such mistakes in recording time in the panchanama as also the recitals thereof, when read with the wrong reference to surnames of two appellants as also the fact that the document does not bear the signature of the deceased but only bears his thumb mark, it would give rise to a suspicion as to whether the statement was indeed made by the victim or was drawn up and only his thumb mark was taken. It has also to be noted that the statement was not recorded in the presence of the doctor. This, coupled with the suppression of the report given by victim's brother Namdev Gangaram would give rise to a reasonable doubt that the real story is sought to be suppressed. It has also to be noted that the statement was not recorded in the presence of the doctor. This, coupled with the suppression of the report given by victim's brother Namdev Gangaram would give rise to a reasonable doubt that the real story is sought to be suppressed. When an investigating agency indulges in showing things to have been done in a manner other than what could have happened naturally doubt would arise whether the dying declaration, which is sought to be made the foundation of convictions of appellants, was at all made by the victim. 49. To sum up, Ist the investigating officer has not only not produced the report given by victim's brother Namdev Gangaram but also failed to record his statement and examine him in the court. ASI Mase who is supposed to have recorded the report of Namdev has not been examined. This gives rise to a possibility that the story which is coming up before the court is different from what was actually initially communicated to the police. When the evidence of eye witnesses is viewed in this light the discrepancies therein get explained. The witnesses contradict themselves and are not in a position to state correctly about the authors of injuries sustained by them only because of the possibility that they are trying to give a version of the incident which is different from what actually happened. When the learned trial judge found the evidence about discoveries discrepant and unreliable, and when he found that the eye witnesses too could not be relied upon, the conclusions drawn could not have been supported by a suspicious dying declaration. At the cost of repetition it has to be clarified that the dying declaration is in the language used by police. If it is taken that the language is so used because the officer was recording a report and not a dying declaration, still it is not clear as to how he could record two wrong surnames. Since the victim died soon thereafter it is not clear as to how he could make an elaborate statement. Looking at the totality of these circumstances unfolded there is a grave doubt as to whether the appellants were indeed perpetrators of assault on Madhukar or whether the real story is sought to be suppressed by the investigating agency as also the prosecution witnesses, benefit whereof must go to the appellants. Looking at the totality of these circumstances unfolded there is a grave doubt as to whether the appellants were indeed perpetrators of assault on Madhukar or whether the real story is sought to be suppressed by the investigating agency as also the prosecution witnesses, benefit whereof must go to the appellants. 50. There is another doubtful feature about investigation. The investigating officer claimed to have gone to the village immediately on receiving message and rounded up one of the miscreants. This should have alerted the miscreants that they too would be picked up. He returned to Uran on receiving the message that the injured persons were in hospital at Uran. After recording statement of the victim the officer returned to the village & then claimed that he spotted other accused persons running towards the creek when he picked them up, as if the accused persons were waiting for the officer to return before trying to run away. This is apart from the fact that the number of persons whom the officer claims to have rounded up could not have been carried in his jeep as also the fact that the only panchanama of arrest of the accused persons does not show that one of the accused persons was first arrested & then the rest. When considered along with the suppression of the first report & non examination of Namdev who first approached police as also ASI Mase who is supposed to have received the report would fortify the doubt that all was not well in the manner in which investigation was carried out. 51. In view of this, the appeal is allowed. Conviction of the appellants for the offences punishable under Sections 148, 304(Part II) read with Section 149, Section 452 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act and sentences imposed are set aside. They are acquitted of the said offences. Their bail Bonds stand cancelled. Appeal allowed.