JUDGMENT A.C. Upadhyay, J. 1. The accused/appellants above named were put on trial for commission of offence under Section 302, IPC, read with Section 34, IPC in Sessions Case No. 60 (NT/K) 2010, in the Court of learned Sessions Judge, North Tripura, Koilasahar. On conclusion of the trial, the appellants were convicted under Section 304, Part II read with Section 34 of IPC and sentenced to undergo imprisonment for 6 years and also to pay fine of Rs.15,000/- with default stipulation of 1 year imprisonment. 2. The prosecution case in short, is that on 15.9.2009 while Mahim Debnath (PW 1) was returning home at about 10.30 p.m. in the night, he heard hue and cry in the house of Tarani Debnath and he saw that accused Shankar Debnath and Nripendra Debnath, fleeing away from the place of occurrence. PW 1 rushed to the house of Tarani and found his brother, Prabar Debnath with bleeding injuries on his person. Tarani and his wife both were pouring water on head of the injured. Thereafter an auto-rickshaw was arranged for shifting the injured to the hospital. While the injured was carried to the hospital in the Auto, the victim reportedly told PW 1 as follows : Shankar Debnath and Nripendra Debnath apprehended me in front of the house of Nripendra. At that moment Shankar had a 'dao' (sharp cutting weapon) in his hand. In this condition out of fear of life I entered the house of Tarani Debnath by running and knocked the door saying save (me), save (me). At that time Shankar Debnath dealt hacking blows on my head with the help of 'dao' and Nripendra Debnath also dealt hacking blows on my head with the help of 'dao'. Thereafter, the accused lost his senses. On the next date at 6.45 a.m. an FIR was lodged in the police station. Subsequently the injured was taken to Silchar Medical College Hospital, where the injured succumbed to the injuries sustained by him, in the incident. 3. On the basis of the FIR so lodged, a case was registered and investigation was launched. The Investigating Officer also utilized the services of tracking Dog, during the investigation of the case to identify the accused persons, involved in the commission of offence. 4. On completion of the investigation, the Investigating Officer submitted charge-sheet alleging commission of offence under Section 302/34, IPC, against the accused/ appellants. The Investigating Officer also utilized the services of tracking Dog, during the investigation of the case to identify the accused persons, involved in the commission of offence. 4. On completion of the investigation, the Investigating Officer submitted charge-sheet alleging commission of offence under Section 302/34, IPC, against the accused/ appellants. The case was committed to the Court of Sessions for trial. 5. The learned Sessions Judge, framed charge under Section 302/34, IPC against the accused/appellants. On reading over and explaining the charges aforesaid, the accused persons pleaded not guilty and claimed to be tried. 6. In the course of trial, the prosecution examined as many as 24 witnesses to establish the charge against the accused/appellants. On conclusion of the recording of the prosecution evidence, the statements of the accused persons were recorded in terms of provision of Section 313, Cr PC. In their statement under Section 313, Cr PC, both the accused pleaded not guilty and took the stand of total denial. The accused appellants did not come forward to adduce evidence in their defence. On conclusion of the hearing, the learned Sessions Judge convicted and sentenced the accused persons as aforesaid, giving rise to this appeal. 7. I have heard Mr. P. Roy Barman, learned counsel for the appellants and Mr. A. Gosh, learned Addl. Public Prosecutor, Tripura. 8. Mr. Barman, learned Counsel for the appellant submitted that there were no eye-witness to the occurrence and the only eye-witnesses, PW 1, Mahim Debnath, who reportedly witnessed the accused persons fleeing away from the place of occurrence after the commission of offence, was not relied upon by the trial Court, since his evidence was not found to have been corroborated by the other witnesses, who were present at the place of occurrence. According to the learned counsel for the appellant, the dying declaration made by the deceased cannot be relied upon since the independent witnesses, who were present at the time of making of the dying declaration by the deceased, did not corroborate each other with regard to the cause of death spelt out by the deceased before his death. According to the learned counsel for the appellant, the dying declaration made by the deceased cannot be relied upon since the independent witnesses, who were present at the time of making of the dying declaration by the deceased, did not corroborate each other with regard to the cause of death spelt out by the deceased before his death. Learned counsel for the appellants further submitted that according to the witnesses, the deceased was taken in an Auto rickshaw to the hospital, in an unconscious state and the dying declaration was made when the deceased reportedly gained senses, briefly only to tell the names of the assailants and thereafter the deceased had lost his senses and never regained it again. Further, it has been also pointed out that the witnesses, PW 1, PW 7 and PW 12, who heard the deceased making the dying declaration did not corroborate each other in respect of the sequence of events narrated by the deceased before his death, whereas the version recorded in the FIR is different. Learned counsel for the appellants also pointed out that the dog tracking evidence adduced by the prosecution is totally not reliable since it is a weak piece of evidence and more than that no 'Panchanama' was neither prepared before the deployment of dog nor during the tracking by the dog handler, which is contrary to the decision of the requirement of procedure reiterated by the Apex Court in Abdul Rajak Murtaja Dafeadar v. State of Maharashtra, 1969 (2) SCC 234 : AIR 1970 SC 283 . 9. In reply to the above submission, Mr. Gosh, learned PP has submitted that by proving the dying declaration the prosecution side has clearly established beyond all reasonable doubt that the accused/appellants committed the offence alleged against them. Therefore, the impugned judgment and order of conviction passed by the trial Court do not call for any interference by this Court. 10. In order to appreciate the evidence of the witnesses, it would be in fitness of things to analyze the core of the prosecution evidence, which is relevant for the purpose of deciding the issues raised in this appeal. 11. 10. In order to appreciate the evidence of the witnesses, it would be in fitness of things to analyze the core of the prosecution evidence, which is relevant for the purpose of deciding the issues raised in this appeal. 11. PW 1, Mahim Debnath, who had accompanied the injured deceased Prabar stated in his deposition stated that when the injured deceased was taken to RGM hospital in the Auto rickshaw, the injured deceased told that Nripendra and Shankar had assaulted him and cut him. 12. Evidence of PW 7, Ranjan Debnath, who accompanied the injured deceased Prabar stated in his deposition that when the injured deceased was taken to RGM hospital in the Auto-rickshaw, the victim had no senses. However, in the Auto-rickshaw the injured deceased briefly regained senses and on their asking he told that Nripendra and Shankar had assaulted Mm. However, the deceased, immediately thereafter lost his senses. 13. Swapan Debnath, PW 12, who accompanied the injured deceased also heard the deceased making the dying declaration. PW 12 deposed that Prabar regained his senses and on their asking he told them that when he was returning from the shop Nripendra and Shankar had assaulted him. 14. PW 13, Bidhu Malakar, the Auto rickshaw driver, who was carrying the injured deceased in his auto, stated clearly in his deposition that he did not hear the injured had responded or told anything about the incident. However, subsequently, he was informed by Mahim (PW 1) and Swapan (PW 12) about the response given by the deceased Prabar, when the injured had regained his senses. 15. Apparently, the injured deceased did not have senses when he was carried in the auto-rickshaw to the hospital. However, it appears from the evidence of the witnesses that the he had regained his senses only to spell out the names of the assailants. Further, the evidence of the witnesses regarding his dying declaration do not reproduce the exact words of the deceased. According, to PW 12, the injured deceased has told that when he was returning home from his shop, Nripendra and Shankar had assaulted him. However, according to PW 7, the injured had simply told that Nripendra and Shankar had assaulted him. Very surprisingly, the FIR (Ext. According, to PW 12, the injured deceased has told that when he was returning home from his shop, Nripendra and Shankar had assaulted him. However, according to PW 7, the injured had simply told that Nripendra and Shankar had assaulted him. Very surprisingly, the FIR (Ext. 1) lodged by PW 1, clearly depicts that the injured had told him, as follows : Shankar Debnath and Nripendra Debnath apprehended me in front of the house of Nripendra. At that moment Shankar had a 'dao' (sharp cutting weapon) in his hand. In this condition out of fear of life I entered the house of Tarani Debnath by running and knocked the door saying save (me), save (me). At that time Shankar Debnath dealt hacking blows on my head with the help of 'dao and Nipendra Debnath also dealt hacking blows on my head with the help to 'dao'. 16. Therefore, there is inconsistency in the statement of witnesses of PW 1, PW 7, PW 12 and PW 13 regarding the exact words used by the deceased, while making the dying declaration. The version of the deceased before death as depicted in the FIR appears to be different. As a matter of facts, the Hon'ble Apex Court has time and again reiterated that the dying declaration itself can be treated as substantive piece of evidence and can be relied on as a basis to convict the assailants even in the absence of any corroboration, provided the same inspires confidence of the Court and it is true and trustworthy. Therefore, the dying declaration to be acceptable, it has to be reliable and trustworthy. Before such dying declaration is accepted, as the basis of conviction of the accused, such declaration should be reliable without any suspicion about the veracity of the statements so made by the witnesses. Moreso, when such declaration is claimed to have been made without any medical certificate of the capability of the victim to speak, it would not be safe to rely on such dying declaration. 17. Admittedly, in the present case, the deceased regained his senses just for few moments, as if, only to make the dying declaration. Therefore, it is again doubtful whether the deceased was in sound state of mind, while making such dying declaration. 17. Admittedly, in the present case, the deceased regained his senses just for few moments, as if, only to make the dying declaration. Therefore, it is again doubtful whether the deceased was in sound state of mind, while making such dying declaration. The possibility of the injured deceased being in a state of delirium cannot be ruled out, since there is medical evidence regarding the state of health, both mental and physical, of the deceased at the time of making such dying declaration. 18. In the case of Varikuppal Srinivas v. State of A.P., AIR 2009 SC 1487 , the Hon'ble Supreme Court has clearly pointed out that though dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be, this is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting, or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 19. The relevant extract of the decision in Varikuppal Srinivas v. State of Andhra Pradesh, (supra), is given below :- 11. This is a case where the basis of conviction of the accused by the trial Court was the dying declarations. 9... The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination ar dispensed with. 9... The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination ar dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. 10. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat, SCC pp. 480-81, paras 18-19). (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P., 1976 (3) SCC 104 : 1976 SCC (Cri) 376 : 1976 (2) SCR 764 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See Munnu Raja v. State of M.P., 1976 (3) SCC 104 : 1976 SCC (Cri) 376 : 1976 (2) SCR 764 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav, 1985 (1) SCC 552 : 1985 SCC (Cri) 127: AIR 1985 SC 416 ) and Ramawati Devi v. State of Bihar, 1983 (1) SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164 ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor, 1976 (3) SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994 ). (iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P., 1974 (4) SCC 264 : 1974 SCC (Cri) 426). (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., 1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021 ). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P., 1981 (2) SCC 654 : 1981 SCC (Cri) 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617 ). (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769: 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ). (ix) Normally the Court in order of satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769: 1979 SCC (Cri) 519 : AIR 1979 SC 1505 ). (ix) Normally the Court in order of satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P., 1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912 ). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan, 1989 (3) SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519 ). (xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra, 1982 (1) SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839 ) (See Mohan Lal v. State of Haryana, 2007 (9) SCC 151 : 2007 (3) SCC (Cri) 94 SCC pp. 153-55, paras 9-10). The occurrence of the instant case took place in the dead of night, apparently not in a house or a room. These factors again create a doubts as to how the deceased could see the accused/appellants assaulting him in darkness. 20. From the above discussion, it appears that the dying declaration made before the witnessed by the injured deceased, cannot be said to be fully reliable and trustworthy. More so, the injured being in a state of delirium and confusion, cannot be ruled out, while he was carried to the hospital in the auto-rickshaw by the witnesses. 21. PW 3, Nripendra Debnath, who witnessed the dog tacking evidence deposed that the dog was deployed, for the purpose of tracking after taking smell of blood from the verandah of Tarani Debnath. 21. PW 3, Nripendra Debnath, who witnessed the dog tacking evidence deposed that the dog was deployed, for the purpose of tracking after taking smell of blood from the verandah of Tarani Debnath. The tracking dog, thereafter ran towards the jungle and detected a wooden file along with a pair of 'chappal' and proceed to the house of accused Nripendra and entered into his bed room. The 'Venda' which was found in the jungle fitted with the door of the bed room of Nripendra. At that time, father of the Nripendra told that 'Venda' was made by Mm and sandal was owned by Nripendra. However, father of Nripendra was never examined as a witness to identify the 'Venda' and 'chappal', who in fact had identified the seized items, according to the witnesses. 22. PW 5, Md. Rajab Ali, saw the dog tracking by the dog handler and he deposed that the dog after finding out the 'chappal' and 'Venda' from the jungle proceeded to the house of accused Nirpendra and thereafter went to the house of accused Shankar and one 'dao' was recovered and seized from the bed room of Shankar. 23. PW 6, Chinta Deb, who also witnessed the dog tracking, deposed that he was present at the time of recovery of 'dao' from the house of Shankar Debnath and took the smell of blood stain from the verandah. Then the dog proceeded to the nearby jungle and discovered one 'Venda' and a pair of 'hawai chappal' and again proceeded to the house of Nripendra Debnath and then to the house of Shankar Debnath. 24. PW 18, Sudip Kumar Dey, the dog-handler deposed that he saw blood stain in the verandah of Tarani Debnath. When the trained dog took the smell of blood, they released the dog and followed it. The dog ran towards the nearby jungle and discovered one wooden file from the jungle and a pair of 'hawai chappal'. Police seized the 'chappal' and wooden file. Then the dog entered into the room of accused Nripendra and the wooden file discovered by the dog fitted with the angles of the door as 'Venda'. Then the dog entered into the house of accused Shankar Debnath and discovered one 'dao' beneath the bed. 25. PW 19, Santosh Das, another dog handler also reiterated the same facts as narrated by the PW 18. 26. Then the dog entered into the house of accused Shankar Debnath and discovered one 'dao' beneath the bed. 25. PW 19, Santosh Das, another dog handler also reiterated the same facts as narrated by the PW 18. 26. Admittedly, the blood found at the place of occurrence and the items discovered by the tracking dog, were not sent for serological test to the Forensic Science Laboratory. There was no effort to find any fingerprints in any of the items discovered by the tracking dog. 27. The Hon'ble the Supreme Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra, 1969 (2) SCC 234 , observed that dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever one has thought processes there is always the risk of error, deception and even self-deception. For these reasons the Hon'ble Supreme Court was of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight. 28. In Dinesh Borthakur v. State of Assam, AIR 2008 SC 2205 , the Apex Court reiterated the weakness of evidence of dog tracking and observed as follows : 38. The mainstay of the prosecution case is the evidence of PW 6, PW 8, PW 9 and PW 13 who testified about the sniffer dog's staying near the accused and the reaction of the accused was not natural as he did not exhibit his emotion or sadness despite the fact that a shocking incident had occurred. So far as the evidence relating to the reaction of sniffer dog is concerned, this Court in Abdul Rajak Murtaja Dafeadar v. State of Maharashtra, 1969 (2) SCC 234 , stated the law, thus : "There are three objections which are usually advanced against reception of the evidence of dog tracking. First since it is manifest that the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dog's human companion must go into the box and the report the dog's evidence and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inference. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inference. Yet again in Gade Lakshmi Mangaraju alias Ramesh v. State of A.P., 2001 (6) SCC 205 , this Court opined : There are inherent frailties in the evidence based on sniffer or tracker dog. The possibility of an error on the part of the dog or its master is the first among them. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is the fact that from scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Investigation exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them. 39. The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused. 29. A Division Bench of this Court in the case of Sabur Ali Mandal v. State of Assam, 1996 (3) GLR 311, observed as follows : 4. Now taking up the dog tracking evidence first, the Supreme Court had occasion to consider the same in Abdul Razak Murtaza Dafadar v. State of Maharashtra, AIR 1970 SC 283 and declined to give any concluded opinion on dog tracking and its admissibility. In Jit Singh v. State of Punjab, 1988 Crl LJ 39, the evidence of the dog in tracing the rod was rejected because there was no evidence to show whether the dog was earlier taken to the scenting points and as has been observed by the Supreme Court in Abdul Razak's case (supra), even if this evidence is taken as admissible yet, it is not ordinarily of much weight. The learned trial Judge while dealing with the dog tracking evidence has not taken into consideration the inherent pitfalls involved in the relying upon such a piece of evidence. 30. The learned trial Judge while dealing with the dog tracking evidence has not taken into consideration the inherent pitfalls involved in the relying upon such a piece of evidence. 30. Very surprisingly, the blood stain which the dog smelt before tracking the weapons of assault was not sent for serological test to the Forensic Science Laboratory, to ascertain with certainty, whether the blood found in the verandah of Tarani was human blood, for that matter, it was the blood of the deceased? Neither the 'chappal' nor the wooden 'Venda' nor the 'dao', which were seized by the police were sent for serological test to ascertain, if at all these were alleged weapons of assault and/or the same were smeared with human blood. In the absence of such scientific examination, it cannot be said to have been established by the prosecution that the 'Venda' and the pair of 'chappal' or 'dao', were in fact used by the accused/appellants, at the time of commission of offence. Moreso, no witness was examined to prove the wooden 'Venda' and 'Chappal' belonged to the accused/appellants. 31. No fingerprints on the seized 'dao' or 'Venda' was obtained by the investigating agency to find out whether the accused persons happened to hold the 'Venda' or used the 'chappal' or 'dao', tracked by the sniffer dog. 32. From the above analysis, it can be safely concluded that it is a settled law that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused. 33. Learned counsel for the appellant rightly pointed out that the trial Court has also observed, and rightly so, that the nature of injuries sustained by the deceased cannot be related to the injuries caused by sharp edge of 'dao', since all the injuries sustained by the deceased were lacerated injuries. On the top of it, the prosecution miserably failed to connect the 'dao' or 'Venda' as the weapons of offence used by the accused persons. 34. Mr. A. Gosh, learned Addl. PP vehemently submits that the place of occurrence is outside the residence of Tarani Debnath, PW 2. Very interestingly, in the cross-examination PW 2, Tarani Debnath admitted to have told about the electric light in his veranda for the first time in the Court. 34. Mr. A. Gosh, learned Addl. PP vehemently submits that the place of occurrence is outside the residence of Tarani Debnath, PW 2. Very interestingly, in the cross-examination PW 2, Tarani Debnath admitted to have told about the electric light in his veranda for the first time in the Court. PW 2 admitted to have told earlier before the Investigating Officer that he had used a torch light to see the injured in the veranda. Thus evidence of PW 2, established that outside of his residence was not well lit with light to enable one to see and identify the accused persons in the night. Therefore, it is again doubtful as to how the deceased could have seen the accused in the dead of night to identify them and relate their names to the witnesses in his dying declaration. 35. Relying on the evidence of PW 1, PW 12 and PW 13, learned Addl. PP submitted that the dying declaration made by the deceased can be relied upon to hold the accused appellants guilty of the offence alleged against them. In support of his contention, learned PP relied on a decision rendered in Bishram and other v. State of M.P., 1993 Cri LJ 304, submitted that possibility of false implication can be ruled out and the evidence of witnesses can be relied on. However, in the case of Bishram (supra) the victim was conscious at the time when he was found by the witnesses, but in the instant case, the victim regained senses for a brief period, as if, only to spell out the names of the assailants. Moreso, the version of the witnesses, do not corroborate each other and the version depicted in FIR (Exht. 1) is different. On the top it, there is no evidence on record that the deceased was in fit mental state to make the dying declaration. 36. Considering the entire facts and circumstances of the case, as discussed above, I am of the considered view that the prosecution could not establish the charges levelled against the accused/appellants beyond all reasonable doubt and accordingly, the accused/appellants are entitled to benefit of doubt. 37. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence, is hereby set aside. 37. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence, is hereby set aside. The appellants are acquitted from the charges under Section 304, Part II, IPC levelled against them and they are directed to be set at liberty forthwith, if they are not required in any other case. Send back the lower Court records, forthwith along with a copy of this judgment. Appeal allowed.